Tuesday, September 30, 2014
I did an online interview for Millennial, a popular blog by and for young Catholics, about the current pregnancy discrimination case, Young v. UPS, and the amicus brief filed by 23 pro-life organizations. I won't quote myself at length here in a teaser--but I do emphasize that the brief makes "a strong statement: pro-life groups believe that supporting pregnant women (including through effectively enforcing non-discrimination laws) is fundamentally pro-life."
Monday, September 29, 2014
In an editorial that purports to welcome the "end to the politics of cultural division," the NYT refers disparagingly to "old right-wing nostrums about the 'sanctity of life' . . . [that] have lost their power, revealed as intrusions on human freedom." What, one wonders, can make "human freedom" not-to-be-intruded-upon in a world in which "sanctity of life" is an "old right-wing nostrum"?
Sunday, September 28, 2014
An interesting article in The Week on the subject of pregnancy discrimination, headlined as "The feminist issue that too many women ignore." The articles makes reference to the briefs by both pro-life and pro-choice groups supporting Peggy Young, the plaintiff in the SCT in Young v. United Parcel Service. It quotes the pro-life brief and then adds (speaking presumably about potential legislative efforts down the line, beyond the SCT case):
While some feminists will surely resist working too closely with those who oppose abortion, others might view this as an opportunity to step outside their circles and increase the likelihood of making positive change. As writer and critic Judith Shulevitz puts it in her recent examination of the state of feminism today, getting legislation passed that will help working mothers will require "being willing to make compromises and unlikely alliances to get the necessary votes." By "unlikely" she means those who "fall afoul of Emily's List."
(Cross-posted at Whole Life Democrat)
Saturday, September 27, 2014
A very thoughtful essay, by Yuval Levin, at First Things. Here is a bit, from the end:
The permanence of the human longings for attachment and transcendence means that the endless parade of temptations and distractions we confront in modern life can yield an endless series of opportunities for the truth to recapture our imagination and prove itself indispensable. Traditionalists should therefore work to build room for their ways of living in the modern world not only as a means of defense and survival but as a means of persuasion and progress.
They should see themselves fighting not against the liberal society but for it. They should live out their faiths and their ways in the world, confident that their instruction and example will make that world better and that people will be drawn to the spark. This means traditionalists must see both the good and the bad in modern life, and must accept that our society is always getting both better and worse.
And it means that traditionalists must be committed to the preservation of spaces for private life that are protected from the perverse shortsightedness of politics. It means, in other words, that we should be intensely engaged in the struggle for the soul of our society—knowing we can expect no ultimate victory from politics, but also that we are by no means destined to defeat, and that by persisting in the struggle we make room for another generation to rise and thrive and seek to embody the good. Politics can do no more than that, but it must do no less.
Friday, September 26, 2014
Tom Farr has this, over at Public Discourse. A bit:
There are two powerful reasons for a coordinated, comprehensive American strategy to advance religious freedom. The first is a moral imperative.
Last year in Rome, Iraqi Patriarch of the Chaldeans, Archbishop Louis Raphael Sako, said something that still haunts me: “If they kill us all, will you do something then?” We have a responsibility to that man, and to the others of Iraq and Syria—Christian, Yazidi, and Muslim alike—who are fending for, or fleeing for, their lives.
Patriarch Sako said something else. The title of his speech was: “What Happens to the Middle East if Christians Flee?” The answer was twofold: terrible suffering for the Christians, but also increased instability and harm to the societies themselves.
Here lies the second reason for a coordinated, comprehensive US strategy on religious freedom. Religious freedom is not simply a “nice to have” human right, consisting mainly of the right not to be tortured or killed, or a right to private worship. It is a fundamental human right that has distinct and inevitable public dimensions. As such it is utterly necessary, not only for individual human flourishing but for the success of any state—especially highly religious nations like Iraq, Pakistan, or Egypt.
