Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, August 29, 2016

Is Rep. Brat's proposed Religious FIRE Act unconstitutional?

My Congressman, Dave Brat (R), recently introduced a bill that prohibits certain foreign nationals from making "any expenditure in the United States to promote a religion." I haven't seen much discussion or analysis, but the bill seems plainly unconstitutional because it discriminates against religion and is a content-based speech restriction that would fail strict scrutiny. Am I missing something? Here's a quick analysis:

Continue reading

August 29, 2016 | Permalink

"Public Faith: A Christian Voice for the Common Good"

Some thoughtful and committed folks, mostly younger evangelicals, have announced this venture and issued a vision statement responding to our current situation, which they describe as follows:

In the midst of another divisive election and a political culture that thrives off of conflict, many Christians and other Americans are tempted to check out and claim the posture of a conscientious objector or to dig in for even greater political hostilities. We believe that neither political withdrawal nor reinvigorated culture wars by Christians will help our nation and communities through the difficult challenges we face.

The headings in the statement include (A) "Pluralism and 21st-Century Religious Freedom"; (B) "Poverty, Stewardship, and Caring for the Most Vulnerable"; and (C) "Strengthening Families and Reducing Abortion."

Check it out.

August 29, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Sunday, August 28, 2016

"Progressives Embrace Religious Liberty to Defend Social Action"

Religion News Service, through Crux, reports the shocking news. Progressive churches and social service ministries sometimes run up against legal regulations that prevent them from serving others, and they sometimes seek exemptions--including under those awful state religious-freedom statutes. They sometimes even do it when their work could cause "third-party effects," for example on homeowners in the neighborhood of a homeless shelter or food pantry. Who would've thunk it?

This is a reminder, as I've argued here, that religious freedom is for everyone, and deserves support from progressives and moderates as well as conservatives.

August 28, 2016 in Berg, Thomas, Current Affairs | Permalink

Thursday, August 25, 2016

"What Became of the Christian Intellectuals?"

Today, while in Boston visiting potential colleges with our son, we toured the JFK Presidential Museum. It's fascinating set of exhibits with artifacts, news footage, audio interviews, letters, etc.--well worth an afternoon when you're in town. One artifact was a marked-up invitation list for a 1962 White House state dinner honoring Andre Malraux, then France's Minister of Cultural Affairs. Here's the first page of the list:

JFK Museum - Dinner Invite List

They would have been decent table company, no? (I'll take the list as an official White House recognition that Murray and Niebuhr, as I've argued, should go together--even if the Niebuhrs for whatever reason were crossed off this dinner.)

So I came back to our B&B thinking about the decline in public prominence of Christian intellectuals in America since 1962, and a friend pointed me to Alan Jacobs' new essay in Harper's--subtitled "What Became of the Christian Intellectuals?" Unsurprisingly with Jacobs, it's a great read. Here's a taste of his explanation (which, in full, touches on the careers of, among others, T.S. Eliot, Maritain, Niebuhr, Auden, Richard Neuhaus, Cornel West, and Marilynne Robinson): 

It was the Sixties that changed everything, and not primarily because of the Vietnam War or the cause of civil rights. There were many Christians on both sides of those divides. The primary conflict was over the sexual revolution and the changes in the American legal system that accompanied it: changes in divorce law, for instance, but especially in abortion law. (Many Christians supported and continue to support abortion rights, of course; but abortion is rarely if ever the central, faith-defining issue for them that it often is for those in the pro-life camp.) By the time these changes happened and Christian intellectuals found themselves suddenly outside the circles of power, no longer at the head table of liberalism, Christians had built up sufficient institutional stability and financial resourcefulness to be able to create their own subaltern counterpublics. And this temptation proved irresistible. As Marilynne Robinson has rightly said in reflecting on the agitation she can create by calling herself a Christian, “This is a gauge of the degree to which the right has colonized the word and also of the degree to which the center and left have capitulated, have surrendered the word and also the identity.” 

As they say, read the whole thing.

August 25, 2016 in Berg, Thomas, Religion | Permalink

Law and Tradition in America: My Reply

I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Fund blog. It is the last in this series, and I've enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson's challenging remarks:

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.


