Saturday, September 13, 2014
The other day I found myself re-reading Pope Francis’ recent exhortation, Evangelii Gaudiem. In light of last week’s news, the following excerpt jumped out at me where he discusses how we are all invited:
…to receive God’s love and to love him in return with the very love which is his gift, bring[ing] forth in our lives and actions a primary and fundamental response: to desire, seek and protect the good of others.
The message is one which we often take for granted, and can repeat almost mechanically, without necessarily ensuring that it has a real effect on our lives and in our communities. (Evangelii Gaudiem, para. 178)
Later in the document, when more specifically discussing this call to protect the most vulnerable in society, Pope Francis singles out victims of domestic violence. He writes “[d]oubly poor are those women who endure situations of exclusion, mistreatment and violence, since they are frequently less able to defend their rights.” (Evangelii Gaudiem, para. 212)
As I previously blogged, much of this last week has demonstrated how society has taken for granted, indeed, accepted a certain level of violence against women, thereby negatively “affecting our lives and communities.” However, Thursday also demonstrated how some women senators have engaged in the very actions Pope Francis exhorts us all to do.
A bipartisan group of 16 women senators wrote Commissioner Roger Goodell expressing dismay with the NFL’s “policy” regarding domestic violence. Central to this letter is this most basic but poignant observation:
We are deeply concerned that the NFL’s new policy, announced last month, would allow a player to commit a violent act against a woman and return after a short suspension. If you violently assault a woman, you shouldn’t get a second chance to play football in the NFL.
The NFL is a major American business whose teams split $6 billion in revenue in 2013. I would hope that in most businesses if an employee (let alone a public figure) knocked a co-worker unconscious and was indicted, he would be severely disciplined. This certainly would be true if he beat unconscious a person because of his or her class, religion, or creed. But somehow it is not true if he beat unconscious a person because of her gender. That apparently is more acceptable.
I am pleased that these senators are seeking to help protect women. It is sad, however, that this business needs to be told this basic truth: “If you violently assault a woman, you shouldn’t get a second chance to play football in the NFL.”
A full text of the letter can be found here.
Friday, September 12, 2014
Amicus Brief of Pro-Life Organizations Supporting Strong Protection for Pregnant Workers from Discrimination
(from Tom Berg:) I'm very pleased to tell others about an amicus curiae brief, filed in the U.S. Supreme Court yesterday by 23 pro-life organizations in Young v. United Parcel Service, an important case involving the Pregnancy Discrimination Act of 1978 (the PDA). The brief, which supports the pregnant employee who filed suit against UPS, is by pro-life organizations from across the political spectrum, from Concerned Women for America and the Southern Baptists to Feminists for Nonviolent Choices and Democrats for Life. Here are a couple of news releases, from St. Thomas Law and from the Democrats for Life (on whose board I sit), each summarizing the case (and also linking to the brief).
The filing of the brief makes important statements that, I think, are noteworthy in our society polarized over the “life” issue and how to address it. In this, a variety of pro-life groups with different missions, who disagree on other things, have come together to emphasize that supporting pregnant women is a fundamentally pro-life position. I suspect that, in our polarized atmosphere, some people may be surprised that a bunch of pro-life groups have filed to support working women—so spread the news!
I worked along with several other counsel, including my colleague Teresa Collett, to organize and draft the brief. And yet another St. Thomas Law colleague, MOJ's own Lisa Schiltz, made important contributions to the brief as well. (Go Tommies!)
The case involves Peggy Young, a driver for UPS who became pregnant and, based on the doctor’s note concerning lifting restrictions, sought to be switched to “light duty” work for the remaining few months of her pregnancy. UPS had provided such an accommodation for several significant categories of employees, including those injured on the job, those with disabilities, and those who had lost their commercial driving license for various medical reasons—but it refused to accommodate Young. She was forced to take an unpaid leave and lost her employer-provided health insurance for several months. Young sued under the PDA, which requires that pregnant women be treated the same as other employees “similar in their ability or inability to work.” Although UPS had made the accommodations mentioned above, the lower courts ruled against Young because there were other categories of employees UPS had not accommodated (e.g. off-the-job injuries); essentially, the court said that pregnancy was not discriminated against if it was treated no worse than those and was not ”singled out” for denial. Young is seeking reversal in the Supreme Court.
