Mirror of Justice

Berg on Schwartzman: Why Secular-Purpose Limits Should Be Narrow, and "Why Religion Is Special (Enough)"

Micah Schwartzman (UVA) recently published an article in the University of Chicago Law Review entitled "What If Religion Is Not Special?"  I have a fairly good-sized response out in the Law Review's online Dialogue feature.  Two key claims of Micah's article were that (1) you can't support distinctive accommodations for religious freedom unless you also support meaningful distinctive limits on religion serving as the rationale/purpose for laws and (2) ultimately there is no good reason for treating religion differently from deeply held, comprehensive nonreligious moral beliefs.  My response, "Secular Purpose, Accommodations, and Why Religion is Special Enough," makes a broad criticism of claim #1 and a narrower criticism of claim #2.  Abstract:

This article is a response to Micah Schwartzman's What If Religion Is Not Special? (U. Chi. L. Rev. (2012)). Schwartzman argues that existing approaches to the First Amendment's Religion Clauses are either (1) internally inconsistent because they because they treat religion as special for some purposes but not others or (2) unfair to both religion and nonreligion because they wrongly treat religion as different from deep or comprehensive nonreligious moral theories. He ultimately concludes that no existing theory is satisfactory and suggests expanding the clauses' reach to encompass comprehensive nonreligious moral views as well--which means that such views, like religious views, should be exempted from burdensome laws and should also be restricted in serving as the basis for legislation. Schwartzman argues that we are driven inexorably to this sort of general Rawlsian limitation on comprehensive theories as grounds for laws.

I argue that despite the virtues of his analysis, Schwartzman overstates two of his main conclusions. First, contrary to his charges of inconsistency, a theory may coherently treat religion as special for some purposes and not others. In particular, it is perfectly consistent to support religious accommodations while concluding that any constitutional restrictions on religion as a grounding for secular laws should be minimal, perhaps nonexistent. Second, the charge that it is unfairn to treat religion and nonreligion differently is also overstated. Religion has distinguishing features that justify treating it distinctively. We can extend such treatment to systems that share the same features but have not traditionally been called religious, but the extension should be limited—more limited than Professor Schwartzman proposes.  

These online commentary features at major law reviews are a good way to allow academic commentary that is longer and more detailed than a blog post but still reasonably current.

Another great speech at Notre Dame

At Notre Dame Law School's diploma ceremony last weekend, my friend and colleague Jeff Pojanowski -- who had been selected by the graduating class as "Distinguished Professor of the Year" and invited to address the ceremony -- gave an outstanding speech on Saint Felix of Cantalice, the Desert Fathers, the value of stillness, David Schindler, and being a "different kind of lawyer."  Highly recommended ( Download Pojanowski speech).

Morality and Economic Freedom

Be sure to check out the conversation, at Public Discourse and First Things, among Robert Miller, Rusty Reno, Samuel Gregg, and others, about morality and economic freedom.  Here's a bit, from one of Miller's interventions:

In my view, capitalism is consistent with Aristotelian-Thomistic moral premises, but it is not obligatory given those premises. Indeed, Aristotelian-Thomistic moral theory does not, by itself, tell us much at all about how society should be organized, either politically or economically. In principle, monarchy, aristocracy, and democracy are all morally permissible political systems (which is not to say that every exercise of governmental power in such systems is morally permissible), and capitalism, corporatism, and socialism are all morally permissible economic systems. Aristotelian-Thomistic moral philosophy does not, by itself, imply much about political or economic arrangements.

There is an important reason for this. Aristotelian-Thomistic morality is based on the idea that there is an objective human nature, which implies an objective final end for human beings, so that actions are morally right or wrong depending on whether they are ordered as means to that end. Being based on objective human nature, Aristotelian-Thomistic morals apply to all human beings, wherever and whenever they may be found.

This great generality comes, however, at a cost. For, leaving aside a very few actions that by their nature are incapable of being ordered to the final end of this life—human flourishing—and so are always and everywhere wrong (such as intentionally killing the innocent), all other actions are right or wrong depending on whether, in the actual circumstances in which they are to be performed, they are in fact ordered to the final end.

