Friday, October 31, 2014
Jeremy Waldron has posted his paper, "Judicial Review and Judicial Supremacy". Here is the abstract:
This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary.
In my view, Waldron's critique (here and elsewhere) of certain versions and understandings of judicial review (i.e., the judicial-supremacy version) is important and powerful. I borrowed from his critique in this very short piece, "Judicial Enforcement of the Establishment Clause."
I was sorry to learn, from this piece, that some of the very best journalists covering the Supreme Court -- Bob Barnes, Tony Mauro, and Lyle Denniston -- appear to have lent their expertise and support to the tired (and unfair) complaint that the annual "Red Mass" in Washington D.C. is (in Mauro's words) a "regularized ritual" reflecting the fact that "[t]he Roman Catholic Church, maybe more than any other churches, has made a project of trying to impose its doctrine on the judiciary and other parts of the government.” [Note: I was happy to learn, via Twitter, from Mr. Mauro, that he was referencing someone else's views, and not endorsing this statement himself.] The Mass is a "ritual" of course, but the sentence about this alleged "project" is unfair, inflammatory, and unworthy, and traffics in some of the (to put it mildly) less-attractive themes in American history. To propose is not to impose, and to support the enactment of laws that one believes to be consonant with human rights, human dignity, and social justice -- that is, to, like the Catholic Church, advocate for immigration reform, social-welfare programs, an end to capital punishment . . . and religious freedom and legal protection for unborn children -- is not to "impose doctrine."
Another participant, CUA's Marshall Breger, said, with respect to the Hobby Lobby case, said "the notion that the Hobby Lobby owners could be implicit in a sin perpetrated by the company’s employees, in this case taking birth control, was probably rooted in Catholic doctrine." But, this "notion" was the belief asserted in the litigation by Hobby Lobby and their non-Catholic owners, the Greens. The Catholic justices did not posit or endorse the belief, but simply note that it was sincerely held and, as a result, RFRA requires careful scrutiny of government-imposed burdens on that belief. Nothing nefarious -- or even distinctly Catholic! -- about that.
Finally, Lyle Denniston -- whose coverage of the Court is, again, outstanding -- fell short of his usual standard when he said (assuming he is quoted accurately in the piece): “To accept the notion that a corporation, which is an artificial being, can have some manner of religious belief system transferred to it by its owners, aside from being pretty close to ludicrous, is highly debatable in terms of social philosophy." Actually, the notion is unremarkable and, in any event, this wasn't really the notion that the Court was asked to accept (see, e.g., pp. 20-25 of the Court's slip opinion). As Justice Alito explained, neither "corporate" status nor the profit motive categorically excludes a claimant from RFRA's protections. The question is not whether a corporation has a soul (as some have put it) but whether a law's application to a corporation can impose a substantial and unjustified burden on someone's religious exercise. And, as the Court explained, sometimes it can.
Wednesday, October 29, 2014
(From Tom Berg:) With oral argument approaching in the Supreme Court pregnancy discrimination case of Young v. United Parcel Service, UPS has announced that (as the Washington Post reports), "[S]tarting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well." The change in policy was announced to employees and in UPS's brief filed in the Court.
This is great news for UPS's female workers, those who are and those who will become pregnant. It also sends a high-profile message that accommodating pregnant workers is the just thing to do, especially when similar physical conditions stemming from (e.g.) on-the-job injuries are accommodated.
The Post reports that the brief of numerous pro-life organizations (which Lisa, Teresa Collett, and I helped draft) may have helped put pressure on UPS to change:
Young’s supporters say the UPS policy change comes as Young’s case has drawn increasing support from all across the political spectrum, including conservative groups opposed to abortion, like Americans United for Life, business groups, women’s groups, workers’ rights advocates and the left-leaning American Civil Liberties Union.
“This has been a public relations nightmare for UPS,” said Tom Spiggle, an employment attorney and author of a book on pregnancy discrimination, “You’re Pregnant? You’re Fired!”
This will not moot the Young case, because UPS still says its earlier denial of accommodation to Peggy Young was legal, and it's still defending against her damages claim.
Cross-posted at Whole Life Democrat)
I recently taught Tinker v. Des Moines Independent School District, the famous 1969 student speech case in which the Supreme Court held that the First Amendment protects the right of high school and junior high students to wear black armbands at school to protest the Vietnam War. There’s an odd reliance on precedent in a crucial passage of Tinker, though. Justice Fortas writes:
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.
The authority for this sweeping characterization of half a century of student free speech rights? In the next sentence, Justice Fortas cites Meyer v. Nebraska (and its companion case, Bartels v. Iowa), the 1923 case striking down a state statute prohibiting foreign language instruction (a legacy of anti-German prejudice amid World War I) on the grounds that the Fourteenth Amendment protects the liberty of parents and teachers. (In dissent, Justice Black—ordinarily a free speech absolutist, but not for students—rejects Meyer as a vestige of Lochnerism.) The more obvious (but more recent) cite for student free speech, West Virginia v. Barnette (1943), is part of a string citation later in the paragraph and is discussed more fully in the next paragraph.