Ample research demonstrates what common sense suggests: democracies cannot consolidate without religious freedom. Economies cannot develop without religious freedom. And—perhaps most important for American national security—religious freedom is a counter to religion-based terrorism.
Over at Arc of the Universe, my friend Tim Shah has a great post about Jacque Berlinerblau's "gutsy" (I agree) piece in The Chronicle of Higher Education, "The Crisis in Secular Studies." Fans of Benedict XVI's "healthy secularity" will definitely want to check this out. (And this.)
A lovely column by Roger Cohen a few days ago on the stubborn persistence of personal attachments and traditions, and the way in which they seem perpetually to obstruct efficiency, globalization, progress, and other modern dispensations of the spirit of the age. I remember a few years ago when our family sold the home in which it had thrived, and grown, and lived together. Even property is never "just property." A bit:
A few weeks ago I was in France, where I’ve owned a village house for almost 20 years that I am now planning to sell. A real estate agent had taken a look at the property and we had made an appointment to discuss how to proceed. She swept into the kitchen, a bundle of energy and conviction, with an impassioned appeal:
“Monsieur Cohen, whatever you do, you must on no account sell this house!”
I gazed at her, a little incredulous.
“You cannot sell it. This is a family home. You know it the moment you step in. You sense it in the walls. You breathe it in every room. You feel it in your bones. This is a house you must keep for your children. I will help you sell it if you insist, but my advice is not to sell. You would be making a mistake.”
This was, shall we say, a cultural moment....
Thursday, September 25, 2014
Today marks the two hundred and twenty-fifth anniversary of the day on which the First Congress proposed to the states for ratification the first set of amendments to the Constitution. The first two did not make it with other ten, which are now more commonly known as the Bill of Rights. (The first proposal was never ratified at all, while the second was ratified over two hundred years later as the twenty-seventh amendment.)
Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project. A taste:
“Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .
Finnis on the relationship between judicial impartiality and the technical rationality of positive law
I recently came across this passage from John Finnis that explains the relationship between judicial impartiality and the technical rationality of the law:
In the working of the legal process, much turns on the principle--a principle of fairness--that litigants (and others involved in the process) should be treated by judges (and others with power to decide) impartially, in the sense that they are as nearly as possible to be treated by each judge as they would be treated by every other judge. It is this above all, I believe, that drives the law towards the artificial, the techne rationality of laying down and following a set of positive norms identifiable as far as possible simply by their 'sources' (i.e. by the fact of their enactment or other constitutive event) and applied so far as possible according to their publicly stipulated meaning, itself elucidated with as little as possible appeal to considerations which, because not controlled by facts about sources (constitutive events), are inherently likely to be appealed to differently by different judges. This drive to insulate legal from moral reasoning can never, however, be complete.
John Finnis, Natural Law and Legal Reasoning, in Natural Law Theory, Robert George, ed., p. 150.
While Professor Finnis acknowledges that legal reasoning is never completely insulated from moral reasoning, this passage explains one way in which natural law theory justifies the positivity of positive law. It is a helpful corrective to a tendency in contemporary constitutional theory to set natural law reasoning in opposition to constitutional originalism.
I highly recommend Yuval Levin's essay in the most recent issue of First Things, "Taking the Long Way." Especially this:
Not everyone has the good fortune of a flourishing family, or the opportunity for rewarding work, or a liberal education, or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings. That calling, rather than a hyper-individualist liberationism, should be the organizing principle of our political life, helping us see what to conserve and how to advance.
According to the New York Times, "the vast Church of the Holy Sepulcher mark[s] the site where many Christians believe Jesus is buried." Rod Dreher is right:
I can understand someone living in Pakistan, or Sichuan province, not getting that all of Christianity, in its many versions throughout the ages, rests on the resurrection of Jesus. I don’t understand how an educated American, whatever his beliefs, can not know that. Yet that story got through several layers of editing at the Times before making it into print. It’s staggering.
