Mirror of Justice

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Thursday, January 29, 2015

Some thoughts from a reader on Prof. Robert Rodes, liberation theology, and law

A few weeks ago, I posted about the death (and life, and work) of my friend, colleague, and teacher, Robert Rodes.   In response, a regular MOJ reader sent in the following.  I really appreciated this reader's thoughts and, with permission, I share them below:
1) On November 20, I attended (at my undergraduate alma mater Loyola-Chicago) first a memorial Mass in honor of the "Salvadoran Martyrs" (six Jesuits at the University of Central America and two lay women executed by the Salvadorn military in 1989) wherein Jesuit Fr. Jon Sobrino was a concelebrant and later in the evening an address by Fr. Sobrino after the conferral of an honorary degree by the University.  Both the homily at Mass (by another Jesuit of my acquaintance who accomplished great things in Peru) and the address by Father Sobrino invoked, as one might expect, principles of liberation theology which exerted a not insignificant influence upon me in my youth.  The day inevitably led to some wistful reflection - very lightly tinged with mild regret(?) - about how my professional life as a lawyer has measured up to youthful ideals, boxed away sometime during my first year of law school with my
dog-eared copy of Fr. Gutiérrez' A Theology of Liberation.
2) On November 28, I saw your post on MOJ concerning the death of your colleague at Notre Dame, Professor Robert Rodes, Jr.  The linked article by Professor Shaffer "The Christian Jurisprudence of Robert E. Rodes, Jr." led me to read all the articles by Professor Rodes available at SSRN or otherwise on the Internet (as well as your article about Rodes' notion of Church-State nexus and Professor Uelman's piece).  In particular, "On Professors and Poor People - A Jurisprudential Memoir" (2007) led me to acquire Pilgrim Law - I was hooked as he acknowledged the impact of William Stringfellow, Jacques Ellul and Father Gutiérrez on his work in "On Professors and Poor People,"  each of whom gobsmacked me in my youth. The notion of "liberation jurisprudence" I found bracing and concluded/hoped that, often without intent or understanding, I had occasionally stumbled into applying his reading of the "preferential option for the poor" at least during the last 12 years of my legal career.  Eschatology from a "radical Catholic" lawyer is by now for me easier to digest than taking it straight from radical theologians like Fr. Sobrino.  So, thank you for the introduction to Professor Rodes.    

3)  My Internet search also led me to a remarkable "non-legal" article by Professor Rodes from 2002 in the now defunct American Benedictine Review "On the Vocation of a Benedictine Oblate" available at:
Since 2000, I have sporadically attended Mass at the Benedictine Monastery of the Holy Cross in the Bridgeport neighborhood on the South Side of Chicago and have participated in a sort of book club sponsored by the monks since about 2001-2002.  Originally, I was exploring the notion of becoming a Benedictine oblate, but quickly decided it was not really for me - in part because my wife finds the monastic "thing" quite alien.  If my math is accurate, Professor Rodes and his wife had been oblates at Portsmouth Abbey in Rhode Island for 50 years before he wrote the article.  I don't know how one spouse could properly be an oblate without the other, and certainly I could not.  As someone hovering occasionally around the edges of Benedictine community, his insights here were at least as impressive (for me) as his eschatological, liberation jurisprudence.
4) While I had already read the excellent exchange in the February 2015 First Things when I saw your post on "Hanby, Weigel, and Dreher on 'The Civic Project of American Christianity'," further discussion there concerning the "Benedict option" led me back to Professor Rodes reflection on the vocation of the Benedictine oblate.  Hanby, Weigel and Dreher differ on several points but share a basically pessimistic view about the general prospects for Christians in America, let alone the "Civic Project of American Christianity."  Hanby and Dreher again discuss the "Benedict option." I tend to share a pessimistic view of most things, whether as a matter of personality or experience. 
However, for some reason I have been particularly taken by the last paragraph of Professor Rodes' article, mentioning the picture of the "old" St. Benedict beside a tree stump with a small leaf growing out of the side.  "Underneath was the motto SUCCISA VIRESCIT, when cut down, it grows green."  Some translations of the motto substitute "pruned" for "cut down" and "flourishes" for "grows green."  Professor Rodes' translation was spot on and very Benedictine. Succisa virescit is originally the motto of St. Benedict's own Abbey of Montecassino and developed at some time after the abbey was destroyed by the Lombards around 585 and by the Saracens in 884, but before the subsequent destruction by Normans in 1046, by earthquake in 1349, and by the American Army Air Corps in 1944. 
Ultimately, it seems the "Benedict option" is now what it always has been - pray and work wherever you find yourself, trusting always in the Lord.  If it gets cut down, it will grow green.  

January 29, 2015 in Garnett, Rick | Permalink

More on the NLRB Decision in Pacific Lutheran

Over at the Law and Liberty site, Joseph Knippenberg has a post looking at the decision by the NLRB in the Pacific Lutheran case I mentioned here. A bit from his analysis:

First, the Board’s balancing act impels it to make judgments—historically eschewed by the Supreme Court—about the religious character of various educational and employment practices. The Board’s deep intrusion into the university’s functioning is based on a “stark error,” said Board member Johnson in dissent, for it elevates the rights granted by the National Labor Relations Act to the same level as a right guaranteed by the Constitution. And in its willingness to use state power to protect legislatively granted rights, the Board assumes the authority to make judgments about how religious institutions are to conduct their business, not just in terms of employment practices but also in terms of how faculty roles have to be defined in order to exempt them from regulation.

This is, needless to say, a serious diminution of the free exercise protections religiously affiliated colleges and universities have hitherto enjoyed.

Second, and connected to this, I would note the majority’s assumption about the only kind of religious institution that may enjoy the full range of First Amendment protections. To use the invidious language the Supreme Court once used to describe such schools, only “pervasively sectarian” colleges and universities—those on the margins of an increasingly secular society—can expect to be exempt from NLRB regulation.

