Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, June 23, 2018

A RFRA-Based Defense in a Criminal Prosecution?

I received an email two days ago announcing that five professors of law and religion, including Virginia Law's Micah Schwartzman and Cornell Law's Nelson Tebbe, had

filed an amicus brief in support of Dr. Scott Warren, a humanitarian aid worker who faces up to twenty years in prison for providing food and shelter to migrants crossing the Arizona desert. The amicus was filed in an Arizona federal court, and contends that Dr. Warren is entitled to an accommodation from being criminally prosecuted for acting on his sincerely held religious beliefs. Dr. Warren, is a member of No More Deaths/No Mas Muertes, a humanitarian aid organization that works to reduce deaths and suffering along the US-Mexico border by providing water, food and clothing to migrants crossing the Arizona desert. When doing this work, humanitarian workers routinely discover the bodies of migrants who have died due to lack of water, food or shelter in the rugged and remote desert terrain.

Last January, Warren was arrested and charged with three felonies for “harboring migrants” after Border Patrol agents allegedly witnessed him giving food and water to two migrants in the desert near Cabeza Prieta national wildlife refuge in Southern Arizona. Warren was arrested shortly after No More Deaths released a report documenting the systematic destruction by Border Patrol of water and food supplies left in the desert for migrants. Over a nearly four-year period, 3,856 gallons of water had been destroyed by federal officials. The report linked to video showing border patrol agents kicking over gallons and pouring them out onto the ground.

Warren has filed a motion to dismiss the indictment in his case under the Religious Freedom Restoration Act (RFRA), arguing that his sincerely held religious beliefs compel him to provide aid to people who are suffering — and dying — in the desert. Warren testified at the evidentiary hearing on his RFRA motion that for him “providing humanitarian aid is a sacred act.” He also described how spiritually devastated he has been when he has come upon human remains in the desert: “The work that we do in discovering, working to identify and recover the people who have died is one of the most sacred things that we can do as humanitarian aid workers in Southern Arizona and in the desert … we witness and we are present for people and for their families, the people who have died and who have perished.” When asked why he risked violating the law by providing water, food and clothing to migrants in the desert, he testified “Based on my spiritual beliefs, I am compelled to act. I’m drawn to act. I have to act when someone is in need.”

Katherine Franke, Sulzbacher Professor of Law at Columbia Law School, authored the brief on behalf of herself and Caroline Mala Corbin, Professor of Law at the University of Miami School of Law, Micah J. Schwartzman, Joseph W. Dorn Research Professor of Law at the University of Virginia School of Law, Elizabeth Sepper, Professor of Law at Washington University School of Law, and Nelson Tebbe, Professor of Law at Cornell Law School.

“Given that this is the first case in which a RFRA claim has been raised as a defense in a federal criminal prosecution under immigration law we felt it was important that we provide the judge guidance on how to structure his consideration of a religious liberty claim in this context,” said Professor Franke. “The relation of religion to immigration law enforcement is all the more compelling given that Attorney General Jeff Sessions has quoted biblical text to justify the federal government’s aggressive immigration policies,” she continued. The law professors’ amicus brief is available here.

I wonder what MOJ's religious liberty scholars--Tom Berg, Rick Garnett, et al.--think of the argument presented in the brief.

June 23, 2018 in Perry, Michael | Permalink

Tuesday, June 19, 2018

Bray on Liturgical Change and Doctrinal Change

Sam Bray has an extremely interesting reflection on a change in the language of a central prayer in the Book of Common Prayer, the General Confession in Morning and Evening Prayer. The prayer contains the line "And there is no health in us," whose meaning is either that there is no spiritual health in us or that we are not the authors of our own salvation. Either way, the phrase suggests, as Sam puts it, that "we are prone to curve inward away from God, we need his forgiveness."

But the phrase has proved troublesome and has been touched up in several revisions. The cause of the trouble is that it is felt to sound a little rough to modern speakers and hearers. It needed some kind of toning down. Really, no health at all in us? Not even a little bit of health?

The Anglican Church in North America, in a recent update, changed the language to: "And apart from your grace, there is no health in us." That keeps Cranmer's original phrase, but softens it a little bit to reassure people that God does not think us totally irredeemable just the way we are. And the added phrase is surely not wrong; it's true that God's grace is necessary for spiritual health as well as salvation.

And yet, as Sam notes, "truth does not quite settle the question," since many things that are true do not make it into the prayer. Sam shows how the absolute language and sentiment of the original is in keeping with many other Biblical passages (Isaiah, Psalms, Daniel, and even in Luke). This is language without qualification, a pattern of speaking that may be seen even in the Beatitudes ("Blessed are the poor in spirit," not Blessed are those who are often, even if not 100% of the time, spiritually impoverished) and elsewhere. As Sam says, "Even where a qualification is denotatively true, its destruction of the proper attitude can make it connotatively false."

There is much more in Sam's rich reflection, which considers the rhetorical power of the original and the changed versions (matters of style are not only matters of style, and, as Sam says, "the form can be an integral part of the message") as well as the genuine difficulties facing would-be revisers who wish not to damage the true sense of the original. You should read it.

June 19, 2018 in DeGirolami, Marc | Permalink

Monday, June 18, 2018

Religious Condemnation of Family-Separation Policy

    Thankfully, the administration's policy of separating migrant children from parents at the border--including in the case of families who present themselves as asylum seekers [SEE UPDATE BELOW]--is coming under condemnation from religious leaders, including several who have supported President Trump in most other ways. The Catholic bishops, unsurprisingly, took the lead.

