Mirror of Justice

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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

Thursday, January 15, 2015

Inviting Applications for the 2015 Libertas Project Summer Workshops

Libertas Header

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2015 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation. 

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants. 

The dates for the 2015 summer workshops are July 6-8 on religious freedom and July 13-15 on economic freedom. Participants in the workshops will each receive an honorarium of $1500. 

The workshop moderators will be Richard Garnett (University of Notre Dame), Marc DeGirolami (St. John’s University), and Zachary Calo (Valparaiso University) on religious freedom and Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom. 

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation. 

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are available. 

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by March 1, 2015


The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom. 

Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice. 

At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom? 

The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.

January 15, 2015 in Moreland, Michael | Permalink

Wednesday, January 14, 2015

The influence of the Justices' religious beliefs

There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?"   The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.  

I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases.  (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")

Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants.  (Here's WSJ thing I did on this subject a few years ago.)  I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific): 

[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.

That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete.  (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.")  For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters."  I am skeptical.  For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs.  It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid.  It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment. 

I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court.  Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean.  For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates  what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs."   And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."


January 14, 2015 in Garnett, Rick | Permalink

Tuesday, January 13, 2015

The March for Life . . . and the University of Notre Dame

I am so proud and pleased that a contingent of 690 (!) students, faculty, and staff from Notre Dame will be travelling to bear witness at the annual March for Life in Washington, D.C.  (More here.)  "What Would You Fight For?", indeed.  Go Irish.


January 13, 2015 in Garnett, Rick | Permalink

Monday, January 12, 2015

Law and Morality Revisited


I begin by thanking our friend and Mirror of Justice colleague Professor Michael Moreland for bringing to our attention news of the death of Walter Berns. He came to my undergraduate alma mater (Georgetown) to begin his late teaching career after I received my bachelor’s degree. I should like to have studied with him and learned from him. Several of my teachers who have also since gone home to God would speak enthusiastically about him to me thereby complicating my regret. One of the elements of Michael’s posting that caught my particular attention was the passage in which Berns brings up the matter of law and morality and whether there is a nexus between the two. On this subject I would like to offer a few thoughts today.

Berns, like others, was on to something. A little over a year ago I was to deliver the annual Murray Lecture at Loyola University Chicago in November of 2013. While the lecture was not delivered due to my having a prolonged hospitalization around that time, the editors of the Law Journal graciously published the lecture as they had done with all the previous Murray Lectures. The 2013 lecture was entitled “The Law as a Moral Enterprise”. I debated with myself if the title should have been “The Law Is a Moral Enterprise” but went with the designation chosen. The lecture is HERE: Download 46LoyUChiLJ293.

In the lecture, I wrestled with a notion that has attracted the attention of Berns and others, such as Lon Fuller and H. L. A. Hart. My view is that the law is frequently a moral enterprise if the adjective moral and the noun morality are understood to mean those matters involving human character and behavior necessitating a distinction and choice between what is right and what is wrong; what is good and what is evil. Those that rely on the position that you cannot legislate morality ever are, in my view, wrong. By way of illustrating my point, the civil laws dealing with murder, adultery, theft, and perjury require those who are subject to these laws to make distinctions between right and wrong; between good versus evil. These kinds of civil laws regulate the moral choices made by those subject to the law. By the way, the types of law just mentioned appear in the God’s law as well, but I digress.

But there are even some civil laws which, while facially neutral in a moral sense, nonetheless have a moral foundation if the analyst digs deeply enough to discover the connection. For example, civil laws necessitating that motorists drive their motor vehicles on the right side of streets having two-way travel (as they do in the US) or on the left side (as they do in the UK), at first blush, appear to be morally neutral. However, one can eventually see a moral element contained in these facially neutral laws which necessitate a choice between keeping the roads safe by mandating a uniform manner of travel. This choice is a moral one designed to protect people rather than to endanger people. Another example follows: while there is not much wrong in having a wee dram to drink at a social gathering and then to drive home, there is something terribly wrong in allowing motorists to drive while under the influence. Hence the civil law again requires the citizenry or subjects of the law to pursue the good and the right and to avoid the evil or wrong by limiting how much alcohol is consumed before taking to the wheel. These laws again deal with exercises necessitating people to make the moral choice.

