December 12, 2013
Silecchia’s “Opening Doors to Life”
A colleague here at Catholic University School of Law and MOJ alum, Lucia Silecchia, has written a beautiful piece for the National Review Online. One normally does not use the adjective "beautiful" to describe an op-ed on a legal issue. However, Prof. Silecchia's important reflections on the UN's "International Day of Persons With Disabilities" and its implications for other social issues is an important reminder and well worth the read.
Posted by Mary G. Leary on December 12, 2013 at 12:39 PM | Permalink
Does RFRA's Least Restrictive Means Requirement Violate the Establishment Clause?
Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges--doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.
Recall the theory: religious accommodations are unconstitutional if they shift "significant burdens" onto a "focused and identifiable class of third parties." For the moment, leave aside the "focused and identifiable" component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available--that means which least burdens the religious claimant--to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government's case for the contraception mandate is weakest.
Suppose one accepts the claim that any "significant" burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a "focused and identifiable" group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable--in some cases verging on certain--that the means chosen will impose "significant" burdens on third parties.
Take these cases.
December 10, 2013
Why does Means v. USCCB repackage medical malpractice as theological malpractice?
Means v. USCCB is the ACLU's lawsuit against the United States Conference of Catholic Bishops that received so much media attention last week. I did not see much explicitly about the legal merits of that suit in the first wave of reporting. The most I saw was in NPR's story, which quoted Rick Garnett's assessment of the "novel case" as a "stretch." The New York Times did note that the plaintiff had taken the "unusual step" of suing the Bishops' Conference (rather than the doctor or medical facility whose alleged negligent treatment is at issue); the story also included a bioethics source not aligned with the ACLU. But seemingly more typical were stories from NBC News and the Detroit Free Press, which uncritically recited the claims of the lawsuit, quoted the ACLU, noted that the USCCB refused to comment, and then quoted an ethics or medical expert who assumed the truth of the allegations in the complaint.
The USCCB later issued a statement. And with additional time, other commentary has emerged in which the legal merits of the claims have received additional scrutiny. The American Prospect's story by Amelia Thompson-Deveaux, for example, quotes Illinois law professor Robin Fretwell Wilson and places the lawsuit in some legal context:
From a legal perspective, suing the USCCB rather than the doctor or the hospital is akin to blaming a professional organization for medical malpractice, says Robin Fretwell Wilson, a professor of law at the University of Illinois. Much of the ACLU’s case hinges on the lack of information imparted to Means, which is generally considered to be the doctor’s responsibility. “I don’t doubt that if [Means] sued the hospital or the doctor, this would be plain-vanilla medical malpractice,” she says. “But they’re not suing the doctor, the hospital, the local bishops, the board of trustees—you’re many layers removed from the person who really should owe this woman a remedy if everything in the complaint is taken as accurate.”
This assessment seems correct. As Eduardo Peñalver mentioned in the update to his post at dotCommonweal, the article "does a nice job of laying out some of the problems with the ACLU's legal theory."
The existence of these problems raises another set of questions about why the ACLU brought the lawsuit as they did in the first place. If one assumes for purposes of analysis that medical malpractice was committed, then why not sue for medical malpractice? Why repackage a potentially winning claim of medical malpractice into a seeminly losing claim of theological malpractice? These are questions that have been bothering me from the beginning. And they seem to have been bothering others as well.
One answer may be that the ACLU's goal in the case is not to obtain personal redress for their client but instead to place a dark cloud over Catholic healthcare more generally. That is not only plausible but probable. But it can't be a full explanation, because naming the doctors and the hospital and any other potentially responsible parties does not preclude naming the USCCB. And motivational attributions of this sort can be dangerous.
The real reason (or more likely, the main reason among others) may be simpler. The best explanation for the peculiar theory of the case may be that they were out of time. The complaint alleges two counts of negligence. Although the complaint is not as explicit on this point as it could be, these are state-law claims under Michigan law. There may be federal-law defenses based on statutory preemption or the First Amendment. But the basic claims are state-law claims, and these are governed by state-law statutes of limitations. The relevant statutes of limitations are at MCL 600.5805. There is a two-year statute of limitations for malpractice actions, MCL 600.5805(6), and a catch-all three-year statute of limitations for damages actions for personal injury not otherwise provided for, MCL 600.5805(10).