    There have also been good critical analyses--some with nuance--of Jeff Sessions' invocation of Romans 13 as a defense for the policy. From The Atlantic:

       Romans 13 is significant to American history because it played a critical role in the American Revolution. Loyalists who favored obedience to King and Parliament quoted Romans 13 for obvious reasons. “Let every soul be subject unto the higher powers,” the text read in the language of the time....

       But surprisingly, political and religious leaders who favored the American Revolution were even more eager to quote Romans 13. Their reasoning turned on the justification that Paul gave for obeying government. Sessions said that government was created “for the purpose of order,” but Revolutionary clergy quoted Paul directly: “Rulers are not a terror to good works, but to the evil.” In a study of how the Bible was used in the American Revolution, the historian James Byrd argues that “American patriots” rejected against the notion that Romans 13 required unconditional obedience. Instead, he wrote, they preached from the text “to deny that Paul gave kings the right to be tyrants.”

And following up, evangelical historian John Fea:

       Romans 13 teaches that Christians should submit to government,  but it does not seem to require unconditional submission.  It is not an easy verse to apply and we must be very careful about applying it universally....

       Is the stripping of children from their families at the Mexican border atrocious enough for Christians to violate Romans 13?  I would say yes.  Of course this entire point is moot because, as far as I understand it, there is no American law requiring ICE officials to take children away from their parents. [emphasis added]

UPDATE: Good point from Rick about taking parental rights seriously in all contexts. And I'll amend to language closer to his for describing most of the cases: "the US government is separating families who seek asylum in the US by crossing the border illegally." Although in some cases it appears to have been applied even to persons who present themselves at a port of entry and claim asylum consideration.

June 18, 2018 in Berg, Thomas, Current Affairs | Permalink

Parents' Rights in the border context . . . and beyond

One of the first papers I published, after becoming a law professor, was about parents' rights -- both generally and in the education and medical-treatment-refusal contexts more specifically.  It was called "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children" (available here).  Here is the abstract:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

I took (and still hold) a strong view of parents' rights to direct and control the upbringing of their children and I disagreed with those scholars who contended that (a) it is a mistake to talk about "parents' rights" because no one has a "right" to control another person's upbringing and development, (b) that it is a concession -- but only that -- by the state that we presumptively defer to (most) parents' choices about their children's upbringing and education, and (c) that the transmission of traditional or otherwise illiberal religious views and positions by parents to children can "count" as a "harm" that warrants state interference with the parents' practices.

This is, again, still my view.  That said, my impression is that -- in both the family-law and the constitutional-law fields -- the merits of the Pierce rule are quite contested and that many scholars hold the view that parents' power or authority to raise their children is merely delegated and should be subject to closer state supervision, in order to resist the successful transmission of illiberal or traditional religious views.  That is, the Douglas view in Yoder seems more popular than the Pierce decision.

In recent days, there has been a lot of close attention paid to the gravity of the state's decision to separate parents and children for public-policy (or, as we are seeing now, in terrorem) reasons.  I'm not an expert, but I'm inclined to agree with those who insist that it is unjust and unnecessary to have a blanket policy of separating and detaining the children of people who cross the border unlawfully and then present themselves for asylum consideration.  One hope I have for this current debate is that it will remind people of the moral and constitutional significance of the parental/family relationship and that we'll see some re-consideration by parents'-rights skeptics.  

June 18, 2018 in Garnett, Rick | Permalink

Comey and Moral-Theology Debates

     I'll make this a quick post, without detailed analysis or links to supporting news stories. The Inspector General's Report for DOJ seems to confirm that Jim Comey decided to disregard department rules by commenting in July 2016 on the decision not to prosecute Hillary Clinton. (Having then commented in July, he felt he had to notify Congress in October that the investigation had been  reopened.) Giving him the benefit of the doubt, he decided to disregard the rules because he thought that: (a) there was a leadership void at the top of the Department (Attorney General Lynch's partial withdrawal, although not recusal, from the case); (b) Clinton was going to be elected President; and (c) failing to comment on the decision--and failing to give notice of the (briefly) reopened investigation--would undermine her credibility as president by opening the door for  people to argue that the department had given her favoritism and a whitewash. We now know that Comey substantially erred in predicting the consequences of his acts, and perhaps in analyzing the state of the election in the first place.

      It seems possible for this episode to become an example used in ethics courses, religious (moral-theology) or secular, to explore issues concerning deontological versus consequentialist (or proportionalist) ethics. One major criticism against the latter is that we lack the ability--at least, we overestimate our ability--to predict the consequences of actions. Thus we should stick with rules that reflect either deductions from foundational premises or (in rule-consequentialism) the accumulated wisdom about what consequences will likely follow. Comey's misjudgment, then,could serve as a dramatic example for this argument.

     Of course, that doesn't end the debate about "following the rules." There still may be cases in which the rules must be disregarded, even if Comey was wrong to think this was one of them. Segregation and civil disobedience present a strong example where positive law had to give way to higher-law principles. But I don't know if even Comey claims this was that sort of case (although his book, which I haven't read, is called A Higher Loyalty).

     But this also doesn't end the debate over "rules vs. consequences." There are, of course, many times in which two concrete but conflicting rules both might apply to a situation; we have to decide what the scope of each rule is. Some moral theorists, like R.M. Hare in Moral Thinking, have identified this as the function of consequentialism/utilitarianism: to resolve conflicts between prima facie duties.