January 29, 2015 in Moreland, Michael | Permalink

Tuesday, January 27, 2015

On Holocaust Remembrance Day


Today is the observance of International Holocaust Memorial Day. It falls on the 70th anniversary of the liberation of the Auschwitz-Birkenau extermination camp, known as "the death factory." It is a day to remember, prayerfully, the victims, and to reflect, soberly, on the depth of human depravity. How, we ask ourselves, could human beings have tortured and brutally murdered millions of their fellow human beings? How could such inhumanity, such barbarism, have occurred in the modern world, and in Germany—a nation of unparalleled cultural and intellectual attainments? It is also a day to consider, humbly, that had we been there, few of us would have been among the heroes who, at great risk to themselves, sheltered Jews and other victims or joined the forces opposing Hitler and the Nazis. Very few of us indeed.

But above all, it is a day to say, from our hearts and with conviction: "Never again."

The Holocaust—the Shoah—did not begin with the mass killing of Jews or other ethnic or religious minorities, or even Hitler's political opponents. It began with the killing of the handicapped and infirm. They were, according to Nazi ideology, "useless eaters," "parasites," lebensunwertes leben ("lives unworthy of life"). It is important to remember that this eugenic doctrine did not originate with the Nazis. It began with polite, urbane, well-educated, sophisticated people who saw "social hygiene" via, among other methods, euthanasia, as representing progress and modernity. They wanted to ditch the old Judaeo-Christian belief in the sanctity of all human life and replace it with what they regarded as a more advanced and rational philosophy.

This was the view articulated by, for example, noted legal scholar Karl Binding and psychiatrist Alfred Hoche in their treatise *Permitting the Destruction of Life Unworthy of Life*, published in 1920. Binding and Hoche were not Nazis, and when they were writing their book the Nazi party didn't even exist. In a few years, however, Hitler and the Nazis would adopt their ideas about "social hygiene" (mixing in racialist ideology and nostalgia for a mythical golden age of Teutonic paganism) and carry out the euthanasia program with a remorseless, pitiless fervor. Thus, began what became the Shoah—the murder of six million Jews, two to three million Russians, two million ethnic Poles, and nearly countless other so-called “undesirables.”

Yes, let us truly say, from our hearts and with conviction: "Never again."

January 27, 2015 | Permalink

CLS (St. Thomas Law Clinic) Brief Defending NC School Choice

The Religious Liberty Appellate Clinic I supervise at St. Thomas has filed amicus briefs in a pair of important school choice cases. The North Carolina Supreme Court is reviewing a trial judge's invalidation of the state "opportunity scholarship" program that helped low-income students attend private K-12 schools if their families choose.  (See the Institute for Justice description of the cases.)  The issues are important not only because the program serves the commendable goal of empowering parents and families, but also because the trial court's ruling of invalidity made a hash of the "state action" doctrine, conflating religious admissions and hiring criteria by private schools with unconstitutional religious discrimination by the state.

The plaintiffs raised several challenges to the statute, including that it allows families to use their scholarship money at religious schools that allegedly discriminate by considering religious affiliation in their employment or admissions policies. The amicus brief focuses on this issue, arguing that to strike down the program on this ground would create severe tensions with the religious freedoms guaranteed by the U.S. and North Carolina constitution: schools’ freedom to maintain their religious identity, and parents’ freedom to choose a school with such an identity.

The St. Thomas news release tells you more about the amici--who include the Christian Legal Society (CLS), evangelical Christian school associations, and Catholic dioceses--and about our clinic.  The previous briefs we have filed are collected here.  3L student Jim Kovacs did an excellent job as the primary drafter of the NC brief.  And thanks to Debbie Dewart, our co-counsel in North Carolina, and Kim Colby of CLS, co-counsel on this and many other of the clinic's briefs.

January 27, 2015 in Berg, Thomas, Current Affairs | Permalink

Monday, January 26, 2015

Some resources on death-qualified jurors and Catholic teaching

One of the surprises of my first year of law school was learning that my real but still tentative faith-based opposition to the death penalty might prevent me from serving on a jury in a capital case. The idea of a death-qualified jury clashed with my notion of a jury of one's peers.

I've come to learn that an adherent to current Catholic teaching on the death penalty would not necessarily be excluded from a death-qualified jury. But I remain troubled about the idea of death-qualifying a jury.

In looking into various issues raised by our system's allowance for death-qualification of jurors, I recently came across a helpful list of resources compiled for the 2004-2005 Catholic Lawyer's Program sponsored by the Institute on Religion, Law, and Lawyer's Work at Fordham Law, "Catholics and the Death Penalty: Lawyers, Jurors, and Judges." Materials available online include a Foreword by Amy Uelmen, an essay by Gerald Uelmen, and the transcript of a discussion between two Catholic lawyers with prosecution and defense experience in capital cases. I recommend the essay by Gerald Uelmen in particular. 

January 26, 2015 in Walsh, Kevin | Permalink

"Protest too much"? A response to Schragger, Schwartzman, and Tebbe on the so-called Establishment Clause third-party harms doctrine

Richard Schragger, Micah Schwartzman, and Nelson Tebbe say that I (and it is just me, not "commentators," as far as I can tell) "protest too much" in interpreting Justice Ginsburg's two-sentence Holt v. Hobbs concurrence:

[S]ome commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents inEstate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance. 

Some points in response: 

(1) The "third-party harms doctrine" is a term coined by these scholars, not one that Justice Ginsburg or anyone on the Court has used. It’s not the term I would prefer to use to describe the kind of analysis used by the Court in Caldor and CutterA more precise label would be something like the “no unyielding weight doctrine.” See Cutter (explaining that "[w]e held the law invalid under the Establishment Clause because it 'unyielding[ly] weigh[ted]' the interests of Sabbatarians 'over all other interests.'") (quoting Caldor). But whatever.