August 25, 2016 in DeGirolami, Marc | Permalink

Alan Noble on Protecting Religious Colleges, with Sympathy for LGBT Students

Alan Noble, a professor at Oklahoma Baptist University, responds to the welcome dropping of the onerous proposed regulations on religious colleges in California. He notes that the issue will surely return, perhaps as soon as next year. The way forward, he argues, is to preserve the freedom of religious (among other) colleges to maintain their thick identity through policies on student conduct, while making sure that LGBT students have notice of policies that will affect them and also have the ability to exit the college and attend elsewhere without severe cost. Along the way he explains in concrete terms why the colleges' freedom matters and should be protected, why LGBT students may face difficulties that call for a sympathetic response, and why the Bob Jones model of handling the problem--strip the colleges of tax exemption--while perhaps appropriate for the situation of race discrimination, is inappropriate for this situation. A small sample of the arguments:

If [other] students were prohibited from using their government aid at these religious schools, [as a sanction for the schools' policies,] the consequences would be severe for these communities. But the policy would also represent a weakening of the U.S.’s commitment to support dissenting views. Religious schools offer public benefit with the education they provide, but also in their cultivation of thick beliefs that may differ from public orthodoxy....

     No response to these scenarios can erase all the conflicts and heartbreak between students, families, and academic communities, but through a model of communication, mutual respect, and dignity, schools can create a healthier environment for everyone....

     ... By increasing transparency about Title IX exemptions and codes of conduct, easing the transfer process for students who cannot abide by the codes of conduct, and taking a strict stance on bullying and abuse, religious schools can retain their distinctive mission while protecting students.

One need not agree with everything in this piece, and the details about disclosure/notice and exit can matter a lot. But overall, IMO, the piece is a good example of how to argue for the freedom of colleges and other religious nonprofits, in the face of current challenges, in a way that is most likely to convince those in the middle who are open to persuasion.

August 25, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, August 24, 2016

"This was the funeral of a great and good man who had spent a life worthy of praise and imitation."

Mike Barnicle's write-up of the life and funeral of John Timoney is just as he describes the remembrances offered at it: "true, telling, and to the point." The opening paragraphs: 

Up on the fourth floor of the Frank E. Campbell Funeral Home on Madison Avenue, there were at least 300 stories standing in a long line that had formed by 2:30 on Monday, a soft, summer day in Manhattan. The stories were told mostly by men who worked for, with or alongside a magnificent and honorable policeman named John Timoney who was claimed by cancer at the age of 68 a few days earlier and now lay in wake as hundreds lined the sidewalk outside waiting patiently to pay their respects.

John Timoney was a sentinel of the city. And his life, his accomplishments and his very demeanor stand as a vivid antidote to the toxic behavior of another man from New York City who manages to incite a fear of the future by constantly hinting or even claiming that America is being stolen by some who do not belong here or rigged by some others in political power.

August 24, 2016 | Permalink

More on Gushee, "middle ground", and dishonesty

A reader called my attention to this piece, from Mere Orthodoxy, which also responds to the David Gushee column I linked to yesterday.  It's dead-on, bracing stuff. Again:  those who fret about "culture warriors", "culture-war rhetoric", etc., while imagining or pretending that the aggression in that "war" isn't coming from progressive and intolerant egalitarians, are, well, mistaken.  Here's a bit:

The trouble here is that [Gushee's account] completely misrepresents what is actually happening. What we are witnessing is the triumph of one understanding of reality over another. As I noted last week, market-enabled, government-backed individualism is ascendant; Christianity is in decline.

This transformation will have wide-reaching social consequences that extend well beyond the redefinition of marriage to accommodate same-sex couples and give them access to legal benefits enjoyed by married couples. Again, you can argue that this is a good thing. Many will. And that’s fine. I’d prefer it, actually. But let’s be clear on this point: We aren’t witnessing a transformation effected by an objective, impersonal force called “progress” in which entrenched social conservatives are acting to oppose it. We are witnessing a conflict between two groups with rival conceptions of reality that are incompatible on certain key points. That is the story here even though you’d never guess it from Gushee’s remarkably dishonest account.

And here’s the thing: If we’re honest about the fact of the conflict playing out in front of us, we can be honest about the stakes of the debate, which are enormous: Either we are completely autonomous, self-defining human individuals and the government has an obligation to protect our right to self-definition or we enter into a world given to us in a certain condition, shaped by certain factors outside our control, and filled with norms, rules, and laws we are powerless to change and can only submit to. Gushee’s attempts to obscure this fact do nothing to change it.