Wednesday, September 24, 2014
The Judiciary Act of 1789 was enacted two hundred twenty-five years ago today. It was a monumental achievement for the First Congress. Among other things, the Act gave concrete institutional shape to a judiciary left open-ended in Article III. (Remember the "Madisonian compromise"? The biggest fight surrounding the first Judiciary Act centered on the need for an extensive system of lower federal courts.) The Act also began the process of working out the relationship between state and federal judiciaries, advancing a process of constitutional liquidation anticipated by Hamilton in Federalist No. 82. And Section 25 of the Act, which provided for Supreme Court review of state decisions via writ of error, explicitly contemplated judicial determinations of the constitutionality of statutes. (This is the practice we now call "judicial review," although that term did not emerge in connection with this practice until the early twentieth century.)
September 24 is also John Marshall's birthday; today would have been his 259th (b. 1755, d. 1835). It is fitting that Chief Justice Marshall and the federal judiciary share the same birthday. Perhaps the coincidence can remind us to be grateful not only for the Great Chief Justice, but also for Oliver Ellsworth, the father of the Judiciary Act and our third Chief Justice.
In reading through Josh Blackman's criticisms of Justice Ginsburg's forthcoming Elle interview, one of Justice Ginsburg's answers stood out to me:
Interviewer: Fifty years from now, which decisions in your tenure do you think will be the most significant?
J. Ginsburg: Well, I think 50 years from now, people will not be able to understand Hobby Lobby.
Justice Ginsburg's response not only fails to answer the question asked, but also advances an insupportable claim about the comprehensibility of a recent opinion of the Court. Are there any Supreme Court decisions from fifty years ago (which is just 1964) that people today cannot understand? What is it that Justice Ginsburg thinks future interpreters will find so hard to comprehend about Hobby Lobby?
In terms of comprehensibility to future interpreters, I tend to think that Justice Alito's more formalist opinion for the Court will be more understandable than Justice Ginsburg's purposivist dissent. Understanding the majority opinion requires less contextual knowledge of the sort that may fade with the passing of time. Someone trying to figure out how the majority and the dissent arrived at their respective conclusions about the scope of RFRA's coverage can more readily understand the largely textualist analysis of the majority opinion than the dissent's importation into RFRA of a judicially developed formula designed to implement a religious organization exemption for a different statute.
Perhaps future interpreters will disagree with the outcome in Hobby Lobby; hard to say with any confidence whether disagreement will be greater or lesser than it already is. But it should not be difficult for future interpreters to understand how the Court arrived at its decision.
Sir Edward Coke was a lawyer, an MP, Attorney General, and Chief Justice of the Court of Common Pleas of the King's Bench. He is widely considered one of the fathers of the common law. Here is a fragment of the preface to Part Two of his Reports. I was struck by the terms in which he discusses the common law:
To the learned Reader
There are (sayeth Euripides) three Virtues worthy [of] our meditation; To honor God, our Parents who begat us, and the Common Lawes of Greece: The like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honor to thy Parents, yeeld due reverence and obedience to the Common Lawes of England: For of all Lawes (I speak of humane) these are most equall, and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defend against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Records and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt [MOD trans.: But there are some disdainful types who hate every high calling with which they are unfamiliar, I know not for what reason]. There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speak of humane) so necessary for all estates, and for all causes, concerning goods, lands, or life, as the Common Lawes of England....
Their example [that of the "Sages of the Law"] and thy profession doe require thy imitation: for hitherto I never saw any man of a loose and lawlesse life, attaine to any sound and perfect knowledge of the said lawes: And on the other side, I never saw any many of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.
If you observe any diversities of opinion amongst the professors of the Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis [MOD trans.: the vice of man, not of the profession].