     The previous two paragraphs are just ruminations by a non-expert in moral philosophy and moral theology. The main point I wanted to make is that Comey's misjudgment might be used, in ethics/moral-theology education or debates, as a prime example of the problem of uncertainty in predicting consequences. Comey's errors in prediction, and thus in judgment, were very substantial--but I don't think they were so substantial that they keep his actions from being a useful example.

June 18, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, June 16, 2018

"Masterpiece Cakeshop and Protecting Both Sides," at Take Care Blog

Expanding on our previous analysis of Masterpiece Cakeshop at SCOTUS Blog, Doug Laycock and I now have a piece up at the Take Care blog. As many MOJ readers know, the Supreme Court found the state adjudicators had displayed impermissible  "hostility" to the bakers' religious beliefs, as shown by (1) over-the-top statements by commissioners about Phillips' belief and position and (2) the state's differential treatment of three other bakers who were allowed to refuse to make a cake with an anti-same-sex message on it, while Phillips was not allowed to refuse to design a cake celebrating a same-sex wedding.

In our Take Care piece, among other things, we (1) discuss how the Court's use of decision-makers' statements in Masterpiece should/could affect the analysis on Trump's travel ban, with the blatant anti-Muslim statements leading up to it;  (2) answer defenses that have been offered for the different treatment of the two sets of bakers; and (3) defend a broader reading of the leading free exercise cases, Lukumi and Smith--one that goes beyond prohibiting clear animus toward, or targeting of, religion. Here's some of the first point:

Trump’s anti-Muslim hostility was particularly unambiguous; and with a presidential order only one person’s intent is at issue, which makes his statements even more probative than those of an individual on a multi-member body. We do not know if the Court will so rule. The immigration context adds doctrinal complications; and if the majority believes that it should infer bad motive only from statements by adjudicators, not policymakers, an executive order falls in the latter category. But the Court is willing to infer discriminatory motive from legislative statements in race- and sex-discrimination cases under the Equal Protection Clause; it’s hard to see why religious-discrimination cases should be different.

       It is vital in today’s circumstances to condemn official hostility to any religion. In polarized America, too many people show tolerance for conservative Christians but not for Muslims. But that does not justify intolerance the other way; Masterpiece was right to condemn hostility toward Phillips’ traditionalist beliefs.


June 16, 2018 in Berg, Thomas, Current Affairs | Permalink

Friday, June 15, 2018

Some Confusions about “Classical Liberalism,” Progressivism, and Necessity


    A prominent strand in defenses of “classical liberalism” is the suggestion that there is no necessary transition from classical liberalism (understood to be good) to progressive liberalism (understood to be bad). Yes, to be sure, liberals may betray the true doctrine, resulting in a corrupted and distorted version of liberalism, one in which liberation projects are enforced upon dissenters. But it is not inevitable that such a transition should occur. Whether it does occur is a matter of free choice, guided by right reason. If liberty is properly understood in relationship to natural right among free and equal citizens, there need be no such slippage to authoritarian, liberty-restricting progressivism.

    The remedy for progressive excess, on this view, is the renewal of a kind of civic virtue — the political virtue that respects the equality-in-liberty of all, especially “religious freedom,” while nonetheless insisting that natural law and divine law ought to be respected by all, even if none are to be compelled to respect it. In an Americanist version, this civic virtue is said to be the virtue envisioned by the Declaration and by the Founders, and embodied, albeit imperfectly, in the Constitution of 1789. The Founders show that it is perfectly possible, as logical matter, to combine public liberalism based on the consent of the governed with a commitment to natural rights and natural virtues, understood to include both the right and duty to worship Nature’s God.

    I think there are several conceptual confusions here. Dispelling these confusions is not in itself sufficient to refute the view I have described, but the indispensable first step is to ask the right questions. As it stands, the view is not coherently formed.

    First, there is a confusion between two very different counterfactuals (a confusion that has, incidentally, frequently bedeviled discussions of economic history).  I will illustrate with the American case. One counterfactual is what would have occurred if the requirements of civic virtue had been followed since 1789. An entirely different counterfactual is what would happen if civic virtue were renewed today. Defenses of Americanist liberalism often skip back and forth between these two distinct counterfactual baselines, even in the same paragraph or sentence. The result is that two entirely different propositions are often conflated:

    (1) If citizens had been virtuous starting from 1789, the evils of progressive liberalism would not have occurred.

    (2) If citizens would be virtuous in 2018, the evils of progressive liberalism could be undone.

    Of course, both propositions could be true, both false, or only one true. But it is a mistake to defend (1) and to think one has thereby also defended (2). The latter is much more difficult to defend than the former. Undoing X is almost always more difficult than never doing X in the first place. Suppose that it is true that the ills of liberalism do not necessarily follow from the Founding, as suggested by proposition (1). It isn’t at all clear what the cash-value of that observation might be in 2018, if it is also true (denying proposition (2)) that those ills cannot now be undone by some sort of “return to the principles of the Founders.”

   A second confusion is between necessity and structural propensity in politics. Illustrations are legion, both in markets and nonmarket settings. There is a structural propensity for littering in public parks, because of the Tragedy of the Commons. It’s not strictly necessary - we could all just be more virtuous! - but it’s a real propensity all the same. It is irrelevant that there exist possible worlds in which, despite the conditions of the Tragedy being satisfied, virtuous norms ensure that no littering occurs. Those worlds are sufficiently few, and sufficiently difficult to reach from a world without virtuous norms, that one cannot simply gesture in their direction and think that one has offered an argument.

