Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, May 24, 2016

"The Bathroom Wars"

That's the title of a characteristically thoughtful post by Perry Dane, who is, as many of us here at MOJ know, a highly respected scholar of law and religion.  The post begins with this:

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

And the post ends with this:

The bathroom fights are unnecessary (though perhaps explainable, like so much else these days, as symbolic skirmishes in our hyper-polarized political war of all against all.)  Traditionalists who write laws that insist, for example, that even bearded transsexual men who happen to have been born as anatomic females should use women’s bathrooms, are just being silly, not to mention oppressive and unjust.  And most of the country is more than happy to respect the individual rights of transgender and other folks.  But the current fight is also both a harbinger of, and a distraction from, a more profound debate down the road.  The deeper challenge lurking here, going well beyond individual rights, is to our collective identity as human beings.

The entire post, here, is well worth considering.

nd, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position. 

- See more at: http://www.religiousleftlaw.com/#sthash.9xb8i67L.dpuf

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position. 

- See more at: http://www.religiousleftlaw.com/#sthash.9xb8i67L.dpuf

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position. 

- See more at: http://www.religiousleftlaw.com/#sthash.9xb8i67L.dpuf

May 24, 2016 in Perry, Michael | Permalink

Rendering the Body Legally Invisible

I've been waist-deep in "gender" for the last couple of weeks, grappling with the legal consequences of the astonishing claim the Department of Justice made earlier this month that "trans women are women" for the purposes of Title VII and Title IX. Public Discourse is publishing what I've written, and I'll post it when it's out. 

For now though, I wanted to excerpt at length here from a very helpful self-published book out of the UK entitled, Flesh Made Word. In it, philosopher Daniel Moody argues that the sexed body has been eclipsed from the law. (He blames abortion, and I think that's right, though I for different reasons than him.)  Near the end of the slim book, he makes his point clearest in his analysis of the prefixes “cis” and “trans”. (“Cis” is used by the trans community to distinguish a “trans woman” from a “cis woman”--like this blogger-- whose gender identity and biological sex align.)

[I]t would seem that Joan [a “cis” woman] is ‘legally female because physically female’ and John [a “trans woman”] is ‘legally female despite physically male’. 


But how can this be, given that there is only one legal definition of the word Female. John’s legal status as female has to be the same has Joan’s.


In Joan’s case the name Female signifies her sex. But [law] does not have the power to change John’s sex from male to female. Any ‘femaleness’ John possesses he possesses only in his mind. So, given that [law] cannot take John’s state of mind and elevate it to the height of a female-sexed body, the only way to make his legal status as Female equal to Joan’s is to take her body and legally downgrade it to a state of mind. Joan is de-naturalized in law; de-sexed so that her femaleness too is legally understood to be a state of mind. If John’s LEGAL status as FEMALE exists in the form of LEGAL permission, so too does Joan’s. [emphasis in original]


If John is LEGALLY FEMALE (gender identity) despite physically male (sex)’ and if the only LEGAL meaning of the word Female is not attached to the definition belonging to a sexed body, then we can take this as proof that Joan has ceased to be ‘legally female (sex) because physically female (sex)’ and, quite bizarrely, is now LEGALLY FEMALE (gender identity) despite physically female (sex)’ FEMALE despite female.


Joan’s legal identity changed conceptually but it did so without changing linguistically.


Moody concludes that the two legal identities that are now offered to each individual (i.e., cisgender and transgender) are simply the two possibilities that flow out of ejecting the human body from the law. The trans individual is “merely somebody who has chosen to take advantage of the [legal] absence of his body” while the “cis” individual simply has not so chosen. But every person’s identity remains a choice, unbound from any objective standard, untethered from reality itself. Moody: "Understanding cisgender enables us to stop chasing after the innocent man--transgender--and instead turn the spotlight onto the real culprit, namely the ideology named Gender..." 

More at Public Discourse soon... 

May 24, 2016 in Bachiochi, Erika | Permalink

Greenawalt, "From the Bottom Up: Selected Essays"

I’m delighted to post this notice for a new book of essays by my old master, KentFrom the Bottom Up Greenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).

As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:

A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.

May 24, 2016 in DeGirolami, Marc | Permalink

Sunday, May 22, 2016

On "settling" for religious exemptions

Michael Brendan Dougherty has an essay posted called "Why the Little Sisters of the Poor Shouldn't Settle for a Stingy Exemption."  The piece echoes some things written by others over the past few years, making the basic point that arguing for exemptions from generally applicable laws can, all things considered, be bad for religious freedom (because, for example, such arguments tend to focus merely on the "sincerity" of the "beliefs" being burdened, rather than on the truth of the matter).   He writes:

It is time for plaintiffs in religious liberty cases and for their advocates in the culture wars to try a different strategy. As the administrative state reaches deeper into our lives, and as it begins to provision positive rights to people through other private actors, the number and diversity of religious liberty cases are only going to grow. Right now, religious people ask for "exemptions" and "accommodations" to pursue their own goals because those goals are "religious." And they are granted narrow avenues to pursue these ends according to their (presumably quixotic) personal beliefs. Instead they should argue that their beliefs deserve the respect of the law because they are true, and that their actions deserve legal protection because they are good. . . .