Tuesday, September 23, 2014
Church Signs, Content Discrimination, and Freedom of Assembly: Amicus Brief from CLS and the St. Thomas Religious Liberty Clinic
The Supreme Court this term is hearing Reed v. Town of Gilbert, a church's challenge to a town ordinance that imposes widely varying size and duration requirements on temporary signs with different messages and subject matters. "Political signs" (those supporting candidates or ballot measures) and "ideological signs" (those that simply communicate a noncommercial message) can be much larger and stay up much longer than "temporary directional signs for qualifying events," which announce an event (other than a political one!) and give directions to it. Officials classified Good News Church's signs for its weekly Sunday worship services (held in rented public-school rooms) into this last category. The signs thus could not be placed until 12 hours before the services and had to be removed within one hour afterward.
The UST Law Religious Liberty Appellate Clinic, which I direct, wrote an amicus brief for the Christian Legal Society and several other groups supporting the church's challenge. We argue that the sign ordinance is content-based (discriminating based on the subject matter of the signs) and thus subject to strict scrutiny; we support the plaintiffs' argument that the content-discrimination category applies here even if the town was not shown to be motivated by disagreement with the message of disfavored signs.
We also argue that the disfavored treatment of signs that announce and give information about a noncommercial event conflicts not only with freedom of speech, but with the distinct First Amendment right of freedom of assembly. This may call to mind for readers John Inazu's important recent book, Liberty's Refuge: The Forgotten Freedom of Assembly, and we rely significantly on the book in this section. We think that the denigration of the value of event announcements in this ordinance really frames nicely John's point that assembly should not be reduced merely to speech (or the other doctrine, lacking an explicit textual pedigree, of "intimate or expressive association"). Here's a bit from that section of the brief:
The Court of Appeals’ holding that speech announcing events has little or no constitutional protection is gravely detrimental to the distinct First Amendment right of freedom of assembly. Because the people have the right not just to speak, but “peaceably to assemble,” U.S. Const. amend. I, messages announcing events and directing people to them cannot be relegated to inferior constitutional status. Substantial restrictions on meeting announcements and directions can severely hamper the practical ability of groups to assemble...
This Court has made clear that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).... Accordingly, the interpretation of free speech principles must give weight to the distinct but related right of assembly.
The press release from CLS is here. Thanks to clinic student (3L) Michael Blissenbach, who did a fine job in contributing to the drafting of the brief. And of course thanks to Kim Colby of CLS, who as many readers may know is one of the nation's very best religious liberty lawyers.
Here's the abstract:
This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them? I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches. I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges. I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.
At the Libertas Project workshop on economic freedom this past summer, one of our sessions took up the issues posed by Cass Sunstein and Richard Thaler's Nudge, which is generating a cottage industry of commentary around issues of freedom, autonomy, and government paternalism. This interesting review at the NY Review of Books by Jeremy Waldron of two (!) new books by Sunstein nicely frames the debate.
Waldron points out in the review the danger in Sunstein's claim that "we should design policies that help the least sophisticated people in society while imposing the smallest possible costs on the most sophisticated" of what Bernard Williams memorably called "Government House Utilitarianism":
There are deeper questions, too, than these issues of trust and competence. As befits someone who was “regulation czar” in the Obama White House, Sunstein’s point of view is a rather lofty one and at times it has an uncomfortable affinity with what Bernard Williams once called “Government House utilitarianism." Government House utilitarianism was a moral philosophy that envisaged an elite who knew the moral truth and could put out simple rules for the natives (or ordinary people) to use, even though in the commissioner’s bungalow it was known that the use of these rules would not always be justified. We (the governors) know that lying, for example, is sometimes justified, but we don’t want to let on to the natives, who may not have the wit to figure out when this is so; we don’t trust them to make the calculations that we make about when the ordinary rules should not be followed. Williams saw the element of insult in this sort of approach to morality, and I think it is discernable in Sunstein’s nudging as well.