The case raises an important issue concerning the effectiveness of the PDA’s protection for pregnant employees, since many employers make accommodations for some but not all employees with physical limitations. The pro-life organizations’ brief argues that pregnancy should be treated as well as conditions the employer deems important enough to accommodate, not as poorly as conditions the employer refuses to accommodate. The brief points to the background of the PDA, which had support in 1978 from pro-life groups and pro-life members of Congress. Their rationale was that protecting pregnant women from discrimination reduced pressure on economically vulnerable women to abort their children, and strengthens the fundamental right to bear children and raise a family. The brief makes those arguments as well.
Counsel of record are Carrie Severino and Jonathan Keim of the Judicial Education Project (also an amicus).
Cross-posted (with minor changes) at Whole Life Democrat
Check it out. Here's a bit about the project:
Beliefs about justice typically lurk just beneath headlines from around the world, whether they deal with separatist movements in Ukraine, Kurdistan, or Sri Lanka; Islamic rebellions in Syrian and Iraq; U.S. policy in Iraq and Afghanistan; war between Israel and Palestine; global development policy; women’s rights; economic justice; the drug wars in Latin America; the one-child policy in China; and religious freedom. Usually, these beliefs go unexamined. The same is often true even in the academy. In American political science, for instance, justice is sharply separated from the scientific study of politics. Arc of the Universe is devoted to resurfacing justice – examining the day’s headlines from the deep commitments of ethical traditions. Arc of the Universe is also distinctive in bringing religion into the picture. Some posts will appeal to religion while others will be rendered in secular terms. Arc of the Universe is a place where secular and religious meet in conversation about global justice.
So come follow Arc of the Universe!
A friend posted this on Facebook:
On this day in 1683, the forces of the Holy League, led by Polish King Jan Sobieski III and his Winged Hussar lancers, mounted one of the largest cavalry charges in history to defeat the combined Ottoman forces of Grand Vizier Merzifonlu Kara Mustafa Pasha, relieve the siege of Vienna, and save Europe from an existential threat. Upon achieving victory Sobieski is said to have declared "Veni, vici, Deus vicit."
September 12, 2014 | Permalink
On September 18, the Center for Civil and Human Rights at the Notre Dame Law School (which is directed by my friend and colleague, Dan Phipott), is hosting an important and interesting-looking conference, "Under Caesar's Sword: A Christian Response to Persecution." More info here. This is the beginning of an exciting, ongoing interdisciplinary research project. Stay tuned.
"Under Caesar's Sword" . . . aims to document and understand the ways in which Christian communities deal with the violent suppression of their rights. Recently awarded a $1.1 million grant from the Templeton Religion Trust, CCHR and RFP will host a panel of experts on religious freedom at Notre Dame Law School. These experts, along with many others, will set out across the globe in the next year to investigate the varied methods by which Christian communities respond to repression, from complex diplomacy to simple flight.
Here's a nice piece, called "Discrimination, or Intellectual-Lite?", at God, People, Place. The author, Charlie Peacock, says (among other things):
. . . I am committed to discriminate thinking, that is the intellectual ability to differentiate and separate – to tell the difference between one thing and another. What education I do have encouraged the promotion of discriminate thinking and the cultivation of the ability to evaluate, make comparisons, and categorize.
Yet, there is a disturbing trend among our American institutions of higher learning. In the interest of anti-discrimination, the keepers of our intellectual future have forgotten how to think discriminately – to tell the difference between one thing and another. . . .
The Boston University Law Review has posted a number of excellent contributions to a symposium on Ronald Dworkin's Religion Without God. Talk about an abundance of riches! There are pieces by James Fleming, Jeremy Waldron, Stephen Carter, Paul Horwitz, Andy Koppelman, Cecile Laborde, Linda McClain, Micah Schwartzman, and Steven Smith. Wow!
In his recent column, “A Tale of Two Churches,” Francis Cardinal George pithily recounts the history of how the Catholic Church flourished in this country, in part due to the promise that the government would not be confessional in nature, a promise to which it has remained true “Until recent years.”
Now “[t]he ‘ruling class,’ those who shape public opinion in politics, in education, in communications, in entertainment, is using the civil law to impose its own form of morality on everyone” to the point where today “we are warned” that “those who do not conform to the official religion . . . place their citizenship in danger.” This kind of pressure (from, no less, those “who regard themselves as ‘progressive’ and ‘enlightened’”) inevitably results “in a crisis of belief for many Catholics.” As George notes: “It already means in some States that those who run businesses must conform their activities to the official religion or be fined, as Christians and Jews are fined for their religion in countries governed by Sharia law.”