As I intend to keep today’s post brief, allow me to conclude with a passage from the 18th century English polemicist and essayist who used the nom de plume Junius. In his January 1772 letter to the Lord Chief Justice Mansfield, he asserts the following in a passage dealing with the meaning and intent of the legislature,

To investigate a question of law, demands some labour and attention, though very little genius or sagacity. As a practical profession, the study of the law requires but a moderate portion of abilities. The learning of a pleader is usually upon a level with his integrity. The indiscriminate defence of right and wrong contracts the understanding, while it corrupts the heart. Subtlety is soon mistaken for wisdom, and impunity for virtue. If there be any instances upon record (as some there are undoubtedly, of genius and morality united in a lawyer) they are distinguished by their singularity, and operate as exceptions.

These words of Junius may well be a helpful catalyst useful for those of us who are interested in the law as teachers or practitioners or citizens; in the need to make good moral choices; in the desire to practice virtue; and, of course, in the pursuit of developing Catholic legal theory. With this in mind, the intersection of the moral and the legal may become more of the rule rather than the exception as hinted to by Junius.


RJA sj

January 12, 2015 in Araujo, Robert | Permalink

Walter Berns, RIP

The noted political philosopher and constitutional scholar Walter Berns died on Saturday at the age of 95. Berns wrote widely and perceptively about many issues, including and especially the First Amendment starting with his 1957 book Freedom, Virtue and the First Amendment. His writing on the religion clauses in his 1976 collection The First Amendment and the Future of American Democracy broadly (and presciently for the time) argued for a relaxed view of government aid to religion under the Establishment Clause and a no-right-of-exemption view of the Free Exercise Clause (he was quite critical of Wisconsin v. Yoder, for example). Indeed, in some ways Berns was an intellectual father of Employment Division v. Smith.

Berns's view that freedom of speech is at the service of cultivating a virtuous citizenry (and thus that cases such as Cohen v. California are wrongly decided) is widely rejected now, though one encounters a vestige of it in Justice Alito's dissents in Snyder v. Phelps and United States v. Stevens. Even those of us who agree with the now-dominant libertarian approach to freedom of speech, however, should appreciate the concerns that motivated Berns:

Morality cannot be legislated, we are told and have reason to believe, but the law can lend support to the moral dispositions of a people. Tocqueville had this in mind when he warned that the religion which had "struck its roots deep into a democracy" must be preserved, watched carefully "as the most precious bequest of aristocratic ages." The principle can be generalized to apply to all those decent habits that are required for self-government. Liberal democracies especially are limited with respect to the means they may properly adopt to generate these habits or moral dispositions, and it is therefore especially important that ours preserve those with which it began. The Supreme Court has not appreciated the role that law must necessarily play in this project. The First Amendment and the Future of American Democracy (1976), p. 228.

On a personal note, when I worked in Washington I lived in Chevy Chase not far from Berns, and I would frequently encounter him on the Metro red line after we had initially met at an AEI event on his book Making Patriots. We would talk about Iowa (he received his undergraduate degree from the University of Iowa), politics, and Supreme Court cases. He was a lively conversationalist and a grand public intellectual. Requiescat in pace.

January 12, 2015 in Moreland, Michael | Permalink

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual "shadow" Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area--about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the "great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.  

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for "pluralism" full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes--perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship--exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture--and all that it brings--has positive as well as negative features.

On the first issue, on subjects ranging from administrative law to statutory interpretation to executive non-enforcement of the law, and even to the closer-to-home issue of public reason and religious expression, the ideological divides among legal academics are enormous. The panel on administrative law I attended ran the gamut from those supremely invested in the administrative law machine to those supremely invested in destroying it. I don’t know enough about the sociology of administrative law scholarship, but it would surprise me if administrative law panels of the distant past would have represented such a gigantic diversity of views. The tenor of the discussion was less in the nature of a conversation and more about what is ‘mainstream’ scholarship, and why it might be mainstream, with associated commentary about who on the panel could or could not be confirmable to the United States Supreme Court (which is not to say that the discussion was not civil…it certainly was). 

As for statutory interpretation, the superb lunchtime debate on the new statutory challenge to Obamacare persuaded me that King v. Burwell may do to the study of statutory interpretation what Hobby Lobby v. Burwell did to the study of religious accommodation. Textualism and intentionalism are taking on more and more distinctively partisan flavoring, and this will almost certainly reach a sort of climax if textualism takes down the PPACA (footnote: this is a little odd, of course, for those intentionalists out there who don’t toe the progressive political party line, but it worried some statutory interpretation people I know nonetheless).