According to the complaint, the injuries at issue in Means v. USCCB occurred from December 1 to December 3, 2010. From the little research that I have done, then, it appears that a medical malpractice claim would have been barred by the statute of limitations as of December 3, 2012, whereas a generic personal injury claim would have remained open for another year. And if that is right, the legal explanation for the ACLU's recourse to the novel legal theory of theological malpractice in Means v. USCCB is that they filed too late to recover for medical malpractice. Concern about the statute of limitations even for this generic personal injury claim premised on theological malpractice probably also explains the timing of filing. The complaint was docketed as filed on November 29, 2013, which means that they just made it in if the three-year statute of limitations applies.
I am not a Michigan lawyer and there may well be additional legal reasons for not bringing a medical malpractice claim. But if you ask the right questions, the basic statute-of-limitations research for a post like this takes just minutes, does not require too much specialized knowledge, and is free. Given the lack of reporting on this issue, the journalists in the first wave of stories may not have been asking the right questions (for the legal angle of the story at least).
REMINDER: Register for the 2014 Lumen Christi Conference!
Just a gentle reminder that the 2014 Conference on Christian Legal Thought is only a few weeks away! The conference is sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors Christian Fellowship and occurs in conjunction with the annual AALS meeting, which is being held in Manhattan this year. This year's conference celebrates the life and thought of Professor Jean Bethke Elshtain and explores the theme of public engagement with law and religion. It's a topic that should be of broad interest in this period of great ferment in the field.
The schedule is below (and includes our own Tom Berg). Please register here!
Friday, January 3, 2014, 12:00 pm to 6:00 pm
The University Club
One West 54th Street, New York, NY 10019
Conference Topic: Public Engagement With Law and Religion: A Conference in Honor of Jean Bethke Elshtain
Noon: Registration, Luncheon, and Opening Remarks
1:15 pm – 2:45 pm: Session One. Public Engagement With Law and Religion: The Thought of Jean Bethke Elshtain
Chair: Zachary R. Calo (Valparaiso University School of Law)
* Thomas C. Berg (University of St. Thomas School of Law)
* Eric Gregory (Princeton University, Department of Religion)
* Charles Mathewes (University of Virginia, Department of Religious Studies)
2:45 pm – 3:00 pm: Coffee Break
3:00 pm – 4:30 pm. Session Two. Public Engagement With Law and Religion: Journalistic Perspectives
Chair: Marc O. DeGirolami (St. John's University School of Law)
* Matthew Boudway (Associate Editor, Commonweal)
* Susannah Meadows (Contributor, New York Times)
* Rusty R. Reno (Editor, First Things)
4:45 PM – 5:15 pm: Vespers
5:15 pm: Reception
December 08, 2013
"Never before in history was one human being so universally acknowledged in his lifetime as the embodiment of magnanimity and reconciliation as Nelson Mandela was."
These are the opening words of Archbishop Desmond Tutu's remembrance of Nelson Mandela published earlier this week in the Washington Post. Notwithstanding all that has been written or said over the past few days about this larger than life figure, we still seem unable to capture in words the significance of this great man. It seems appropriate for a Catholic legal blog to discuss this student of the law and father of a nation. Yet, words fail to do him or his legacy justice. In my view, Archbishop Tutu's reflection comes closest to capturing the personal and public attributes and struggles so many admire. It is worth a read.
Posted by Mary G. Leary on December 8, 2013 at 11:26 PM | Permalink
December 05, 2013
On the Claim that Exemptions from the Mandate Violate the Establishment Clause
I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time. In this post, I want to address one such new claim.
Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties--i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The "unyielding weighting in favor of Sabbath observers" resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: "The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities." T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”
I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I'll start with a few basic points about exemptions and RFRA.
First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others--i.e., "third parties." If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don't think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, "This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause."
Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context--the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger's opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an "unyielding weighting of" religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function--compelling it even to close. The Thornton Court said that it had to "take pains not to compel people to act in the name of any religion." (emphasis mine). It's that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party's religious freedom--compelling the third party to engage in religious activities. Yet while the Court has said that "[a]t some point, accommodation may devolve into 'an unlawful fostering of religion,'" Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.
Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the "burden" on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.
Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation "no matter what burden or inconvenience this imposes" on third parties. But the standard for RFRA accommodations is not, "you must grant the accommodation no matter what burden or inconvenience this imposes." Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven't been ignored. They just haven't been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.
But let's consider the Establishment Clause precedents on their own.
An op-ed (by me) on the Hobby Lobby case and RFRA
I have a short piece in the LA Times today about the Hobby Lobby / Conestoga Wood cases the Court has taken up. (As usual, the headline is not the essay-writer's fault.) Here's a bit:
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
December 04, 2013
Lithwick's confusion about "humanity", corporations, and babies
The HHS cases being brought by for-profit businesses do not present the Court with philosophical or ontological questions, but rather statutory ones. Still, for many observers and activists, the temptation to re-work these questions as partisan/political ones is hard to resist, and Dahlia Lithwick's latest Slate essay is a perfect example.
Lithwick likes abortion rights, and doesn't like Citizens United, and so in the essay she works to connect Hobby Lobby's RFRA arguments with the reasoning in Citizens United and efforts in some states to provide greater legal protection to unborn children. She ends with this:
We can protect animals and unborn babies and corporations without also embodying them with a humanity they don’t possess. Turning everything and anything into a “person” ultimately also serves to turn persons into things.
The first sentence asserts that "unborn babies" do not "possess" "humanity," which is a strange assertion. There is no serious question about the "humanity" of unborn children; the debate is about the implications of their vulnerability, dependence, and developmental progress on their moral status. It also assumes that Citizens United or the Hobby Lobby RFRA challenge involve claims that "corporations" "possess" "humanity", which is not the claim. To say that X is a "person" for legal purposes is not to say that X is a human being. The second sentence, though, makes a point that has always made me very reluctant to embrace even the Christian cases for animal rights.
Stoner on the Disposition of the Common Law
James Stoner's work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner's common law constitutional method (though its motivation for adopting that method is different than Stoner's), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it responds to the arguments of Professor John McGinnis). A longish bit:
To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .
Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?
These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .
Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.
By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.
December 03, 2013
Notre Dame re-files its religious-freedom challenge to the mandate
I was very pleased to learn that, on Monday morning, the University of Notre Dame re-filed its challenge to the contraception-coverage mandate. Michael Sean Winters has more details and analysis (with which I largely agree -- especially the discussion of "the freedom of the church") here. And, the story in our local paper is here. And, a short piece by me, in Notre Dame Magazine, about the University's challenge is here.
The University's President, Fr. John Jenkins, issued what I thought was an excellent statement regarding the University's decision to re-file, notwithstanding the so-called "accommodation." (I have not yet been able to find a link to the statement.) Instead of limiting his discussion to sometimes-technical issues of "material" and "formal" cooperation, he talks in terms of mission, character, integrity, and pluralism:
Our abiding concern in both the original filing of May 21, 2012 and this re-filing has been Notre
Dame’s freedom—and indeed the freedom of many religious organizations in this
country—to live out a religious mission. . . .
As I said regarding our original filing, because at its core this filing is about the freedom of a religious organization to live its mission, its significance goes well beyond any debate about contraceptive services. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately will undermine those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result that these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.
This, it seems to me, is really what is at stake -- not only Notre Dame's legal right not to be compelled to do wrong, but its legal right to be Notre Dame.
Dane on Legislative Prayer
Perry Dane has a very interesting post over at CLR Forum on legislative prayer and Town of Greece v. Galloway. Perry was Justice Brennan's law clerk at the time the Court decided Marsh v. Chambers and Justice Brennan authored a dissent. I see things a little differently than Perry on this issue, but that hardly matters. His analysis is well worth reading, particularly on the question of what ought to happen if the Court follows the majority view in Marsh. Here's a bit:
At that point [if the Court adheres to Marsh], it seems to me, the principle that prayer is serious business would require us to let (most of) the chips fall where they may. For the reasons Justice Brennan stated, courts should not demand that legislative prayer be “nonsectarian.” There is, with respect to prayer, no such thing. Bland prayers, and prayers to an unnamed deity, are — if taken seriously as religious acts — just as “sectarian” as more apparently meaty prayers. Certainly, judges should not try to monitor or censor individual prayers to strip them of religious particularity. Nor should they even even try, as the Court of Appeals for the Second Circuit panel did, to decide whether a whole pattern of prayer over several years is somehow disproportionate by being, for example, too Christian.
