Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, July 25, 2014

"What is traditional Christianity anyway?"

Perhaps my principal difficulty in contributing to this blog "dedicated to the development of Catholic legal theory" is the endless plasticity that now molests the denotation -- to say nothing of the connotation -- of the capital-C adjective "Catholic" in so many minds.  Most, though by *no* means all, of the disputes among contributors to this blog can -- and *should* --  be traced to their origins in different understandings of what it means to think as a Catholic.  

The Second Vatican Council changed no doctrine of the Faith, as it was exactly a "pastoral" Council. The oft-asserted spirit of "Vatican II,"  however, did, with the help of its enablers, introduce what Chris Ferrara has aptly termed "the regime of novelty" into the life of the Church (see Ferrara and Woods, The Great Facade: Vatican II and the Regime of Novelty in the Roman Catholic Church (2002)).  Consider that, these days, the closing of countless parishes on account of the auto-demolition of the Church is couched in terms of "Making All Things New."  Hah!  Even Rex Mottram would see through the shams that have become the way of diocesan business in so much of the Church in the United States.  Here in the Archdiocese of Philadelphia, the much-touted "new springtime" in the Church has resulted in a fire sale (to pick just one among countless possible examples: nursing homes sold ) that will spare precious little of what those who held the Faith built brick by brick in a spirit of sacrifice and appropriate Christian triumph of the Church Militant

The point is, nothing Catholic -- neither doctrine nor discipline -- prevents Catholics from faithfully holding and practicing the Faith as it was held and practiced before the Second Vatican Council.  If that Council contributed prudential solutions to today's problems, that prudence has yet to be demonstrated, in my judgment.  Rod Dreher asks with characteristic insight "what is traditional Christianity anyway?"  The term "Traditional Catholicism" is a piece of pleonasm made necessary by the regime of novelty, but Catholicism will outlive the partisans of novelty, as Cardinal Newman taught us.  The true Church is Christ-continued-in-the-world, and the faithful live by the promise made in Matthew 16:18 .     

July 25, 2014 in Brennan, Patrick | Permalink

Chesterfield County, Va. switches from invited clergy to legislators' own prayers

This news is a few days old, but I thought it appropriate anyhow to follow up on my prior post about the post-Town of Greece legislative prayer practice of Chesterfield County, Virginia.

The Board of Supervisors has changed its legislative prayer policy. Starting next year, the supervisors will rotate among themselves in delivering an invocation or presiding over a moment of silence. This is a shift away from a practice of inviting ordained clergy of monotheistic religions, which some contended was unconstitutional under a perceived non-discrimination requirement in the Supreme Court's decision in Town of Greece v. Galloway.

The shift is prudent even if not constitutionally required, and it may be that the supervisors were closer in thinking to Josh Blackman's assessment of Town of Greece than to mine. The decision may also reflect the reality that the County would be on the hook for plaintiffs' attorneys' fees and costs if the County litigated and lost, but the County could not recover it own fees and costs if the County litigated and won.

July 25, 2014 in Walsh, Kevin | Permalink

Thursday, July 24, 2014

"Intellectual Property and Religious Thought" Papers and Foreword

The papers from the St. Thomas Law symposium on "Intellectual Property and Religious Thought" have been published.  I'm confident they'll be a great resource for future reflection on this now-vital subject.  My foreword to the symposium is available on SSRN.  All of the papers are available here.  Some of the papers are also on SSRN (see this earlier post).  Here'a taste from the abstract to my foreword:

The time is ripe for wider exploration about how religious themes, practices, and communities may inform IP law and policy....

This foreword summarizes the symposium papers, which fall into three categories: "God, Ownership, and Intellectual Creation"; "Life Patents, Religion, and Social Justice"; and "IP, Religion, and Social Relationships/Obligations." Symposium contributors include IP legal scholars Margo Bagley, Shubha Ghosh, Roberta Kwall, Bashar Malkawi, Alina Ng, and David Opderbeck, and religion/ethics scholars Audrey Chapman, Marco Fioretti, Paul Griffiths, and Jeremy Stern.

The foreword concludes with brief reflections on future directions in research and practice. First, religious reflections on creativity and ownership should influence the practice of religious communities and individuals, quite apart from the content of civil law. Second, with respect to law and policy debates, religious thought may “root” themes such as social obligation, or the sense of creativity as a gift, “in a richer social imagination that gives them meaning and weight,” as David Opderbeck puts it. Finally, religion has particular relevance to issues concerning IP, trade, and development in the global South--partly because many developing nations are deeply religious, and partly because religious agencies do much of the on-the-ground humanitarian work on matters with IP ramifications such as health care and agriculture.