I suppose this is as an effort by the Court in Tinker to claim a longer historical precedent for recognizing student free speech, but it’s also an interesting re-reading of Meyer itself, albeit one that engages in rank anachronism and revisionism. Meyer was decided roughly a couple decades before incorporation of the First Amendment against the states, so the Court in Tinker (post-incorporation) is implausibly turning Meyer into a speech case (Justice McReynolds’s opinion in Meyer never refers to the First Amendment or to freedom of speech). And while those discomfited by Fourteenth Amendment substantive due process might like to save Meyer (and Pierce v. Society of Sisters, decided a couple years later) now by turning them into free speech cases, there’s something cavalier about Justice Fortas’s anachronistic treatment of Meyer. And then there’s the fact that the defendant in Meyer was a German language teacher (not the student), and Justice McReynolds refers throughout to the rights of teachers and parents but only once to any “rights” of students (the statute “interferes…with the opportunities of pupils to acquire knowledge”).
A final note about the political currents underlying these cases. Tinker and Meyer are surely the most famous constitutional cases to come out of Iowa and Nebraska, and they reflect the two neighboring states’ different political climates. Tinker recognizes the rights of anti-war protesting students in Des Moines, Meyer recognizes the rights of traditional German-American communities in rural central Nebraska to be free of conformist state interference. Iowa is slightly more urban (relatively speaking for the Midwest) and Nebraska more rural (Iowa has nine non-suburban cities with over 50,000 people, Nebraska only three—and Grand Island only barely), reflecting the urban-rural difference between the claimants in Tinker and Meyer. Iowa has historically had more Anabaptists (there are large Amish and Mennonite communities around the Amana Colonies, for example) and liberal Protestants, including the father of the Tinker children (a Methodist minister and American Friends Service Committee member). Late ninteteenth- and early-twentieth century Nebraska had an influx of German (like the defendant in Meyer) and Eastern European Lutherans and Catholics, historically more conservative groups. And so in next week’s US Senate elections, while Ben Sasse coasts to election as a conservative Republican in Nebraska, next door in Iowa another conservative Republican, Joni Ernst—while slightly favored to win—is in a much closer race. It’s all there in the rich history of Tinker and Meyer.
Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:
1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.
2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.
3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.
It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps fairly neatly onto his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can't do better than Professor Stoner's work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term "establishment of religion" in the centuries before the Constitution's drafting (surely someone has).
Tuesday, October 28, 2014
The Liberty Law Talk podcasts hosted by Richard Reinsch are a wonderful resource (if you have an iPhone, you can subscribe via Apple’s podcasts app). A recent conversation with Roger Scruton was especially interesting and included the following--and typically insightful--comment from Scruton (transcribed from the recording beginning at 15:30):
I think my position is that you can’t detach what we are now from the history of our civilization, and the very fact that we have all these really remarkable ways of dealing with social conflict like the legal process, democratic process, and so on. The fact that we have those things is not to be understood as some kind of a priori invention. These are the byproducts of a civilization which was founded on something else. It was founded on a sacramental vision of what brings people together and the church has always exerted this control over people’s lives to remind them of this. It doesn’t do so anymore, of course, because we in many ways are in a post-Christian society but it...the Catholic Church made penitence into a sacrament and made the whole business of confession, accepting guilt, atoning for your faults, and begging for forgiveness--it made that into the fundamental religious experience, more fundamental than any other, and that worked its way into the legal system and the political system of the European states. You can certainly find it there in the law of tort in English common law and you can find it in everything until recently. I think we should always remember that we are downstream from this great spiritual inheritance.
Monday, October 27, 2014
Villanova hosted a noteworthy symposium recently on one of last term's major free speech cases, McCullen v. Coakley. Video of the event is available here, with remarks from Eleanor McCullen (lead plaintiff), Mark Rienzi (CUA and also Mrs. McCullen's counsel), Greg Magarian (Washington University-St. Louis), Carrie Severino (Judicial Crisis Network), and Kevin Walsh (Richmond). In addition to the significance of hearing directly from the plaintiff in such a case (as John Noonan long ago observed, we are apt to neglect the experience of actual, living persons behind a major case), the symposium was a rich conversation among participants who all (like the justices on the Court) basically agreed on the outcome of the case but for different reasons (and with different assessments of McCullen's long-term importance to such areas as public forum doctrine and content-neutrality analysis).