I wouldn’t rule out all constitutional limits on the particulars of legislative prayer. Since legislative prayers are, for better or worse, said in a civic context, the Constitution might at least demand that they be civil, in the sense of not disparaging other faiths. More to the point, maybe, the Establishment Clause might bar processes for selecting chaplains, guest chaplains, or the like that by their terms manifestly exclude certain faiths, or for that matter even all faiths other than the preferred one.
To be sure, the distinction between exclusion and inclusion is shaky, and applying it in particular cases even more so. But it might be the closest we can get to a fair rule while still treating prayer as serious business.
December 02, 2013
"Why the World Doesn't Take Catholicism Seriously"
A bracing challenge -- very much in keeping with Pope Francis's ministry so far, I think -- from Matthew Warner. I have an uneasy sense that a similar challenge could be issued to "Catholic legal theory" . . .
Cloutier on Douthat, Francis, "conservatives" . . . and the rule of law
A good read, at Catholic Moral Theology, from David Cloutier. I would quibble with the invocation and ritual-denunciation of supposedly "Randian" talk and thinking among "conservative" Catholics (because I do not believe that, really, any meaningfully Catholic "conservatives" embrace anything like Ayn Rand's objectivism and do believe that we should avoid taking down straw-men).
Anyway, one of the things I liked about Cloutier's piece is his reminder that "secure property rights" -- and, I would extend this to "the rule of law" more generally -- have to be seen as essential aspects of any market-system that has any hope of contributing to authentic human development. It's not so much that "capitalism" in the abstract helps to lift people and societies out of poverty -- it is that a (reasonably regulated and relatively easily navigable and fairly transparent) market economy that rests on a foundation of rule-of-law commitments, well-designed social-welfare programs, and functioning legal mechanisms does so.
More on "re-enchantment"
A reader sent in the following, which might be of interest:
Regarding Mr. Bottum's recent posts, you may have already read Tel Aviv University Professor Yishai Blank's article - The Re-enchantment of Law, 96 Cornell Law Review 633 (2011), (available at http://cornell.lawreviewnetwork.com/files/2013/02/Blank-final-essay.pdf ). The abstract:
Ten Thoughts on the Garnett-Bottum Exchange
Here are ten thoughts on the exchange between Rick and Jody Bottum. Thanks to both men for provoking them.
- Mr. Bottum is on to something important on the issue of cultural change. Cultural change often is not driven by law or by legal argument, but the other way round. And it also seems to me that this is a desirable state of affairs. We should not want law to be the primary driving force of cultural change, and it would be regrettable, if not dangerous, to live in a society in which law arrogated to itself this function.
- To that extent, Mr. Bottum is right. If one wishes to change the culture, law is not and should not be the exclusive, or even the primary, medium through which one works. He is also right that poetry and storytelling and literature and art, etc., are promising methods, as they have always been.
- Still, law has its role to play. Lon Fuller once observed in response to the challenge of legal realism that there is mutual action and reaction between law and culture. Even if law is not and should not be a primary cultural determinant, it is certainly one such determinant. Law's effect on culture is not the less important for being secondary and (generally speaking) reactive. I am thus unsure what Mr. Bottum means when he writes that "you law professors have had the public intellectual part in your hands for forty years." We have had the part that relates to law, and we have taken up that part by our best lights--sometimes well, sometimes poorly. Others have played other parts, also to greater or lesser effect. Mr. Bottum himself has played his own role. There seems to be no shortage of available work, so we needn't niggle over whose turn it is at the bullhorn.
- But perhaps this does not do justice to the sense in which Mr. Bottum may believe that law is actually a problem or an impediment to various larger aims. In fact, it's much worse than he thinks. I fear he may underestimate just how important law has become in our society as a source of value, beauty, and shared meaning. To take one provincial example (what do you expect from a law professor?) this is the reason that Legal Ethics is so hard to teach. People think of it and teach it as a course about rules, but actually, it ought to be taught as a course about law's powerful, usually subterranean cultural and ethical impact. Bar associations and legal education reformers like very much to talk about the importance of ethics and imparting "professional values" to new lawyers, but in fact they usually have very little clear idea what that means. Worse still, it seems vitally important that these ideas remain perpetually vague. To infuse them with content might well disturb what Roger Cramton once described as the ordinary religion of the law school classroom, which is not too far distant from the ordinary religion of the legal profession and the legal culture, which is to say, the culture.