August 24, 2016 in Garnett, Rick | Permalink

Tuesday, August 23, 2016

David Gushee's candor about the shrinking "middle ground"

It is sometimes said that concerns about threats to religious freedom, properly understood, in America are overstated, or partisan, or part of a misguided "culture war" mentality.  Of course, the threats and persecutions faced by many religious believers in many other places are far more grave.  Still, those who imagine that religious freedom doesn't face challenges, even threats, here in the United States, are seriously mistaken.

This piece by David Gushee is refreshingly candid, and discusses the dynamic that I'm talking about.  The only way it can be the case that religious freedom is not threatened by the developments he describes, anticipates, and welcomes is if "religious freedom" is (mis)defined so as to include only the religious freedom of those who share Gushee's views.  

August 23, 2016 in Garnett, Rick | Permalink

Sunday, August 21, 2016

A wonderful picture of the young Saint Pope John Paul II

Pope and chucks

August 21, 2016 in Garnett, Rick | Permalink

To resist legal suicide, build communities

Here is a very thoughtful piece at Crux by my former Notre Dame Law School student, Laura Wolk.  (Keep an eye out for her work; she's going to do great things.)  A bit:

[D]egrading isolation characterizes the lives of myriad disabled persons. So many live either confined and neglected in homes and institutions, or walk among us laboring under the weight of unfathomable loneliness.

I am not surprised, then, that along with desires to control death and avoid pain, data show that fears about decreasing independence, becoming a physical burden, andlosing the  ability to participate in meaningful life activities can motivate a person’s decision to seek physician-assisted suicide.

At bottom, these factors reflect the widespread, internalized belief that living with a disability means experiencing life sequestered from society, destined to live out one’s days as the perpetual and helpless recipient of unilateral beneficence.

Christians can allay these fears only by changing the cultural assumptions surrounding disability. We must use our lives to testify that independence and dependence take multiple forms, and that the financial costs of disability can never outweigh the richness of a life fully and joyfully lived.

But to do this, we must also try harder to draw our disabled brothers and sisters-especially those deeply or completely isolated from human fellowship-into our communities.

August 21, 2016 in Garnett, Rick | Permalink

Friday, August 19, 2016

A Challenge To My Fellow Evangelicals

That's the title of a piece today in the New York Times (online edition) by Deborah Fikes, who previously served as a board member of the National Association of Evangelicals and as the Executive Advisor to the World Evangelical Alliance.  She holds a graduate degree in international law from Oxford University.  I think many MOJ readers will be interested in what Ms. Fikes has to say (here).

August 19, 2016 in Perry, Michael | Permalink

Stoner's Response, "Legal Realism, Legal Revolution"

The final response to my essay on law and tradition has been posted over at Liberty Law, and it is superb: Professor James Tradition ProjectStoner's Legal Realism, Legal Revolution. Jim's work has been formative for my own learning about the relationship of the common law tradition and American constitutionalism--and in particular about the erroneous and all-too-common characterization of constitutional law as "judge-made law." It's wonderful to have his contribution. A bit from the end of Jim's piece:

Just a little over two months after praising Americans for discarding a “blind veneration” of legal tradition, Madison wrote a most interesting passage in Federalist 49. In that February 2, 1788 essay he explained the need for the Constitution to earn what I infer must be enlightened “veneration” (he repeats the noun, without an adjective) from the people. This would come over time, as the system established by the Constitution demonstrated its capacity to insure good government. I think Madison had in mind a respect that inclines people to work within the system to seek improvements, and an inclination to wonder whether even what appear to the most agitated of us to be “stupidities” or “rigging,” might not have a reasonable purpose, even if that purpose has come to be overlooked or forgotten.

“In a nation of philosophers,” he continued, “this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of enlightened reason. But a nation of philosophers is as little to be expected, as the philosophical race of kings wished for by Plato.” The impossibility of such a nation, moreover, is not accidental, but somehow essential, if the limits of human reason are understood. As Madison explains a few papers later, “Had every Athenian citizen had been a Socrates, every Athenian assembly would still have been a mob.”

DeGirolami seems right on point in describing the anti-traditionalism of the legal academy today and, since this has been the case for more than a generation, of the bar and bench that they have trained. The thirst for novelty, driven by academic practices that ultimately imitate the natural sciences without showing anything like scientific progress, except perhaps to partisans of dominant opinion, has corrupted the respect for tradition that once imbued the law and that—let me repeat by way of emphasis—made possible genuinely successful reform.