(2) Justice Ginsburg would have made the same type of third-party burdens argument in the application of RFRA and RLUIPA if there were no Establishment Clause and if neither Caldor nor Cutter had ever been decided. The argument would take the form it took in United States v. Lee (decided three years before Caldor) or in Justice Jackson’s opinion in Prince v. Massachusetts (decided before the Establishment Clause was incorporated). We know this because Justice Ginsburg already relies on these cases, and these cases do not rely on Caldor or Cutter. See also part I.B.1 of the scholars' own amicus brief ("The Court’s mandatory accommodation decisions under the Free Exercise Clause reflect the same aversion to cost-shifting exemptions as its Establishment Clause decisions.") (emphasis added).

(3) This reliance on non-Establishment Clause cases in Justice Ginsburg’s opinions was part of the argument I offered in my interpretation. These scholars did not address it. Instead, they supported their “protest too much” claim by pointing to a feature of Justice Ginsburg’s opinions that I already addressed--its citation of some Establishment Clause cases. But as Marc and Rick and others have argued, one need not and should not understand Caldor and Cutter as providing a basis for freestanding Establishment Clause objections to accommodations required by RFRA. Cutter held that RLUIPA does not, on its face, violate the Establishment Clause because it does not provide for the unyielding weighting of religious interests over non-religious interests (as the Supreme Court understood the uncostitutional statute in Caldor to have done). In this respect, RFRA is just like RLUIPA. Both statutes, on their face and therefore as properly applied, require courts to take account of other interests in the application of strict scrutiny. One such interest may be in avoiding harm to third parties.

(4) When courts, properly applying RFRA, account for potential harm to third parties, they do so in applying a feature of the statutory strict scrutiny test. This feature that they apply insulates RFRA from a Caldor claim, as Cutter holds. But to say that courts consider third-party harm as part of the compelling interest test because of the Establishment Clause is to confuse a statutory feature that defeats an Establishment Clause claim with a reason for applying a statutory requirement that needs no reason to be applied other than that it is in the law. (As Schragger, Schwartzman, and Tebbe know, moreover, the compelling interest test is in RFRA because it was in prior Free Exercise jurisprudence, not because of anything stemming from the Establishment Clause.) And when courts consider third-party harms in applying RFRA's compelling interest prong, the relevant compelling interest is not avoiding an Establishment Clause violation. (RFRA already does that by authorizing substantial burdens on the exercise of religion when strict scrutiny is satisfied.) The relevant compelling interests, instead, are whatever interests the the government claims to be advancing in the regulatory scheme from which the religious believer seeks an exemption.

(5) If ever a debate were “academic” (as some use the term pejoratively), this would be it. I posted about a narrow disagreement with Rick and Marc to stir the pot a little bit here at MOJ. Because it’s not healthy (and not interesting) for us always to agree on everything, it’s helpful to occasionally flag disagreements, especially on points that may be of interest to law nerds like me and are disputed by others. To be clear, though, a two-sentence concurrence on behalf of two Justices who dissented in Hobby Lobby is not a “significant statement.” (If Justice Ginsburg's concurrence is a "significant statement," is it significant that Justice Breyer and Justice Kagan did not join it (just like they did not join Justice Ginsburg's analysis of RFRA's alleged non-coverage of Hobby Lobby in Hobby Lobby)?) Nor does such an opinion necessarily imply that a particular "doctrine" is alive and well. (For example, Justice Thomas's understanding of Establishment Clause non-incorporation is not "alive and well" in Supreme Court doctrine even though it has appeared in the U.S. Reports.)

(6) For actual significance, consider instead the unanimous Court’s confirmation of the correct approach to substantial burden analysis and its application of “exceptionally demanding” strict scrutiny.

Now, I suppose, I actually do “protest too much.” I offer no defense, but instead plead guilty because charged.  

January 26, 2015 in Walsh, Kevin | Permalink

Sunday, January 25, 2015

Nourse, "blatherskite", and "the great irony of Lochner"

As part of my imperfect but ongoing attempts to resolve lingering questions about the legal meaning of the Fourteenth Amendment, I found myself today reading an intellectually exciting and insightful article by Victoria Nourse,  A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights, 97 Cal. L. Rev. 751 (2009). I learned much from reading it, on matters both small and great.

On the smaller side of things, I learned a new word, "blatherskite."  (The word's meaning reminds me of Marc's immediately preceding post, in which Dickens has a character observe about another that "the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them.")

More to the point of my purpose for perusing, I came to appreciate how repitition of today's conventional academic wisdom about Lochner may unknowingly reflect the triumph of a claim advanced by Theodore Roosevelt in an underappreciated instance of popular constitutionalism. According to Nourse, "the great irony of Lochner is that an essentially political critique, [Theodore] Roosevelt’s strong-rights view, has become the 'doctrinal' understanding of the case."

Is Professor Nourse right? Read the whole thing.

January 25, 2015 in Walsh, Kevin | Permalink

Dickens on Our Tyranny Over Words

From David Copperfield, Chapter LII ("I Assist at an Explosion"), in which Mr. Micawber is expatiating on the various villainies of Uriah Heep in his genially orotund way:

Again, Mr. Micawber had a relish in this formal piling up of words, which, however ludicrously displayed in his case, was, I must say, not at all peculiar to him. I have observed it, in the course of my life, in numbers of men. It seems to me to be a general rule. In the taking of legal oaths, for instance, deponents seem to enjoy themselves mightily when they come to several good words in succession, for the expression of one idea; as, that they utterly detest, abominate, and abjure, or so forth; and the old anathemas were made relishing on the same principle. We talk about the tyranny of words; we are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important, and sounds well. As we are not particular about the meaning of our liveries on state occasions, if they be but fine and numerous enough, so the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them. And as individuals get into trouble by making too great a show of liveries, or as slaves when they are too numerous rise against their masters, so I think I could mention a nation that has got into many great difficulties, and will get into many greater, from maintaining too large a retinue of words.