Fair enough.  Someone should make the argument -- notwithstanding the very small chance of the argument gaining any traction in our present circumstances -- that the Little Sisters (and others) are not only "religious" in believing, but correct in believing, that, say, the contraception-coverage mandate is unjust.  (And, I definitely agree with Dougherty's assessment of Judge Posner's performance at oral argument in Notre Dame's case.)

Still, the givens are the givens, and the Little Sisters (and their lawyers) have to use the arguments and categories that are available, and try to secure from the (overreaching) state the concessions they can get.   

May 22, 2016 in Garnett, Rick | Permalink

Friday, May 20, 2016

Methodists Withdraw from Religious Pro-Abortion-Rights Group

This is quite a striking vote, cutting against the trend in which mainline Protestant denominations over the years became  increasingly allied, if only in their policy offices, with the broadest versions of the right to abort.

     Evangelicals celebrated the United Methodist Church’s decision yesterday to leave a pro-choice advocacy group it co-founded 43 years before. 

     At its general conference, delegates voted 425-268 to withdraw from the Religious Coalition for Reproductive Choice (RCRC), an interfaith organization whose broad support extends to late-term and sex-selective abortions—a practice that the church’s social principles “unconditionally reject.”

This is one more data point in the emerging pattern that the ideological middle of the country--which Methodists tend to track--will not accept hard-line pro-abortion-rights positions, even as it increasingly accepts the progressive position on the other major culture war issue of gay rights. The two are very different, and their paths in public opinion charts will increasingly diverge.

May 20, 2016 in Berg, Thomas, Current Affairs, Religion | Permalink

Wednesday, May 18, 2016

Dignity: A Journal on Sexual Exploitation and Violence

The concept of human dignity is one that has been central to Catholic thinking for centuries.  This social teaching remains relevant today in our increasingly complex world.   In the context of crime and exploitation,  the American Catholic Bishops wrote the following  in A Catholic Perspective on Crime and Social Justice (2000):

The fundamental starting point for all of Catholic social teaching is the defense of human life and dignity: every human person is created in the image and likeness of God and has an inviolable dignity, value, and worth, regardless of race, gender, class, or other human characteristics.

Indeed, just last month Rick reminded us of a conference at Notre Dame examining the intellectual appeal of human dignity as a concept.

A new online journal exploring these issues as they relate to exploitation and violence has just been founded  by Donna Hughes at The University of Rhode Island, one of the leading world experts in the study of human trafficking . (Full disclosure, I am on the editorial board).  The journal, entitled  Dignity: A Journal on Sexual Exploitation and Violence,  will focus on not only various forms of exploitation and violence, but also how they “harm the dignity and health of individuals, the integrity and security of communities, and the strength and character of nations.”

Here is an excerpt of the full description:

Dignity: A Journal on Sexual Exploitation and Violence is an open access, peer-reviewed, interdisciplinary journal dedicated to publishing original scholarly articles on topics related to sexual exploitation, violence, and slavery. . . . The journal encourages investigations and discussion of challenges to dignity and justice such as corruption, lack of rule of law, harmful cultural practices, and laws and policies that justify and institutionalize inequality, violence and exploitation. The journal is a forum to examine how individuals, civil societies and states have responded to improve human and civil rights. Dignity aims to contribute to evidence-based knowledge and theoretical development of these topics to give people the tools to end sexual exploitation, violence, and slavery.

This journal has the potential to make a very positive contribution to scholarship, crossing not only disciplines, but also other social divisions to focus on the fundamental harm to human dignity so many forms of exploitation cause.  At a time of extreme division on social issues, perhaps this can be a forum for finding common ground and ultimately contributing to a more robust protection of vulnerable people. 

To that end the first call for papers has been issued.

May 18, 2016 in Leary, Mary G. | Permalink

Pope Francis and Religious Conscience: Interview with La Croix

Pope Francis La Croix

Unlike his predecessors, Pope Francis seems to relish the chance to speak with the press.  No doubt he sees these "encounters" as opportunities to share the joy of the gospel with a wide audience.  Shortly after his election as Peter's successor, he gave a lengthy interview with America Magazine (here), and his in-flight press conferences with journalists covering papal pastoral visits to countries around the globe have become common place (see, e.g., here, here, here, and here).  Given Pope Francis' extemporaneous and pastoral style, it is not surprising that some of these interviews and press conferences have been a source of some confusion.  Thus, when these interactions with the press actually clarify the Pope's views with respect to matters of concern to the faithful, they should be welcomed.