 

"When Place Is Not Enough"

I have a complicated friendship with the whole "Front Porch Republic / New Urbanism / Crunchy-Con / critique of the suburbs" thing.  Maybe it's "critical sympathy," maybe it's "sympathetic exasperation", maybe it's nodding-while-sighing . . . I'm not sure.  The "porchers" can be smug and precious, and some of what they present as provocations seems pretty obvious (why yes, it would be good for communities if more of were involved in neighborhood organizations, etc.).  Still, I agree that dense, walkable, mixed-use settlements are good things for human flourishing, I also was really influenced by Lasch, Rieff, and Schindler, and, yes, I think that Little Leagues are much preferable to "travel teams."  (The proliferation of "travel teams" in youth baseball, at the expense of the traditional parks, is something that I think self-styled "true conservatives" need to complain about more, when they are complaining about Five Guys and rootlessness.)

Anyway . . . I thought Ross Douthat's recent piece, "When Place Is Not Enough", was well worth a read.  Among other things, he develops the point that Americans' "rootlessness" is not simply a function of our mobility.

Cardinal Dolan at Notre Dame

Cardinal Dolan was the commencement speaker at the University of Notre Dame last weekend.  His speech was, I think, amazing -- both in its content and in its delivery and construction.  Highly recommended.

"The Unitary Papacy"

Michael Fragoso has an interesting essay up, at the site of the Claremont Center for Constitutional Jurisprudence, called "The Unitary Papacy:  What the Pope Can Learn from the American Constitution."  A teaser:

The Pope has an agency problem. One clear solution to it would be for him and his study group to learn from the unitary executive model from American constitutional and administrative law. The paramount goal of curial reform must be the establishment of a bureaucracy that is responsive to the policy directives of the supreme executive, the Pope, and the unitary executive provides that. . . .

NYC Council Passes Equal Access Resolution

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). Over at CLR Forum, I have on various occasions discussed the "serpentine path" of litigation in the Bronx Household of Faith case, and it appears from Mead's report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be "appearing to endorse religion." The Council's resolution may have been spurred by the events in the Southern District of New York, though it will be interesting to see what the Second Circuit does with the case (again).

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the "appearance" of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually violates the Establishment Clause. Here, though, I only want to note that Mead's view that "the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties" is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one's views, that is not necessarily conclusive on the question whether the Constitution forbids such use today. 

Christians Must Confront Scientific Illiteracy

That's the title of an interesting post by University of St. Thomas law prof Chuck Reid, at ReligiousLeftLaw.  I live in Georgia.  I'm proud to say that John Lewis is my congressional representative.  But a nearby Georgia congressman "declared during last fall's election cycle that 'evolution and the big bang theory are lies straight from the pit of hell.'"  Chuck's post is here.

More on the legislative-prayer case

Following up on Marc's post, and also on the posts by Eugene Volokh and Paul Horwitz to which he linked, a few quick thoughts:  First, I think it would be a good thing if the possibility Eugene raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass.  I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.  Next, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context.  Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea.  For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try.  Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.   

Teresa Forcades, the radical Catalan nun on a mission ...

"Sister Teresa Forcades is one of Catalonia's foremost political figures, but uniquely for a faith-led figure in Spain, her ideology is feminist and left-wing. Against a backdrop of continued economic contraction and austerity, she spoke to the Guardian about the need for an alternative to capitalism and criticised the misogyny of the Catholic church."

You can watch the six-minute video about Sister Forcades here.

Certiorari Granted in Legislative Prayer Case

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town's practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit's very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court's radar. But one never knows exactly why the Court decides to take up an issue.

For some discussion of the Second Circuit decision, see this post.

UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.

For Pentecost: Ignatius of Laodicea on the Holy Spirit

“Without the Holy Spirit, God is distant, Christ is merely a historical figure, the Gospel is a dead letter, the Church is just an organization, authority is domination, mission is propaganda, liturgy is only nostalgia, and the work of Christians is slave labor. But with the Holy Spirit, Christ is risen and present, the Gospel is a living force, the Church is a communion in the life of the Trinity, authority is a service that sets the people free, mission is Pentecost, the liturgy is memory and anticipation, and the labor of Christians is divinized.”