Saturday, October 25, 2014
John Gray has a long, superb essay on the subject (h/t L. Joseph), with scathingly acute criticisms of the modern sense in which evil is eminently conquerable through (of all things) politics, or really doesn’t exist, or must somehow be the result of somebody’s mistake, or could be cleared up as a simple matter confusion. Particularly keen are Gray’s comments about the way in which the old religious traditions offer certain insights on the matter, insights that are today largely either ignored or disbelieved. Read it all, including this:
It’s not that [most western leaders] are obsessed with evil. Rather, they don’t really believe in evil as an enduring reality in human life. If their feverish rhetoric means anything, it is that evil can be vanquished. In believing this, those who govern us at the present time reject a central insight of western religion, which is found also in Greek tragic drama and the work of the Roman historians: destructive human conflict is rooted in flaws within human beings themselves. In this old-fashioned understanding, evil is a propensity to destructive and self-destructive behaviour that is humanly universal. The restraints of morality exist to curb this innate human frailty; but morality is a fragile artifice that regularly breaks down. Dealing with evil requires an acceptance that it never goes away.
No view of things could be more alien at the present time. Whatever their position on the political spectrum, almost all of those who govern us hold to some version of the melioristic liberalism that is the west’s default creed, which teaches that human civilisation is advancing – however falteringly – to a point at which the worst forms of human destructiveness can be left behind. According to this view, evil, if any such thing exists, is not an inbuilt human flaw, but a product of defective social institutions, which can over time be permanently improved.
It’s in the Middle East, however, that the prevailing liberal worldview has proved most consistently misguided. At bottom, it may be western leaders’ inability to think outside this melioristic creed that accounts for their failure to learn from experience. After more than a decade of intensive bombing, backed up by massive ground force, the Taliban continue to control much of Afghanistan and appear to be regaining ground as the American-led mission is run down. Libya – through which a beaming David Cameron processed in triumph only three years ago, after the use of western air power to help topple Gaddafi – is now an anarchic hell-hole that no western leader could safely visit. One might think such experiences would be enough to deter governments from further exercises in regime change. But our leaders cannot admit the narrow limits of their power. They cannot accept that by removing one kind of evil they may succeed only in bringing about another – anarchy instead of tyranny, Islamist popular theocracy instead of secular dictatorship. They need a narrative of continuing advance if they are to preserve their sense of being able to act meaningfully in the world, so they are driven again and again to re-enact their past failures.
Many view these western interventions as no more than exercises in geopolitics. But a type of moral infantilism is no less important in explaining the persisting folly of western governments. Though it is clear that Isis cannot be permanently weakened as long as the war against Assad continues, this fact is ignored – and not only because a western-brokered peace deal that left Assad in power would be opposed by the Gulf states that have sided with jihadist forces in Syria. More fundamentally, any such deal would mean giving legitimacy to a regime that western governments have condemned as more evil than any conceivable alternative. In Syria, the actual alternatives are the survival in some form of Assad’s secular despotism, a radical Islamist regime or continuing war and anarchy. In the liberal political culture that prevails in the west, a public choice among these options is impossible.
There are some who think the very idea of evil is an obsolete relic of religion. For most secular thinkers, what has been defined as evil in the past is the expression of social ills that can in principle be remedied. But these same thinkers very often invoke evil forces to account for humankind’s failure to advance. The secularisation of the modern moral vocabulary that many believed was under way has not occurred: public discourse about good and evil continues to be rooted in religion. Yet the idea of evil that is invoked is not one that features in the central religious traditions of the west. The belief that evil can be finally overcome has more in common with the dualistic heresies of ancient and medieval times than it does with any western religious orthodoxy.
There follows an interesting discussion of Manicheanism and the views of Augustine, and then this:
In its official forms, secular liberalism rejects the idea of evil. Many liberals would like to see the idea of evil replaced by a discourse of harm: we should talk instead about how people do damage to each other and themselves. But this view poses a problem of evil remarkably similar to that which has troubled Christian believers. If every human being is born a liberal – as these latter-day disciples of Pelagius appear to believe – why have so many, seemingly of their own free will, given their lives to regimes and movements that are essentially repressive, cruel and violent? Why do human beings knowingly harm others and themselves? Unable to account for these facts, liberals have resorted to a language of dark and evil forces much like that of dualistic religions.
The efforts of believers to explain why God permits abominable suffering and injustice have produced nothing that is convincing; but at least believers have admitted that the ways of the Deity are mysterious. Even though he ended up accepting the divine will, the questions that Job put to God were never answered. Despite all his efforts to find a solution, Augustine confessed that human reason was not equal to the task. In contrast, when secular liberals try to account for evil in rational terms, the result is a more primitive version of Manichean myth. When humankind proves resistant to improvement, it is because forces of darkness – wicked priests, demagogic politicians, predatory corporations and the like – are working to thwart the universal struggle for freedom and enlightenment. There is a lesson here. Sooner or later anyone who believes in innate human goodness is bound to reinvent the idea of evil in a cruder form. Aiming to exorcise evil from the modern mind, secular liberals have ended up constructing another version of demonology, in which anything that stands out against what is believed to be the rational course of human development is anathematised.