Yesterday the French newspaper La Croix published a recent interview it conducted with Pope Francis.  (The English translation of the interview is available here).  In the piece, as in prior interviews, the Pope addresses a wide variety of topics including European identity, the plight of refugees, and the status of the Priestly Fraternity of Pius X.  Of perhaps special interest to MOJ readers were Pope comments on religious freedom.  

La Croix: The significance of Islam in France today, like the nation’s Christian historical foundation, raises recurring questions concerning the place of religion in the public arena. How would you characterize a positive form of laicity (Editor: ‘laicity’ refers to the French system of separation of Church and state)?

Pope Francis: States must be secular. Confessional states end badly. That goes against the grain of History. I believe that a version of laicity accompanied by a solid law guaranteeing religious freedom offers a framework for going forward. We are all equal as sons (and daughters) of God and with our personal dignity. However, everyone must have the freedom to externalize his or her own faith. If a Muslim woman wishes to wear a veil, she must be able to do so. Similarly, if a Catholic wishes to wear a cross. People must be free to profess their faith at the heart of their own culture not merely at its margins.

The modest critique that I would address to France in this regard is that it exaggerates laicity. This arises from a way of considering religions as sub-cultures rather than as fully-fledged cultures in their own right. I fear that this approach, which is understandable as part of the heritage of the Enlightenment, continues to exist. France needs to take a step forward on this issue in order to accept that openness to transcendence is a right for everyone.

La Croix: In a secular setting, how should Catholics defend their concerns on societal issues such as euthanasia or same-sex marriage?

Pope Francis: It is up to Parliament to discuss, argue, explain, reason [these issues]. That is how a society grows.

However, once a law has been adopted, the state must also respect [people’s] consciences. The right to conscientious objection must be recognized within each legal structure because it is a human right. Including for a government official, who is a human person. The state must also take criticism into account. That would be a genuine form of laicity.

You cannot sweep aside the arguments of Catholics by simply telling them that they “speak like a priest.” No, they base themselves on the kind of Christian thinking that France has so remarkably developed.

So, "[s]tates must be secular" as "[c]onfessional states end badly," and "a version of laicity accompanied by a solid law guaranteeing religious freedom offers a framework for going forward."  This proper understanding of laicity is not the exaggerated version of laicity regnant in French law and society.  Rather a proper understanding of laicity must grant people the freedom to externalize their faith," to profess their faith at the heart of their own culture not merely at its margins."

What this proper understanding of laicity and religious freedom means specifically in the case of unjust laws such as those recognizing same-sex marriage and euthanasia is that "[t]he right to conscientious objection must be recognized within each legal structure because it is a human right. Including for a government official, who is a human person."

During his visit to the United States last September, Pope Francis met briefly at the nunciature with Kim Davis, the county clerk in Kentucky who refused to issue marriage licensed to same-sex couples in her name on grounds of religious conscience.  At the time, some Catholic commentators, like Rev. James Martin, S.J. (here) warned against reading too much into the meeting.  With fitting prudence, Father Martin cautioned that it is "ill advised to use a private visit with the pope to make political point" and that "the pope meets with many people" about whom the Pope may know next to nothing, such that any given papal visit "does not betoken a blanket blessing on 'everything' one does."

Comments that the Pope made during his return flight to Rome (here) clarified his support for the principle of religious conscientious objection even in the case of government officials.

I can’t have in mind all cases that can exist about conscience objection. But, yes, I can say the conscientious objection is a right that is a part of every human right. It is a right. And if a person does not allow others to be a conscientious objector, he denies a right. Conscientious objection must enter into every juridical structure because it is a right, a human right.

When asked specifically whether this would include government officials, Francis responded: "It is a human right and if a government official is a human person, he has that right. It is a human right."

His comments in La Croix confirm this.  They do not settle the question definitively for American Catholics, at least to the specific contours of what religious accommodation for governmental officials should look like.  But they make clear that the casual (and, one might add, often caustic) dismissal of religious objectors who hold positions in government is not in keeping with the Catholic tradition. 

May 18, 2016 | Permalink

"The Future of Accommodation"

Here's my contribution to the symposium on the Court's recent (and somewhat cryptic) per curiam opinion in the Little Sisters of the Poor case.  A bit:

. . . Regardless of what happens in the ongoing contraception-coverage saga, though, there are more than a few troubling signs that this policy of accommodation and the commitments it reflects are falling out of favor and even being squarely rejected. More and more, the enterprise of accommodation of religion, which is so crucial to the creation and maintenance of civic friendship in a diverse political community, is linked in the public mind and in political arguments with reactionary and even “bigoted” resistance to or reservations about the ongoing and dramatic shifts in attitudes and laws regarding sexuality, family, marriage, and identity. Increasingly, commentators’ emphasis seems to be shifting from the invaluable work that religious civil-society institutions do to the ways in which their norms and practices differ from those of the liberal state. There is decreasing appreciation among scholars and officials for religious organizations’ freedom-enhancing role and the good of pluralism and increasing worry that these organizations’ distinctiveness might, in some cases, complicate the state’s ambitions or undermine its goals. In some quarters, there is more fear that the accommodation of religion will somehow endorse or involve an insult to a third party’s sense of dignity than there is that state action will violate the right to religious freedom that human dignity demands.