-- Ignatius of Laodicea, Bishop, 390 CE

HT: Brian Prior, Episcopal Bishop of Minnesota, who read it in his sermon at my parish (St. Stephen the Martyr) today

"Church law follows the theological reality of things."

A blog dedicated to "Catholic legal theory" should be interested in the fact of -- and the theory behind -- the ongoing revision of the law of the Catholic Church.  Several times I've heard a U.S. Cardinal complain tht the current Code (1983) "doesn't allow bishops to govern the Church effectively.  It makes it too difficult to apply appropriate penalties."  The following quote from the linked story hits the nail on the head:  

The current code was drafted in the 1970s, Bishop Arrieta said, "a period that was a bit naive" in regard to the need for a detailed description of offenses, procedures for investigating them and penalties to impose on the guilty. It reflected a feeling that "we are all good," he said, and that "penalties should be applied rarely."

It will be more than a little interesting to see how this revision, begun under Pope Benedict, concludes under the governance of Pope Francis.  Like his immediate predecessor, Pope Francis is profoundly aware that "we are [NOT] all good," as so many of his daily homilies make abundantly clear.  The 1970s weren't a propitious time for revising the Code of Canon Law, nor for much else in the life of the Church.    

Kinsley on Gay Marriage and Tolerance

This wlil show my age ... but Michael Kinsley was (paired with Robert Novak) the best host ever on Crossfire.  Not a high bar, true; but they were quite good.  He tends to be a contrarian liberal: the contrarian (increasingly so) position in this New Republic piece is "[B]eing against marriage equality doesn't make you a monster."  He touches a bit on the religious-liberty situations like the florist.  We've pretty well flogged these issues to death here, including how one can support same-sex marriage and strong religious liberty.  But c'mon ... this is Kinsley saying such things (dang, I showed my age again).

I'll open comments with trepidation, but since we have flogged this in other posts, I'll close the comments if they start veering to something beyond Kinsley's particular points.

Targeting, Unequal Application, and Free Exercise

This may be obvious to readers of this blog, but perhaps it's worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of "constitutional violations." Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service. 

I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side). 

Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group's plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing "sacrificing" an animal defined sacrifice as "to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption." The Court struck down these ordinances as violations of the Free Exercise Clause.  

How might these cases apply here? Suppose that the government's explanation for delaying and/or denying a particular group's application for tax-exempt status was that the group "is not educational" or "is political" or "does not present all views." As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, "No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views" without violating the Free Exercise Clause as interpreted by Smith (of course, it may be violating other provisions of the Constitution, but I am focusing specifically on free exercise).

Things don't end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn't really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or "targeting," it did not. Only two Justices--Kennedy (writing for the majority) and Stevens (who joined him on this point)--relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City's desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be--given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be "narrowly tailored" to the government's aims, and the failure of that narrow tailoring in turn suggests that the government's interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law's aims and application is.

One might wonder whether this difference is important. A law that is motivated by the desire to "target" religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might "target" religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a "leap of faith" off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to "target" this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the "dangerous" (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the "targeting" legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.

In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government's subjective intention to "target" particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.

Collett on Gosnell

My colleague, Teresa Collett, wrote this powerful op ed for our local paper laying out why Kermit Gosnell could not be prosecuted in the state of Minnesota.

Non sum Oedipus, sed Morus

I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center.  The workshop's conveners (who include our own Lisa Schiltz) have generously provided us with various material to prepare, which I am now digesting (I don't know as much about this stuff as Moreland, after all).  But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (another conference convener) of Travis Curtwright's recently published The One Thomas More (2012).  Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting.  One issue I've always wanted to learn more about--and have thought might be rightly considered in a legal ethics course--is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.

A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career.  Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia.  More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.

Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence.  By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform.  More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law.  For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.

The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s.  As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86).  Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.”  As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99).  This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7).  Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism:  “The Cure for the greatest part of human Miseries is not radical, but palliative.”  (The Rambler, No. 32, July 7, 1750.)