   Put differently, talk of “necessity” obscures the main issue, which is the structural stability of classical liberalism. Of course one can imagine logically possible worlds in which virtuous classical liberals practice tolerance in just the right ways. The problem, however, is that those worlds — however imaginable — tend not to stick around for very long, for systemic reasons diagnosed by Maurice Cowling, Karl Popper, Carl Schmitt, and other theorists of liberalism (some of them liberals themselves). Classical liberalism licenses and in many ways structurally encourages the widespread view — indeed the fervent quasi-religious conviction — that the defense of liberty itself requires repression of those who reject liberalism’s premises. Under particular conditions, that repression will become severe, even if it is not logically necessary that it occur. The repression of dissenters from liberalism is a systematic, structural propensity. Exhortation to virtue is no more likely to solve the structural problem than is exhorting oligopolists to refrain from tacit collusion and price-fixing. One must instead break up the structure that predictably — even if not necessarily — produces the relevant ills. 

    In this way, classical liberalism resembles a soap bubble. The issue isn’t whether virtuous classical liberalism can exist, but for how long, and how robust or fragile it is when buffeted by environmental conditions. In the closely related context of theological liberalism, Cardinal Newman argued that liberalism was an unstable half-way house between atheism and Rome. Mutatis mutandis, that is the argument that needs responding to, not the straw men of logical possibility and necessity.


    Adrian Vermeule


(Some material in this post previously appeared on Twitter).

June 15, 2018 | Permalink

Thursday, June 14, 2018

A Point of Contact, and an Agenda for Further Study: Thoughts in Response to Rick

Like Rick, I have been enjoying the ongoing ferment about liberalism and the American founding/experiment/project. It's a fun time to listen to what people have to say on the question and hear different points of view. I don't have fixed views on the genealogical doubts that Rick raises (curious to hear from others on that front), though I am in agreement that the diagnostic program--still in its infancy--is an exciting one that offers a lot for the scholar of law or politics who is interested in it.

In the spirit of fostering that program, I wanted to note a point of contact between Phillip and his targets. Phillip says this in his piece

One might accept this defense of our Founding principles yet still press an aspect of the “radical” Catholics’ third criticism — that American liberalism, whatever its original character, has produced a decadent and deplorable legal and moral culture. One might contend that even if the Founders accepted natural law, moral duties, and limits on rights, their account of freedom has proved to be too thin. It provides too much freedom for bourgeois, comfortable self-preservation, what moral theologian Servais Pinckaers calls “freedom for indifference,” and insufficient cultivation of “freedom for excellence.”

An honest assessment of America and our history must acknowledge that there is something to this criticism. The Founders held that the primary purpose of government is to secure natural rights. They believed that a just political order would preserve freedom for its citizens but that it would not command its citizens to use their freedom well.

I'd put the point perhaps slightly differently. It isn't so much that government "would not command its citizens to use their freedom well." It is that government, in at least ostensibly abjuring any interest in the substantive uses of freedom, would neglect this feature of freedom--its affective side--and would in consequence foster, never quite expressly but nevertheless relentlessly, a particular and quite non-neutral understanding of the point of the freedoms it protects. An understanding that would be internalized and entrenched over centuries, whatever the natural rights view defended by Phillip and the likes of Thomas West (whose book is very interesting) may have once looked like.

One might derive from this point of contact (if such it is) between Phillip and the "radicals" a specific research program focusing on different streams of intellectual history during the founding period (e.g., in the church-state context, but certainly not only there) with an eye specifically on the development of the idea of freedom in the subsequent decades and centuries. It may turn out both that the founding generation's ideas about the uses of freedom were quite varied (just as varied as ours are) and that there are reasons for the dominance of certain of these ideas and the recessiveness of others over the centuries.

June 14, 2018 in DeGirolami, Marc | Permalink

Munoz, "Defending American Classical Liberalism"

In recent years, a number of important and interesting critiques of "liberalism", many rooted in the Catholic tradition of social and political theory, have been proposed by leading scholars and thinkers like Patrick Deneen, (our own) Adrian Vermeule and Marc DeGirolami, Ryszard Legutko, Michael Baxter, Rod Dreher, William Cavanaugh, David Schindler, Michael Hanby, etc., etc.  My colleague in Political Science, Phillip Munoz -- a scholar of the American founding -- has written a response.   Check it out.

I tend to agree with many of the critics' diagnoses of the present situation, but to disagree with the stronger genealogical claims (i.e., "what looks like today's illiberal progressivism is really the working-out of liberalism's key premises").  I tend to endorse (cling to?) the Murray-esque view that a relatively thin, primarily procedural liberalism leaves plenty of room for real human flourishing and the freedom of the Church.  But . . . I could be wrong.  I'd welcome others' reactions to Munoz's piece!


June 14, 2018 in Garnett, Rick | Permalink

Wednesday, June 13, 2018

A note about the Georgetown conference on "polarization" in the Church

I was scheduled to attend, but then -- unexpectedly, and to my regret -- had to miss, the recent conference at Georgetown, "Overcoming Polarization in a Divided Nation Through Catholic Social Thought."  (Learn more about the conference, and watch some video, here.)  At Distinctly Catholic, Michael Sean Winters -- who did participate -- shares some reactions.