Noted not so much for the substance, with which I cannot quite agree. Our own difficulties have absolutely nothing to do with a little too much gusto in an unnecessarily expansive vocabulary. And there is some irony in Dickens offering this sentiment at the close of a book in excess of 800 pages. But though the substance of the criticism is common enough (indeed, all too common today--one hears something like this complaint about academic writing all the time), one rarely hears it expressed so well. 

January 25, 2015 in DeGirolami, Marc | Permalink

Friday, January 23, 2015

"We Shall Not Weary, We Shall Not Rest"

I know that the March for Life in Washington, D.C. was yesterday -- the reason I know this is not, of course, because the annual arrival of hundreds of thousands of enthusiastic and hopeful young people bearing witness to the dignity and equality of every person is a story that is given much notice by the leading media outlets -- but I'm pretty sure it's not too late to re-read this -- which Robby George has called "the greatest pro-life speech ever given" -- by the late Fr. Neuhaus:  "We Shall Not Weary, We Shall Not Rest."

. . . That is the horizon of hope that, from generation to generation, sustains the great human rights cause of our time and all times—the cause of life. We contend, and we contend relentlessly, for the dignity of the human person, of every human person, created in the image and likeness of God, destined from eternity for eternity—every human person, no matter how weak or how strong, no matter how young or how old, no matter how productive or how burdensome, no matter how welcome or how inconvenient. Nobody is a nobody; nobody is unwanted. All are wanted by God, and therefore to be respected, protected, and cherished by us.

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person—of every human person. . . .


January 23, 2015 in Garnett, Rick | Permalink

"The Future of Catholic Schools and the Future of America"

Important, sobering reading from Peter Stravinskas at First Things.  In "The Future of Catholic Schools and the Future of America," he writes:

A case can be made that the story of Catholic education in the United States is the greatest educational success story not only in the history of the Catholic Church but in all of educational history. . . .

The maintenance and growth of Catholic schools is not merely a matter of internal Catholic interest. There is also societal payoff, however, especially as the government schools continue to struggle. Catholic schools will continue to provide the only serious national alternative to government schools. Which is to say, Catholic education is more necessary today than ever before in the history of the Church and of our nation.

January 23, 2015 in Garnett, Rick | Permalink

Is the Freedom of the Church "unnerving"?

At The Immanent Frame, Prof. Robert Yelle writes (in the course of a discussion about the Hobby Lobby case and related matters):

From a societal perspective, there are significant problems associated with granting such rights to corporations. The rise of the notion of an individual freedom of religion was complemented by a diminution of the Church’s corporate authority. At the beginning of the Reformation, William Tyndale translated the term ekklesia in the Greek New Testament as “congregation” rather than “church.” This was rightly perceived as an attack on the power of the Church, conceived as something distinct from a voluntary association of individuals. Thomas Hobbes followed Tyndale’s translation in an effort to demote the authority of the Church’s corpus mysticum, which would otherwise constitute a threat to the sovereignty of the king (or Leviathan). Churches became voluntary associations whose enforcement powers were limited largely to the power of excommunication. Already before the consolidation of the notion of religion as an individual right, the Peace of Westphalia attempted to remove the possibility that intermediary institutions would dispute, on religious grounds, the authority of the sovereign, by making the prince’s religion that of the land (cuius regio, eius religio). The freedoms that churches and certain religious associations have traditionally enjoyed under the law when acting as religious organizations are the result of a process of negotiation, under which the dangers represented—on the one hand, to individual rights, and on the other, to the sovereign authority of the state—have been sharply circumscribed, at least in America, by what Roger Williams and Thomas Jefferson called a “wall of separation.” The idea that we might be retreating from such settlements is, to say the least, unnerving.

More and more, I encounter the term "settlements" being used to describe the successes nation-states have enjoyed at shrinking, constraining, or dissolving the religious freedom appropriately enjoyed by religious communities, groups, institutions, and authorities (i.e., the Freedom of the Church).  It's tempting to declare the status-quo a settlement when one approves of it, but I'm not sure why that label should carry much weight with those  who do not.  Is some movement away from Hobbes, or Lemon-style misunderstandings of church-state separation, or laicite "unnerving," to use Prof. Yelle's term?  Maybe . . . maybe not.  

January 23, 2015 in Garnett, Rick | Permalink

Philpott on laicite, religious freedom, Europe, and Islam

This piece, by my friend and colleague Dan Philpott, at the Arc of the Universe blog (which is run by Notre Dame's Center for Civil and Human Rights) and the Cornerstone blog of the Berkley Center, is definitely worth a read.  Among other things, the piece engages critically and carefully Joan Wallach Scott's book, The Politics of the Veil(2007).  Here's a bit:

While Scott’s criticisms of France’s laïcité are on the mark, then, her post-modern democracy of difference fails to yield sustainable norms of religious inclusion. Is there a principle that both preserves the core values of liberal democracy and allows religious people to participate and practice their faith robustly within liberal democracy? Coming back to Europe’s Muslims, is there a basis for the principled inclusion of Muslim minorities in European democracies?  A strong candidate for such a principle is religious freedom. Ensconced in the global human rights conventions as well as the European human rights architecture, religious freedom has a strong claim to universality. The beauty of this principle is that it both comports with the European heritage of liberal principles and allows Muslims wide latitude to express and practice their religion, including dressing consonantly with their religious beliefs. Religious freedom means the right of women to don a headscarf in France and to doff one in Iran. It also means that religious people may advocate political positions according to their convictions. 