Some may dismiss this as hyperbole and fear mongering from an aging ecclesiastic. Others will see the new order of the day as the movement of the Holy Spirit, as the state helping to effect the will of God, updating the Church on matters of marriage, sexual morality and abortion.
But a clear-eyed view of history and fidelity to the apostolic faith says otherwise. The Church does change, she develops over time and in different cultures. But authentic development is never the product of coercion. Indeed, it is in resisting the powers of this world in true freedom that the Church comes to more deeply understand the faith given to her. Genuine discipleship means being willing to swim against the tide. What will this look like in the near future?
It means that those who choose to live by the Catholic faith will not be welcomed as political candidates to national office, will not sit on editorial boards of major newspapers, will not be at home on most university faculties, will not have successful careers as actors and entertainers. Nor will their children, who will also be suspect. Since all public institutions, no matter who owns or operates them, will be agents of the government and conform their activities to the demands of the official religion, the practice of medicine and law will become more difficult for faithful Catholics.
Read the whole thing.
September 12, 2014 | Permalink
Thursday, September 11, 2014
Greg Sisk's post about a brief on behalf of eighteen criminal law professors in Yates v. United States brought me back a few weeks to our law school orientation at Richmond, during which a colleague and I argued the case before a panel of faculty judges for the benefit of our incoming students. When the case was originally chosen for this exercise, I asked to be on the side of liberty. But as circumstance would have it, I ended up on the side of text. And that is where I think the Supreme Court will end up as well.
The policy problems identified in the criminal law professors' brief are real problems. But the professors' legal arguments for the petitioner in Yates will not suffice, I expect. Perhaps most importantly, the intent element confines the scope of this statute to cover conduct that is not simply malum prohibitum (in the words of the brief). Petitioner deliberately destroyed the best evidence of his civil infraction. The statutory language prohibiting this conduct was modeled on statutory language prohibiting the destruction of physical evidence in other jurisdictions and other contexts.
I predict that petitioner loses unanimously.
In conducting some last-minute update research on a forthcoming article (here) on the legal ethics of real evidence (and the potential use of obstruction of justice statutes to punish a lawyer for zealous representation of a criminal defendant), I came across the "Brief for Eighteen Criminal Law Professors as Amici Curiae" in the pending Supreme Court case of Yates v. United States, No. 13-7451.
Yates is the case in which creative federal prosecutors applied the new "anti-shredding" provision in the Sarbanes-Oxley Act to prosecute a fisherman for anticipatory obstruction of justice because he tossed some under-size fish overboard (rather than bring them back to the dock) after a Florida fish and wildlife officer had cited him for a civil violation.
The statute punishes those who knowingly destroy or conceal “any record, document, or tangible object” with the intent to impede an investigation within the jurisdiction of a federal agency. In prosecuting the fisherman and now before the Supreme Court, the federal government argues that the three red grouper fish were a "tangible object." The fisherman's lawyer, and the amicus brief above, argue that "tangible object" should be understood in the context of "record" and "document" to mean such things as hard-drives, flash-drives, computer diskettes, etc. which can record information.
What especially struck me about the brief, which was filed on behalf of a member (Rick Garnett) and several friends of the Mirror of Justice, was its powerful indictment of overcriminalization -- together with the sad decline of wise use of prosecutorial discretion. Below is the key discussion of this matter from this thoughtful and well-written brief:
Today’s federal criminal code would be profoundly troubling to the Founders. As James Madison wrote in FEDERALIST NO. 62, “[i]t will be of little avail to the people * * * if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood[.]” Yet these words provide an apt description of today’s U.S. criminal code. As one commentator puts it, the federal criminal “code” is a “haphazard grabbag of statutes accumulated over 200 years”—it is “incomprehensible, random and incoherent, duplicative, ambiguous, incomplete, and organizationally nonsensical.” Julie O’Sullivan, The Federal Criminal “Code” is a National Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 643 (2006).
Neither prosecutors nor their targets can plumb the depths of this criminal law. Federal law addresses conduct ranging from unquestionably serious crimes (e.g., 18 U.S.C. § 2381 (treason)), to trivial ones (e.g., id. § 711 (unauthorized reproduction of “Smokey Bear”)). As one well-known jurist has observed, “most Americans are criminals and don’t even know it.” Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43, 44–45 (Timothy Lynch ed., 2009).