Friday, October 24, 2014
"Measured by the low standards of the desperate, the Supreme Court's 2013-14 term was on the whole a spectacularly good one."
That is the assessment of Michael Stokes Paulsen, writing in the November 2014 issue of First Things -- 2014 Supreme Court Roundup: An Explanation of the Court's Affirmations of Our Right Not to Go Along. (HT: How Appealing)
A few morsels below, but one must read the whole thing not only to assess Paulsen's analysis but also to appreciate his inimitable prose:
The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.
It is a parlous state of affairs when we must depend on the Supreme Court as the bulwark of our most vital natural rights and civil liberties—freedom of religion, freedom of expression and group association, freedom of conscience, the rights to live, to work, and to raise a family. The Court has not always, or even very often, done well on this score. With distressing frequency, it has performed poorly, shortchanging rights plainly written in the Constitution and inventing illegitimate ones nowhere to be found in the text. The Court tends to bow to political pressure and blow with prevailing cultural and popular winds.
Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, arelief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.
A measure of the success of the past year’s term is to contemplate what things would have looked like if the Court had gotten these cases wrong. Religious persons, groups, and businesses could be coerced to support and pay for abortion drugs by administrative fiat. Men and women who wish to counsel pregnant women against abortion could be prevented from doing so on public property near clinics. Citizens could be forbidden from financially supporting as many political candidates as they chose. Politicians could sue, or threaten to sue, citizens to punish them for expressing critical views, and effectively shut down opposition. Workers could be forced by law to support political causes with which they disagree. The Court held the line against such outcomes.
Earlier this week, I began to notice #waitingforSutton on Twitter. And one morning, when the Sixth Circuit posted links to its opinion a little later than expected, I was surprised to find myself rather eager to read whatever opinions might be coming in the Sixth Circuit's same-sex marriage cases. This is due in no small part to Judge Sutton's presence on the panel.
Many who attended or heard the audio of the August 6 oral arguments believe that Judge Sutton's vote one way or the other will be decisive. That assessment seems accurate, as is the belief that the Sixth Circuit is less likely to conclude that the Fourteenth Amendment to the Constitution of the United States requires states to redefine marriage to include same-sex couples than the Fourth, Seventh, and Tenth Circuits have proven to be.
There are therefore a couple of obvious reasons why people are #waitingforSutton. A Sixth Circuit decision upholding state laws would create a circuit split and almost certain cert grant. And the decision could come any day now. (Oral arguments were August 6, and according to the Sixth Circuit Appellate Blog, "the Sixth Circuit's average time between argument and decision is 2-3 months ....").
These are not the only reasons, though, and for me at least, not the most important. Judge Sutton is an excellent judge and an excellent writer. As I've said before, Judge Sutton's opinions are "conversational and accessible to an intelligent lay reader." Whatever the outcome Judge Sutton's opinion ultimately supports, it is unlikely to convey the "disdain for lawyers' arguments or contempt for legislators and voters" that comes through in Judge Posner's opinion in Baskins v. Bogan.
I do not expect Judge Sutton to vote to hold the states' marriage laws unconstitutional. But if he were to do so, I would expect his opinion explaining that vote to be more persuasive than those that have been released thus far.
If, as is more likely, Judge Sutton votes to uphold the states' definition of marriage to require one man and one woman, and if the Supreme Court later holds to the contrary, my hope is that his opinion will be one that I can assign to serve the same functions as when I assign Judge Friendly's pre-Roe draft abortion opinion. A sound circuit court opinion before a bad Supreme Court decision can show a path not traveled in a different way than a powerful dissent.
For those seeking insight into Judge Sutton's thinking about constitutional law and judging more generally, here are some extrajudicial writings:
Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) (HT: Originalism Blog)
Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) (HT: Originalism Blog)
Barnette, Frankfurter, and Judicial Review (Marquette Lawyer, Fall 2012, pp. 13-23)
What Does--and Does Not--Ail State Constitutional Law, (Kansas Law Review, Vol. 59, pp. 687-714, 2011)
A Review of Richard A. Posner, How Judges Think (Michigan Law Review, Vol. 108 pp. 859-76, 2010)
Thursday, October 23, 2014
Pope Francis has been making the news (again!), this time for his comments at a private audience with members of the International Association of Penal Law. His comments—which reveal a sophisticated understanding of many aspects of criminal justice—covered a wide range of issues, including overcriminalization of the disenfranchised (and underpunishment of official corruption), abuses of pretrial detention, inhumane prison conditions, and the role of the media in driving public demand for “vengeance.”