I think Winters is right to remind us both that "polarization" is not new nor is it worse than it has ever been.  I also share the view that "civility" -- as important as it is -- needs to be discussed and thought about in the larger context of moral (and the morality of) argument.  (See, e.g., Murray:   "[S]ociety is civil when it is formed by men locked together in argument."  And he's wrong (though many other commentators are, too) to suggest that the fact Merrick Garland is not an Associate Justice somehow establishes which of the two dominant parties is more ruthless or determined in its efforts to secure its policy and other aims, especially with respect to judges, but put that aside.  I want to focus on one thing in particular, he said with respect to Prof. Helen Alvare's presentation.

[T]here remains a point of confusion that must be addressed. In the public session, Professor Helen Alvaré, law professor at George Mason University, said that she always thought the dichotomy between "social justice Catholics" and "pro-life Catholics" was a false one, because all of her pro-life friends work at soup kitchens or undertake similar work on behalf of the poor. God bless them. But, Catholic social teaching, while it commends opportunities for charity of the kind Alvaré described, also demands more. It demands justice. It demands that we look at, say, the economy through the lens of Catholic moral teaching and reach moral and anthropological conclusions based on our teaching rather than merely swallowing the dominant Hayekian ideology about markets that is so popular on the right and can be found in the classrooms of the Catholic University of America's business school.

The claim about "dominant Hayekian ideology" is misplaced (because no such "ideology" is "dominant" at CUA or anywhere else; the debate is about the extent, content, and efficacy, not the existence, of economic regulations) but the point about "justice" is worth underscoring.  Winters points out that more than personal charity directed toward the poor is required by the Church's social teachings, and that sounds right.  By the same token, though -- and I suspect Winters would not disagree -- more than support for policies that, one hopes, will result in fewer women becoming pregnant and choosing abortion is required by those teachings, too.  What is "demand[ed]" here is also "justice," and - contrary to the recent suggestion by Fr. Reese -- a "new strategy" that gives up on building a just legal regime, one that recognizes the equality and protects the dignity of each person, is not an attractive one.   

June 13, 2018 in Garnett, Rick | Permalink

"Irish Catholic Hospitals 'Will Have To Perform Abortions'"

The news, given the givens, is probably not all that surprising.   Still, there's something not a little bit . . . chilling about the tone of the PM's diktat.  "It will not, however, be possible for publicly-funded hospitals, no matter who their patron or owner is, to opt out of providing these necessary services which will be legal in this state," for example.  Well, it certainly is and would be "possible" for Catholic hospitals not to be forced to facilitate acts they (reasonably) regard as gravely wrong.  And this:

Mr Varadkar added: "That legislation will allow individuals to opt out based on their consciences or their religious convictions but will not allow institutions to do so.

"So, just as is the case now in the legislation for the Protection of Life During Pregnancy Act 2013, hospitals like for example Holles Street, which is a Catholic voluntary ethos hospital, the Mater, St Vincent's and others will be required, and will be expected to, carry out any procedure that is legal in this state and that is the model we will follow."

The tone's a mix between a bureaucrat in a dystopian novel and a scolding kindergarten teacher.  

So . . . how will/should the Church respond?

June 13, 2018 in Garnett, Rick | Permalink

Catholic Hospitals in Ireland Will Be Required to Perform Abortions

Amazing news from Ireland, hot on the heels of the repeal of Ireland's pro-life provision. The movement from what was prohibited to what is required was...rather rapid. The classical liberal moment lasted about two weeks.

June 13, 2018 in DeGirolami, Marc | Permalink

Tuesday, June 12, 2018

Fr. Justin Brophy on "The Practice of Catholicism and Modern Identity."

In Notre Dame's (excellent) Church Life Journal is an essay by my former student, Fr. Justin Brophy, O.P., called "The Practice of Catholicism and Modern Identity."  Here's a taste:

We are products of our zeitgeist more than we sometimes understand or admit. The Gospel of Jesus Christ transcends time and place, but Catholics themselves are not immune from the influences of the period in which they are born. Simply by virtue of living in the contemporary age, modern Catholics are presented with a set of peculiar difficulties that either explicitly or implicitly affect the practice of their faith.

One of the greatest challenges pressing believers today is what Benedict XVI called the “dictatorship of relativism.”[1] A prevalent part of our worldview is certainly the idea that no objective moral truths exist or that all moral truths are historically conditioned. But relativism is not the only trial modernity presents and further difficulties arise in the response to the relativist mindset. This essay is an attempt to understand one such challenge: a type of intellectualism that I find common among Catholics who come or return to the faith after a period of searching. That is, for many persons who come to the Church to escape the modern predicament, the only criterion against which they can evaluate the answers the Church offers to modern existential questions is their own autonomous judgment. . . .

Even though Christianity cannot completely accommodate itself to any age, the preceding considerations show that in fact all of us are unavoidably creatures of modernity. This is nowhere more evident than in the way many of us come to embrace the practice of faith for ourselves in the modern world.

Perhaps such a realization will also lead to an increase in charity during our disputes with one another. We are all moderns of one sort or another. We are more similar to each other than we are different—and this is to say nothing of our common identity in baptism.