Perhaps, as DeGirolami hopes, something can be salvaged of the common law tradition, in its new guise as “judicial process,” to guide pragmatic reformers who don’t want to scrape their shins on the furniture—even if the brightest and most ambitious eschew Holmes’ path of “profound interstitial change” in favor of openly promoting causes they think noble. I confess to being a bit skeptical that tradition can be recovered as a formal category and an independent good apart from the actual, concrete tradition of common law and constitutionalism which we inherited, developed, and now seem eager to spend down. I doubt, too, whether that tradition could be restored unless the difficult philosophical work were done inside the law schools and outside of them—the work that would be needed to revive the thought, the experience, and even the faith in human reason out of which our tradition first emerged.

August 19, 2016 in DeGirolami, Marc | Permalink

Civil friendship and the 2016 election

Yesterday I read a Christian leader's commentary on the presidential election, but I had to stop when I came to his assertion that candidate X is "wrong on 100% of the issues" that matter to Christians.  This all-or-nothing take on candidates is hardly new ground for campaign strategists, but I'm struck by how deeply it has infiltrated the society at large, including Christians attempting to analyze the election through the lens of their faith.

The Compendium of the Social Doctrine of the Church addresses "civil friendship" as part of its teaching on the political community. (Para. 390)  The Church emphasizes the importance of civil friendship as "the most genuine actualization of the principle of fraternity, which is inseparable from that of freedom and equality," and entails "inner acceptance of the needs of others."   It is not part of the sphere of rights, which "is that of safeguarded interests, external respect, the protection of material goods and their distribution according to established rules."

In the current presidential campaign, we are focused, as we should be, primarily on how each candidate will impact the sphere of rights.  Nevertheless, the divisive and apocalyptic rhetoric of this political season cannot be easily separated from the viability of civil friendship in our country.  When each candidate is EVIL! EVIL! EVIL!, each candidate's supporters can only be understood as unable or unwilling to recognize or reject said evil. 

Does the rhetoric we deploy in an effort to ensure that Trump (or Clinton) is not President make it more difficult to cultivate the civil friendship that is more central to society's flourishing than a particular President's impact on the sphere of rights?  Relatedly, does this rhetoric make it more difficult to foster a culture of political cooperation that will be necessary come January when President Trump (or Clinton) will be tasked with leading the country?  Put differently, should the way we speak of the candidates aim toward our responsibilities as citizens come November 9, not simply our priorities as voters on November 8?

I'm not sure what this would look like, but I know we're not seeing much of it.  A few tentative thoughts on how we can better convey the respect and empathy on which civil friendship and responsible citizenship depend:

1) We should strive to praise the laudable traits and policy positions of the candidate we oppose, even as we criticize the traits and policy positions we abhor.

2) We should strive to be specific and substantive in our critiques of the candidate we oppose.

3) We should talk less about the candidates themselves, and more about the underlying issues that motivate our fellow citizens to support one candidate or the other.  (And yes, this year especially, for many Americans, Trump himself is a major motivation to support Clinton, and vice versa; but there are deeper concerns at play here too.)

Christians have strong opinions about the outcome of this election, as we should.  But we also have to ask ourselves, do we want to contribute to the likelihood that our country will flourish through the bonds of civil friendship and collaborative governance even if the candidate we have designated as EVIL! EVIL! EVIL! prevails?  If so, how should that change the nature and tone of our current political engagement? 

August 19, 2016 in Vischer, Rob | Permalink

"Bearing False Witness: Debunking Centuries of Anti-Catholic History"

Here is the new book by Rodney Stark.  The description:

As we all know and as many of our well established textbooks have argued for decades, the Inquisition was one of the most frightening and bloody chapters in Western history, Pope Pius XII was anti-Semitic and rightfully called “Hitler’s Pope,” the Dark Ages were a stunting of the progress of knowledge to be redeemed only by the secular spirit of the Enlightenment, and the religious Crusades were an early example of the rapacious Western thirst for riches and power. But what if these long held beliefs were all wrong?

In this stunning, powerful, and ultimately persuasive book, Rodney Stark, one of the most highly regarded sociologists of religion and bestselling author of The Rise of Christianity (HarperSanFrancisco 1997) argues that some of our most firmly held ideas about history, ideas that paint the Catholic Church in the least positive light are, in fact, fiction. Why have we held these wrongheaded ideas so strongly and for so long? And if our beliefs are wrong, what, in fact, is the truth?