July 24, 2014 in Berg, Thomas | Permalink

Classic Song Lyrics for the Week: Who’ll Stop the Rain

Creedence_Clearwater_Revival_1968With a new cover of the song being highlighted on a recent episode of “Under the Dome,” I was reminded again of the truly counter-cultural the lyrics for the late-Sixties era classic “Who’ll Stop the Rain” written by John Fogerty and performed by Creedence Clearwater Revival.

Lest we mistakenly remember the Sixties counter-cultural movement as uniformly liberal and infatuated with big government as the social justice answer, “Who’ll Stop the Rain” includes this pointed observation:

Caught up in the fable, I watched the tower grow
Five year plans and new deals wrapped in golden chains

The song warns that government promises seldom come without strings attached and government-centric solutions often have negative consequences that may not be anticipated.  Attempting to solve social problems through entitlement programs risks the interposition of impersonal bureaucratic agencies and expanding government special interests, while trapping recipients in dependency and obliged to comply with government rules mandates that reflect the different moral ethos of the elite.  One need not eschew all government programs (and I certainly do not) to believe that “Who’ll Stop the Rain” is healthy reminder that the rose may have thorns.

Now the song could be characterized as libertarian in nature, and Fogerty last year acknowledged that he’s “probably a lot more like some kind of libertarian or something.”  But I also hear something decidedly spiritual in the first verse of the song — a reference to the age-old search for greater meaning and truth:

Long as I remember rain’s been comin’ down
Clouds of mystery pourin’ confusion on the ground
Good men through the ages tryin’ to find the sun
And I wonder, still I wonder who’ll stop the rain

While the singer of this song is certainly weary, the hope of noble people to find the sun remains — a hope that we as Catholics place in a person, not in a political messiah.

For those who wish to reminisce and those for whom this song is new, you can listen to the original recording here (with the standard YouTube license).

July 24, 2014 in Sisk, Greg | Permalink

school vouchers in a time of increasing intolerance

Catholic schools are "public" schools in the best sense of the word, contributing as they do to the public - and common - good of the communities they serve. In many communities, they serve non-Catholic and poor students and their parents.

As Rick Garnett has said on this blog many times, in a healthy society, the state ought to recognize the public character of these institutions and support them through vouchers or a similar funding mechanism.  When the public schools were de facto Protestant and an anti-Catholic spirit filled the air, many states adopted Blaine Amendments to prohibit public funds being used to support parochial schools. 

Could the Blaine Amendments - as ugly as they were - be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy? Because of the Blaine Amendments, Catholic and other religious primary and secondary schools - unlike religious colleges, which are dependent on federally subsidized student loans - have had minimal entanglement with government money.

There may come a day in the not too distant future when religious colleges and univesities will be faced with a choice: capitulate to the secular orthodoxy or ween yourself from the government teat. The Blaine Amendments unintentially shield many primary and secondary schools from this choice. Over a decade ago, James Dwyer wrote Vouchers Within Reason, which argued that vouchers might provide a way to bring relgious schools and their parental patrons to heels without have to padlock school doors or put parents in jail (his words, not mine). When I reviewed his book, less than a decade after the Religious Freedom Restoration was enacted with overwhelming bi-partisan support, I was hopeful that government strings attached to vouchers would not threaten the character and culture of these religious schools. I am much less hopeful today and therefore am inclined to see the Blaine Amendments as an unexpected blessing.  Rick, I'd be interested in your take.

 

July 24, 2014 in Scaperlanda, Mike | Permalink

Does the ACLU's Steven Shapiro regret the organization's amicus curiae brief in McCullen v. Coakley?

SCOTUSBlog is running a series of video interviews with the ACLU's Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.

Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief's defense of the facial constitutionality of Massachusetts' public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law--not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional. 

The ACLU's McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU's position "evolved over time."

McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.  

There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU's brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.

Not all evolution is progress.

Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.

July 24, 2014 in Walsh, Kevin | Permalink

Is More Less? Or is More More?

The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?

The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger's key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to "balance" the right against rival interests.

That particular "more-is-less" claim depends on the scope given to a protected right. A related "more-is-less" claim focuses on the expansion of the number of protected rights. That's the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven't seen it, Steve Smith is writing up a storm over there). Steve writes:

[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights...“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)....

Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are "substantial" trigger the law's protection. A religious burden isn't enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we've now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of "substantiality" and we talk about the shifting of burdens and the balancing of interests because we've watered down the basic right so much that we don't even really know what it is that counts as the right in the first place any longer.

But there is another side to the story. That side is admirably represented by John Inazu in this paper--More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of "rights confinement" as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest--that is, in what government ought to be interested in at all.

Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen. 