Our faith is not just a set of ideas. It is a relationship with God, who in his very reality is relational, and who has held out a new relationship with us through Jesus. Human beings find meaning and purpose in developing personal relationships with God, Jesus, and each other. While this seems obvious on its face, these relationships can be difficult to realize in the modern predicament. Fear is major impediment to developing such relationships, when encumbered by the intellectualism of the modern age.. . .

June 12, 2018 in Garnett, Rick | Permalink

Murray, "The Return to Tribalism"

I recently read both Patrick Deneen's Why Liberalism Failed and Jonah Goldberg's The Suicide of the West.  Good times.  In the latter, I came across mention of a John Courtney Murray piece that I'd read before but forgotten.  It's called The Return to Tribalism and, on re-reading, it seems both prescient and timely.  Here's a bit:

I suggest that the real enemy within the gates of the city is not the Communist, but the idiot. Here I am using the word "idiot" not in its customary, contemporary vernacular usage of one who is mentally deficient. No, I am going back to the primitive Greek usage; the "idiot" meant, first of all, the private person, and then came to mean the man who does not possess the public philosophy, the man who is not master of the knowledge and the skills that underlie the life of the civilized city. The idiot, to the Greek, was just one stage removed from the barbarian. He is the man who is ignorant of the meaning of the word "civility."

What is our contemporary idiocy? What is the enemy within the city? If I had to give it a name, I think I would call it "technological secularism." The idiot today is the techno-logical secularist who knows everything. He's the man who knows everything about the organization of all the instruments and techniques of power that are available in the contemporary world and who, at the same time, understands nothing about the nature of man or about the nature of true civilization. . . .

June 12, 2018 in Garnett, Rick | Permalink

Monday, June 11, 2018

African-American Evangelicals on the Masterpiece Cake Issue

Here is a worthwhile piece from Kate Shellnutt at Christianity Today with several African-American evangelical leaders giving their perspectives on Masterpiece and other situations of declining service to a same-sex wedding. The leaders quoted negotiate the tension between the importance of nondiscrimination laws in public accommodations and the importance of religious liberty.

Polls by Pew, quoted in the article, show black Protestants support same-sex marriage a little more than white evangelicals do (44 versus 35 percent), and are substantially below the level of support of Americans overall (44 versus 62 percent). But on the matter of "requiring businesses to serve same-sex couples," black Protestants are way above white evangelicals (46 percent to 22 percent) and close to Americans overall (46 to 49 percent). As always, you have to look at how the questions are phrased; the kind of limited exemption for an expressive service to a wedding is different, and may garner more support, than a hypothesized claim to "refuse to serve same-sex couples." (Of course, those distinctions might matter to everyone, not just black people; so the point about black evangelicals emphasizing nondiscrimination holds.)

There's no representative position in the article--the views vary. But here are a few thought-provoking comments from Justin Giboney, founder of the AND Campaign ("Biblical Values, Social Justice"):

        It’s not surprising that black Protestants are more likely to believe vendors should serve same-sex weddings than their white counterparts. We might agree theologically, but historically speaking, we have little reason to believe the concerns aren’t pretext for prejudicial impulses. There’s very simply a lack of trust, and it’s better to err on the side of caution than to be complicit in furthering bad faith and un-Christlike endeavors....

        That said, the biblical love and service imperative is coupled with truth-telling and a responsibility to honor what God has deemed good.... Thus, a pastor—or a baker—who’s been asked to participate in a wedding ceremony should be able to refuse if compelled by religious conscience; however, services generally should not be declined outside of very limited circumstances.

June 11, 2018 in Berg, Thomas, Current Affairs | Permalink

Sunday, June 10, 2018

Austin’s Minimalist Theory of Sovereignty (A Note)

A brief note on John Austin’s theory of sovereignty, to follow up on my questions about sovereignty for Andrew Willard Jones. A couple of responses have assumed that Austin pictures or assumes a “unitary” or “simple” sovereign. He does not. Austin’s theory is truly thin, truly minimalist; it posits only that there is a determinate person or group of persons who are habitually obeyed by the bulk of the population, etc. That group may itself be internally complex, like “the Queen in Parliament,” “the Estates of the Realm,” or “the Gelasian Dyarchy.” That group may be internally conflictual, struggling inter se to reach decisions, or may instead operate by smooth internal procedures. None of this is relevant for the theory. So long as the group is determinate and habitually receives obedience from the bulk of the population, and does not habitually obey any determinate human superior, it is enough.

June 10, 2018 | Permalink

Some Questions about Sovereignty for Andrew Willard Jones


In Andrew Willard Jones’s fascinating picture of the 13th century France of St Louis IX, Before Church and State, there is a strand of argument that makes some sort of claim about sovereignty. I am unclear, however, about what exactly the claim is, and — to the extent I can discern what it is — fear that it rests on a confusion between “sovereignty” as a concept in political theory and sovereignty as a fact, a confusion between “sovereignty” de dicto and sovereignty de re. Let me explain.

Consider this passage, which states the book’s basic theses about sovereignty:

I contend that it is an assumption of modern politics that sovereignty exists someplace, even if it is obscured by constitutional arrangements, opaque structures of power, or certain rhetorical constructions. I further contend that this notion of sovereignty carries with it certain assumptions about society and certain approaches to social reality that were absent in the Middle Ages. Indeed, the monopoly of violence that sovereignty demands is actually organizationally possible only through the technology of the modern State, and the ideological component of sovereignty—the belief that monopolized violence is “legitimate”—is constructed and sustained only as a response to the conviction of the ubiquity of violence or scarcity, the conviction that all “difference” is ultimately conflict and that reality is fundamentally a sequence of “differences” (a foundational belief of modern social theory).