“See the Victim”

Since Advent 2011 those of us who celebrate the Church’s divine liturgy in the Roman rite have made use of a new English translation, one that is more faithful to the original Latin text.  For the most part, I have appreciated these changes in that they have helped to restore a greater sense of reverence and dignity to the Mass – a sense that was at times lacking in the celebration of the Novus Ordo with the English translation that appeared shortly after the Council.

There are, however, a few instances in which the more sparse language of the 1970 translation resonates in a way that is lost in the more accurate, though more formal and ornate language of the new translation.

Take for example the epiclesis to Eucharistic Prayer III (A side by side comparison is available here).  At this point in the Mass the Church prays to the Father for unity – that those who share in Christ’s Body and Blood will be filled with the Holy Spirit and “become one body, one spirit in Christ.”  In the subordinate clause that precedes this, the language of the two translations is somewhat different.  Whereas the new translation asks the Father to look “upon the oblation of your Church . . . recognizing the sacrificial victim by whose death you willed to reconcile us to yourself” the 1970 translation simply asks the Father to “see the victim whose death has reconciled us to yourself.”

“See the victim.”

This simple declarative phrase urges God the Father to see our offering – Christ himself.  But it is not simply a prayer to the Father.  It is also an exhortation to the faithful to see Jesus, to see the Crucified One, to see the price of their redemption.

“See the victim.”

Notwithstanding the mainstream media’s calculated lack of interest in the trial of Kermit Gosnell (a lack of interest catalogued in the links contained here), the horrors exposed in the conviction of the Philadelphia abortionist have broken through – in part through the use of social media (see here), in part through the integrity of some journalists who shamed their peers out of a silence that seemed inexplicable apart from ideology (see here, here, and here). Though Kermit Gosnell (don't call him "doctor" – that’s not what you call murderers behind bars) was apparently dumbfounded (here) that he was convicted for simply trying to finish the job of ensuring “fetal demise” (Grand Jury Report p. 4), Gosnell has been found guilty of first-degree murder three times over.

“See the victim.”

Of course for there to be a crime there must be a victim.  Here there were several victims: an adult woman who sadly chose abortion and was given a drug overdose by a quack and his untrained staff, and of course several babies who were delivered only to have their spinal cords “snipped” even as they struggled for life.  They did not suddenly become “babies” in the act of being born, if by “baby” we mean “human being.”  “Baby” is a term we typically (though not uniformly) reserve for human off-spring who can interact with others outside the womb.  Sadly, the first interaction with adults that these children experienced was to die a savage death – to suffer as victims sacrificed on the altar of “choice.”  But their status as human beings long preceded their deaths and their births.  It began when they began, seven or eight or nine months prior.

It is not in the interests of those who profit from child murder to see any child victim where “fetal demise” is secured.  Thus, in an attempt to spin the Gosnell verdict in a kind of legal jujitsu, NARAL’s president Ilyse Hogue issued a statement (here) placing blame for the Gosnell affair on attempts to regulate abortion.  According to Hogue, the lessons to be learned from the Gosnell trial are that the “unrelenting efforts” of “anti-choice” politicians “to deny women access to safe and legal abortion care, will only drive more women to back-alley butchers like Kermit Gosnell.”

The maneuver fails, of course, in that Hogue’s claim is exactly wrong.  Gosnell was allowed to operate with impunity for decades not because of an abundance of regulation but because of the near total absence of any government oversight – an absence that the abortion industry has tenaciously worked to secure.

What is absent from the NARAL statement – shamefully but predictably absent – is any acknowledgement of the victims – of the children murdered by Gosnell.  And the reason for this is obvious – because NARAL and its partners in the crime of in utero child murder (like the National Abortion Federation and Planned Parenthood) have the same blood on their hands.  They may not preserve their victims in jars, like trophies, as Gosnell did, but the same blood of the innocents stains their hands, and their balance sheets, and the whole country, making a mockery of the rule of law.

“See the victim.”