In each chapter, Stark takes on a well-established anti-Catholic myth, gives a fascinating history of how each myth became the conventional wisdom, and presents a startling picture of the real truth. For example,

    • Instead of the Spanish Inquisition being an anomaly of torture and murder of innocent people persecuted for “imaginary” crimes such as witchcraft and blasphemy, Stark argues that not only did the Spanish Inquisition spill very little blood, but it was a major force in support of moderation and justice.
    • Instead of Pope Pius XII being apathetic or even helpful to the Nazi movement, such as to merit the title, “Hitler’s Pope,” Stark shows that the campaign to link Pope Pius XII to Hitler was initiated by the Soviet Union, presumably in hopes of neutralizing the Vatican in post-World War II affairs. Pope Pius XII was widely praised for his vigorous and devoted efforts to saving Jewish lives during the war.
    • Instead of the Dark Ages being understood as a millennium of ignorance and backwardness inspired by the Catholic Church’s power, Stark argues that the whole notion of the “Dark Ages” was an act of pride perpetuated by anti-religious intellectuals who were determined to claim that theirs was the era of “Enlightenment.”

In the end, readers will not only have a more accurate history of the Catholic Church, they will come to understand why it became unfairly maligned for so long. Bearing False Witness is a compelling and sobering account of how egotism and ideology often work together to give us a false truth.

Admittedly, he's shooting fish in a barrel, but still . . . it's important to shoot those fish.

August 19, 2016 in Garnett, Rick | Permalink

Wednesday, August 17, 2016

The perennial relevance of "Chariots of Fire"

I re-watched Chariots of Fire the other day, and was struck by a few lines and exchanges that seem particularly timely and relevant:

HRH Edward, Prince of Wales: There are times when we are asked to make sacrifices in the name of that loyalty. And without them our allegiance is worthless. As I see it, for you, this is such a time.

Eric Liddell: Sir, God knows I love my country. But I can't make that sacrifice.

. . . .

Lord Cadogan: Hear, hear. In my day it was King first and God after.

Duke of Sutherland: Yes, and the War To End Wars bitterly proved your point!

August 17, 2016 in Garnett, Rick | Permalink

Monday, August 15, 2016

Garnett on the upcoming Trinity Lutheran case

Here, thanks to the good people at SCOTUSblog, are some thoughts of mine about the upcoming Trinity Lutheran case -- another one that, I cannot help thinking, will turn out differently than in would have otherwise as a result of Justice Scalia's death.

I end with this:

Will any of the Justices examine or embrace the claim, advanced in the amicusbrief filed by the Lambda Legal Defense and Education Fund that the Constitution should be read to disallow government from cooperating, even through neutral programs, with religious organizations that “discriminate on the basis of religion and other grounds”? I have argued in academic writing that it is a mistaken oversimplification to equate invidious and irrational “discrimination” by governments with religious organizations’ efforts to operate in keeping with their religious teachings, character, and mission. The government, of course, may and should not discriminate on the basis of religion. However, there is not (or, at least, there should not be) anything objectionable about a religious school or social-welfare agency hiring for mission. Nor does the latter become objectionable, let alone unconstitutional, simply because the religious actor is cooperating with the government to do good works like feeding the hungry, caring for the sick, or educating the young. Unfortunately, some seem determined to wage an aggressive culture-war campaign that conflates religious commitments with “bigotry.” Will the Court resist, or enlist in, this effort?

“Separation of church and state” is an important idea. Correctly understood and reasonably implemented, it is a limit on government that protects religious freedom by preventing the government from corrupting religion or interfering in religious groups’ affairs. It does not require, though, and the Constitution’s neutrality principle should not permit, the pointless discrimination at issue in Trinity Lutheran Church.

August 15, 2016 in Garnett, Rick | Permalink

Levinson on Law and Tradition (a Skeptical View)

Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It's a pleasure and an honor to be in conversation with him. I'm already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson's essay:

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument....

Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline.  So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.

Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:

Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)

August 15, 2016 in DeGirolami, Marc | Permalink

Sunday, August 14, 2016

Olympics and St. Sebastian

Wow, what a week it has been with the Americans and the Olympics. In addition to all the victories, there have been such wonderful stories about determination, grit, overcoming obstacles…all the stuff of a great Olympics.