- It will be a daunting task indeed to "re-enchant" the culture, if that is what Mr. Bottum has in mind, in part because it will require disenchanting it from law. The terms in which we think about culture are all too often legal terms. That's more or less what remains as a common discursive currency, cheapened by inflation and otherwise devalued as it may be. Another local example: though he did not say so, Mr. Bottum may see the project in which we are engaged at MOJ as problematic inasmuch as it works within a legal framework or world view. The fact that the project has definite limits makes it appealing to me, but those with larger ambitions will want more.
- I also sympathize in some ways with the weariness Mr. Bottum has expressed in other contexts and which makes a background appearance here. I am coming to tire more and more of the screeching, scratching, gnawing, biting scuffles about law and religion that one is forced into. But it would be wrong to believe that these fights are increasingly tedious because they don't sufficiently engage cultural issues. In fact, they are tiresome because there is so little law in them. If anything has been true for forty years (at least), it is that law and culture have been too often fused into a kind of cheap alloy, to the detriment and diminution of both, particularly law.
- There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if Mr. Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.
- Speaking of "hymns to God that are sung in trees and rivers," what is all of this pantheistic, Whitmanesque nonsense? Having read Rick's Notre Dame essay to which Mr. Bottum approvingly linked, I must differ with both of them about Whitman and Whimanesquery respectively. I find Walt Whitman pretty hard to take and think he and Emerson are not the best writers America has produced. As Mark Lilla once put it, in the study of American literature, "just steer clear of anything polluted by Emerson." That goes double for Whitman.
- Unfortunately, the last point isn't really about Whitman. Suppose we accept Mr. Bottum's advice and pivot to cultural or metaphysical matters and away from law. We should fully expect to rekindle some of the same sorts of culture war conflagrations that we were so intent on snuffing out. We will fight about whether the cultural turn should in fact be a "song of myself" or a song about someone or something else. I wonder whether many Catholics inclined to the cultural turn will agree with one another about what is enchanting, what is re-enchanting, and what is altogether disenchanting. Some things are worse that Weber's Iron Cage. I suspect there will be considerable disagreement, and that the fire will rage on.
- Last, and least. The idea that making the cultural turn will mean "pulling back on politics" (in Patheos's locution) is mistaken. The argument seems to be that if we stick to our tree-chanting, we will have effectively lopped off political and ethical matters. One sees this sort of "non-political" point often, but I confess I am mystified by it (maybe "politics" is being used in a way I don't understand). As I have observed before, all Popes are political (just like the rest of us), and it is intended (and I hope is taken) as a token of respect, not disparagement, to call Pope Francis's recent Exhortation an openly and patently political, social, and ethical document (not only that, of course, but plainly that). To take the cultural turn and to devote one's waking hours to matters other than law and politics will not usher in a new era of abstention from legal, political, and ethical questions. Taking positions on such questions is inevitable, though there are more and less effective ways of doing so. It might be better to be candid about that. Then we could talk substance, rather than form or process, as Mr. Bottum rightly urges.
December 01, 2013
What is Marriage? A reply to Charles Reid
A little while back, Michael called attention to Charles Reid's Huffington Post essay criticizing the argument Sherif Girgis, Ryan Anderson, and I present in What is Marriage? Man and Woman: A Defense. I promised that Sherif, Ryan and I would soon reply. We do that today at Pubic Discourse:
November 29, 2013
The Social Kingship of Christ: A Question for Patrick
On the Feast of Christ the King, Patrick quoted Fr. Aidan Nichols, OP: "[P]ublicly recognising divine revelation is an entailment of the Kingship of Christ on which, despite its difficulties in a post-Enlightenment society, we must not renege." Patrick continues: "I agree with Fr. Nichols's judgment, of course, but I have to wonder whether any other contributor to this blog also agrees. Enthusiasts of the First Amendment's agnosticism will have a hard time on this one."