If there is any good that can come from the tragic loss of life brought to light in the Gosnell trial it is this: the humanity of the child-victim of abortion.  This humanity is clear whether the child is delivered through a botched abortion and then killed by “snipping” or murdered while still developing in his or her mother’s womb.

The identity the child in utero or ex utero – his or her empirical status as a human being – does not change with a change in location.  To say otherwise would be to claim that one’s humanity depended upon being born in a free-state or a slave-state, or being transported from one to another and back again (see here).  Location may be a relevant fact under a corrupt and morally indefensible legal regime, but the law should reflect the reality that most people intuit and that science confirms.

The entity developing in the womb is a human being, not a clump of undifferentiated cells – as the hucksters who peddle “choice” would have the public believe (see here).  Rather the developing child – whether in utero or ex utero – is a human being – one of us!

The purveyors of abortion fear that the Gosnell trial will actually urge the public to take notice of this fact.  Those who purport to take Catholic social teaching seriously should work to see that it remains ever present in the public eye – that the first question asked of those do the bloodletting (and are paid for it) should be “Is the being whose ‘demise’ you seek a human being?”

The children whom Gosnell murdered and for which he has been convicted – as well as the thousands of other children who died at his hands and the millions more who have died at the hands of other abortionists ask for only one thing: They ask to be seen for who they are.

“See the victim.”

(here)

Rienzi on Gosnell . . . and the troubling rise in infanticide

"Gosnell's Crimes Not Uncommon" is the title of Prof. Mark Rienzi's piece in USA Today.  Here's a bit:

. . . While murder rates for almost every group in society have plummeted in recent decades, there's one group where murder rates have doubled, according to CDC and National Center for Health Statistics data — babies less than a year old. . . .

. . . Gosnell's actions are readily explainable by a culture that embraces, and in some quarters celebrates, abortion as a constitutional right. Gosnell made his living by performing legal abortions, many of them late in the pregnancy. Is it really all that surprising that he might not have seen a significant moral difference in performing the abortion a few inches inside the birth canal rather than somewhere outside?

The law can be a potent moral teacher, which is a good thing. Laws against slavery and discrimination have helped reduce prejudice. Laws requiring accommodations for people with disabilities have helped them gain visibility and greater acceptance in society. . . .

It would be naive to think that our abortion laws do not carry a similar teaching power. . . . 

Public Discourse

Somehow, five days a week---week in and week out---Public Discourse, the on-line journal of the Witherspoon Institute, manages to post an illuminating and engaging essay on a significant issue in our public life.  Yesterday it was Matthew Franck's powerful reflection on abortionists in contemporary culture as "providers of necessities" (as Lincoln said of slave-sellers) who are at the same time "utterly despised." Today it is a tightly argued piece by Charles Capps on meeting the practical needs of unmarried domestic partners (whether their relationship is platonic or otherwise) without "defining out of existence the only legal category whose purpose is precisely to integrate the kind of act that can result in conception with the kind of environment best suited for a child’s development."   http://www.thepublicdiscourse.com/2013/05/10094/

No, we're not through with Kermit Gosnell

Abortionist Dr. Kermit Gosnell, who was convicted yesterday of first degree murder of three babies, has agreed not to appeal a sentence of life in prison in return for the prosecution's agreement not to seek the death penalty. Having publicly opposed the death penalty for Gosnell, I am entirely content with this way of bringing the appalling episode to a close. Are we through with Gosnell now?  Can we "let him rot in prison," as some have said and "just forget about him"?  Not in my view.

For those of us who seek to be disciples of Jesus, our obligation is clear:  It is to love Kermit Gosnell and pray for him. He will spend the remainder of his life in jail, as he certainly should---his punishment is just. But he remains a human being, made in the image and likeness of God. He is our (very wayward) brother.  We are his fellow sinners. We must never suppose that it is beyond the power of the divine Author of life to move his heart to repentance and conversion.

And let us redouble our efforts on behalf of the victims---mothers and babies alike---of the hundreds and even thousands of abortionists who will continue to ply Dr. Gosnell's grisly trade. Let us pray not only for Gosnell, but for all who deal in death, even as we work tirelessly in the political and cultural spheres to fight the abortion power and care for pregnant women in need and their inestimably precious children.