If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right's prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right's strength and ambit, but evolving cultural perceptions of the strength and ambit of the state's proper power.

July 24, 2014 in DeGirolami, Marc | Permalink

Wednesday, July 23, 2014

R. George replies to J. Doig on the nature or marriage

Here is my reply to my Princeton colleague Jameson Doig in round two of our debate about what marriage is:

http://www.thepublicdiscourse.com/2014/07/13530/

July 23, 2014 | Permalink

Esbeck on the new Executive Order

At the Cornerstone blog, Prof. Carl Esbeck has a helpful piece ("Differences:  Real and Rhetorical") regarding the President's recent Executive Order having to do with sexual-orientation and gender-identity discrimination by federal contractors.  In it, Esbeck responds to certain claims made by a group of prominent legal academics, in their own letter opposing any religious exemptions in the Order.  Esbeck concludes:

How do we live together as a people despite our deepest differences? The nation’s better practice, historically, was to bracket off religious conscience and thereby stop making religious scruples fair game for partisan debate. America’s unique contribution to government theory was to separate matters of religious conscience from the machinery of politics and the will of the majority. That approach has brought us sectarian peace despite our unprecedented religious pluralism. Why trade in a system that has served this country so well for one that has served others so poorly?

July 23, 2014 in Garnett, Rick | Permalink

Arkes replies to Garnett re: RFRA, Hobby Lobby, etc.

Prof. Hadley Arkes asked me to post the following reply to my recent post, and I am happy to do so:

I’d like to respond to a couple of the concerns that Richard Garnett raises in his post today on my arguments about Hobby Lobby.   I need to recall to him and my other friends that I have been thoroughly sympathetic to the use of RFRA.  What I've argued is that RFRA is apt and useful because it creates, for the religious, that zone in which the government would have to bear a heavier burden of justification when it restricts personal freedom.  The saving grace of RFRA is that it secures, for the religious, the kind of protection that the courts used to offer more fully for many others when the judges were far stricter in testing the justifications for laws that restricted private rights.

But as Garnett rightly says, my own view [is] that the case could have been argued on deeper foundations.  One friend of mine, experienced in litigation on religion, argued that Hobby Lobby could have been argued even more clearly on the Takings Clause.  Richard Epstein and the libertarians would invoke principles of freedom of association in fending off these intrusions into a private family arranging its private business.   Are they wrong for conceiving other ways of arguing the same case?  What I've been pointing out is that these arguments, draw from the principles of a regime of law,  are not diminished moral arguments. For they draw their meaning from the understanding of the "human person," a term given deeper resonance by our religious teaching.   Only those beings we call “moral agents” can impart a moral purpose to inanimate matter;  and so yes, it is no trivial matter to justify the restrictions placed on these kinds  of beings, as they seek, even in prosaic matters, to honor their own understanding of the ways of life rightful for them.  My pitch has been that if we begin from the classic understanding of the moral ground of the law, and the burdens of justification that the government should rightly bear, we will have provided an even former moral grounding for religious freedom.

But I have a question in turn:  Garnett says that he doesn’t agree with my argument against a “right to be wrong,” but he never sets out that argument or actually explains why it is wrong. 

He also cites this passage of mine in which I sought to bring together the strands of the argument that, taken together, would have a powerful effect in striking at the very ground of the law:

I’ve argued … that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Now I’m curious:  Have I not given an accurate account the strands that have actually been woven through these cases?  If I have any of these wrong, I would be glad to find out that I’m wrong. But if those strands are there, as I’ve marked them out here, why would they not be the carrie[r]s of principles quite destructive for the laws?

Forgive me one more point on a question I posed in First Things, and which I haven’t seen addressed yet:   

The Catholic Church doesn’t argue on abortion by appealing to revelation or belief.  It argues in the reasoning of natural law, a combination woven of embryology and principled reasoning.  And so I raised the question of whether the protections here under RFRA would apply to the Catholic businessman, reasoning on the matter in the style of the Church, but not to the businessman who uses precisely the same moral reasoning used by the Church, even while he disclaims any religious affiliation?   As I've pointed out, this was exactly the problem faced by Congress in the Civil Rights Restoration Act of 1988:  Would they give an exemption only to religious hospitals in sparing them the obligation to perform abortions?  Or would they honor also the moral objections of those hospitals that were morally opposed to abortions but had no religious definition?

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Arkes' reply clarifies nicely one of our disagreements.  He says that "the case could have been argued on deeper foundations" and, in response, I say, "no, it could not."  The "Takings" and "freedom of association" arguments that Arkes mentions are, at the present time and given the current legal givens, losing arguments (regardless of how deep their foundations go and regardless of their moral appeal).    