Perhaps my favorite example concerned a point made by some of the panelists concerning executive non-enforcement of the law: the political valence of non-enforcement, they claimed, seemed a more natural fit for conservative than progressive politics. I’m not sure that is true, though I suppose it might be true if one substitutes “libertarian” for “conservative.” But the explicitly political register in which the subject was being debated drove the point home again. Public law is deeply riven ideologically.

A final example. The AALS sections on Jewish and Muslim law co-sponsored a session on religious reasons in political decisionmaking—that old chestnut, religion in the public square. What was striking to me was that the panel was composed of folks who discussed the perspectives of particular religious traditions on the subject. Jewish, Muslim, and Catholic perspectives, together with a Rawlsian perspective. If you went back 20-30 years ago, and attended an AALS panel on religion in the public square, would you see this composition? Almost certainly not. You would instead see a panel of scholars conversant in, if not wedded to, Rawls’s view of the matter. You would see a panel of philosophers or philosophically inclined scholars discussing the nuances of “public reason.” Of course, you still see such panels in many places. But the fact that this AALS panel was not so constituted—the fact that it was instead constituted by a broad array of very diverse political and religious perspectives—was quite an interesting development.

I have already suggested why the ideological fracture of public law might be a bad thing. There is simply less common ground between members of the academy; discussion is more exhausting; everything feels more political; more feels less scholarly.

But there are advantages too. For one thing, it is almost certainly true that there is simply a broader range of perspectives in public law at this moment than there was 30 or 50 years ago. Breadth of perspective might or might not be a good thing, but I tend to think that if the reasons for narrowness of perspective result from a kind of artificial exclusion of views (intentional or not), then the inclusion of a greater range of viewpoints is positive. It may also be the case that with greater variety of viewpoints comes greater precision in identifying exactly where one stands, as one's opinions come to be challenged from all sorts of angles that were previously hidden from view.

Positive or negative, though, it seems that these developments are here to stay: the ideological fragmentation of public law--at least in many fields--within the legal academy is very much with us. 

January 12, 2015 in DeGirolami, Marc | Permalink

Sunday, January 11, 2015

Catholic Legal Theory as a Part of Catholic Education


One of the disappointments of stepping down from the vocation of teaching is the infrequency of engaging students and fellow teachers about the elements that make a Catholic and Jesuit institution different from other law schools and universities which pursue or claim to pursue academic and institutional excellence. I am certain that this kind of discussion, or at least the need for it, has not dissipated in the current climate of legal education. Thus, I was intrigued by what Autumn Jones presented in her recent The Atlantic article entitled “The New Brand of Jesuit Universities.” [The link to the article is HERE.] Although the article presented many facets of higher education that rely on the modifiers “Catholic” and “Jesuit” which provoke and merit thought and discussion, the published perspectives of many of those interviewed for the Jones article were profoundly marred; hence, the nature of the enterprise of Catholic and Jesuit education was acutely misrepresented. If the perspectives offered in this article are the prevailing views of what Jesuit universities are and are not about, they will likely have, in time, an impact on most institutions of higher education which employ the moniker “Catholic.” If this is the case, then it will only be a matter of time for these views to have an impact on our Mirror of Justice project of developing Catholic legal theory.

Ms. Jones points out several times in her article that the charge of Jesuit universities is the desire, indeed, the necessity to think critically about everything discussed within the walls of the academy. One could well argue that this is the mission of all universities. However, does this really happen? I, for one, think that it does not. First of all, universities today—including those claiming to be Catholic and/or Jesuit—sustain a climate in which certain issues (for example: abortion; sexual and gender identity; sexual morality) which need to be discussed and debated are off limits. To borrow from one prominent American politician, certain matters are “sacred ground” and cannot be questioned. They can only be championed in spite of their dubious nature which often begs but infrequently produces critical thought and debate. A second matter follows: what can be questioned in the cultural milieu today without restraint are the teachings of the Church. This questioning is promoted in such a way that hinders exposition, objective discussion, or a faithful presentation of what the Church teaches and why she teaches what she teaches. While The Atlantic article contends that Jesuit universities are “a testament to the…willingness to confront rather than avoid difficult topics,” I contend that this is often not the case. My contention is based on the fact that I have taught or lectured at half of the Jesuit universities which sponsor law schools.  If one were to try and engage others in an informed and objective presentation and discussion of these “difficult topics” on a Jesuit campus, he or she would likely be marginalized in a variety of ways. Someone close to me once tried in a respectful way to invite discussion and deliberation about the suitability of a drag show and a coming-out ball on a Jesuit campus; he was pointedly reminded that such matters were, in fact, off limits when he was summarily removed from the rotation of priests scheduled to celebrate the Eucharist in the university chapel. Third, the present cultural climate on many of these “difficult topics” sustains an atmosphere in which the “right” to abortion, the legitimacy of same-sex marriage, and the “right” of all to define for themselves (and everyone else) the nature “of existence, of meaning, of the universe, and of the mystery of human life” can never be questioned, critically or otherwise. These subjects are off the table. If you choose to raise them, you do so at your own peril. While the much-celebrated virtue of critical thinking requires patience, objectivity, and respect for and understanding of opposing views, it also mandates the inclusion of pressing issues that requires careful and courageous examination if the truth of the matter is to be sought.