Right after the above quote, Fr. Aidan says:
Where the ethos of society is such that an elected legislature may be trusted to regard the Judaeo-Christian tradition as normative, the Church should be accorded her rightful place as “mother and mistress”. (The Edwardian priest-novelist Robert Hugh Benson’s The Dawn of All will give you the idea.) Where that is not possible there should at least be, in the former Christendom, a recognition of the historic role of the faith in forming the human patrimony.
Patrick, you have given this much more thought than I have, but it seems to me that these are the money lines for our situation. I assume you agree with me that the ethos of our society is not such that the elected legislature can be trusted to regard the Judaeo-Christian tradition as normative. If so, then we can and should fight for a) our religious freedom along with the religious freedom of others (the agnostic position) and b) a recognition that Christendom played an historic role in forming the human patrimony. The EU's refusal to give recognition to this patrimony in its proposed Constitution gave rise to Joseph Weiler coining the phrase Christophobia.
By my reading, in the American context this would not be considered First Amendment agnosticism but would be considered First Amendment realism. Do you agree Patrick? Or, what am I missing?
The Culture Wars and Beyond: A response to Jody and Rick
In responding to our current cultural situation, two questions are paramount: 1) How am I called to respond? and 2) What is my judgment of the current situation? These questions underlie the argument between Jody Bottum (here) and Rick Garnett (here).
In a recent Patheos essay, Jody writes: Forget the culture-wars crap. It was a fight worth having, back in the day when there was enough Christendom left to be worth defending. ... Start, instead, with re-enchnatment." I don't understand how we benefit from a house divided. Why can't God be calling Jody to get out of the culture wars and focus on re-enchantment of the world through literary means while simultaneously calling Rick to fight for the legal rights for the unborn and religious freedom for all? I don't see it as an either/or but a both/and according to our unique call.
What we hear and how we answer will be influenced, I suspect, by our assessment of the current state of our culture. The Christian who believes that we live in a truly post-Christian culture where Christian understandings of the human person, of reason, of truth, of goodness, and of beauty fail to get any traction might conclude that his or her time is better spent re-enchanting the world with beauty to provide an opening to the human heart that - when expanded - will be more open to the Good News and all that the Gospel entails. On the other hand, the Christian who believes that arguments on behalf of the unborn (or the poor, or the immigrant) and arguments for religious freedom can still gain traction in our culture, will, if called to do so, continue to make those arguments vigorously in the public square, our courthouses, and legislative assemblies.
It seems to me that there is room for both/and!
A reader's response to Bottum's response to Garnett
A MOJ reader send in these comments:
In Mr. Bottum’s last response, I think he misses the mark on a couple of points, particularly here:
"The first is thinking that advances in law and policy have any permanence: The pendulum swings, political gains are reversed, the House changes hands, and then what do we do? As for the second mistake, we wander into magical thinking when we suppose that law and policy can drive culture more than a little, when the culture is resistant."
I don't know anyone of serious intellectual heft--particularly not you, Professor Garnett--who thinks that advances in law and policy have any permanence, and certainly not in the arena of the culture war. But advances they are, and advances they will remain so long as they are vigorously defended.
Second, I don't agree that it is "magical thinking" to suppose that law and policy can drive culture "more than a little" where it is resistant. Historical examples abound in our country or elsewhere of a change in law driving a shift in culture. Depart from the culture wars for a minute, and look to two recent examples: seat belts and recycling. I'm too young to remember the seat belt push (a telling admission of my youth, since states only began enacting them in the 80s and 90s), but reading about it and discussing it with a college professor who used it as an example in teaching the Nichomachean Ethics leaves me with the impression that our attitude towards seat belt use today is directly a product of that legal campaign, and not an inherent widespread cultural desire to change.
The same point applies to recycling: we feel a discomfort if forced to discard glass and plastic in the regular trash. Why? There has been a cultural push, but I'd argue that it's equally the response to laws incentivizing recycling. People become attuned to the goal of the law and become uncomfortable when unable to comply--not because of a fear of punishment, but because the law creates the impression that a thing is good and desirable.
Even if one disagrees with my examples, the idea that the law has a strong role in shaping personal character and perceptions of morality is not a new invention. The idea has appeared in Western philosophical thought for millennia, starting at a minimum from Aristotle and renewed in turn by the Romans, St. Thomas, and some of America's own founders. I don't wish to make this a pure argument from authority, but I also don't believe they were engaging in magical thinking.