Next, Arkes says "Garnett says that he doesn’t agree with my argument against a 'right to be wrong,' but he never sets out that argument or actually explains why it is wrong."  This is true.  Such an explanation didn't and does not seem (to me) necessary, as it was provided in Ryan Anderson's response to Arkes (and, I think, in Dignitatis Humanae).   

Third, Arkes writes:  

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Once again, I think Arkes has helpfully identified our clear disagreement.  I would "simply" say precisely what Arkes says, above.  The question whether a "coherent moral account" can be given of our current positive-law arrangements regarding religious freedom is an interesting and important one, but that question is (very) different from ones having to do with the arguments to be made in real-world, present-day courts, to judges charged with interpreting and applying not first principles of morality but unsurprisingly imperfect statutes and doctrines.

July 23, 2014 in Garnett, Rick | Permalink

MOJ joins Law Professor Blogs Network

After ten years . . . I am really happy to announce that, as of today, Mirror of Justice is now part of the Law Professor Blogs Network, and I am very grateful to my friend and longtime MOJ supporter and reader, Paul Caron, for inviting us aboard.  I hope MOJ readers like the new "look" and that you'll all continue to check in, and spread the word!

July 23, 2014 in Garnett, Rick | Permalink

Genocide of Christians in Mosul -- and crickets

The Islamic terrorist group ISIS has recently rebranded itself (in Western fashion) as the Islamic State.  We mustn't let this self-promotion lull us into any illusions of legitimacy, however.  This terrorist organization has declared war on the Christians of Mosul.  The Christians in Mosual must convert to Islam, pay vast fines, or be killed -- or, in one last indignity, be robbed (of their crucifixes) as they flee for their lives.  The story is here

Pope Francis has repeatedly condemned this persecution, and the U.N. Secretary General Ban Ki-Moon has declared it a crime against humanity.  What the terrorists known as the Islamic State are accomplishing in Mosul is without a doubt genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide, which was signed in 1948 and took effect in 1951.

Yet where is the White House in all of this?  Why has President Obama not condemned *this* genocide?  

President Obama needn't start by calling it what it is, that is, genocide.  He could start by, say, actually acting to enforce the International Religious Freedom Act of 1998.  Yes, yes, I recognize that "religious freedom" doesn't do conceptual justice to genocide, but "religious freedom" doesn't itself do justice to the essence of true religion, yet nearly everyone in the West seems to be on board with "religious freedom," at least nominally.  And so, when will that great champion of "religious freedom," the USCCB, bestir itself to condemn this epochal violation of religious freedom and perhaps even call the Catholics of the United States to prayer and penance in solidarity with their persecuted brothers and sisters in Christ?

The Syrian Catholic Archeparchy in Mosul was burned to the ground the other day as a part of the ongoing purge.  What traces of ancient Christianity will be left in Iraq when U.S. (and other Western) foreign policy has run its course there?  I think the terrorists there know the answer, which no doubt emboldens them still further.    

July 23, 2014 in Brennan, Patrick | Permalink

J. Doig responds to R. George's criticisms of his marriage revisionism

Today at Public Discourse, my Princeton colleague Jameson Doig defends his revisionist understanding of marriage against the criticisms I advanced yesterday in our week-long debate about the nature of marriage. 

http://www.thepublicdiscourse.com/2014/07/13528/

This begins round two of our debate.  Tomorrow, I will respond to Professor Doig's latest effort. Then on Friday we will post a joint essay taking stock of the debate.

July 23, 2014 | Permalink

Tuesday, July 22, 2014

What difference would it have made if "the First Amendment" included explicit textual protection for "conscience" as well as "religion"?

One interesting question that came up during the Q&As following the first set of papers at this year's Annual Law & Religion Roundtable was something like the one set forth in this post's title. My rendition of it puts "the First Amendment" in scare quotes because a full answer to the question requires challenging the nomenclature of "First Amendment." (Indeed, I am not sure that we have properly understood the distorting effects on our understanding of what the first set of constitutional amendments intended to accomplish that result from the fateful decision to tack those amendments on to the end of the document rather than interpolating them into the particular provisions being amended. But that is a topic for some other days.)

To know what difference it might have made to include explicit conscience protection in the Constitution as initially amended, we have to know the form that conscience protection would have taken. Leading candidates would be those included in James Madison's proposals. And that plural is correct: Madison simultaneously proposed two different amendments that included explicit "conscience" protection. 

One of these proposals protected against federal government action while the other protected against state government action. The first was intended for Article I, Section 9: "That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. . . .”). The second would have gone into Article I, Section 10: “Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”

Attention to the different wording and proposed locations of these provisions provokes a couple of thoughts. First, "religious belief" is a distinct concept from "equal rights of conscience." Second, there would be no establishment clause-type limit on accommodations for conscience at either the federal or state level. The reason for no such limit at the federal level is that there was no "establishment clause" other than the prohibition against establishing a "national religion." And the reason for no such limit at the state level is that there was no establishment clause at all for the states.