Observe that Willard Jones (1) switches from sovereignty and its existence in the first sentence to the “notion” or idea or theory of sovereignty in the second, and then (2) goes on to critique a particular theory of sovereignty — Weber’s theory — on the ground that it does not adequately account for the factual circumstances of 13-century France. There are two problems here. One is that sovereignty as a fact may exist long before sovereignty as a notion, idea or theory, just as gravity long predated (at least on sane views of scientific epistemology) the theoretical discovery of gravity. The second is that Weber’s is hardly the only modern theory of sovereignty; in my view it is not even the best one. These two problems will converge if there is another leading modern theory of sovereignty that sidesteps Willard Jones’s critique of Weber, and that potentially applies to 13th-century France regardless of whether any contemporaries thought in terms of the theory’s categories.

I believe there is such a theory: John Austin’s theory. Roughly speaking, for Austin, sovereignty is above all a possible fact, a state of affairs that may or may not obtain, regardless of anyone’s theorizing about it. The correct theory of sovereignty, Austin thinks, is his own, but that theory itself shows that sovereignty (rightly understood) may or may not have obtained in 13th century France or for that matter Imperial Rome or China of the Han Dynasty.

For Austin, sovereignty is a state of affairs in which there is, in a particular territory, a person or determinate group of persons who are habitually obeyed by the bulk of the population, yet do not habitually obey any other human superior (thereby bracketing the question of the sovereign’s obedience to God). This definition is intended, as far as possible, to leach out normative propositions and thereby to isolate sovereignty-as-fact. In particular, and in contrast to Weber’s theory, it says nothing at all about violence or other possible causes of obedience, and avoids stumbling into the notorious conceptual swampland that is “legitimacy.” Of course no definition of a politically loaded concept can be simply descriptive the way “the spoon is on the table” is descriptive, but Austin’s theory has the great virtue that without appealing to concepts like “legitimacy” there are perfectly straightforward cases in which the theory indicates that sovereignty does exist (China 2018) and does not exist (England at the height of its Civil War, or Libya in recent years). Even in the boundary cases, which for all I know include 13th-century France, the question to be asked under Austin’s theory is itself clear, even if the answer is unclear.

On this view, it is an open question, at least to me, whether sovereignty did or did not obtain in 13th-century France. Perhaps there was no person or determinate group of persons meeting Austin’s criterion; perhaps there was. I would love to hear Willard Jones’s thoughts on that question as a historian. But it would not be responsive to point out that contemporary 13th-century notions of sovereignty were not the same as modern notions, or that Weber’s very particular theory of sovereignty does not adequately account for the France of St. Louis. Most of all, one wonders what if anything of Willard Jones’s claim remains intact were he to draw more clearly the distinction between sovereignty as fact and as theory, de re and de dicto.

I hasten to add that none of this undermines the main point of the book, which is to reconstruct and revive an entirely alien thought-world in which the modern separation between Church and State simply does not capture the way anyone looked at matters. That contribution is magnificent; and it does not depend upon the book’s discussion of sovereignty, even if I am correct that the latter is somewhat confused.

Adrian Vermeule

June 10, 2018 | Permalink

Saturday, June 9, 2018

Masterpiece Comment

I've been preoccupied, since the Masterpiece Cakeshop ruling came down, writing about the decision and also finalizing a book manuscript for submission to the publisher on an entirely different subject (gene patents). Tardily, let me note that Doug Laycock and I posted an analysis of Masterpiece earlier this week on the SCOTUS Blog. A bit:


     There is a practical holding and an ideal holding [in Masterpiece]. The practical holding is that the unequal treatment of Phillips and the protected bakers is evidence of unconstitutional hostility. Conscientious objectors embroiled in litigation will have to send testers to smoke out uneven enforcement of anti-discrimination law. We expect that states are unwilling to require socially liberal vendors to produce goods with conservative religious messages they find offensive or against their conscience. If that is so, then those states cannot require religiously conservative vendors to produce goods in violation of their conscience.

     The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.

     But a requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.

     Those manipulations began in the state’s briefs and in the concurring and dissenting opinions.... 

June 9, 2018 in Berg, Thomas, Current Affairs | Permalink

Thursday, June 7, 2018

"Freedom 'for' Religion: (Yet) Another View of the Cathedral"

I've posted a short paper on SSRN, on the idea of "Freedom 'for' Religion".   Here's the abstract:

This chapter is a reflection on the meaning and implications of "freedom for religion." It is suggested that to consider "freedom for religion" as one dimension of the right to religious freedom is to ask, "what are the necessary or helpful conditions that contribute to making religious freedom a healthy reality? What is needed 'for' religious freedom to work, even to thrive?" The chapter argues that a healthily "secular" political community may and should take account of citizens' religious lives and help to create conditions favorable to the fostering of religious life. Although the state should remain "neutral" with respect to (most) religious questions—primarily because the resolution of such questions, assuming for now that they can be identified, is outside the jurisdiction of civil authorities—it may and should affirm enthusiastically that religious freedom is a good thing and that it should be not only protected, but also nurtured, by law and policy.

As one would expect, Rouen and Monet make appearances . . .

June 7, 2018 in Garnett, Rick | Permalink

Wednesday, June 6, 2018

Does recognizing stillborn babies threaten abortion rights?