To quote the symposium contribution of my friends and colleagues Nelson Tebbe, Micah Schwartzman, and Richard Schragger, it is a “demand of justice” that political authorities in diverse and sometimes disagreeing communities avoid, to the extent their obligations to promote and protect the common good allow it, burdening religious exercise or violating religious conscience. We should hope that, going forward, this demand will be heard and heeded. There is no denying, though, that to the extent the right to religious freedom is regarded as a luxury good, a license to do wrong, or as special pleading by the culture war’s losers, it is increasingly vulnerable. This should concern us all, because believers and nonbelievers alike benefit from a legal and cultural commitment to religious freedom and have a stake in the legal regime that respects and protects it.

May 18, 2016 in Garnett, Rick | Permalink

Monday, May 16, 2016

Call for Papers: "You Are Beauty"

Here's the Call for Papers for the always-enjoyable-and-inspiring annual Fall Conference of the Notre Dame Center for Ethics & Culture:

Each year on the campus of Notre Dame, the Center hosts its interdisciplinary Fall Conference, the most important venue for truly fruitful dialogue and exchange among the world's leading Catholic thinkers, as well as those from other traditions, on pressing and vexed questions of ethics, culture, and public policy. The Conference attracts five hundred to six hundred participants annually and features more than one hundred paper presentations in disciplines ranging from philosophy, theology, political theory, and law to history, economics, science, and the arts.

Our 17th annual Fall Conference, "You are Beauty: Exploring the Catholic Imagination," will consider “aesthetic contemplation sublimated in faith” (“Letter to Artists,” Pope St. John Paul II), exploring the relationship between the imagination, beauty, truth, and religion in a variety of contexts, particularly the arts, music, architecture, literature, philosophy, theology, political theory, and the sciences.

To submit a paper for the Fall Conference, please email a one-page abstract and a CV to ndethics@nd.edu by July 1, 2016. Notification of acceptance will be made by August 15, 2016. The conference will take place November 10 - 12, 2016 at the University of Notre Dame.

May 16, 2016 in Garnett, Rick | Permalink

Walker Percy responds to "Why Are You a Catholic?"

From Walker Percy's essay, "Why Are You a Catholic," in his collectionSignposts in a Strange Land:  "The reason I am a Catholic is that I believe that what the Catholic Church proposes is true."

Following Percy's lead, I'll drink to that.


May 16, 2016 in Garnett, Rick | Permalink

Zubik v. Burwell Remanded to Lower Courts

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts' respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the "substantial clarification and refinement" in the claimants' and the government's respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company....The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” 

Disagreements as to implementation to be worked out below. No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court's order essentially to make crystal clear to the government that she was sympathetic to its views.

May 16, 2016 in DeGirolami, Marc | Permalink

Congratulations to President Scaperlanda!

"President Scaperlanda" has a nice ring to it, I think.  And, here's the great news from St. Gregory's University that our own Michael Scaperlanda has been named the University's 16th President.  Here's a bit from the press release:

. . . University of Oklahoma’s President David L. Boren praised the selection, noting that Scaperlanda is an excellent choice to lead St. Gregory’s.

“Scaperlanda’s vast leadership experience coupled with his passion for St. Gregory’s mission, commitment to excellence, tireless work ethic and effective communication skills bode well for St. Gregory’s future,” Boren said.

Reacting to the appointment, Oklahoma City Archbishop Paul Coakley said, “Michael Scaperlanda is a great choice to lead St. Gregory’s University at this time. Under his leadership I am confident that the University will thrive providing students with the intellectual, moral and spiritual formation crucial to living joy-filled lives oriented toward the common good.” . . .

Congratulations, Michael!

May 16, 2016 in Garnett, Rick | Permalink

Saturday, May 14, 2016

What the Future Holds: Why the Little Sisters of the Poor Case Was Necessary and Why Victory Is of Such Vital Importance

For those who had any misgivings about the Zubek case currently before the Supreme Court, this story leaves no doubt as to why the Little Sisters of the Poor litigation was necessary and why victory in that lawsuit is so important.  (The Roman Catholic Diocese of Albany's press release on the lawsuit appears here).

The "model language" of one mandate from the New York Department of Financial Services requires insurers of individual and small group health plans to provide coverage for "therapeutic" and "non-therapeutic" abortions.  The plaintiffs allege that a second, previously undisclosed mandate also requires coverage for abortion "under the rubric of 'medically necessary' surgery."