(Perhaps for the sake of completeness, it is worth noting another proposed amendment that protected a form of conscientious objection but did not use the word "conscience": "[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person.")

July 22, 2014 | Permalink

Hadley Arkes on Hobby Lobby, "belief", and religious freedom: A response

As Mirror of Justice readers probably know, Prof. Hadley Arkes contributed a piece to the June issue of First Things called "Recasting Religious Freedom."  In that piece (and in some others) he expresses (among other things) concern not about the result in the Hobby Lobby case but in the arguments and premises on which (he thinks) many of Hobby Lobby's supporters have relied.  He is worried, for instance, that the arguments pressed by Hobby Lobby's defenders have emphasized the extent to which the contraception-coverage mandate burdens religious "beliefs" and that these defenders have uncritically accepted what he regards as an unsound claim, i.e., that there is a "right to be wrong."  

He returns to this general line of thinking in this piece ("Post-Hobby Lobby Illusions") and this one ("Backing Happily Into Heresy").  And, in these posts, he is responding to (among other things) Ryan Anderson's critique, "The Right to Be Wrong."  Ryan wrote:

. . . Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. . . . 

I agree.  Arkes' First Things piece and the more recent ones to which I have linked are, in my view, mistaken in several respects.  I won't repeat Anderson's arguments -- which I think are compelling -- but will just share a few thoughts in response to Arkes' expressions of concern.

First, Arkes writes:

I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Here, I think that Arkes is wrong.  It is not the case -- given the relevant real-world givens -- that the Hobby Lobby case "could have been won" using the argument that Arkes suggests, i.e.:  "In a regime of freedom, people have a presumptive claim to all dimensions of their freedom, and the burden lies with the government to offer a 'justification' for restricting that freedom."  Over and again, in the First Things piece and in the others, Arkes seems to be frustrated that Hobby Lobby's lawyers and defenders made the arguments that the relevant pieces of positive law invited -- it's probably fair to say "required" -- them to make.  It could well be that the Religious Freedom Restoration Act does not capture fully or well the real and true foundations of religious freedom, properly understood.  But, nevertheless, the Act is the Act, and for Hobby Lobby to win, Hobby Lobby's lawyers needed to argue -- and would have been foolish not to argue -- that the Act entitled them to win.  

Next, in "Backing Happily into Heresies" (here), Arkes appears to be arguing that Gregory Holt should lose his RLUIPA case (which the Supreme Court will hear next Term).  (Disclosure:  I signed an amicus brief supporting Holt, who is represented by Prof. Doug Laycock.)  When "we" argue that Mr. Holt's religiously motivated desire to wear a beard is one that current, valid, governing positive law recognizes and protects, we are -- Arkes says -- "walking in a haze, celebrating along the way, and backing happily into heresies, political and religious."  Specifically, we are mistakenly buying into the idea that "we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else."

But, again:  There is a piece of duly enacted legislation, RLUIPA, the meaning and implication of which is at issue in the Holt case.  And, according to that legislation, it is not a mistake, but is rather clearly and obviously the right thing to do, to put aside the business of judging the "content" of or otherwise "test[ing]" the truth or Holt's religious beliefs.  What matters is whether or not the challenged official action substantially burdens a sincerely held religious belief and, if so, whether that burden is adequately (within the meaning of RFRA) justified.  

Now, I imagine that there is a connection, or significant overlap, between (a) egregiously and dangerously misguided religious beliefs and (b) religious beliefs that the government is justified in burdening.  But, again, I do not understand why Arkes seems to be insisting that lawyers with a job to do should do something else.  (I also think it is wrong -- and contrary to Dignitatis Humanae -- to contend, as Arkes appears to contend, that the right to religious freedom does not include the right to hold and -- within the limits imposed by public order and the common good -- express and act upon religious convictions that are unreasonable or untrue.)

July 22, 2014 in Garnett, Rick | Permalink

Henry Garnet, S.J., the sacrament of confession . . . and Louisiana

This piece, "Uncle Same Eavesdropping Outside the Confessional," by Aaron Taylor, at First Things, is well worth a read.  Discussing a current controversy in Louisiana, Taylor explains why "[c]ompelling Catholic priests to violate the confessional is not only bad for the Catholic Church, but bad for America."  And . . . he gets to invoke Fr. Henry Garnet's martyrdom along the way.  