To be sure, U.S. Attorneys cannot (and would not) enforce every one of these provisions every time it was violated. For those who do get prosecuted, however, the circumstances are grim. The vastness of the federal code and the breadth of myriad statutes provide the imaginative prosecutor with near-endless permutations of crimes to charge. Exercising prosecutorial discretion has evolved “from an exercise of wisdom to a selection of weaponry.” Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV. 1425, 1445 (2012).
* * *
According to recent estimates, U.S. law contains 4,450 criminal provisions. . . . Now add to this expansive body of criminal statutes a mountain of federal criminal regulations. According to one estimate, there are now more than 300,000 federal regulations that may trigger criminal sanctions.
Still worse, many of these regulatory offenses pro-scribe conduct that is malum prohibitum—i.e., conduct that is wrong only because it is prohibited. Everyone knows that it is immoral to kill, rape, or steal. The same cannot be said, however, of importing non-veneered ebony wood from India, snowmobiling into a national forest in the midst of a blizzard, or saving a bird from the clutches of a hungry cat. Yet as Gibson Guitar Corp. IndyCar champion Bobby Unsar, and11-year-old Skylar Capo found out, the Government has no qualms about prosecuting such behavior. As these heavy-handed prosecutions show, the vast ocean of regulatory crimes—including many offenses that are “wrongful only because [they are] illegal”—threatens to “allow punishment where ‘consciousness of wrongdoing be totally wanting.’” Stephen Smith, Overcoming Overcriminalization, 102 J. CRIM. L. & CRIMINOLOGY 537, 538 (2012) (quoting United States v. Dotterweich, 320 U.S. 277, 284 (1943)).
2 See C. Jarrett Dieterle, Note, The Lacey Act: A Case Study in the Mechanics of Overcriminalization, 102 GEO. L.J. 1279, 1284–86 (2014) (summarizing the prosecution of Gibson Guitar Corp. under the Lacey Act, 16 U.S.C. §§ 3371 et seq.).
3 Reining in Overcriminalization: Hearing Before the Sub-comm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 21–35 (2010) (statement of Robert “Bobby” Unser, detailing his prosecution under 16 U.S.C. § 551 and 36 C.F.R. § 261.16 for unintentionally entering a national forest with a snowmobile during a blizzard).
4 Girl saves woodpecker, but her mom fined $535, CBS NEWS, Aug. 4, 2011, available at http://www.cbsnews.com /news/girl-saves-woodpecker-but-her-mom-fined-535/ (re-porting the citation of an 11-year-old child under the Migratory Bird Act, 16 U.S.C. §§ 703 et seq., for saving an endangered woodpecker from being eaten by the family cat). The charges were dropped after an international outcry over the incident.
In short, the ever-expanding breadth and redundancy of the federal statutory and regulatory crimi-nal “code” threatens to create, in the words of the late Bill Stuntz, “a world in which the law on the books makes everyone a felon.” William Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 511 (2001).
I am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I've listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of and from within the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.
Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.
Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.
Wednesday, September 10, 2014
The New Republic is running a book review by Justin Driver of Bruce Allen Murphy's book about Justice Scalia. Titled "How Scalia's Beliefs Completely Changed the Supreme Court ... and therefore, the country," the review combines appreciation for the impact of Justice Scalia's beliefs about interpretation (and the role of Justices in oral argument) with criticism of Murphy's "vituperative attacks on Scalia's character and even on his religion."
Driver's appreciation of Justice Scalia's impact is far from uncritical. The review concludes: "If legal liberals are going to prevail in the long run, they must comprehend that the many profound problems with Scalia's views are not characterological or ecclesiastical; they are jurisprudential." But Driver's criticisms of Scalia are not the main feature of the review. His criticisms of Murphy are. And those criticisms are deserved. So, too, are Driver's criticism of reviews like Dahlia Lithwick's. After outlining problems with Murphy's treatment of Justice Scalia's Catholicism, Driver writes:
These deficiencies in Murphy’s approach may seem glaringly obvious, but his book has received a surprisingly warm reception in some estimable quarters. At least one reviewer has even showered praise on Murphy for his brave, penetrating insights into Scalia’s religion. Writing in The Atlantic, Dahlia Lithwick commended Murphy as “a timely and unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court.” In Lithwick’s view, “Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much a product of his deeply held Catholic faith.” Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth to power is perverse.