In the midst of a treasure trove of richness, the comment that has attracted the most media attention so far is Pope Francis’s comparison between the death penalty and sentences of life imprisonment. As reported by Vatican Radio, in his comments today the Pope invited
“[a]ll Christians and people of goodwill . . . to fight not only for the abolition of the death penalty . . . in all of its forms, but also for the improvement of prison conditions in the respect of the human dignity of those who have been deprived of freedom. I link this to the death sentence. . . A life sentence is a death sentence which is concealed.”
In recent years, the death penalty has been the subject of widespread attack from the Catholic community in the United States, on the ground that it is unnecessary for the protection of the public and undermines the “dignity of the human person.” Writings on the subject are nuanced and voluminous but, simply put, the critique is that by “offer[ing] the tragic illusion that we can defend life by taking life,” the death penalty “diminishes all of us.” I don’t disagree one bit.
Capital lawyers often argue, and courts sometimes agree, that “death is different” from any other punishment, and that capital sentences should therefore be subject to greater scrutiny and held to higher Constitutional standards than sentences of natural death behind bars—that is, sentences that impose life, or de facto life, sentences on convicted individuals. Because capital sentences are so immediately and tangibly final, they deserve a scrutiny that terms of years don’t warrant. Or so the argument goes.
But I have often found myself troubled when death penalty abolitionists argue not only that capital punishment is wrong, but that the morally-appropriate alternative is a sentence of life without the possibility of parole. While state-sanctioned execution is the harshest penalty available under the law, sentences of natural death in prison have a brutality of their own, imposing the certainty of death behind prison walls, often preceded by decades of isolation. Love, children, home, family, nature, work, sunshine—these basic natural goods, which define the experience of human life for the non-imprisoned, are restricted or eliminated entirely by the fact of imprisonment.
Certainly, loss of liberty is required and deserved in many cases involving serious crime, but courts often hand out sentences of imprisonment in super-size quantities that leave no room for redemption. As a result, young people grow old behind bars, their loved ones move on or die, and loneliness defines their existence. Almost 50,000 people are serving sentences of life without parole in the United States. That number does not include those serving de facto life sentences by virtue of lengthy terms of years, or the 110,000 people serving parole-eligible life sentences (many of whom will never be released under current restrictive parole policies). Despite the scale of sentences to life imprisonment, Catholic conversations about punishment in the U.S. have largely ignored those sentenced to die behind bars who are not on death row.
Today’s brief comments by Pope Francis don’t begin to resolve hard questions about how long sentences should last, or what kinds of crimes deserve what kinds of punishment. (The Pope observed in his comments today that life sentences were recently repealed in the Vatican Criminal Code; however, the maximum penalty under the Code stands at a not-insubstantial 35 years.) What the Pope did do today was remind us that our criminal justice system has discarded and forgotten many people in ways that do not comport with their inherent dignity and worth—and remind us that we are called to do something about it.
October 23, 2014 | Permalink
Bishop Kevin Rhoades, of (my own) the Diocese of Ft. Waye-South Bend, has this column in the weekly issue of Today's Catholic, in which he discusses, among other things, the recent court decisions involving challenges to states' marriage laws and those decisions' implications for the religious freedom of Catholic institutions. He also addresses, in a thoughtful way, the recent announcement by the University of Notre Dame that it will provide spousal benefits to all legally married spouses of employees.
I should note that some critics of Notre Dame's move have suggested that it is inconsisent (or worse!) for Notre Dame to agree to "comply with the civil law" when it comes to providing benefits to all those who are, under Indiana law, "spouses" while at the same time challenging the contraception-coverage requirements in the Affordable Care Act. I do not quite see the inconsistency, though. It is true, certainly, that in both cases, there is the possibility of causing scandal and demoralization to those who care (as we all should) about Catholic institutions' (and especially Notre Dame's) authentic Catholic character and mission. And, in both cases, the relevant "civil law" -- the HHS mandate, or the Seventh Circuit's decision invalidating Indiana's marriage law -- is vulnerable to criticism as being unsound.
That said, and for starters, it seems to me that the question whether it constitutes culpable cooperation with wrong to provide spousal benefits through a benefit plan (that is, a contract) that uses the term "spouse" and defines that term with reference to Indiana law might not be the same as the question whether providing coverage for the objectionable "preventative services" constitutes such cooperation. (In my own view, the nature of the burden imposed by the HHS mandate on Catholic institutions is best framed not in terms of cooperation, but in terms of mission, character, and authenticity. After all, a law can burden religious exercise even if it does not compel or require wrongdoing.) What's more -- and not to sound like an Unfrozen Caveman Lawyer -- there is the fact that RFRA is available to challenge the mandate while it would not, I assume, be available as a defense in a benefits-contract dispute between the University and one of its employees. (I assume that state and federal law would -- at least for now -- allow the University to change prospectively the terms of its benefits-plans, but I have not studied the issue.)