July 22, 2014 in Garnett, Rick | Permalink

Inazu on religious freedom, antidiscrimination law, and pluralism

John Inazu has a very good piece up at Christianity Today, "Religious Freedom v. LGBT Rights?  It's More Complicated."  In a nutshell:

First, we must understand the history from which they emerge. Second, we must understand the legal, social, and political dimensions of the current landscape. Third, and finally, we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing numbers of Americans who are outside the Christian tradition.

After sharing several predictions -- including the troubling "Fewer people will value religious freedom" -- Inazu develops the following point:

If I am correct about these three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors.

Pluralism rests on three interrelated aspirations: tolerance, humility, and patience. . . .

. . .The argument for pluralism and the aspirations of tolerance, humility, and patience are fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don't share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections. . . .

Inazu's claim about the declining "resonance" of "religious exceptionalism" arguments is, I suspect, accurate as a descriptive matter.  And yet . . . religion is special, and our Constitution, laws, and traditions treat it as special.  Stay tuned.

July 22, 2014 in Garnett, Rick | Permalink

Monday, July 21, 2014

My Round One reply Jameson Doig on the nature of marriage

This morning I posted Jameson Doig's opening salvo in the debate on marriage that he and I are conducting this week at Public Discourse.  Here is my reply:

http://www.thepublicdiscourse.com/2014/07/13526/

Each of us was given 2500 words for our opening contributions. On Wednesday, Professor Doig will reply to my reply.  On Thursday, I will complete round two with a reply to his reply to me.  For this round, each of us will have 1500 words.  On Friday, we will post a joint essay reviewing our debate.

For interested readers who have not yet read Professor Doig's opening contribution, here is the link. (Since I am replying to him, it makes sense to read his contribution first.)

http://www.thepublicdiscourse.com/2014/07/13501/


July 21, 2014 | Permalink

Review of Steve Smith's Rise and Decline of American Religious Freedom

I've got a review of Steve's book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

July 21, 2014 in DeGirolami, Marc | Permalink

Debating Marriage at Public Discourse

This week, Public Discourse, the on-line journal of the Witherspoon Institute edited by the redoubtable Ryan Anderson, will be featuring a debate on the nature of marriage between me and my longtime Princeton colleague Jameson Doig. Professor Doig's opening salvo appears today:

http://www.thepublicdiscourse.com/2014/07/13501/

I reply tomorrow, followed by Professor Doig's reply to my reply on Wednesday and my reply to his reply to my reply to him on Thursday. On Friday, we will post a joint statement summing up our points of agreement and disagreement and commenting on the state of the debate about marriage more broadly.

July 21, 2014 | Permalink

Sunday, July 20, 2014

How the Turn Against Religious Exemptions Will Likely Set Back ENDA

In The Atlantic, Molly Ball describes how some advocates for gay rights fear that the intensifying opposition to religious exemptions among other proponents will push back the passage of the Employment Non-Discrimination Act, the major piece of gay-rights legislation in Congress. Legislation with protective accommodations remains an essential strategy for giving respect to both sides in a genuinely pluralistic society.

July 20, 2014 in Berg, Thomas | Permalink

Some Memories of Dan Markel

I am crushed by the news of Dan's death. I got to know Dan pretty well over the last five years, espcially since Dan began to spend a good chunk of his time in New York. We both write in criminal law theory (Dan more, and better, than I), we have collaborated together on a book project about retributivism, and I participated from time to time in the criminal law theory workshop that he put together up here. He was always organizing, building, and bringing together. He was an impresario as well as a fine scholar. But when he was here in New York, we'd often find time to get breakfast alone together--just the two of us, whether down in Brooklyn (his preference) or in Manhattan (mine). Our last breakfast was in late June.

Dan was one of the leading lights of the new retributivism that sprang to life in the late 1980s and 1990s. This new retributivism often takes some of its inspiration from the work of Herbert Morris as well as the political liberalism of Rawls. There are many versions of retributivism, but Dan's built particularly on the Morrisonian foundation to conceive what he called 'the confrontational conception of retributivism.' Together and in conversation with such formidable minds as R.A. Duff and others, Dan conceived retributivism in condemnatory but also deeply humane and offender-centric terms. Retributive punishment was justified in part because in condemning the offender, it communicated respect for the offender's autonomous choices. What was key in his conception was the communication of condemnation with the intent that the recipient of the condemnation understand that condemnation (even if the recipient rejected it), and that the communication is performed in such a way that the recipient can make sense of it through his free will. You may notice a number of assumptions, including a robust notion of free will, which exist in such a conception of punishment. Dan always defended the free will of the offender fiercely against attacks coming from deterministic angles. And he defended the "intrinsic goodness" of retributivist punishment, provided that one was beginning from the situation of a society in which laws vindicated by such punishment were reasonable and democratically enacted. He was fond of quoting C.S. Lewis's observation that retribution "plants the flag of truth within the fortress of a rebel soul." Yet retributivist punishment in Dan's view of it was limited: it was a specifically political communication by the state to an offender who was a worthy interlocutor.