Read the whole thing!

January 23, 2015 in Garnett, Rick | Permalink

Holt v. Hobbs Podcast

My colleague, Mark Movsesian, and I have recorded a podcast on this week's Supreme Court decision in Holt v. Hobbs. We discuss the facts, holding, and possible implications of the case in about 20 brisk minutes. Click on over and have a listen.

January 23, 2015 in DeGirolami, Marc | Permalink

A couple of items defending the constitutionality of conjugal marriage laws

Nothing in the Constitution, even read loosely, requires states to recognize same-sex romantic or sexual partnerships as marriages. Here are two pieces on that point. 

First, an important Case Western Reserve Law Review piece by my former student and coauthor Sherif Girgis (available here). As Sherif shows, opponents of a judicial redefinition of marriage needn't be originalists, or conservatives in any sense of the term. For if the justices invalidates state laws enshrining the concept of marriage as a conjugal union, they will be following in the footsteps of a case that conservative and liberal scholars alike decry with something close to unanimity: Lochner v. New York. There, as Justice Holmes showed in what became a famous dissent, the majority was imposing its conservative economic policy choices over perfectly reasonable alternatives, without Constitutional warrant. The justices would be doing just that--but in the cause of imposing liberal social principles--if they were to strike down state marriage laws. In particular, Sherif shows in careful detail, they would be choosing between competing views of what marriage is and of why it ought to be regulated--views about which the Constitution says nothing at all.

To put it simply, I haven't seen a more comprehensive treatment (and demolition) of the Equal Protection argument against state conjugal marriage laws. 

The piece was written for a symposium on Windsor, but (bracketing a section on federalism) its argument applies to state laws. It addresses the increasingly fashionable (albeit, as Sherif shows, untenable) sex-discrimination argument. It offers historical proof that the conjugal view can't be attributed simply to animus or any particular religion. It shows that the Court would have to Lochnerize (to strike down state marriage laws) even if it adopted the more capacious equal-protection tests proposed by scholars like my friend Prof. Andy Koppelman and Prof. Jack Balkin. It addresses objections based on infertility, right-to-marry case law (Loving, Turner, Zablocki), and much more.    

As the nation gears up for a decision, of course, all eyes will be on Justice Kennedy, widely regarded as the swing vote on marriage. Kennedy has famously expressed concern that state marriage laws might unconstitutionally infringe the dignitary interests of children reared by same-sex couples. But that argument fails, as Sherif and I show in a second piece, an amicus curiae brief submitted in the course of Utah's marriage litigation. The brief is available here:


Here is a summary of our argument:  

Moral claims of equal dignity, a child’s entitlement to a mother and father, and democratic self-determination can be appropriately assessed and settled in the normal political process and have been here by the people of Utah.
The Tenth Circuit believes that Utah’s marriage laws harm the personal dignity of same-sex couples and of the children they rear. But no one disputes their equal dignity. The Tenth Circuit's conclusion misunderstands the social purpose of marriage law, which never has functioned—and could never function—as a mechanism for expressing individual dignity or social inclusion. Accepting this view would have absurd logical implications and harmful effects.
First, it would deprive the State of any limiting principle for its marriage law. 
Second, by dissolving the links between marriage and any historic marital norm besides consent, it would harm the state’s material interest in providing children with stable ties to their own parents. It would undermine their right to be reared by their own parents wherever possible--a right affirmed by the United Nations Convention on the Rights of Children.
Third, it could also thereby spread the stigmatic harms that children and partners of broken homes often suffer. And fourth, by reducing marriage to a primary mark of social inclusion and equality, it would—ironically—spread the very social message it was intended to oppose: that those outside the institution of marriage matter less.
In these ways, finally, it would deprive the People and the State of Utah of their own right to settle the purposes and contours of family policy for themselves--a right they can exercise, and have exercised, while respecting the social equality, and personal and romantic freedoms, of same-sex couples in full.

January 23, 2015 | Permalink

Thursday, January 22, 2015

Good Reading for Jan. 22

The always insightful and eloquent defender of pro-life feminism, Erika Bachiochi, hits it out of the ballpark again today in an op-ed on the CNN website. 

January 22, 2015 in Schiltz, Elizabeth | Permalink

TBT: When the March for Life made the U.S. Reports

Today's March for Life seems as good an occasion as any to share this portion of Justice Scalia's dissent in Planned Parenthood of S.E. Pa. v. Casey blasting the plurality's assertion that the Court needed to be even more unwilling than normal to reconsider precedent when that precedent has been the object of intense national controversy:

[T]he notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 6; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition--then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change--to show how little they intimidate us.

January 22, 2015 in Walsh, Kevin | Permalink

Wednesday, January 21, 2015

Did Justice Ginsburg endorse the Establishment Clause third-party burdens argument in Holt v. Hobbs?

I agree with Rick and Marc in rejecting the existence of a general rule that the Establishment Clause prohibits RFRA- or RLUIPA-required accommodations that impose third-party burdens (or allegedly impose such burdens, depending on one's understanding of the benefit/burden baseline). In my view, the Hobby Lobby amici curiae brief by Nathan Chapman lays out a better reading of the governing law than that adopted by the scholars linked in Rick's post. Unlike Rick and Marc, however, I do not read Justice Ginsburg's Holt concurrence as endorsing an Establishment Clause-based limit on third-party accommodations that should otherwise properly be recognized under RLUIPA and RFRA.