The actions of New York's DFS are an example of the direction that these matters will take in the future: mandated insurance coverage for surgical abortion by Catholic and other religious employers who object to providing any support for or participation in the procedure.  At some point in the near future will come the mandate that the procedure actually be performed in Catholic hospitals and other institutions that object.  These mandates will be created through unelected administrative bureaucracies since they would not survive public scrutiny through the democratic process.  Thus, the losers in all of this are not only religious institutions and people of conscience, but all those who value democratic government, not to mention the unborn.

May 14, 2016 | Permalink

Friday, May 13, 2016

If conditions attached to Spending Clause legislation must be unambiguous, how can an agency's new interpretation of a concededly ambiguous regulation ground threatened loss of funds?

Surely someone out there knows the answer to this question that's been bugging me since the Fourth Circuit's decision in its Title IX transgender access to sex-segregated bathroom case, G.G. v. Gloucester County School Board.

Here's a Twitter version of my bleg from April 20: "Q for admin-law mavens: How square Auer deference re: Title IX bathrooms w/ Spending Cl requirement that conditions on funds be unambiguous?" 

In something closer to plain English:

Congress does not have the power to tell local school districts how to provide access to their boys' and girls' bathrooms and locker rooms. But Congress can get this power by imposing conditions on the use of federal funds provided under the Spending Clause. Congress used its Spending Clause authority to pass Title IX, which prohibits sex discrimination by entities that receive Title IX federal funds. As part of the Title IX program, the federal government promulgated a regulation that explicitly allows Title IX fund recipients to have separate bathrooms for boys and girls as long as the facilities provided one sex are comparable to those provided by the other. This regulation does not speak to the question of how to provide access to sex-segregated bathrooms for schoolchildren whose gender identity does not correspond to their biological sex. But in a new guidance document, the Department of Education and the Department of Justice have said that Title IX fund recipients must provide access to sex-segregated bathrooms consistent with each student's gender identity, regardless of whether that gender identity is consistent with a student's biological sex. 

Suppose a school that receives Title IX funds does not follow this guidance document. Can the federal government withdraw the school's Title IX funding? 

One possible answer is "yes." The federal government can impose conditions on funds, and if fund recipients don't want to comply with those conditions, they lose the funds. 

But another possible answer is "no." The federal government can't impose whatever conditions it wants on fund recipients. To be valid, a condition must be unambiguous. And the requirement to allow every student access to sex-segregated bathrooms based on the student's gender identity, regardless of what that gender identity is consistent with the student's biological sex, is not unambiguous. Violating that condition therefore cannot be the basis for withdrawing federal funds. 

What does the law say about these two answers? Any pointers are welcome. 


May 13, 2016 in Walsh, Kevin | Permalink

"Wrongful Discrimination? Religious Freedom, Pluralism, and Equality"

Here is a book chapter of mine, which is part of a forthcoming volume edited by Thomas Farr, Jack Friedman, and Timothy Shah, Religious Freedom and Gay Rights:  Emerging Conflicts in North America and Europe (Oxford 2016):

This chapter is a contribution to a volume addressing the tension between claims of equal rights and claims of religious freedom. More specifically, the volume treats the potential for, and the reality of, conflict between the enterprise of promoting equality through anti-discrimination laws and that of vindicating religious freedom by limiting the reach of such laws.

In the United States and in many other countries and communities, this tension is real. It is also unavoidable and ineradicable because of here-to-stay and non-trivial disagreements among people of good will about the foundations and implications of human equality, dignity, and freedom, and also about the appropriate aims and reach of governments’ power. True, it is sometimes declared that, in fact, there is no conflict between religious liberty and non-discrimination law. It is said that claims that there is such conflict — claims that there is conflict presume or present a “false choice.” However, such declarations usually involve an attempt to dissolve the conflict by assuming and imposing a contested definition of or boundary on “real” religious liberty. Certainly, if “religious liberty” does not and cannot include a right, in some cases, to discriminate then there is very little chance of for conflict between religious liberty and anti-discrimination laws. However, religious liberty does sometimes include a right to discriminate in ways that would otherwise violate such laws. The tension between religious liberty and (other) civil rights — between religious liberty and the aspirations of equality legislation and anti-discrimination laws — is, sometimes, real, but this fact is unremarkable and should be unsurprising. After all, the right to religious freedom is not the only civil right the exercise of which sometimes bumps up against the exercise of others.

It is suggested in this chapter that this tension might be lessened, or at least better managed, if citizens and lawmakers thought more carefully about when and why “discrimination” is wrong and about the moral and constitutional limits on governments’ efforts to prevent and remedy, in the name of equality, wrongful discrimination. It will also be proposed that what some have called “healthy secularity” provides a way of thinking about these matters that is attractive, promising, and appropriately appreciative of pluralism.

Like the man says, download it while it's hot.