As to the rest of Mr. Bottum's argument, I don't find anything serious to disagree with, though I'm not entirely certain what his point is by the end. With regard to the serious pro-life intellectuals engaged in the legal battles of the culture war, I've never met one who seemed prone to believing that the process was the point. Perhaps Jody's experience is different. But at least among those who approach these issues with intellectual seriousness, I have seen legitimate outrage, not ginned-up outrage. It may be fatigue-inducing to write philosophical responses to the Women's Studies faculty again and again, seemingly falling on deaf ears except among an already-willing audience, but it remains important.
Not least, it remains important because it shows--so long as such arguments are advanced charitably and in good faith--that there is an intellectual seriousness and philosophical depth to the Faith and its Teachings that allows it to stand its ground against all the errors of modernism. The early Apostles stood on both sides of this argument, illuminating Christ's love for the world through martyrdom and engaging the Jews and Romans as serious intellectuals. I don't think it's about preaching social ethics rather than living the love of Christ. Each is necessary to the existence of the other.
"And he entered the synagogue and for three months spoke boldly, arguing and pleading about the kingdom of God; but when some were stubborn and disbelieved, speaking evil of the Way before the congregation, he withdrew from them, taking the disciples with him, and argued daily in the hall of Tyran′nus."
November 28, 2013
President Adams's Proclamation for a Day to Fulfill "The Duties of Humiliation and Prayer"
Here is President John Adams’s 1798 Proclamation For a National Fast, which he issued on March 23 of that year and prescribed for the month of May. Two things are striking to me about the proclamation, though of course they are not unique to this particular proclamation.
First, days of public prayer are closely associated in the mind of Adams (and likely in the minds of his audience) with “humiliation”–that is, with the recognition of the limits of human power, with humility, and with the need and desire for guidance beyond oneself to set to the affairs of governance wisely. It has longed seemed to me that this was the principal function of legislative and other public prayer. Is is an irony of history that these kinds of prayers have now come to signify, in the minds of many of their opponents, something like the opposite of “humiliation.”
Second, note the emphasis on fasting. The idea behind such days was not to gorge on as much food as one could hold down, or to acknowledge one’s own comfortably sated life, or to revel in the capacity to spend lots of money on entirely useless nonsense on “Black Friday.” It was to thank God for one’s gifts by abstaining from consumption.
Now, if you will all excuse me, I’m off to stuff the turkey and, then (Grace having been said) myself. A very happy Thanksgiving to all of our writers and readers.
As the safety and prosperity of nations ultimately and essentially depend on the protection and blessing of Almighty God; and the national acknowledgment of this truth is not only an indispensable duty, which the people owe to him, but a duty whose natural influence is favorable to the promotion of that morality and piety, without which social happiness cannot exist, nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty and of danger, when existing or threatening calamities, the just judgments of God against prevalent iniquity, are a loud call to repentance and reformation; and as the United States of America are at present placed in a hazardous and afflictive situation, by the unfriendly disposition, conduct, and demands of a foreign power, evinced by repeated refusals to receive our messengers of reconciliation and peace, by depredations on our commerce, and the infliction of injuries on very many of our fellow-citizens, while engaged in their lawful business on the seas;—under these considerations, it has appeared to me that the duty of imploring the mercy and benediction of Heaven on our country, demands at this time a special attention from its inhabitants.
I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States, as a day of solemn humiliation, fasting and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of mercies, agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation; beseeching him at the same time, of his infinite grace, through the Redeemer of the world, freely to remit all our offences, and to incline us, by his Holy Spirit, to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction; that it be made the subject of particular and earnest supplication, that our country may be protected from all the dangers which threaten it, that our civil and religious privileges may be preserved inviolate, and perpetuated to the latest generations, that our public councils and magistrates may be especially enlightened and directed at this critical period, that the American people may be united in those bonds of amity and mutual confidence, and inspired with that vigor and fortitude by which they have in times past been so highly distinguished, and by which they have obtained such invaluable advantages, that the health of the inhabitants of our land may be preserved, and their agriculture, commerce, fisheries, arts, and manufactures, be blessed and prospered, that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens, and that the blessings of peace, freedom, and pure religion, may be speedily extended to all the nations of the earth.