To assess this disagreement, one needs to follow Justice Ginsburg's Holt citations to her Hobby Lobby dissent: "See [Hobby Lobby], at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting)." {BTW, gotta love these Supreme Court citation conventions! See ___ (gratuitous personal op. at _:);)_).}

Justice Ginsburg's position in the cited portions of her Hobby Lobby dissent is that consideration of third-party burdens is part of the appropriate application of RFRA and RLUIPA. She does not adopt the view that these burdens could give rise to a freestanding Establishment Clause limitation on what would otherwise be required by those statutes. True, the Holt-cited portions of Justice Ginsburg's Hobby Lobby dissent do rely on Cutter v. Wilkinson and Estate of Thornton v. Caldor, which are Establishment Clause cases. But they also rely on Wisconsin v. Yoder and Prince v. Massachusetts, which are not.

Footnote 25 of Justice Ginsburg's Hobby Lobby dissent (not cited in her Holt v. Hobbs concurrence) most directly addresses the influence of the Establishment Clause on RFRA/RLUIPA analysis. It opens with the statement: "As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." But the closing sentence relies on United States v. Lee, which was neither a third-party burden case nor an Establishment Clause case: "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.' United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)." This is consistent with the position set forth in the Chapman brief, which is that Cutter interprets RLUIPA (and RFRA, by extension) to incorporate consideration of third-party burdens into the application of the statutorily required strict scrutiny.

If this reading of Justice Ginsburg's opinion is correct, then Justice Ginsburg actually agrees both with Rick that "the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry," and also with Marc, that "the strict scrutiny standard of RLUIPA and RFRA, if 'properly appl[ied],' itself incorporates the Establishment Clause limits raised by cases like Thornton."

January 21, 2015 in Walsh, Kevin | Permalink

What Does It Mean to Say that a Religious Accommodation Should Not "Detrimentally Affect Others"? And a Couple of Other Holt v. Hobbs Thoughts

Not too much to add to Rick's analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:

1. Rick quotes Justice Ginsburg's one-paragraph concurrence, which states that she only joins the Court's opinion "on th[e] understanding" that the accommodation here "would not detrimentally affect others who do not share petitioner's belief." I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose "significant burdens on identifiable third parties" (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that "detrimentally affect" anybody who doesn't share the claimant's religious beliefs. I don't believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a "detrimental effect" under that approach? Might symbolic harms count? I don't see why they wouldn't. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources ("the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration"). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not "detrimentally affected" by the inequality of treatment that results from Holt's accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes. 

2. Following from that point, the heart of these statutes (as Rick also notes) is to provide "very broad protection for religious liberty" or "expansive protection for religious liberty," as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects "unquestioning deference" but it acknowledges the "respect" that is due the prison administrators' "expertise"). Should not Hobby Lobby, in which there was no such presumptive deference or "respect" accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.

3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.

January 21, 2015 in DeGirolami, Marc | Permalink

Tuesday, January 20, 2015

Some thoughts on Holt v. Hobbs

While waiting for what I am sure will be Marc's more thoughtful and insightful comments about today's welcome, clear, and correct decision in Hobbs, I've gathered a few of my own:

First, the opinion by Justice Alito is exceptionally well crafted.  It should win a Green Bag award or something.  It covers the necessary bases, and no more.  The language is clear and functional.  (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.)  One knows, at every point in the analysis, where one is.

Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so as to provide no more protection than did some of the Court's earlier First Amendment cases.  Here, he rejected the notion that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.

Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions.  Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'"  So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.

These last three points, together, are very helpful, I think, in helping us think more clearly about the idea of "substantial burdens" in the accommodation-of-religion context.  What it is that we are asking about when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility.  We are asking, instead, about the nature of the government's imposition on the sincerely asserted belief.  There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is an important one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics by $.01  would not impose a "substantial" burden on religious exercise.  Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial.  And, it is.

Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a  'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened."  And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.

In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion.  They wrote:

Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.

While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I wish one of the Justices had.  The claim that it violates the Establishment Clause to accommodate religion in ways that impose any costs or burdens on third parties is one that, of course, is made and believed by a number of very smart people, but I do not think it is correct.  The Court has not clearly established such a general rule; that is, the precedents and quotes that are invoked in support of this claim do not, in my judgment, clearly support such a rule.  As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.

Finally:  today's opinion offers a very, very welcome counter to the unfair and mean-spirited notion -- one that is, I'm afraid, getting a lot of purchase in some quarters -- that concerns about "religious liberty" are "dog whistles" or "fig leaves" for "bigotry", and so can be dismissed as such.  Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable.  Many others will not.  We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.

And . . . congratulations to the Becket Fund for Religious Liberty and to Prof. Doug Laycock. 

January 20, 2015 in Garnett, Rick | Permalink

Another Unanimous Roberts Court Law and Religion Opinion

The Supreme Court today handed down Holt v. Hobbs, the RLUIPA case involving an Arkansas prisoner who complained of a state prison policy disallowing him to grow a beard in accordance with his understanding of his religious obligations.

The opinion was unanimous, with two separate, short concurrences by Justices Ginsburg and Sotomayor. I'll save analysis for a later moment (it was a rather straightforward application of RLUIPA in Justice Alito's majority opinion, though with some interesting language about the individual components of the test).

For now, though, I'll just note the fact of another unanimous opinion in this area from the Roberts Court. Holt v. Hobbs continues to follow the Roberts Court pattern of either unanimity or 5-4 outcomes in law and religion jurisprudence, as I discuss in greater detail at Part II of this article. The figures are now four unanimous law and religion decisions as against six 5-4 law and religion decisions. The article speculates about a few reasons that we might be seeing this particular voting pattern, contrasting it with the patterns of Supreme Courts past.

January 20, 2015 in DeGirolami, Marc | Permalink

Sunday, January 18, 2015

Justice Rehnquist, Religious Freedom, and the Constitution

I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution."  I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.  And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court:  Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief.  Here's the abstract:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

January 18, 2015 in Garnett, Rick | Permalink

Saturday, January 17, 2015

Lash Reviews American Sniper--"A Deeply Subversive War Movie"

I am posting, with permission, Professor Kurt Lash's superb review of the movie, "American Sniper." I haven't seen it, but after Kurt's very interesting comments, I want to.