May 13, 2016 in Garnett, Rick | Permalink

Thursday, May 12, 2016

On Tushnet, candor, the "culture wars", and taking a "hard line"

Like Paul Horwitz, at Prawfsblawg, I read with interest -- and, in my own case, I was both provoked and taken aback by -- Mark Tushnet's recent post at Balkinization on "abandoning defensive crouch liberal constitutionalism."  Although, like Mark, I look forward to a day when legal advocates and scholars don't have to read the entrails of, or purport to admire, Justice Kennedy's prose, I don't share Mark's enthusiasm for the substantive results and doctrinal changes he hopes (and I glumly assume) are on the way.  (Mark wants to see more Brennan and Marshall; I'd rather see more Rehnquist and Roberts.  We agree, though, that Casey was "wrong the day it was decided"!)  

That said, and as someone who admires Mark's work and has cherished his mentorship, I regret that he wrote this, with respect to the so-called "culture wars" and the current religious-accommodations fights:

. . . My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) . . .

Mark has followed up his post with a new one, in which he reports that a number of readers, bloggers, commenters, etc., reacted very negatively:  

Does "taking a hard line" mean, as (you can't understand how hard it is to avoid snark here) various online sources put it (Google "tushnet nazis" -- I can't figure out who said it first), that I want to treat conservative Christians like Nazis (with war crimes trials, presumably, or legal disqualification from office, or something -- when Godwin's Law kicks in, there's no telling what's being implied).

He then goes on to say that what he means by "taking a hard line" is refusing to support broad, RFRA-type accommodations for the conservatives who have lost the "culture wars" and being very cautious about even more specific and narrow exemptions.    

I wish, though, that rather than dismissing as snark-worthy the negative reaction to his invocation of the "hard line" taken after World War II and the Civil War -- i.e., the "hard line" taken against the supporters, enablers, and managers of two genocidal and racist empires, or against traitors fighting for slavery -- he had instead said that he got a bit carried away and that the comparison was inapt and inflammatory.  His follow-up post represents, it seems to me, more of an adjustment to what he said in the first than a re-statement.  In the follow-up, after all, he indicates some openness to some (limited, contained) accommodations and compromises, but the original post is reasonably read as rejecting even those (just as, presumably, the "hard line" taken with respect to Japan and Germany didn't include, and shouldn't have included, much openness to them):

. . . I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won. . . .

As I see it, if someone on what he calls in his posts "their side" had employed similar rhetoric, many would (understandably) have pushed back hard against the wisdom and merits of making a comparison that unsurprisingly was heard by some as an invocation of denazification or the IMTFE as helpful guides for dealing with one's defeated ideological opponents.  In this case, Godwin's Law kicked in at the outset and the comparison, I think, undermined the possibility of Mark's post being part of a real conversation about the extent to which (if at all) religious actors may or should be accommodated going forward, if it really is the case that the "culture wars" have ended (or, perhaps, they've morphed -- with the campaigns of Trump and Sanders -- into something very different). . . .

. . . Which reminds me:  I also think I might have a different understanding than Mark does about what, exactly, the "culture wars" were or are, and whether it makes sense to see them primarily as a "scorched earth" offensive (as opposed to, say, a series of limited-success defensive efforts, against Murphy Brown, W.A.S.P., "Hot, Sexy, & Safer," etc.) by conservatives.  But that's a matter for another post, and I should probably re-read the original James Davison Hunter "Culture Wars" book first. . . .

May 12, 2016 in Garnett, Rick | Permalink

Pope Francis: Europe, "What has happened to you?"

Here is the speech that Pope Francis gave the other day, on the occasion of receiving the Charlemagne Prize.  (The New York Times report is here.)   A bit:

. . . What has happened to you, the Europe of humanism, the champion of human rights, democracy and freedom? What has happened to you, Europe, the home of poets, philosophers, artists, musicians, and men and women of letters? What has happened to you, Europe, the mother of peoples and nations, the mother of great men and women who upheld, and even sacrificed their lives for, the dignity of their brothers and sisters?

The writer Elie Wiesel, a survivor of the Nazi death camps, has said that what we need today is a “memory transfusion”. We need to “remember”, to take a step back from the present to listen to the voice of our forebears. Remembering will help us not to repeat our past mistakes (cf. Evangelii Gaudium, 108), but also to re-appropriate those experiences that enabled our peoples to surmount the crises of the past. A memory transfusion can free us from today’s temptation to build hastily on the shifting sands of immediate results, which may produce “quick and easy short-term political gains, but do not enhance human fulfilment” (ibid., 224). . . .