Interwoven among all these stories have been many stories about faith. Whether it is the coverage of American fencer Ibtihaj Muhammad being the first American athlete to wear the hijab, the ecumenical prayer service at the statue of Christ the Redeemer, or the presence of "an 'interreligious center' in full operation at the Olympic and Paralympic Village that will offer up spiritual and religious support for athletes of every faith and religion" – religion and faith seem to have a presence at the games.

Of course, we in Washington are most proud of Katie Ledecky whose deep Catholic faith is well known, as well as her affinity for her Catholic elementary school (Little Flower) and Sacred Heart education at Stone Ridge School of the Sacred Heart. Simone Biles, perhaps the greatest female gymnast to ever walk the earth, shares with Ledecky a strong commitment to her Catholic faith.

Is it coincidence that the greatest gymnast in history and the greatest female swimmer in the world also share a commitment to their Catholic faith? I will not go so far as some and suggest that Catholicism specifically or religion in general gives one an athletic edge. However, as young people continue to look to these athletes as role models, it is encouraging that so many of them - even the best in the world such as Biles and Ledecky - proudly incorporate into that role an unabashed celebration of their Catholic faith. Whether it is Ledecky's Hail Mary before every race, or Biles' prayer to St. Sebastian (patron saint of athletes), these athletes offer a counter narrative to the domestic violence, doping, and corruption scandals that so often plague sport.

August 14, 2016 | Permalink

Friday, August 12, 2016

Can Christians please stop relying on candidate scorecards?

Among the many, many downsides of the 2016 presidential election, one potential upside is the overdue demise of the candidate scorecard that has been popular in Christian circles since at least the early 1990s when Pat Robertson's Christian Coalition promoted them heavily.  The 2016 election brings their flaws into stark relief:

1) It is impossible to distill a candidate's character into a scorecard format.  Both candidates this year present character questions that are central to voters' evaluation of their candidacies to a degree that we have not seen in recent elections.  To imply, as the Family Research Council scorecard does, for example, that a Christian's choice should boil down to a list of questions such as, "Do you support or oppose the federal funding of embryo-destructive stem cell research?" misses the elephant in the room.

 2) Even when it comes to the issues themselves, a scorecard is often unhelpfully simplistic. Both Bill Clinton (1992) and Hillary Clinton (2016) support a constitutional right to abortion, but are there meaningful differences between the two on this issue that should matter to Christians?  How much should Donald Trump's support of religious liberty matter if he understands the primary threat today as the inability of pastors to endorse candidates?  Should a Christian ever be content to know whether a candidate "supports or opposes the repeal of Obamacare" without knowing what the candidate would offer in its place?

3) Scorecards do not capture the depth of commitment reflected in a candidate's past statements and actions.  It's easy to check a box.  It's much harder to expend the political capital necessary to push change on an issue, as we've seen with candidates on both sides of the aisle regarding issues that matter to Christians.

4) The scorecard approach prioritizes stand-alone issues over coherent governance.  Support deficit reduction? Great.  Support increased infrastructure spending? Super.  Support protection for Social Security?  Fine.  Now tell me how you're going to make all of it work together.  Being the President is complicated, requiring difficult trade-offs.  Christians have been too focused on a candidate's stance on particular issues, as opposed to more comprehensive (and admittedly messier) questions of how the pieces will fit together. 

5) The lineup of "Christian" issues that has populated scorecards since their introduction is increasingly narrow and short-sighted relative to the worldviews represented by the candidates and their platforms.  If this election represents a realignment, Christian voters are not being well served by the premise of scorecards -- that we can simply tally up the checked boxes on a few issues that we have cared about over many election cycles.

Issues matter (and I wish they mattered more in the current campaign) but they need to be analyzed in the context of the candidate's character, worldview, and track record.  We need more nuance, not less, and scorecards feed our culture's seemingly limitless appetite for easy, quick and categorical judgment.  When the 2016 election is mercifully behind us, I hope that scorecards are too.

August 12, 2016 in Vischer, Rob | Permalink

Thursday, August 11, 2016

Catholic Olympians

A little summer break from politics, anyone?  I offer this.

August 11, 2016 in Schiltz, Elizabeth | Permalink

Tuesday, August 9, 2016

Movsesian Interviews Reno About His Book, "Resurrecting the Idea of a Christian Society"

Very interesting interview by my colleague, Mark, about Rusty Reno's new book. Have a look. A bit from the q&a:

You call for “a national culture not dominated by Christians but leavened by them.” Could you say a little more about this? Isn’t there a danger that, in a Christian society, the voices of non-Christians would be excluded and their communities disvalued? Is a Christian society consistent with pluralism?