Here's an interesting question for Catholic legal theory: Does the Catholic tradition's robust commitment to the common good sit comfortably with Sunsteinian nudging of citizens by the state (one might even think that, pace Sunstein, nudging should include not merely health, safety, and economic choices but also moral virtue)? And how much does the answer to that question turn on accepting something like Sunstein's welfare maximization account, which is hardly what the tradition means by the common good? But if the political common good is merely instrumental to other human goods, one has reservations about the competence of the state in such matters, or one is concerned about the autonomy of our choices (a libertarian view one doesn't readily encounter in Catholic social thought), then perhaps the critics of nudging are right to worry about it. (See Waldron's comments about how Sunstein's equation of autonomy with welfare is "remarkably tone-deaf to concerns about autonomy").
Eli Wald (Denver) and Russ Pearce (Fordham) have offered a thoughtful and helpfully critical review of my recent book, Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice. Here's the opening:
Rob Vischer has written an elegant and thought-provoking book, in which he asserts convincingly that something is very wrong with the legal profession and lawyers today and supplies an innovative and intriguing, albeit not fully realised, alternative vision. In doing so, moreover, Vischer joins Brad Wendel in authoring a pathbreaking book as part of a ‘new generation’ of scholars that seeks to build on the success in influencing the academy—and to learn from the failure to persuade practising lawyers—of an earlier generation of leading thinkers, including David Luban, Deborah Rhode, William Simon and Thomas Shaffer, who challenged the dominant conception of lawyers as neutral partisans. . . .
The bulk of Vischer’s book is an attempt to address this very challenge [of individualism] by providing a rich account of relational content to lawyers, offering means of expanding their view, as well as their clients’ view, to develop a practice of law that respects and advances clients’ true nature and objectives as relational beings. The relational content draws primarily on the teachings and thinking of Dr Martin Luther King, Jr—including his reliance upon agape, personalism, justice and Christian realism. Vischer’s book is impressive because it builds on at least three bodies of work—Dr King’s teachings, Christian theology and lawyers’ professionalism—to produce an easily readable, concise, practical blueprint for lawyers interested in serving the actual needs of their clients. The book successfully demonstrates that lawyers’ fundamental premise about clients is erroneous or at least overly reductive, and creatively challenges the orthodoxy of autonomy and individualism by offering a rich relational alternative. It does all of that by reintroducing Dr King’s work to a new generation of lawyers—an objective worthy in and of itself.
Wald and Pearce do express some skepticism about some of my conclusions, wondering, for example, if atomistic individualism is so ingrained in our culture that the removal of institutional barriers will actually pave the way for relational lawyering in any meaningful sense.
The lawyers arguing about the constitutional redefinition of marriage (and arguing about who should be arguing about this)
Marcia Coyle of the National Law Journal and Adam Liptak of the New York Times have stories on the lawyers representing the various parties in the marriage-redefinition litigation. The NLJ story is titled "These Are the Lawyers Fighting Marriage Equality," and the NYT story bears the title "Seeking a Same-Sex Marriage Case Fit For History." It may not be intentional, but even these titles show a mixture of opinion and reporting functions.
Monday, September 22, 2014
Thousands of faithful and faithfilled Catholics along with members of other Christian faiths attended a Holy Hour and Eucharistic Procession at St. Francis Church in OKC yesterday afternoon to pray for Oklahoma City as a group of satanists prepared to hold a public black mass (sans consecrated host) at the OKC Civic Center. As reported by Anamaria Scaperlanda Biddick, "Archbishop Coakley said during the Eucharistic Holy Hour and outdoor Eucharistic procession that he and several bishops, dozens of priests and some 3,000 lay persons 'gather not to protest.' He urged attendees to 'put aside the outrage,' and instead 'adore, and listen to the holy Lord, and open our hearts to the promptings of the spirit.' It was a beautiful and reverant event reminding Catholics of the Lord's presence in the Eucharist, a fact that even the satanists seem to understand.
In recent column, Archbishop Coakley continued to urge people to stay away from the Civic Center before and during the staging of the black mass: "I am aware that other groups are planning to show their opposition to the blasphemous event that evening at the Civic Center. I urgently ask everyone to avoid confrontations with those who might oppose them. Our witness ought to be reverent, respectful and peaceful."