His concluding paragraph suggests that one of the things that appears to have "happened" is that Europe, because it is losing hope, is not welcoming children:

With mind and heart, with hope and without vain nostalgia, like a son who rediscovers in Mother Europe his roots of life and faith, I dream of a new European humanism, one that involves “a constant work of humanization” and calls for “memory, courage, [and] a sound and humane utopian vision”.[10] I dream of a Europe that is young, still capable of being a mother: a mother who has life because she respects life and offers hope for life. I dream of a Europe that cares for children, that offers fraternal help to the poor and those newcomers seeking acceptance because they have lost everything and need shelter. I dream of a Europe that is attentive to and concerned for the infirm and the elderly, lest they be simply set aside as useless. I dream of a Europe where being a migrant is not a crime but a summons to greater commitment on behalf of the dignity of every human being. I dream of a Europe where young people breathe the pure air of honesty, where they love the beauty of a culture and a simple life undefiled by the insatiable needs of consumerism, where getting married and having children is a responsibility and a great joy, not a problem due to the lack of stable employment. I dream of a Europe of families, with truly effective policies concentrated on faces rather than numbers, on birth rates more than rates of consumption. I dream of a Europe that promotes and protects the rights of everyone, without neglecting its duties towards all. I dream of a Europe of which it will not be said that its commitment to human rights was its last utopia. Thank you.

May 12, 2016 in Garnett, Rick | Permalink

Wednesday, May 11, 2016

"I am not a doctor . . . I have no idea": Horrifying

For moral depravity (or, perhaps, the banality of evil), watch this video (and then pray). 

May 11, 2016 in Garnett, Rick | Permalink

Euthanasia for 20 year-old PTSD-suffering abuse victim

More here:  

A sex abuse victim in the Netherlands has been been allowed to undergo euthanasia via lethal injection.

The unnamed woman in her 20s had suffered sexual abuse from the age of five to 15, according to papers released by the Dutch Euthanasia Commission. . . .

First it's permissible, then it's encouraged, then it's subsidized . . . and then it's required?  PSA:  You can buy a copy of Percy's The Thanatos Syndrome here.

May 11, 2016 in Garnett, Rick | Permalink

Tuesday, May 10, 2016


A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”

Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:

The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?

Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?

May 10, 2016 in DeGirolami, Marc | Permalink

Monday, May 9, 2016

My colleague Nick Farris here at the University of St. Thomas School of Law is publishing an essay on the classical liberal thought of F.A. Hayek, which if anything has increasing permanence in understanding our modern world.  I post here a summary that contrasts classical liberalism with the modernism of Judge Posner in a context that will be familiar to many readers of the Mirror of Justice.  The whole essay may be found here.  I commend it to your attention.

The contrast between the worldviews becomes even more evident when applied to overtly noneconomic subjects. Posner’s willingness to reshape orders along rational lines doesn’t stop at the law of contract or torts; it extends far beyond them into as issues as diverse as the role of judges in shaping social institutions. In the Posnerian worldview, the judge should strive in the service “of helping society to cope with its problems, and therefore the rules that judges create as a byproduct of adjudication should be appraised by what works criteria rather than by their correspondence to truth, natural law, or some other abstract validating principle.” 157 In assessing what works, Posner claims that this pragmatism has “no inherent political valence.” 158 If this sounds very similar to Friedman’s general approach on economics as a science generally, it should. The same claim of being committed to “what works” (as a scientific, normative-free approach) instead of ideology has been a common trope in politics since at least the time of Napoleon Bonaparte. 159 It exists because it is an attractive proposition, it makes one seem open-minded, flexible and ready to solve any problem without the always encroaching dead hand of the past. Even conceding that we can accurately determine “what works” (which I think is extremely dubious based on the track record of social sciences), the exercise is fundamentally value-laden. As acknowledged by the classical, left-of-center pragmatists, pragmatism operates on the principle that their critical investigations are infused with value commitments and no neutral determination is possible. 160 Critics have often criticized this aspect of Posner’s work, claiming that his work has an obvious and overwhelming political valence. 161

Posner’s general pragmatic philosophical approach to judging was perfectly illustrated during the oral arguments in the 7th Circuit case about gay marriage in Indiana and Wisconsin. 164 The state representative attempted to make some argument based on tradition and the long-standing nature of the institution. Posner responded “How can tradition be the reason? We’ve been doing a stupid thing for a long time certainly wouldn’t be enough of a justification to uphold a law or practice”. 165 When the attorney responded with a Burkean argument, Posner emotionally responded “That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference?” 166 . These sorts of statements are inherently a rational constructivist one, the proposition that knowledge arises principally from individual intellectual effort. 167 And more than that, they elevate the judge to position to settle deeply complex, subjective and value-laden issues with a manner more fitting a simple math problem. 