Reno: One of the great promises of secular progressivism is “inclusion.” The notion of diversity gets a great deal of play. But in actual fact our society today is far more policed than it has ever been, not just in the literal sense of cops on the street, but through groupthink and political correctness. So it seems that secular progressivism preaches pluralism but practices a kind of mono-cultural approach to public life.

The reason for the paradox is simple, I think. Without a transcendent orientation, secular progressivism makes a god of politics. Christianity, by contrast, recognizes that politics, while important, is not ultimate. Jesus said, “My kingdom is not of this world.” St. Augustine distinguished between the City of God and the city of man. For this reason, a Christian society can accommodate pluralism in a way that a supposedly neutral secularism can’t. The social consensus in a Christian society need not be final, as it were. It can be penultimate, and thus more open. Compare that with our current climate. The Obama administration seems unable to countenance any dissent from the sexual revolution. Everybody must participate in gay weddings! Everybody must participate in the contraceptive culture!

Finally, I’d like to say a word about Judaism, Islam, and other religions in contemporary America. For the last century the biggest threat to a Jewish parent trying to pass down his religion to his children has not been Christianity. It has been secularism. For every Jew who has been converted to Christianity there have been thousands upon thousands who have assimilated into our secular, materialist culture. For any believing Jew, the danger is conversion to the pagan religion of health, wealth, and pleasure, not Christianity. Reflective Jews and Muslims recognize this. Rabbi Jonathan Sacks has been quite explicit: a renewal of Christianity in the West would go a long way toward helping Jews sustain their own religious communities against the pagan idolatry of our time.


August 9, 2016 in DeGirolami, Marc | Permalink

Monday, August 8, 2016

Friedersdorf on Trump Appointments and Religious Liberty

At The Atlantic, Conor Friedersdorf argues that one can't trust Trump-appointed judges even on religious-liberty questions. Responding to Rod Dreher's argument that Trump would be only indifferent to religious liberty while Clinton would be actively hostile, Friedersdorf writes:

     The glaring flaw in this logic is that Trump is not, in fact, ambivalent about protecting the liberty of religious Americans, he is openly antagonistic to it––it’s just that he has singled out Muslim Americans rather than Catholics or Jews or Mormons.

     Dreher is blind to the degree to which their respective fates are tied.

     If Trump and the judges he appoints help local communities to prevent the construction of mosques, other zoning bodies will use the same precedents to rein in churches; an effort to ban headscarves could have implications for Sikhs and Jews; whether a Muslim cab driver is able to refuse passage to someone ferrying alcohol will bear on whether a Christian can decline to bake a cake for a gay marriage. It’s hard to anticipate exactly what controversies will arise in future years, or how the precedents set will be applied still farther in the future, but suffice it to say that any legal attack on one faith’s religious liberties threatens every faith.

I'm very sympathetic to the argument that religious-liberty claims stand and fall together. That's partly for the precedent-based reasons Friederdorf cites. And it's partly because I think judges and the public--at least those in the reachable middle, who in my view are always the key audience--will tend to be more sympathetic to any given religious-liberty claim in an atmosphere where all such claims are treated with respect, and conversely less sympathetic when religious-liberty claims are seen as special pleading for one's underlying views. I just gave a talk at BYU on why our current atmosphere of reaching for labels of "Muslims terrorists" and "Christian bigots" is unhealthy for religious liberty. In my view, Trump's inclinations are a part of that miasma.

At the same time, I have to be honest and say I don't think I'm persuaded by Friedersdorf if he is arguing that as a matter of pragmatic self-interest, conservative Christians should fear Trump just as much as Clinton. I don't want this to be a "Clinton vs. Trump" post (although I suppose it unavoidably has that element); I'm more interested in considerations about the dynamics of judicial protection of religious freedom. So here's why I think Friedersdorf's argument, while good in principle and in the long term, is not likely to convince religious conservatives in real-world terms now [ADDED FROM HERE]--if you start from the premise that Clinton judges will be unsympathetic to conservative Christian religious-liberty claims involving gay rights, abortion, etc.