At one point The Atlantic article discusses critical thinking within the framework of exploring variations in “religious ideology”. The choice of the word “ideology” is an interesting one. I would think that if the nature of critical thinking within the realm of Catholic and Jesuit education is being explored, the far better word would be “belief” rather than “ideology”. The term “ideology” might seem to equate tenets of faith, especially those of Catholicism as the subject of Jesuit universities is on the table, with political or other non-religious dogmas. One interviewee pointed out the importance for the members of the university to ask the “meaning questions” regarding faith; in this person’s estimation, the framework for doing this is to take the approach of “invitation Catholicism versus command Catholicism.” I do not think it is really a question of attempting to distinguish “invitation” from “command” Catholicism. Rather, it is a question of whether the Catholic faith and the Church’s teachings are (to borrow from the supporters of the More than a Monologue conference several of us discussed at this site a few years ago [further information HERE]) “clearly stated and articulately defended… in a spirit of dialogue that is proper to an academic setting… [noting that] the strength of these teachings will be quite convincing, based as they are on revealed truth.”

For those of us who have ventured into discussing matters dealing with truth and falsehood in the academic arena, we know that there can be perils of doing so especially in the academic culture of today. But if we also claim to follow Christ, must we not be afraid about doing this? Christ acknowledged that he is the way, the truth, and life; yet, many well-intentioned folks, including a good number of members of Catholic and Jesuit university communities, deny His claim. Taking stock of legitimate academic freedom, this is an odd response especially for those engaged in a work that uses the name of the Society of Jesus. I base this contention on what the Society of Jesus is or what it is supposed to be. Many of the voices quoted in The Atlantic article appear to be ignorant of the nature and raison d’être of the Jesuit order, which its founder Saint Ignatius of Loyola presented in the following manner in the Formula of the Institute (the foundational document of the Society of Jesus):

Whoever desires to serve as a soldier of God beneath the banner of the cross in our Society, which we desire to be designated by the name of Jesus, and to serve the Lord alone and the Church, His spouse, under the Roman pontiff, the vicar of Christ on earth, should…keep what follows in mind. He is a member of a Society founded chiefly for this purpose: to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.

The means for accomplishing this purpose are subsequently outlined in the Formula of the Institute. One of the specific apostolates mentioned to achieve the purpose of the Society of Jesus is education which may well include the development of Catholic legal theory. This is the context in which Jesuit education is supposed to operate; however, it is not mentioned once by any of those interviewed by Ms. Jones. As one who dedicated a large portion of his life to assisting in furthering the purpose of the Society of Jesus, I am deeply saddened by most of the views expressed in her essay. The interviewees quoted in Ms. Jones’s article aver a variety of competing and contradictory alternatives to the authentic purpose of the Jesuit order and the apostolates sponsored by it for attaining the specified goal. A couple of these dubious alternatives argue that distinctive quality of Jesuit education is the mantra of “social justice”.

Without further definition (none is offered), this term that presumably characterizes Jesuit institutions is vacuous. Can you think of any institution of higher education that makes the claim that it is for social injustice? Probably not. If social justice is to mean anything for Catholic educational institutions, it must be presented within the framework of the justice of Christ. For the Jesuit institution more is required than the simple assertion that it is for “social justice”. Yet for many on Jesuit campuses the mere utterance of the mantra is sufficient to maintain its bona fides. At this stage, another question emerges from some of the views expressed in The Atlantic article: is there are substantive distinction between being Catholic and being Jesuit essential to explaining the Jesuit “brand”?