"The Freedom of the Church (New Revised Standard Version)"

When it rains, it pours (interesting church-state scholarship, that is).  Following up on my post about Paul Horwitz's new paper, here's another great offering on the same general topic, by John Inazu, called "The Freedom of the Church (New Revised Standard Version):

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.” 

The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.

I'm really honored that a scholar as prolific and interesting as Inazu has taken such care to respond to some of my own efforts -- and to press my arguments and claims, and to make me re-think my own views.

Much to my own (and, I'm sure, my dean's and my editor's!) disappointment, I'm a few years behind on my "Freedom of the Church" book project.  On the bright side, the book will be much better for having the benefit of Inazu's and Horwitz's criticisms and improvements. 

"The Freedom of the Church Without Romance"

Paul Horwitz has posted a must-read paper called "The Freedom of the Church Without Romance."  It's an important piece, by an important scholar, on an important subject.  In it, Paul engages -- carefully, critically, fairly, challengingly -- with some of my own efforts to think through the "institutional" dimension of religious freedom.  Here's Paul's abstract:

This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the idea of "freedom of the church" has taken on new champions--and critics. 

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion. Both historical and economic analysis of the concept of "freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions, or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime. 

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions. 

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

My quick-reaction to the Gosnell verdict

Here's the instapunditry I did for National Review Online yesterday:

It is a good thing that the Philadelphia jury convicted Kermit Gosnell of
murder, because it is in fact clear that he committed murder. For the jury to
have done otherwise, given the graphic, detailed, and not-meaningfully-contested evidence, would have been a gross and depressing injustice. It would have delivered a huge blow to the rule of law in the City of Brotherly Love if the
members of the jury had allowed themselves to be distracted or confused by
Gosnell’s lawyers’ overheated attempts at obfuscation, by baseless charges of
“racism” and “elitism,” or by a distortionary dedication to an extreme version
of the pro-abortion cause.

It will be tempting to “move on.” But the temptation should be
resisted. Gosnell did horrible things to women and still-living babies, and
laughed about it, and it would be comforting to many of us if he were a Hannibal
Lecter–type aberration. And, of course, in many ways, he is. Yet his ability to
reduce unborn and “unwanted” children to objects, whose pain and death were
material for jokes, differs more in degree than in kind from the dignity-denying
premises underlying our abortion laws generally. We should take more time to
think, and worry about, this fact.

Abortion on Trial

Late-term abortionist Kermit Gosnell has been convicted of first degree murder for killing babies after delivering them alive. The trial now moves into the penalty phase, and we wait to hear whether prosecutors will seek the death penalty. But Dr. Gosnell is only the front man; and the real trial has only just begun. The defendant is the abortion license in America. The Gosnell episode highlights the irrationality of the regime of law put into place by the Supreme Court in 1973 and fiercely protected by Planned Parenthood, NARAL, and the polticians they and other "pro-choice" advocacy groups help send to Washington and the state capitols. Something as morally arbitrary as a human being's location---his or her being in or out of the womb---cannot determine whether killing him or her is an unconscionable act of premeditated homicide or the exercise of a fundamental liberty. Yet something like that is the prevailing state of American law under Roe v. Wade and Doe v. Bolton. Its incoherence and indefensibility have been laid bare by the prosecution of Dr. Gosnell. Whatever now happens to him, it will no longer be possible to pretend that abortion and infanticide are radically different acts or practices. If we are to condemn snipping the neck of a child delivered at, say, twenty-four or twenty-six weeks to kill him or her, how can we defend dismembering or poisoning a child in the womb at twenty-six, thirty, or even thirty-four weeks? And even more fundamentally, if we are bearers of inviolable dignity and a basic right to life in virtue of our humanity, and not in virtue of accidental qualities such as age, or size, or stage of development or condition of dependency---if, in other words, we believe in the fundamental equality of human beings---how can a right to abortion (where "abortion" means performing an act whose purpose is to cause fetal death) be defended at all?