Wednesday, October 22, 2014
Today's feast day celebration caught me by surprise. When I think of the man, I think "Pope John Paul II," not "Saint John Paul the Great." He was a man, a great man; and he is a saint. But to think of him as Saint John Paul the Great puts him at too much of a distance from my experience of him from a distance. And I hold on to that experience as a source of grace.
One source of experience was personal. I attended World Youth Day in Denver in August 1993 and was part of the cheering crowd that greeted Pope John Paul II in Mile High Stadium.
A third source of experience has been Mirror of Justice. The spirit of Pope John Paul II has inspired many contributions to this blog. (Find them yourself!)
One final thought. The opening sentence of Veritatis Splendor bears some similarities to the well-known opening lines of Gerard Manley Hopkins, S.J.:
The splendour of truth shines forth in all the works of the Creator and, in a special way, in man, created in the image and likeness of God (cf. Gen 1:26).
The world is charged with the grandeur of God.
It will flame out, like shining from shook foil ...
October 22, 2014 | Permalink
Today is the first feast day of one of our newest saints, St. John Paul II. (And, in a happy coincidence, the wedding anniversary of not one, but two MOJ'ers: me and Rick Garnett.)
To celebrate, here are some relevant links:
- to the prayer to St. John Paul II issued by the Vatican at his canonization,
- to a number of past posts on his legacy,
- to some symposia on his work.
"Be not afraid!"
Tuesday, October 21, 2014
The annual fall conference of the Center for Ethics and Culture at Notre Dame is a jewel in the crown of Catholic higher education. This year's conference topic, inspired by Pope Francis, is "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor." Plenary addresses will be given by Nobel Laureate James Heckman (Chicago), Cardinal Gerhard Müller (Prefect of the Congregation for the Doctrine of the Faith), Alasdair MacIntyre (Notre Dame), and John Finnis (Notre Dame and Oxford). A concluding colloquy on whether Catholic social teaching and American capitalism are compatible will include Patrick Deneen, Hadley Arkes, James Mumford, and John Tomasi. A detailed schedule is available here.
Monday, October 20, 2014
By a four to one vote, five out of seven justices on the Supreme Court of Pennsylvania have temporarily suspended one of their own from his judicial duties. The court's order is here; a concurring statement by the Chief Justice is here; and the dissenting statement is here. An earlier statement of the now-removed justice and an earlier statement of the Chief Justice are here.
I have not followed all of the underlying matters closely enough to have confidence in this judgment, but my impression from afar after reviewing the order, the accompanying statements, and press reports is that the Supreme Court of Pennsylvania looks worse after this order than before. Justice Todd's dissenting statement seems sensible. Chief Justice Castille's description of his colleague as a sociopath is discreditable. Judicial ethics is not defined by rules only, but also by virtues such as temperance and judiciousness.
Sunday, October 19, 2014
Susman Godfrey, the Houston subpoenas to nonparty pastors, and the utter ordinariness of burdensome third-party civil discovery
The City of Houston has filed a preliminary response to the motion to quash subpoenas it served on five nonparty pastors seeking discovery, among other things, of these pastors' sermons. Like the mayor's initial "blame it on the pro bono lawyers" defense, the response is hard to credit as anything other than a public relations move. The response removes the word "sermons," but even as amended, Houston's subpoenas are still asking for sermons and for much more.
Consider request number 4: "All communications with members of your congregation regarding HERO or the petition." Now consider the definition of "communications": "[E]very direct or indirect disclosure, receipt, transfer, or exchange of information, inquiry or opinion, however made, whether oral, visual, in writing or otherwise, including without limitation any conversation or discussion by means of letter, note, package, invoice, statement, notice, memorandum, inter-office correspondence, telephone, telegraph, email, telex, telecopies, text message, instant message, cable communicating data processors, or some other electronic or other medium."
There is no hard and fast rule at work here, but generally speaking discovery requests like these begin with the broadest claims and then narrow from there. The word "sermons" was originally in request number 12. By the time the recipient would have arrived at that point, however, it would have been obvious that even coming close to full compliance with these broad requests would take dozens of hours. If you don't believe me, take a look at request number 1 yourself.
The specific mention of "sermons" was an unforced error that allowed recipients to provide a hook that would draw public attention to the burdensome nonparty discovery requests sent by the city. But getting rid of that one word does not change the substance of the city's requests one bit. They remain as burdensome as they were from the beginning.