Driver describes as "indefensible" the idea that "the issue of religion should never be broached when it comes to assessing justices." Indeed, he says that "[i]n the particular case of Scalia ... it would be irresponsible for any biographer to avoid discussing his religion at some length." But Driver objects to treatments like Murphy's that use tactics whose "impudence is enough to make practitioners of guilt by association blush with embarrassment."
I wish Driver were correct that Murphy's "hatchet is so crude and so wanton that it falls well short of achieving its intended effect." But the set of readers "who are unsympathetic to Scalia's legal vision," but nevertheless "find themselves leaping to his defense, supplying the counterarguments, explanations, and qualifications that Murphy too often disregards," must be very small. It is to Driver's credit that he is one such reader. But Driver is almost certainly atypical, at least outside the legal academy.
Tuesday, September 9, 2014
So, exactly what did you think domestic violence looked like?
In the wake of TMZ’s release of the elevator video recording of Ray Rice’s vicious beating of his now wife, Janay Palmer, everyone has something to say. Now we are horrified. Now the team is outraged because, as Coach John Harbaugh put it, the videotape “changed things.” Why?
I think I know the answer. It changed things because now we cannot hide. Now, we cannot blame the victim as the Ravens suggested in an early tweet talking about how Ms. Palmer “regrets the role she played” in the incident. (Was that the role her face played in receiving Rice’s punch, hitting the wall, or hitting the floor?) Now we cannot whitewash with the sterile label “domestic violence” a 206 pound man punching a woman unconscious, then dragging her body and dropping it face down onto the floor. It changes things because now we cannot look the other way. The ugliness and the viciousness of what the words “domestic violence” mean are laid bare and there is no escaping it no matter how hard we try.
And we tried hard. This is not a situation in which nothing was known prior to yesterday’s release of the video. It was already known that Rice hit her with such force that she was unconscious. It was already known he was charged with aggravated assault, not simple assault (although the prosecutor approved a diversion program). It was already known that there was at least a video of him dragging her unconscious body from the elevator. But amazingly we as a society generally - the NFL and the Ravens particularly- managed to minimize.
So why are things different now? Things are different because, after the videotape, society and the NFL are now faced with the ugly truth: that domestic violence is exactly that – violence; and what Ms. Palmer experienced was the violence of a closed fist hitting her head with such force that she immediately was knocked unconscious as her body fell against the wall. It was the violence and humiliation of being unceremoniously dragged into a hallway with so little dignity that she lay there injured, unresponsive, and humiliated with her skirt pulled above her waist on the floor.
How did this willful ignorance happen? Two decades after the Violence Against Women Act, twelve years after the Catholic Conference of Bishops wrote “Violence against women, inside or outside the home, is never justified. Violence in any form-physical, sexual, psychological, or verbal is sinful; often, it is a crime as well" - how is it that we are still looking the other way? The sad truth is that this happens because we do not afford women and children the inherent dignity they deserve. We even give this victimization a different label, “domestic violence” and treat it differently than what it is: a fist to the face.
We do not want to face the reality of violence against women and children. Just think back to the Steubenville high school football players convicted of rape. This was a case covered up and one that may not have been prosecuted but for the videotapes of both circumstances surrounding the event and the teens discussing it. Remember the outrage at Penn State? It was outrage only felt when the testimony of an adult eye witness was released to the public through the grand jury. Not until the reality of what women and children victims experience behind closed doors is placed front and center are we willing to reluctantly acknowledge what it is.
Some have commented that this termination is a watershed moment. Sadly, I am not so optimistic. Ironically, on the same day that Ray Rice was let go from the Ravens, the NCAA lifted the ban on Penn State’s post season play because “they have made remarkable progress” in their cover up of one of their former coaches molesting children on campus. Remarkable progress for such a serious institutional failure? This further underscores society’s preference to sweep away not only the victimization, but the institutional willful ignorance as well. As Joey Galloway questioned, “[w]hen you start to peel back these penalties, what are you saying about the initial crime?”
We simply do not take violence against women and children seriously because we hide from its reality. We do so because our society simply does not afford victims the inherent human dignity belonging to all people. Not until we recognize what this violence is, can we effectively respond and prevent its occurrence by working with victims and offenders.
Many now are asking whether the NFL knew of this video prior to yesterday. There are, however, more fundamental questions: given what was known, why did we need a videotape to be repulsed? Why does the existence of a video change things? But it does.