First, Friedersdorf seems to assume that Trump-appointed judges will share Trump's personal authoritarian and anti-Muslim positions, [ADDED] which will then lead them to devalue religious liberty. But if his appointees are principled conservative judges, as are many on the recently released "short list," then they seem more likely to give consistent weight to religious-liberty claims, including those of Muslims. The stronger warning against Trump's likely pattern of appointments, it seems to me, is that there's no strong reason to assume he will be constrained by the short list, because he's shown so little inclination to be constrained by anything.

Second, the sequence Friedersdorf describes--"Trump judges first rule against Muslim claims, and then those rulings affect a case that comes along about about traditionalist sexual morality"--seems relatively unlikely. The likely order seems the opposite. For example, among the cases about objections to facilitation of allegedly-sinful behavior, there are many more disputes about wedding vendors and Catholic or evangelical colleges or social services than there are about Muslim cab drivers objecting to passengers with alcohol or checkout clerks objecting to ringing up pork. That's unsurprising given the relative number of Christian traditionalists and Muslims. The Christian-traditionalist cases seem more likely to come first. 

Finally, although I definitely think that religious liberty is strengthened for each claim by treating it as a powerful right for everyone, this effect is not conclusive: it's also true that there are factual differences in cases that allow judges to distinguish claims if they're strongly inclined to do so. If we assume that Trump appointees will want to target Muslims (which is questionable, see point #1 above, but let's assume it), they can likely find ways to distinguish the primary cases affecting traditionalist Christians. For example, more Muslim cases may involve government claims of national-security needs, as opposed to claims in the Christian-traditionalist cases about the need to combat discrimination.

In sum, while I think Friedersdorf's argument against Trump on religious liberty is right in principle, I'm unconvinced that he can make the case to religious traditionalists purely in terms of their own self-interest.

August 8, 2016 in Berg, Thomas, Current Affairs | Permalink

Bernstein, "The Courts and Tradition: A Begrudging Respect"

Professor David Bernstein (George Mason) has a thoughtful response to my essay on law and tradition. Here is a bit:

When it comes to American constitutional law, by the late 19th century there was widespread agreement on two principles: that when interpreting the Fourteenth Amendment, the Supreme Court’s role was to protect those natural rights that had been crucial to the development of Anglo-American liberty; and that the United States had an unwritten Constitution based on traditional principles, much like Great Britain’s, that informed constitutional analysis.[3]

For the most part, the Supreme Court justices of the pre-New Deal period did not engage in a jurisprudence of originalism that would be recognizable to modern advocates of originalism. Rather than focusing on the original public meaning of discrete portions of the text, they instead interpreted the Constitution in light of the classical liberal values they believed were embedded in America’s written and unwritten constitutions. They sought to protect those liberties that underpinned the development of Anglo-American liberty. Their Progressive critics recognized this as a form of originalism, and accused them of allowing the dead hand of the past to rule the present. The critics instead advocated a “living Constitution” that would privilege social science and the perceived needs of modernity over the protection of traditional American liberties.[4]

The old Court permitted the government to impinge on recognized liberties when the government was acting within the contours of the so-called police power. Importantly, that power included not simply the protection of public health and safety, but also the protection of public morals, as defined by Anglo-American tradition. For example, despite the Court’s endorsement of liberty of contract, it had no difficulty unanimously upholding a law that restricted work on Sundays.[5]

The Supreme Court’s concern for protecting natural rights as understood in the context of Anglo-American history did not survive the New Deal and the triumph of legal progressivism. That triumph was so complete that for a long time the only significant debate in American constitutionalism was in effect between old Progressives who wanted to severely limit judicial review, and new Progressives who agreed that judicial review should generally be limited, but who sought to carve out certain preferred freedoms for special judicial protection. These freedoms were not defined by reference to tradition or history, but by the need to ensure that the modern special-interest state had democratic legitimacy. As the American state-building project continued, it was considered crucial to ensure that freedom of speech allowed for public debate and input, that criminal suspects received federal procedural protections, and that minorities such as African Americans did not become a permanent underclass, with their status imposed by government.

August 8, 2016 in DeGirolami, Marc | Permalink

Friday, August 5, 2016

In Memoriam: Robert E. Rodes, Jr.

I've posted, at SSRN, a very short piece I did for the American Journal of Jurisprudence about my former colleague, Bob Rodes (R.I.P.)  And, if you want to learn more about Rodes's law-and-religion work (as I hope you do!), here's an essay of mine from about ten years ago, called "Pluralism, Dialogue, and Freedom:  Professor Robert Rodes and the Church-State Nexus."

August 5, 2016 in Garnett, Rick | Permalink