In another show of disobedience to the local ordinary, the schismatic SSPX was one of the "other groups" who ventured downtown to the Civic Center. Their presence, along with other groups, completely changed the narrative as it played out on local television.
The Archbishop's focus was on reverant prayer, Christian unity in Christ's body, and continued conversion of those attending the Holy Hour in addition to conversion of those staging the blasphemous event. The protests by SSPX and others at the Civic Center allowed the media to frame the narrative as one of clashing First Amendment rights - the free speech rights of the protestors against the religious freedom rights of the satanists.
Lost in this narrative was the authentic Catholic response: 1) a belief that Christ really is present in the Eucharist, 2) the devil, evil, and demonic forces are real and are dangerous to people and communities who open themselves up to these forces, 3) through Christ's passion, death, and resurrection, final victory, but skirmishes remain as long as this life endures, and 4) our response is prayer, the Eucharistic, and continued conversion and not clash of modern rights.
FYI, 88 people bought tickets to the black mass and 42 of those attended. Please pray for their souls. Many have told me that the Catholic Church should have just ignored this event because by opposing it and responding to it, it received much more media attention than it otherwise would have received. My response: If this had been a blasphemous b-movie, I would have agreed. But, as the Archbishop said, there is a very real danger to a community because "satanic ritual invokes powers of evil and invites them into our community."
Update: Here is Archbishop Coakley's homily given during the Holy Hour.
With the appointment of Bishop Blase Cupich of Spokane to be Archbishop of Chicago, products of Omaha, Nebraska are now leaders of two of the most important institutions of American Catholicism: the Archdiocese of Chicago and the University of Notre Dame (Father John Jenkins, CSC). Also, former Bishops of Rapid City, South Dakota will now be Archbishops of two of the six largest dioceses in the United States (in addition to Archbishop-elect Cupich in Chicago, my own Archbishop, Charles Chaput, OFM Cap. of Philadelphia, was formerly Bishop of Rapid City).
The prominence of Omaha and Rapid City may be a geographic coincidence, but there might also be a larger point here about the rise of Midwestern Catholicism in the American Church.
Consider that almost all of the ordinaries of the redoubts of the East Coast Catholic Church are Midwesterners: Boston (Cardinal O’Malley is from Lakewood, Ohio and Pittsburgh), New York (Cardinal Dolan is from St. Louis), Philadelphia (Archbishop Chaput is from Concordia, Kansas), and Washington (Cardinal Wuerl is from Pittsburgh). (Pittsburgh is a close call, but I say the Midwest begins when you pass the Alleghany Mountain Tunnel on the Pennsylvania Turnpike—and surely Pittsburgh historically has been more like Cleveland or Detroit than it’s been like New York or Philadelphia.) Only Archbishop Lori of Baltimore—a priest of the Archdiocese of Washington originally from Kentucky—is from an East Coast diocese. None of the American cardinals serving now as archbishop of a diocese is native to the East Coast: besides O’Malley, Dolan, and Wuerl, Cardinal DiNardo of Galveston-Houston is from Pittsburgh (via Bishop of Sioux City, Iowa). And Catholic university presidents at Notre Dame (Nebraska, as mentioned), Boston College (Father William Leahy, SJ is from Iowa), and Villanova (Father Peter Donohue, OSA is from Michigan) are from the Midwest.
The larger story, if there is one, may be that those formed by Midwestern Catholicism—less clerical, less dependent on the large institutions that have marked East Coast Catholicism—are suited to address the challenges of the 21st century American Church. Regardless, congratulations to Bishop Cupich and best wishes in retirement to Cardinal Francis George, OMI (originally from...Chicago).
The Catholic/Evangelical/Baptist/LDS/Lutheran amicus curiae brief in support of cert in the Utah same-sex marriage case
A couple weeks back, the United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the Church of Jesus Christ of Latter-Day Saints, and the Lutheran Church - Missouri Synod filed an amicus curiae brief in support of certiorari in the Utah same-sex marriage case.