According to the Domestic Violence Hotline, 3 in 10 women will experience some form of intimate partner violence or stalking. In the minute it took to read this piece 24 people have been victimized in this way. Chances are there was no video camera to force us to hold those abusers accountable.
Monday, September 8, 2014
What if the first American colonists had been Catholics seeking refuge from Elizabethan persecution? A new book from Oxford ("God's Traitors: Terror and Faith in Elizabethan England") tells the story:
Over the summer of 1582 a group of English Catholic gentlemen met to hammer out their plans for a colony in North America — not Roanoke Island, Sir Walter Raleigh’s settlement of 1585, but Norumbega in present-day New England.
The scheme was promoted by two knights of the realm, Sir George Peckham and Sir Thomas Gerard, and it attracted several wealthy backers, including a gentleman from the midlands called Sir William Catesby. In the list of articles drafted in June 1582, Catesby agreed to be an Associate. In return for putting up £100 and ten men for the first voyage (forty for the next), he was promised a seignory of 10,000 acres and election to one of “the chief offices in government”. Special privileges would be extended to “encourage women to go on the voyage” and according to Bernardino de Mendoza, the Spanish ambassador in London, the settlers would “live in those parts with freedom of conscience.”
Religious liberty was important for these English Catholics because they didn’t have it at home. The Mass was banned, their priests were outlawed and, since 1571, even the possession of personal devotional items, like rosaries, was considered suspect. . . .
Sir William Catesby did not sail the seas or have a role in the plantation of what — had it succeeded — would have been the first English colony in North America. He remained in England and continued to strive for a peaceful solution. “Suffer us not to be the only outcasts and refuse of the world,” he and his friends begged Elizabeth I in 1585, just before an act was passed making it a capital offense to be, or even to harbor, a seminary priest in England. Three years later, as the Spanish Armada beat menacingly towards England’s shore, Sir William and other prominent Catholics were clapped up as suspected fifth columnists. In 1593 those Catholics who refused to go to church were forbidden by law from traveling beyond five miles of their homes without a license. And so it went on until William’s death in 1598.
Seven years later, in the reign of the next monarch James I (James VI of Scotland), William’s son Robert became what we would today call a terrorist. Frustrated, angry and “beside himself with mindless fanaticism,” he contrived to blow up the king and the House of Lords at the state opening of Parliament on 5 November 1605.
[A reader, Christian E. O'Connell, sent in the following, and asked if I would be willing to post it at MOJ. I am happy to do so.]
Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Professor Colb
Christian E. O’Connell [*]
In her recent essay at Justia’s Verdict, titled “What Counts as an Abortion, and Does It Matter?,” Cornell law professor Sherry Colb waxes philosophical about the normative and empirical claims she perceives to be at work in Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (“RFRA”) controversy recently decided by the U.S. Supreme Court.
Professor Colb laments as “underdeveloped” the factual issues raised by the Hobby Lobby plaintiffs’ claims about the so-called “morning-after” pills and intra-uterine devices to which they object, while acknowledging strong arguments in favor of judicial deference to such claims. (I’ll refer here to the RFRA claimants in the consolidated litigation as, collectively, the “plaintiffs.”) Yet, Colb argues, the plaintiffs’ premise that human life begins at conception suggests a standard for assessing whether participation in a given birth control method violates a RFRA claimant’s religious commitments. She submits that, by that standard—even if the embryo’s humanity and the drug’s implantation-inhibiting potential are conceded—it’s doubtful whether the morning-after pill “is an abortifacient that literally kills embryonic life,” and accordingly whether there is any corresponding violation of religious beliefs.
Nevertheless, the formal distinctions on which Colb’s thesis relies are suspect in this context, and it’s far from clear in any event that they support her conclusion.
As this post discusses in more detail, the media hype about a "storied rivalry" (etc.) between the Fighting Irish and the Skunk Bears has manage to inflate a relatively recent and not-THAT-long series into something it's not. Of course, it could have been a "storied rivalry" (etc.) had Michigan officials (like many others in the Big 10 and elsewhere) in the first half of the 20th century not based decisions regarding the University of Notre Dame on fears and prejudices regarding Catholicism. In Catholic Heaven, I suspect this was the reaction.