In 1994 David J. O’Brien touched upon the distinction between Catholic and Jesuit in his Conversations on Jesuit Higher Education essay entitled “Jesuit, Si, Catholic… Not So Sure.” The distinction O’Brien examined is evident in the opinions of several of those persons interviewed for The Atlantic article. As one employee of a “Jesuit” school asserted, “We hide the word ‘Catholic’ from prospective students… We focus on the Jesuit piece rather than the Catholic piece.” While such an attitude is antithetical to the definition of what it means to be “Jesuit” as defined by the Formula of the Institute, there it is nonetheless. This misapprehension about what is constitutive of Jesuit education is apparently held by some charged with the governance of these schools that rely upon the name “Jesuit”. As one member of a board of trustees was quoted, “We’re more concerned with the Jesuit way than with Catholicism.” Strangely this contradicts the Formula of the Institute; moreover, it disregards the valuable insight of Avery Cardinal Dulles who, in describing the nature of Jesuit higher education, stated that the Jesuit element must be “an intensification” of its Catholic element.

Another perspective found in The Atlantic article contends that “it’s ultimately out of the university’s hands as to whether it retains its Catholic identity… it’s up to the Catholic Church.” While it is true that competent ecclesiastical authorities have, under the law of the Church and the documents of the Second Vatican Council, the authority to determine who can and who cannot use the moniker “Catholic,” it is not the Church who really imposes the nexus; it is an exercise of the authentic freedom of the school itself to decide whether it wishes to be a Catholic institution or not. While it may seem to be Catholic insofar as it has religious symbols like crosses and crucifixes on the campus, it is finally the decision of the institution to live and express its Catholicism or not in everything that it does. If it asserts that it is Catholic, then it must affirmatively demonstrate that this is so by living and proclaiming the Good News and through adhering to two thousand years of authentic Catholicism. To borrow from the title of the article from The Atlantic, the brand name may be there; however, whether it is the genuine article or a counterfeit knock-off is up to the institution’s fidelity to the prescriptions set down by Saint Ignatius. Truth in advertising is vital to the authenticity of the claim that a school is Jesuit. If I may borrow from the Formula of the Institute, whosoever desires to serve as a Jesuit institution should keep what follows in mind: that the Jesuit order was founded for this purpose, which is “to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.” I fear that in today’s climate many students, faculty, and administrators who believe they are a part of Jesuit education would find it difficult to endorse this essence of what it means to be Jesuit.

Let me conclude today’s posting with this thought. I think that Autumn Jones has done a great service by publishing her article upon which I have commented here. Her essay can serve as a catalyst for folks who are supportive of and concerned about the status of Jesuit and Catholic higher education to reflect critically upon what is at stake so that the enterprise of Catholic higher education may flourish. For those who believe that Christ is the Lord and Savior of the human person, let us not be afraid to follow Him rather than the sirens of the present age who think and claim that they are a part of the enterprise molded by Ignatius but, in fact, are not. Christ engaged the world for the particular objective of human salvation, and this purpose became that of Ignatius of Loyola. May this end be unambiguously reflected in the lives and work of those who follow the Son day after day on the campuses that claim to be Jesuit and Catholic. This work is not one of imposing but of proposing the objective for which the Jesuit order was established.


RJA sj

January 11, 2015 in Araujo, Robert | Permalink

Saturday, January 10, 2015

Chaput: "Each of our lives matters."

In the January issue of First Things, Archbishop Chaput's 2014 Erasmus Lecture, "Stranger in a Strange Land," is featured.  I thought is was excellent, and was really moved by the closing paragraphs:

Each of our lives matters. Our journey does not end in the grave. What we do has consequences for our own eternity and those around us. Our lives gathered together as communities of faith and as a nation shape the conscience and the future of the “city upon a hill” that John Winthrop imagined and that we have inherited.

We were made by God to receive love ourselves and to show love to otherslove anchored in the truth about the human person and the nature of human relationships. That’s our purpose. That’s why we were created. We’re here to bear each other’s burdens, to sacrifice ourselves for the needs of others, and to live a witness of love for the God who made us—not only in our personal lives, but in all our public actions, ­including every one of our social, economic, and political choices. 

These words remind me of a C.S. Lewis passage, one that I've quoted in several of my own academic papers:

“There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilizations - these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub and exploit - immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously - no flippancy, no superiority, no presumption.”


January 10, 2015 in Garnett, Rick | Permalink