U of Arkansas law prof Jill Wieber Lens argues that tort law must recognize the true nature of the loss when medical negligence results in a stillborn baby:

Tort law, for the most part, already enables parents to sue when someone wrongly causes their child’s stillbirth . . . . However, that tort claim must properly recognize the extent of the parents’ loss: It’s not just a loss of pregnancy or of a fetus ― it’s the death of a child. Only this kind of recognition correctly incentivizes doctors and provides compensation to grieving parents.  

Proper recognition of the devastating loss after the death of a desired unborn child does not threaten abortion rights, and we cannot let the ongoing abortion debate minimize that devastation. This is something the pro-abortion rights and anti-abortion movements should be able to agree on.

Both sides of the abortion debate could and should agree on this, but I'm skeptical that they will.  Pro-abortion rights advocates are leery to recognize the fetus as a child.  If passage through the birth canal loses its moral significance, the abortion debate opens up to important and sensible new policy questions that have been marginalized in the U.S. since Roe.

June 6, 2018 in Vischer, Rob | Permalink

Tuesday, June 5, 2018

"Ireland Takes on the Catholic Church Again"

This piece has a tendentious headline (sigh) but it points to some important questions about the mission, character, funding, and regulation of Catholic schools.  It's hard to see how it can be justified -- except on "fit of spite" grounds -- to say that Catholic schools should lose the right to prefer Catholics in admissions, but faith schools connected with other traditions will not.  More generally, though, I would think that even the battered and lacking-credibility Church in Ireland is in a sufficiently strong bargaining position to say, "if you want to run our Catholic schools as secular state schools, then we will sell some of them to you."  It is not unreasonable for the public, and the public authority, to think that there should be non-Catholic school options for children whose families prefer those options.

I am, as MOJ readers know, a strong supporter of school-choice programs; indeed, I believe they are morally required.  But, this story about what's happening in Ireland is an important reminder about the temptation on the part of the state to leverage the funding it provides to secure practices and outcomes it prefers.        

June 5, 2018 in Garnett, Rick | Permalink

Some reactions to the Cakeshop case

Here are some quick thoughts of mine -- not nearly so well developed as Marc's! -- on the Masterpiece Cakeshop ruling.  Here's a (perhaps overly optimistic) bit:

The Court affirmed that religious and other conscientious beliefs regarding same-sex marriage are constitutionally protected, even when unpopular. The justices recognized that deep and sincere disagreements persist about these matters and that both our First Amendment and the needs of civil society require balance, understanding, and humility.

Although the decision is not definitive, and the justices seemed deliberately to avoid the difficult but important constitutional questions that most Court-watchers thought were at stake, the ruling can be seen as a prudent way for the Court to invite civil dialogue and conversation, rather than more rancor and litigation, about striking the right balance in our pluralistic society.

June 5, 2018 in Garnett, Rick | Permalink

Some Reflections on Animus and "Adjudicatory Bodies"

Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of "animus" might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who "objected to a requested cake on the basis of conscience" (this was said by the Court to be an "indication of hostility" to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips' religious views, comments which were never subsequently disavowed (more evidence of animus).

I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting "animus": “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading "seems more likely." I really don't understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to "compromise." Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner's comments were hateful? I wonder if the Court's approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.

And speaking of "adjudicatory bodies." In describing the state of jurisprudential play with respect to "animus" evidence, the Court said this:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the "animus" discussion. Indeed, the "animus" discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?

The explanation offered here seems to be that Lukumi dealt with "lawmakers" while this case deals with the "very different context" of "adjudicatory bod[ies] deciding a particular case." It is true that in the following section of the opinion, the language about "adjudicatory bodies" does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that "the government's" "neutrality" may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.

But the application of these factors in this case to an adjudicatory body which ruled on this particular case--the Commission--does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of "animus" analysis that did not get a majority in Lukumi, but only when one is dealing with "adjudicatory bodies deciding a particular case."

If that reading is right (and it of course may not be), what could explain a new, special animus rule for "adjudicatory bodies"? Admittedly this is speculation, and I don't have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis--its susceptibility to manipulation, for example--those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.

Again, just a speculation. We'll see how, if at all, the "adjudicatory bodies" language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors. 

June 5, 2018 in DeGirolami, Marc | Permalink

Monday, June 4, 2018

7-2 is the new 5-4*

Lots will be written about the decision today in Masterpiece Cakeshop (congratulations to Tom Berg for...pretty much nailing it). Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices' voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).

The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration (the asterisk to the asterisk is Hosanna-Tabor, if one is inclined to think of that case as [principally] an Establishment Clause case).

June 4, 2018 in DeGirolami, Marc | Permalink

Tuesday, May 29, 2018

The Irish vote

I imagine that Mirror of Justice readers have read more than enough about the recent vote in Ireland to scrap the pro-life provision in its Constitution.  The end-of-the-day results didn't surprise me, but I was struck (and sickened) by the nature of the repeal campaign and the images of ghoulish jubilation in the streets after the vote.  

It remains to be seen what legal regime Ireland will construct for regulating abortion.  It's worth noting that one of the possibilities that I've heard the most about would make 12 weeks the cut-off for abortion-on-demand.  This would mean that even Ireland's brand-new, spirit-of-the-age, cast-off-shackles-of-popery abortion regime would still be more restrictive than any American state's.   

May 29, 2018 in Garnett, Rick | Permalink