I've been following closely -- and maybe some of you have been, too -- this story, here in Indiana. My home diocese of Ft. Wayne-South Bend chose not to renew the contract of a teacher at a parochial (K-8) school after she underwent in vitro fertilization. (The article describes this in one place as "treatment for infertility", which seems to misstate the diocese's position).
A local federal trial judge is allowing Emily Herx's Title VII sex-discrimination claim to go forward (but not her ADA claim). According to the judge, Title VII's accommodation for religious employers does not apply because this accommodation does not give "freedom to make discriminatory decisions on the basis of race, sex, or national origin." (This is true, but it is a mistake, in my view, to characterize what the Diocese did as being "discrimination" on the basis of sex as opposed to a religious-mission-related staffing decision.) Also, the judge rejected the Diocese's ministerial-exception argument because, according to the news story, "nothing so far suggested Herx fit the definition of a 'minister' of the church." In my view, a teacher at a K-8 parochial school is, presumptively, within the coverage of the ministerial exception.
Stay tuned. (And . . . expect more of this.)
As a service to Catholic school administrators everywhere, I thought I would link to a listing of Catholic saints whose feasts fall on September 17 (at least according to the Internet). It turns out that the feasts of St. Hildegard of Bingen, St. Robert Bellarmine, St. Lambert of Maastricht, St. Satyrus of Milan, and St. Ariadne of Phrygia, among others, are celebrated on September 17. That is also the day that Congress has statutorily designated as Constitution Day.
By seeming statutory mandate, every educational institution that receives federal funds "shall hold an educational program on the Constitution" on Constitution Day. See Section 111 of Division J of Pub. L. 108-447, the "Consolidated Appropriations Act, 2005," Dec. 8, 2004; 118 Stat. 2809, 3344-45). This requirement is inflexible as to date. The required educational program must be held "on September 17." As it turns out, though, the Department of Education has provided greater flexibility in certain circumstances. In federal regulations issued in May 2005, 70 Fed. Reg. 29727, the Department of Education authorized a two-week window for the required program, but only when September 17 falls on a Saturday, Sunday, or holiday:
Section 111 requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week. 70 Fed. Reg. 29727.
Hence this post's opening identification of Catholic feast days on September 17 (which this year is a Wednesday). The regulations do not define "holiday," but a Catholic educational institution receiving federal funds might be able to obtain some flexibility in the timeline for compliance with the Constitution Day requirement by explaining that the feast of St. Robert Bellarmine or St. Hildegard of Bingen, say, is a "holiday" within the meaning of the regulations.
There are a couple of reasons for caution, though. First, this is a bit of a stretch regarding "holiday." But then again, the proviso authorizing an alternative date for compliance seems entirely made up anyway. Second, and relatedly, the regulations may be invalid because they conflict with the statutory requirement. I've asked around casually but have not been able to find good answers: What is the best argument that the Department of Education acted within its statutory authority when authorizing a different date than September 17 for holding an educational program to comply with the statutory requirement? Is there some kind of administrative law analogue to Fed. R. Civ. P. 6(a)(1)?
Having run the analysis thus far, I may as well finish up by noting a split of interpretation on whether there are any practical consequences under the law for failure to comply with the educational programming requirement. Some have suggested that non-compliant institutions may place their entire amount of federal funding at risk (which would probably be unconstitutional under NFIB v. Sebelius), while others have suggested that the requirement is entirely precatory. I tend to agree with the latter understanding.
(Bonus question: What prominent ongoing cases does the foregoing bring to mind with its discussion of regulatory implementation flexibility contrary to statutory text and its consideration of whether "shall" is precatory?)
Here is the story, in the Boston Globe. Because "school president D. Michael Lindsay signed a letter to the White House last month seeking an exemption from President Obama’s executive order barring federal contractors from discriminating" -- a letter that was signed by a diverse and bipartisan group of academics, scholars, religious leaders -- the local school board is now refusing to allow "small groups of volunteers" from the College "in Lynn’s schools for student teaching or other positions to fulfill requirements toward degrees in education and social work."
Expect more and more of this kind of thing.
Although it's tempting, for me, given my love of Braveheart and my sense that things went wrong at the Battle of Culloden, to root for secession/independence in the upcoming referendum, I strongly suspect (and even Paul Krugman's agreeing with me is not enough to make me change my mind) that it would be bad, even foolish, for Scotland to try to "go it alone."