An underreported angle of this whole story thus far is the nature of the legal representation provided to the city. In particular, the Mayor's "blame the pro bono lawyers" response is hard to take seriously when the pro bono lawyers include a lead counsel team from Susman Godfrey, L.L.P. The subpoena request posted by plaintiffs' counsel went out under the signature of a Susman Godfrey associate and two partners. According to Susman Godfrey's website, the more senior partner is "lead counsel for the City of Houston in its lawsuit against a Xerox affiliate for breach of contract, fraud, and other wrongdoing in connection with billing and collection for hundreds of millions of dollars of emergency medical services provided by the City's Fire Department" and also "lead counsel for the City in its multi-hundred million dollar lawsuit against actuarial firm Towers Watson for gross negligence and professional malpractice in connection with benefits under the Houston Firefighters' Relief and Retirement Fund." The other partner is a former EIC of the Texas Law Review and law clerk for Fifth Circuit Judge Jerry Smith, currently serving as "Susman Godfrey's docket partner with responsibility for staffing client engagements across our five offices." These are very capable, experienced lawyers. At least one of them is currently handling litigation involving hundreds of millions of dollars for the city. Whether Mayor Parker was previously aware of the specific wording of specific subpoenas is beside the point. She knows full well how lawyers like these, with the kinds of practices that they have, would have approached third-party discovery in the City's HERO case. It is therefore not credible for Mayor Parker to put distance between herself and the city's litigation strategy as pursued by Susman Godfrey. The cosmetic and minuscule amendment offered by the city in its preliminary response after Mayor Parker's attention was drawn to these particular subpoenas suggests that the city's overall litigation strategy includes deliberately imposing substantial burdens on the plaintiffs' allies.
Mayor Parker and the city's lawyers seem to have been frustrated for months by what the city's lead counsel from Susman Godfrey has termed "the public hoopla" surrounding their case. (This characterization, for example, came in an August 2014 press release.) And by the standards of the typical business litigation dispute handled by the firm, this case does seem a bit of a circus on both sides. But the dispute over "sermons" in the subpoenas is itself a sideshow against the utter ordinariness of the burdens that lawyers inflict on nonparties every day through broad civil discovery requests. When everything settles down and the culture-war commentariat moves on, one can only hope that firm judicial management will lessen the burdens imposed by Houston's requests.
The City of Coeur D'Alene is a defendant in a federal lawsuit brought by Donald and Evelyn Knapp, a husband-wife team of ordained ministers who perform wedding ceremonies in their family business, The Hitching Post, LLC (also a plaintiff). The City has said that the Knapps' refusal to perform a same-sex marriage ceremony would violate the City's nondiscrimination ordinance. The Knapps contend that the City's threatened punishment of them would violate the First and Fourteenth Amendments and Idaho's Religious Freedom Restoration Act.
The complaint quotes a deputy city attorney as setting forth the city's stance and explaining how that stance depends on the Ninth Circuit's recent judicial redefinition of marriage in Idaho to require inclusion of same-sex couples:
“For profit wedding chapels are in a position now where last week the ban [on same-sex marriages] would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit… If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.”
It is noteworthy that this deputy city attorney describes the celebration of marriage ceromonies as just another "service," and the Knapps' refusal to celebrate a same-sex marriage ceremony as a refusal to provide services on the basis of sexual orientation. States that have statutorily redefined marriage to be an institution open to same-sex couples have included statutory exemptions for churches and clergy that would not require them to solemnize same-sex unions. Generally speaking, they distinguish between solemnization and other services related to marriage. Because Idaho's marriage redefinition has been accomplished by the judiciary instead of the legislature, the scope of obligations that may be imposed by state law (with which municipal law must typically comply) is unclear. To be sure, it is also unclear whether the Knapps' business--in contrast with the Knapps themselves--would have fallen within a statutory exemption even if there had been one in Idaho. But cases like this highlight the kinds of questions that will arise over the next several years as cities, states, and everyone else negotiates the changes that come from the federal judicial redefinition of marriage.
Eugene Volokh has provided a persuasive analysis concluding that the city's application of its nondiscrimination ordinance to the Knapps and The Hitching Post, LLC would violate the First Amendment's prohibition of compelled speech and the Idaho Religious Freedom Restoration Act. I continue to believe that an initial question in cases like these is whether a refusal to perform marriage premised on one's understanding of what marriage is amounts to discrimination on the basis of sexual orientation so as to violate an anti-discrimination law. This is a question of the relevant municipal, state, or federal anti-discrimination law; here, a question of city law. I think that the city should reconsider its position on the meaning and application of that law. I further think that the city should reconsider its position on both First Amendment and state RFRA grounds. The best outcome very well could be a promise not to prosecute or impose liability under municipal law when doing so would violate federal law or state law, as would be the case here.
To the extent that this lawsuit is a sign of things to come, as I think it is, it would be nice if city and state officials could get the limits of anti-discrimination law right in the first instance without the need for judicial involvement. That said, it is a good tactical move to proceed directly to federal court. If one waits for prosecution in state court or to defend in state administrative proceedings, it will be much more difficult to get a federal forum for one's federal claims.