A Review of American Sniper

Director: Clint Eastwood

This is a deeply subversive war movie. On its face, it appears to be a straightforward retelling of the life of a soldier in war. It’s a well-trodden script: The training, the first kill, the fearful family at home, the growing emotional disconnect between soldier and loved ones as the bloody and tragic experience of war takes it toll, the increasing difficulty of leaving the war behind. This has all been done before. True, director Eastwood has an especially skilled hand. He takes us into the experience of training and battle in a manner that is realistic and which avoids the self-indulgent errors of prior films: Yes, training is grueling, but it is not sadistic. Yes battle is jarring and horrific, but also dusty and boring. Yes some soldiers think the effort is pointless, but others believe the effort is profoundly important.

Unlike most war films, however, Eastwood take no position on war itself. This is not an Army (Navy, in this case) recruiting film, nor an anti-war “bring the troops home” film. Eastwood also avoids making any kind of political statement about the Iraq war. No doubt, some will perceive a political statement precisely because there is nothing anti-Bush or anti-Iraq about the film. But that’s merely a reflection of our poisonous political culture.

In some ways, American Sniper follows the path explored with such moving success in Band of Brothers: Soldiers are not psychopaths. They are ordinary men asked to perform extraordinary tasks. The crucible of battle melds men together into a profoundly protective “family.” They experience brotherhood and loss on a level difficult for any non-soldier to imagine. When Oliver Wendell Holmes wrote of his early experience fighting in the Civil War “in our youths, our hearts were touched with fire,” he may have intended it as a boast, but it can just as easily be understood as lament. The act of destroying human beings, however justified, leaves a scar on one’s soul.

But where Band of Brothers presented the humanity of the ordinary soldier, Eastwood presents the humanity of the outstanding soldier. This is territory not even Band of Brothers was willing to explore. Instead, Steven Ambrose and the script-writers for Band portray the most effective killing machine in the 101st, Ronald Speirs, as something of a psychopath. Rumored to have mass murdered prisoners of war, Band’s writers have Speirs instruct a frightened soldier “the only hope you have is to accept the fact that you're already dead, and the sooner you accept that, the sooner you'll be able to function as a soldier's supposed to function. Without mercy, without compassion, without remorse. All war depends on it.” This statement, of course, encapsulates the Hollywood version of the truly effective soldier since the time of Apocalypse Now. Soldiers are “baby killers,” we’ve been told. It is inhuman work. To be good at it means you are inhuman yourself, you have abandoned your humanity, or you are doomed to insanity and suicide. Thus, the Deer Hunter, Coming Home, Patton, Platoon, Full Metal Jacket, Apocalypse Now, etc etc.

It is here that Eastwood’s realistic but almost oddly subdued portrayal of Chris Kyle earns its title as a subversive war movie. Kyle was, in fact, an astonishingly effective killer. He was also a heroically committed soldier, serving four tours of duty in Iraq. I won’t recount all his stats and medals. Let’s just stipulate that Kyle did what soldiers do and did it as well as or better than any soldier in history. And, like prior Hollywood “killing machines,” Kyle is deeply patriotic and hasn’t the slightest doubt about the justness of his work. But jarringly unlike prior Hollywood warriors, Eastwood leaves open the distinct possibility that Kyle was right. There is nothing implausible about Kyle’s explanation about why his work is both important and just, and there is nothing in the movie to suggest that Kyle was anything but a decent human being, both in and out of war. Eastwood does not avoid portraying the inevitable psychological toll of war. Indeed, the toll is a major aspect of the film. But this is not the portrayal of a psychopath or a destroyed human soul. It is the story of a soldier who manages to maintain his humanity despite his commitment and skill at destroying other human beings.

How Kyle remains “human” is, of course, the key to understanding this movie. At key moments, Kyle interacts with other soldiers who either lose their belief in their work, or never had that belief in the first place. Such doubts cripple the soldier's mind and their skill. Kyle survives, and survives as an intact soul, Eastwood implies, because he never doubted the moral justness of his work. As we follow Kyle through the horrors of war, we are constantly shown examples of how one can be heroically committed to humanity, not only despite being an effective soldier, but through being an effective soldier.

Even more jarring (from a certain perspective), Eastwood’s movie is not about “the brotherhood of all soldiers.” It is about American soldiers. There are good guys and bad guys in this movie, and Eastwood leaves no doubt about who is who. In what has to be the most subversive move of all, the movie’s title, American Sniper, seems not the least bit ironic.

In truth, I would not have chosen American Sniper as a finalist for best picture. Eastwood’s pacing and the structure of the film results in a subdued experience that I am not sure sufficiently does justice to the man or the material. Perhaps that was Eastwood’s intention, perhaps this was never meant to be a blockbuster (Eastwood is long past needing any such validation), but instead a homage to the troops and their families. It certainly comes across that way: The silent credits of the movie mirrored the deep and respectful silence of the audience as we stood and exited the movie.

On the other hand, I cannot help but think Eastwood was speaking to all of us, not just soldiers and their families. It’s a worthy effort, even if not wholly successful. See it for Bradley Cooper’s outstanding effort (he fully deserves his nomination), and struggle with its protagonist to reconcile the good warrior with the good man.