The basic thrust of the brief seems right. The Supreme Court should "resolve without delay whether the Constitution requires the redefinition of marriage to include same-sex couples." At the same time, attention to the careful wording in the brief reveals the difficulty of simultaneously recognizing the Supreme Court's ultimacy in one sense, while also indicating the limited scope of that ultimacy and the possibility (and perhaps the likelihood) that constitutionalizing this matter will not shift the controversy over marriage from the Court to the People.
The brief opens:
The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage. We are convinced that a charter “made for people of fundamentally differing views,” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), does not prescribe a single national definition of marriage so contrary to the beliefs, practices, and traditions of the American people. We are convinced that the best way to resolve this wrenching controversy is by trusting the People and their democratic institutions. But a chorus of federal courts disagrees.
It may be tactically wise to suggest in an amicus brief in support of certiorari that a Supreme Court ruling on same-sex marriage has the potential to "end the divisive national debate as to whether the Constitution mandates same-sex marriage." And it might make sense to invoke Holmes's Lochner dissent. But I would be surprised if there is anything that the Supreme Court would write in an opinion that would end the debate over whether states are constitutionally required to define marriage to include same-sex couples. And we've already seen what one Holmesian approach to this issue results in.
The religious organizations argue, persuasively, that the legal uncertainty created by Windsor has impeded legislatures from acting on religious liberty protections in connection with same-sex marriage:
In our experience, legislators and other officials are frequently excusing their unwillingness to negotiate protections for religious liberty in the context of same-sex marriage on the specious grounds that such protections are invidious because same-sex marriage is a constitutional right or, conversely, unnecessary because this Court has yet to decide it is a constitutional right. Impeding the channels of democratic debate and engagement has been especially detrimental for religious organizations, given that States adopting same-sex marriage through legislative or popular lawmaking have often included at least some protections for religious organizations, while States compelled to make that change by courts have tended not to include such protections at all.
Even after a likely 5-4 decision creating a new constitutional right to same-sex marriage, however, much uncertainty will remain. The fight will turn to the scope and contours of this right, as well as the implications (both political and logical) of the Court's reasoning. Unlike desegregation, there will be no need for complex remedial decrees in particular cases. But the transition will not be as simple as issuing new forms that eliminate the terms "husband" and "wife." The scope of protections for cultural dissenters from the new federally imposed understanding of marriage, and everything that comes along with it, will be up for grabs. And it will be essential for religious organizations and others who adhere to a different orthodoxy from the new federal orthodoxy to work quickly with all reasonable people of goodwill, not so much to negotiate terms of surrender as to change the terms of engagement.
Depending for one's protection on the very judicial institution that so profoundly aligned itself in opposition to one's view of the legal institution of marriage does not seem a sound long-term strategy. In the short term, though, it is necessary to obtain a definitive declaration from the Supreme Court about where that institution stands amidst the legal uncertainty that it has created.
Saturday, September 20, 2014
ACTIVISTS on warring sides of the abortion debate rarely take the same position when it comes to Supreme Court cases involving women’s rights. But pro-choicers and pro-lifers have found common cause in Young v United Parcel Service, a pregnancy discrimination case the justices will take up on December 3rd. . . .
For the liberal women’s rights organisations, the question is one of gender equality. Workers like Ms Young, they say, have a legal right to the same kinds of accommodations that companies offer to employees unaffected by a pregnancy. For pro-life groups, there is an added dimension: women facing inflexible bosses tend to consider abortion. The amicus brief from 23 pro-life organisations quotes Senator Harrison Williams, an architect of the PDA who died in 2001. “One of our basic purposes in introducing this bill,” he had said, “is to prevent the tragedy of needless, and unwanted abortions forced upon a woman because she cannot afford to leave her job without pay to carry out the full term of her pregnancy.”