For many years, Dan was engaged in profitable exchanges, debates, and defenses of his communicative conception of retributivism. Some challenged his conception on the basis of conceptions of punishment dependent on the suffering of the offender. Some brought new and interesting consequentialist critiques of the CCR. Some challenged Dan's conception of retributivism as political rather than more comprehensively moral. For myself, I have always been more of a fellow traveler with respect to Dan's retributivist project than some. I found his views very appealing. But I often pressed Dan about the difference between expressivism and his CCR, and we had many long and vigorous discussions about precisely where expressivism ends and the sort of communication that he was interested in begins. Against my attacks, he was tenacious in his view that the two were qualitiatively different. The last time we had breakfast, we batted the question around for what must have been at least the 10th time. It was such fun.

Always he was extremely gracious to me and a very important person for my own scholarly development. The very first conference I ever organized--"The Retributivist Tradition and Its Future"--was co-organized by Dan. I half-joked that perhaps the conference should have been called "The Retributivist Tradition *Is* Its Future." He joked back by offering, "The Retributivist Tradition and Its Totally Different Future." Dan was the first person I ever asked to write a promotion letter on my behalf. I believe that my letter was the first such letter he had ever written. When he had a draft, he showed it to me before submitting it because, he said, "intellectual friendship is more important than the niceties of procedure." He urged me to write more in criminal law theory. I urged him to do more in law and religion. And he did do some work in that area as well. Perhaps he would have done more.

I will miss him very much.

July 20, 2014 in DeGirolami, Marc | Permalink

Saturday, July 19, 2014

Dan Markel, RIP

Like so many others, I was devastated to hear the news this afternoon that Dan Markel had suddenly and tragically died. The notice from PrawfsBlawg (which he created) is here. Dan and I were summer associates together in 2001 in the Washington office of O'Melveny & Myers and have been friends ever since. He was a gifted scholar and teacher, of course, but more importantly he was a loyal friend who brought a community together wherever he went. I treasure the time we had together last summer hiking in Colorado and the gatherings at AALS and elsewhere of Dan's many friends. I grieve most for Dan's two little boys and pray for their consolation, somehow. Requiescat in pace.

July 19, 2014 in Moreland, Michael | Permalink

The Tragic Shooting Down of a Civilian Passenger Airliner

A civilian passenger plane carrying 290 passengers — men, women, and children — was shot out of the sky by an anti-aircraft missile.  The downed flight was a commercial airliner flying a route that had been approved by international aviation authorities.

All 290 passengers on the airliner died.  As the news broke, heart-breaking photos of the wreckage soon appeared in the international news media — horrific pictures of dozens of bodies of people of all ages, along with debris of personal effects.

No, I am not here describing this week’s tragic incident in Ukraine involving Malaysian Airlines Flight 17 and killing 298 people.  Instead, I am recalling the 1988 shooting down of Iran Air Flight 655 by the U.S.S. Vincennes, which resulted in a nearly identical loss of life.  Iran Air Flight 655 carrying 290 passengers had departed from Bandar Abbas International Airport and was traveling to Dubai when it was shot down by an American naval missile system over the Persian Gulf.

Iranair655shootdown

To be sure, there are differences between the 1988 Iran Air 655 incident and this week’s Malaysian Airlines Flight 17 incident.  The U.S.S. Vincennes had been attacked in the Persian Gulf by Iranian gunboats and was engaged in combat when the radar system picked up an aircraft coming toward the ship from Iran.  Notwithstanding the exigent circumstances, however, the difference between a slow-moving Airbus and a supersonic military fighter jet should have been apparent, and the radar crew failed to recognize that the Iran Air flight was climbing at the time and not on an attack path.  The United States did take immediate responsibility for the downing of the Iran Air flight and paid compensation to the families of the victims (although the federal government successfully invoked sovereign immunity to defeat tort lawsuits filed in United States courts on behalf of the survivors).

But, at the end of each sad day, nearly 300 innocent men, women, and children died horribly because an insufficiently trained military unit acted rashly on the basis of limited information.  Each was the result of an atrocious error by an irresponsible military force.  The captain of another U.S. ship present at the time in the Persian Gulf said that the shooting down of Iran Air 655 “marked the horrifying climax” to a pattern of over-aggressive behavior by the commandor of the Vincennes.