Saturday, October 18, 2014
Lethal Injection, Politics, and the Future of the Death Penalty -- 10/24 Symposium at University of Richmond
The University of Richmond Law Review has put together a superb symposium that is to take place in just under one week. The topic is "Lethal Injection, Politics, and the Future of the Death Penalty":
America's death penalty is in a tailspin. That much is clear from headlines about botched executions and untested lethal injection protocols. In this symposium, we bring together a diverse group of individuals--all experts with a unique viewpoint on the death penalty--to share their expertise and spark a thoughtful, engaging conversation with each other and our audience. We hope you will join us.
Participants include Stephen Bright, Deborah Denno, Joel Zivot, Eric Berger, Frank Green, Mark Earley, Richard Roper, Corinna Barrett Lain, Stephen Smith, John Douglass, Brandon Garrett, and Richard Dieter. Free and open to the public (with advance registration). 4.5 VA MCLE pending approval.
Full details available here.
October 18, 2014 | Permalink
Friday, October 17, 2014
"Should Religion Be Blamed for the World's Bloodiest Wars?", is the title of this book review in The New Republic. The review is John Gray's, of Fields of Blood: Religion and the History of Violence, by Karen Armstrong. Here's a taste:
Consistently surprising and illuminating, Fields of Blood should be read by anyone interested in understanding the interaction of religion with violence in the modern world. Relying on detailed historical analysis, Armstrong argues convincingly against the prevailing idea that religion is uniquely prone to acting violently. She is less sure-footed in her account of secular faith and the violence that has been committed on its behalf. When she refers to the “secularist bias” of modern thinking, she seems to endorse the conventional perception of the modern world as having moved away from religion. Yet the logic of her argument pushes in another direction.
Few movements have been as single-minded in their commitment to modernization as Lenin’s Bolsheviks, and few have been so virulently hostile to mainstream faiths. Yet as Bertrand Russell observed in his forgotten 1920 classic The Practice and Theory of Bolshevism, written after he travelled to Russia and talked with Lenin, Soviet communism was from the beginning as much a religion as a political project. Oddly, though it was a rerun on a vaster scale of the French revolutionary terror that she analyzes so penetratingly, Armstrong says practically nothing about the Soviet experience, or about Maoism. Yet, together with Nazism, these 20th-century state cults plant a question mark over the very idea of secularization. Certainly there has been a decline in the old authority of churches, but that does not mean religion is becoming weaker. Simultaneous with the retreat of the mainstream faiths, there has been a rise of a plethora of political religions and an explosion of fundamentalism, sometimes fused in a single movement. . . .
Professor Amy Sepinwall has posted a paper entitled, "Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake" to SSRN. The paper has a request not to be cited without permission, so of course I won't cite (or quote) any of it, not even its publicly available abstract. I will note, however, that it mentions my name in connection with the view that religious exemptions never impose cognizable harms on third parties.
In order to avoid any confusion about the matter, permit me to make my view plain. Religious accommodations always impose harms on third parties. I have said so repeatedly in my posts on the subject. Sometimes those harms will be legally cognizable, and I have never argued to the contrary. The tricky issues do not concern questions about per se legal cognizability of third party harms. They concern the context in which those harms are assessed as a legal matter, and the standard by which they are assessed. As to that question, it is true that I believe that the existing statutory frameworks of RFRA and RLUIPA incorporate an assessment of third-party harms. Within those statutory frameworks, third party harms may, indeed, sometimes be legally cognizable.
In this piece, ("Religious accommodation's roots in legal pluralism"), Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme." She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."
Now, for me, unlike Katherine, to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment. (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.) But, put that general matter aside: Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I do not think it is the case that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority." In practice, and in most of the arguments for religious accommodation, the conversation happens in terms of interest-balancing, toleration, benevolence, getting-along, etc.
It is true that -- for some of us, anyway -- the idea that the state's authority is both limited and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception. But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.
We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control. But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should. There is nothing -- to use Katherine's word -- particularly "radical" about that.
Thursday, October 16, 2014
My colleague Gerard Bradley has a good essay at Public Discourse, called "Religious Liberty at a Crossroads," in which (among other things) he engages some of the criticisms that have been made of the accommodation-and-exemptions features of our religious-freedom-protection regime. As he writes, "US religious liberty law is not perfect, but it still deserves our support. Religious exemptions witness to the value of religion as a transcendent good." Of particular importance, Bradley makes it clear why Christians who understand the Christian faith to be true nevertheless have a (non-relativistic, non-emotivist) reason for defending the religious freedom of non-Christians, including the Muslim prisoner in Holt v. Hobbs.
More Questions About Hobby Lobby, Holt v. Hobbs, and the Significant Harm to Third-Parties Establishment Clause Theory
In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick notes below, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I've talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court's footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).