January 17, 2015 in DeGirolami, Marc | Permalink

Friday, January 16, 2015

An interview with Prof. Steven Smith

Here is an interesting interview with Prof. Steven Smith (San Diego) -- in my view, one of the most important and insightful law-and-religion scholars working -- about his new book and about the "fate of American religious liberty."  (Especially as it becomes increasingly common for people to tendentiously dismiss concerns about religious liberty as "bigotry" or "dog whistles.") Here's a bit:

In Rise and Decline I suggest that our contemporary approach to religious pluralism might accurately be characterized as one of denial (or self-deception). We intone, over and over again, that government must be “neutral” toward all religions. And then we desperately try to ignore or obfuscate the fact that in cases of genuine conflict, there simply is no meaningfully neutral position. In this vein, a pervasive strategy is to criticize your opponent’s position for departing from neutrality (as it will, inevitably) while distracting attention (other people’s and your own) away from the fact that your own position is equally a departure from neutrality. There are various techniques for accomplishing this. But the language of “imposing values on others” is one very common (and often rhetorically effective) way of practicing this sort of deception or self-deception.

January 16, 2015 in Garnett, Rick | Permalink

Hanby, Weigel, and Dreher on "The Civic Project of American Christianity"

The exchange among Michael Hanby, George Weigel, and Rod Dreher, over at First Things, is very much worth a read.  Hanby, in "The Civic Project of American Christianity", takes stock of our times, and writes:    

"[A] revolution in fundamental anthropology will invariably transform the meaning and content of justice and bring about its own morality. We are beginning to feel the force of this transformation in civil society and the political order. Court decisions invalidating traditional marriage law fall from the sky like rain. The regulatory state and ubiquitous new global media throw their ever increasing weight behind the new understanding of marriage and its implicit anthropology, which treats our bodies as raw material to be used as we see fit. Today a rigorous new public morality inverts and supplants the residuum of our Christian moral inheritance.

This compels us to reconsider the civic project of American Christianity that has for the most part guided our participation in the liberal public order for at least a century. . . .

George Weigel (among other things) advises -- and makes a point that I think cannot be made often enough to those of us who aspire to some kind of constructive engagement with and expression about the whole "faith, culture, and public life" cluster of matters:

In a culture that has lost contact with reality, a Church in America equipping its people to be the missionary disciples they were baptized to be (a ­vocation that includes responsible citizenship) must, in its preaching and catechesis, help its people reestablish that contact. In circumstances as philosophically impoverished as ours, appeals to “metaphysics” and “anthropology” are likely to fail, save with a very small remnant. Similarly, attempts to fight the new Gnosticism with the weapons of logic deployed in service to moral truth are almost certainly doomed to be frustrated, because public life is not, in the ­final analysis, an exercise in logic alone. But offering the people of the Church a new way to see Things As They Are by looking at the world through the lens of biblical faith might offer a way forward. N. T. Wright puts what I’m trying to say succinctly when he argues that the entire burden of the Pauline ­letters is to teach new Christians to “think within the biblical narrative, to see themselves as actors within the ongoing scriptural drama: to allow their erstwhile pagan thought-forms to be transformed by a ­biblically based renewal of the mind” (emphasis added).

Dreher is (even) more pessimistic (or, as he says, "realistic"):  

If by “Christianity” we mean the philosophical and cultural framework setting the broad terms for engagement in American public life, Christianity is dead, and we Christians have killed it. We have allowed our children to be catechized by the culture and have produced an anesthetizing religion suited for little more than being a chaplaincy to the liberal individualistic order. . . .

The civic project of American Christianity has come to an end, for how can we produce Christian civic life when we are not producing authentic Christians?

This is not to endorse quietism. I don’t think we can afford to be disengaged from public and political life. But it is to advocate for a realistic understanding of where we stand as Christians in twenty-first-­century America. Our prospects for living and acting in the public square as Christians are now quite limited.

Put bluntly, given the dynamics of our rapidly changing culture, I believe it will be increasingly difficult to be a good Christian and a good American. It is far more important to me to preserve the faith than to preserve liberal democracy and the American order. Ideally, there should not be a contradiction, but again, the realities of post-Christian America challenge our outdated ideals.

Read it all.  Think about it.  Thoughts?

January 16, 2015 in Garnett, Rick | Permalink

Blaming Corwin for constitutional confusions

The J. Reuben Clark Society and Career Development Office here at the University of Richmond School of Law hosted an excellent lecture yesterday by Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit. The flavor of the lecture can be seen in its title: A Constitution We Are Confounding: Some Observations on the Constitution as Written and the Constitution as Taught.

At the risk of oversimplification, the basic claim of the lecture was that the case method of teaching initiated in the last few decades of the nineteenth century, together with a judge-centered understanding of constitutional law traceable to Marbury v. Madison, have underwritten a "common law" way of teaching constitutional law that slights the writtenness and legal fixity of the Constitution.

In reflecting on Judge Bybee's historical narrative, the case method seems more to blame than Marbury. In my view, formed largely by Christopher Wolfe's insightful arguments in The Rise of Modern Judicial Review, the practice that we now call "judicial review" is different in important respects from the practice engaged in by Chief Justice Marshall.

One piece of evidence for this claim of partial discontinuity is terminological. As Mary Sarah Bilder has explained, it was not until the early twentieth century, through the writings of Edward Corwin, that "judicial review" became the standard term for the practice of refusing to apply unconstitutional statutes as law in the course of deciding a case. 

The achievement of Corwin of perhaps the greatest interest for Catholic legal theory is his influential mangling of the relationship between natural law and American constitutional law. Corwin developed and evangelized an account of natural law "under the skin" of the Constitution that collapses the natural law into a misunderstood version of the common law and ends up in ignoring the written Constitution as positive law. My Richmond colleague Gary McDowell, criticizing "Corwin's corrosive constitutionalism" has described the result of this thinking:

[A]ppeals intended to square the Constitution with the demands of natural law will be made through the courts. The result will be for judges to create judicial doctrines derived from what they perceive to be the dictates of natural law by Corwin's "rugged massage" of the Constitution's text. To believe, Corwin said, that "judicial review is confined to the four corners of the written Constitution" does no justice to the influence of "natural law ideas" on judicial review.

January 16, 2015 in Walsh, Kevin | Permalink