Importantly, the lesson is not a new one and this week's tragic loss of Malaysian Airlines Flight 17 shows that it has not yet been learned around the world.  Nor was the Iran Air 655 tragedy in 1988 the only other such episode.  In 2001, Ukraine military shot down a Russian passenger plane, and in 1983, a Soviet fighter jet destroyed Korean Airlines Flight 007.

We need not make the error of characterizing the Malaysian Airlines Flight 17 episode as “terrorism” to insist that those responsible be held accountable for this episode and that use of military force must be carefully constrained to protect civilians.  A “terrorist” deliberately targets civilian populations to provoke fear and chaos in the populace.  The intercepted communications between Russian military advisors and pro-Russian separatists in eastern Ukraine make plain that they thought they were shooting down a Ukrainan military transport plane and were shocked to discover that the downed plane was a civilian aircraft, wondering aloud why a civilian airliner was flying in a war zone.  Nonetheless, we can rightly deplore this episode as involving criminal negligence—perhaps even the level of recklessness that would qualify as manslaughter under Anglo-American definition of homicide.

A responsible nation should never entrust a military system capable of such mass destruction of innocent life to other than a carefully trained team of regular military professionals and even then should insist that every precaution be in place and hesitancy demanded before such a system is employed.  Given that the American military has not repeated that episode in the last quarter-century, that immediate lesson may have been learned in the aftermath of the U.S.S. Vincennes.  Today, Russia should immediately withdraw such weapons systems from the rag-tag bunch of militias and criminal gangs that Russia has incited to violence in eastern Ukraine.

We live in a broken world.  A violent response to frustrations, even if purportedly limited, too often explodes into far greater atrocities and much greater loss of life than anyone intended at the outset.  Those of us who believe that international responsibilities do sometimes call for use of American military force nonetheless should be sobered by an episode such as this and be reminded that our own military too has made such unconscionable mistakes in the past.

Let us all continue to pray for a world in which not only innocents traveling high in the skies but all people may know peace and personal safety. And let us today hold in our hearts and prayers the victims of Malaysian Airlines Flight 17 and their families, including Sacred Heart Sister Philomene Tiernan, a member of the staff at Kincoppal-Rose Bay School, a Catholic girls' school in Sydney who lost her life on that flight, while remembering as well the souls lost 25 years ago in the Persian Gulf on Iran Air 655.

July 19, 2014 in Sisk, Greg | Permalink

New York Times Columnist: Hobby Lobby Majority is Like Boko Haram

Really, I mean it.

It's tough to keep pace with the monumental, colossal stupidity these days about this case. It would be a full-time job to respond to all of the garbage, and who's got the energy or inclination for that? This poor man aligns the Hobby Lobby Supreme Court majority with ISIS and Boko Haram. The unifying thread--both are anti-American:

The most horrific of the religion-inspired zealots may be Boko Haram in Nigeria. As is well known thanks to a feel-good and largely useless Twitter campaign, 250 girls were kidnapped by these gangsters for the crime of attending school. Boko Haram’s God tells them to sell the girls into slavery....

Violent Buddhist mobs (yes, it sounds oxymoronic) are responsible for a spate of recent attacks against Muslims in Myanmar and Sri Lanka, leaving more than 200 dead and close to 150,000 homeless. The clashes prompted the Dalai Lama to make an urgent appeal to end the bloodshed. “Buddha preaches love and compassion,” he said.

The problem is that people of faith often become fanatics of faith. Reason and force are useless against aspiring martyrs.

In the United States, God is on the currency. By brilliant design, though, he is not mentioned in the Constitution. The founders were explicit: This country would never formally align God with one political party, or allow someone to use religion to ignore civil laws. At least that was the intent. In this summer of the violent God, five justices on the Supreme Court seem to feel otherwise.

"The founders" certainly were not "explicit" in the Constitution about the points that Egan makes. "Explicit" means "clearly stated." Where are the points Egan makes about the Constitution clearly stated? What "intent" does he refer to? There is lots of evidence that at least some of "the founders" actually would recognize that religion sometimes can provide grounds for viable and cognizable objections to civil laws. Nothing in the Constitution prohibits such a recognition. And I daresay that "the founders" would rise up in unison to shout down the abject fool who lumped together organizations that kidnap, torture, and kill people with a court of law that, agree or disagree with its decision, does its best to interpret the law. There are many times when I disagree with the Supreme Court's decisions as to fundamental questions. But I recognize that those are legal disagreements. Cannot Egan do the same? In what way did "five members of the Supreme Court" align themselves with a "violent God" by ruling as they did, rather than simply issue a decision with which Egan disagrees?

I do regret posting this sort of irritated item right after Kevin's admirable post. But where is there to go with such talk? What is there left to say?

July 19, 2014 in DeGirolami, Marc | Permalink