And finally I recommend, that on the said day, the duties of humiliation and prayer be accompanied by fervent thanksgiving to the bestower of every good gift, not only for having hitherto protected and preserved the people of these United States in the independent enjoyment of their religious and civil freedom, but also for having prospered them in a wonderful progress of population, and for conferring on them many and great favors conducive to the happiness and prosperity of a nation.
November 26, 2013
Bottum responds to Garnett on enchantment and engagement
I am very glad to report that Jody Bottum wrote up a response to my post from the either day, about the importance of staying engaged in the perhaps-tiring, in-the-trenches efforts to secure better legal protections for vulnerable people. Here is the response, in full:
Fr. Aidan Nichols, Quas Primas, the Social Kingship of Christ, etc.
"[P]ublicly recognising divine revelation is an entailment of the Kingship of Christ on which, despite its difficulties in a post-Enlightenment society, we must not renege." Thus writes Fr. Aidan Nichols, OP. I agree with Fr. Nichols's judgment, of course, but I have to wonder whether any other contributor to this blog also agrees. Enthusiasts of the First Amendment's agnosticism will have a hard time on this one.
The context of Fr. Nichols's statement is here, an exchange titled "Did Vatican II Usher In Our Secular Age?" It's worth a very careful read. I admire the authors' efforts to liberate Dignitatis Humanae from the Murray-inspired misreading that dominates the scene and attempts to distort doctrine.
Christ's Kingship isn't *just* "in the end" (Cf. here): it is NOW. "[W]e must not renege," as Fr. Nichols reminds us. I agree with Rick Garnett (here), the culture wars must continue. Charity and justice require that the Church be militant -- charitably and justly -- to adjust the culture and shape its direction for the common good, including public recognition and worship of Christ.
Fr. Nichols's interlocutor, Moyra Doorly, has some trenchant things to say about the regnant hatred of the Church. Christophobia is the diagnosis that comes to mind.
Court grants cert in HHS Mandate cases
As expected, the Court agreed to consider HHS mandate cases. The Court agreed to review the Hobby Lobby and Conestoga Wood cases. http://www.supremecourt.gov/orders/courtorders/112613zr_ed9g.pdf
The "Joy of the Gospel"
Pope Francis has issued an Apostolic Exhortation entitled EVANGELII GAUDIUM.
The Pope presents the "Joy of the Gospel" in its wholeness, which has been the theme of his pontificate from the very beginning. Among many other things, including our obligations to the poor and the duty to establish and maintain just economic, political, and legal orders, the exhortation addresses the proper understanding of marriage--explicitly rejecting the "emotional bond" conception of "marriage" that underwrites revisionist ideas such as no-fault divorce and same-sex unions--and the obligation to defend the life of the child in the womb. Anyone who feared or hoped that Pope Francis intended to change (which would not be possible) or soft-pedal the Church's teachings on these matters might want to note carefully what he says.
On marriage: "The family is experiencing a profound cultural crisis, as are all communities and social bonds. In the case of the family, the weakening of these bonds is particularly serious because the family is the fundamental cell of society, where we learn to live with others despite our differences and to belong to one another; it is also the place where parents pass on the faith to their children. Marriage now tends to be viewed as a form of mere emotional satisfaction that can be constructed in any way or modified at will. But the indispensable contribution of marriage to society transcends the feelings and momentary needs of the couple. As the French bishops have taught, it is not born 'of loving sentiment, ephemeral by definition, but from the depth of the obligation assumed by the spouses who accept to enter a total communion of life'”.
On the sanctity of human life: "Among the vulnerable for whom the Church wishes to care with particular love and concern are unborn children, the most defenseless and innocent among us. Nowadays efforts are made to deny them their human dignity and to do with them whatever one pleases, taking their lives and passing laws preventing anyone from standing in the way of this. Frequently, as a way of ridiculing the Church’s effort to defend their lives, attempts are made to present her position as ideological, obscurantist and conservative. Yet this defense of unborn life is closely linked to the defense of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defense of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, 'every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual.'"
The complete text of the exhortation in English translation has been posted on the Vatican website.
HT to Patrick Langrell
November 25, 2013
A brief reflection in response to an outrage in Argentina
At First Things, I offer in response to the recent outrage in Argentina a brief reflection on "our elder brothers in faith":