From a Hayekian prospective, this is the wrong avenue to go down. In fact, it’s a dead end. Two major underlying, unstated premises seem to exist in Posner’s argument: (1) that we are only dealing with a constructed order that can be better designed; (2) and if a law cannot be justified in a purely logical positivist sense then it is arbitrary, idiotic and ultimately unconstitutional. If we actually attempted to assess social institutions on this basis, the vast majority would fail this test. This is because knowledge primarily arises from human activity rather than abstract reason. In Hayekian terms, the vast majority of institutions are not rationally and consciously constructed. Rather they are the result of haphazard evolutionary processes that produce generally improved, if uneven progress. The reason that these evolutionary processes produce better utilitarian outcomes is because they function more like competitive sociological markets than constructed and planned orders. Despite haphazard and uneven progress, these spontaneous orders are anything but random; rather, moral orders evolve through group selection, groups that behave in these ways are more likely to survive and thrive over long time periods.168 Ultimately a society ends up with sets of cultural practices that are from a scientific prospective “not true,” in that they are neither verifiable nor testable, 169 but they nevertheless serve the important and useful utilitarian functions in allowing human civilization to thrive.170 And most moral orders, along with the religious traditions that influence them, despite being scientifically untrue (and likely completely failing any sort of “rational basis” test if assessed as purely as a matter of abstract logic) have provided civilization with profoundly powerful and useful methods for living. 171 

May 9, 2016 | Permalink

Sunday, May 8, 2016

Another Book Worth Noting: Stark on Anti-Catholic History

John Inazu's Confident Pluralism, noted by Rick, is a book with an important thesis--hope it gets a lot of attention. 

Another book worth checking out, for which I've just seen a notice, is Rodney Stark's Bearing False Witness: Debunking Centuries of Anti-Catholic History. Stark is an interesting and readable sociologist and historian of religion, who always makes important and generally correct points in his books, even if (in my experience) he may oversimplify or overstate things in places.

May 8, 2016 in Berg, Thomas, Books, Religion | Permalink

Saturday, May 7, 2016

John Inazu's "Confident Pluralism" is out

And, it's available here.  (Here is a shorter article, on which the book is based.)  

The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state and majoritarian norms. It is rooted in the conviction that protecting the integrity of one’s own beliefs and normative commitments does not depend on coercively silencing opposing views.

A confident pluralism seeks to maximize the spaces where dialogue and persuasion can coexist with deep and intractable differences about beliefs, commitments, and ways of life. It is based upon two normative premises. The first is a suspicion of state power, a view that operates primarily as a constraint upon government. The second is a commitment to letting differences coexist, until (and unless) persuasion eliminates those differences. The second premise suggests that it is better to tolerate than to protest, better to project humility than certainty, and better to wait patiently for the fruits of persuasion than force the consequences of coercion.

Part I sets out the meaning and scope of a confident pluralism. Part II considers three of its aspirations: tolerance, humility, and patience. Part III examines the pluralist argument in the current political moment, and Part IV addresses its relationship to anti-discrimination norms. Part V suggests some of the legal and constitutional implications of a confident pluralism. Part VI explores more tentatively its implications for institutional pluralism, private monopolies, boycotts, and speech.

Certainly, it could not be much more timely.   Like the man says, "highly recommended"!

May 7, 2016 in Garnett, Rick | Permalink

"Remembering Daniel Berrigan: A Penniless, Powerful Voice for Peace"

That's the headline on a front-page story in today's New York Times, here.  Two excerpts:

"Deeds, not things, made Father Berrigan one of the best-known Roman Catholic priests of the 20th century:  His physical possessions barely filled the modest room in the Jesuit infirmary at Fordham University in the Bronx where he spent his final years.  He departed indifferently penniless from a world that often seems to keep score in gilded ink."

"Father Berrigan drew inspiration from Dorothy Day, who helped found the Catholic Worker Movement in 1933 to bring fresh, radical life to the church’s teachings on social justice. Among other things, Catholic Worker communities across the country feed, clothe and shelter those in need."

May 7, 2016 in Perry, Michael | Permalink

Thursday, May 5, 2016

A strange reaction to the USCCB's religious-freedom video

In this summary/review/critique of the USCCB's recently released video on the importance of religious freedom and the reality, and seriousness, of the threats to it, Tom Roberts seems to regard as edgy and ominous what I would have thought is the unremarkable observation by one "Rich" "Gannett" of "Notre Dame University Law School" that "a government that doesn't acknowledge limits in its power to regulate religious institutions is probably going to come after other institutions as well."  Following/ripping off John Courtney Murray (this piece, for example), I've developed this (again, I think fairly straightforward) point in some academic writing (here, for example).

Michael Sean Winters, at Distinctly Catholic, and Anthony Annett, at dotCommonweal, are also critical of the video.  I'll leave it to readers to decide if their criticisms are fair.  It seems to me, though, that it is perfectly appropriate -- indeed, it is necessary -- for the bishops to engage publicly, and to try to "get the word out" as effectively and powerfully as possible, using all the media at their disposal, about the very real and accelerating turn against religious freedom -- which Winters, Annett, and I all agree is a fundamental human right -- in this country.  (Have you read Marc DeGirolami's "Free Exercise by Moonlight," dear reader?  If not, do!)  The urge to label and dismiss such engagement as "culture warrior-ing" or to ignore or minimize the worsening climate for religious freedom should be resisted.       

May 5, 2016 in Garnett, Rick | Permalink