I have been thinking about the issue primarily in terms of economies, currencies, and so on. But, over at First Things, John Haldane has an interesting piece, called "Scotland on the Eve of the Referendum," which touches on another dimension of the whole debate. He notes (among other things) that "progressive secular liberals envisage an independent Scotland as the first formal embodiment of a post-religious Europe." And he discusses in some detail a "growing campaign to complete the work of secularization":
Of late it has become a significant strand in the campaign for independence. Something of the spirit of this is captured in the slogan of the Scottish Secular Society: “No deals, no priviliges, no exemptions.”
This campaign is principally aimed against the Catholic Church. The most recent target has been its opposition to same-sex marriage, but of longer standing is its animus against the existence of publicly supported Catholic Schools. Insofar as other Christian churches are less clear in their positions on abortion, euthanasia and marriage, or are liberal regarding them, and since they are not involved in denominational education, it is unsurprising that the secular attack is focused on Catholicism, or that it has intensified following the sexual scandal surrounding Cardinal O’Brien, the former Archbishop of Edinburgh and St Andrews.
But there is another reason for the focus and ferocity of the attack. This is the long tradition of Scottish anti-Catholicism originating in Protestant polemics, and continuing in responses to Catholic immigration which has been renewed in recent times by Poles, including priests sent from Poland to provide for them. As a result, the Church is now assailed on one side by liberal secular humanists in the press, in the professions, and among the political class, and on the other by a population that has grown up with a folk legend of Catholics as a priest-ridden, immigrant underclass. Perhaps only time and forgetfulness will dispel this historical myth but it contributes to a climate favorable to the second line of attack, that against Catholic schools. . . .
Read the whole thing. I think (with apologies to William Wallace and all that) I'll say a prayer for the United Kingdom.
Saturday, September 6, 2014
In my heart of hearts, I wonder whether there actually is anyone who, in his or her heart of hearts, actually believes that some provision of the Constitution of the United States, independently of any interpreter's personal philosophical or political preferences about marriage law and policy, really does require states to opt for one conception of marriage (say, the idea that marriage is sexual-romantic companionship or domestic partnership) over a competing conception (say, the idea of marriage as a conjugal or "one-flesh" union). The only argument I can think of that someone might rely on is the claim that the Constitution forbids irrational legislation and that the idea of marriage as a conjugal union simply lacks any basis in reason--that the only rational understanding of marriage is the idea of marriage as romantic companionship. But that would be an awfully peculiar thing to say to Plato, Aristotle, Xenophanes, Musonius Rufus, Plutarch, Augustine, Maimonides, Thomas Aquinas, Immanuel Kant, Mahatma Gandhi, and Elizabeth Anscombe. In any event, Patrick Lee and I offer a formal philosphical defense of the conjugal understanding of marriage (and critique of the romantic companionship conception) in our new book, published by Cambridge University Press: Congual Union: What Marriage Is and Why It Matters.
September 6, 2014 | Permalink
Friday, September 5, 2014
Paul is right that this opinion "speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving." It is vintage Posner. I find this vintage too tart and informal; but the taste it leaves is unmistakable. To explain why he writes this way, here's Posner quoting William Popkin describing Posner's opinion style:
The public projection of judicial authority through an authoritative institutional and individual style of presenting judicial opinions has always existed in tension with the internal professional reality that the development of the law is a messy task, fraught with conflict and uncertainty. And this has placed tremendous pressure in the Anglo-American tradition on the judicial opinion, which must implement the dual external and internal goals of preserving judicial authority and developing judicial law. That pressure has only increased in the modern legal culture where judges acknowledge the intersection of law and politics, reject the older tradition of judges authoritatively declaring law derived from legal principle, and consider an institutional base for judging to be insufficient support for justifying judicial law in a legal system where democratic legislation is now the dominant source of law. The judge is no Hercules.
This leaves modern judges with the difficult task of appealing to an external source of substantive law, without the protective armor of authoritative legal principle or a completely secure institutional base. My suggestion for responding to this difficulty . . . is to make greater use of a personal/ exploratory style of presenting judicial opinions, as illustrated by Posner’s approach. This style implements what I call “democratic judging,” which is suited to a legal culture where law and politics are clearly related and in which a democratic process is essential to maintaining the authority of government institutions.
Reflections on Judging (pp. 259-260).
In constitutional cases like this one, Posner seemingly takes Holmes as a guide substantively as well as stylistically. Holmes had the puke test. Posner's version of this seems to be something like disdain or incredulity. This explains the charged characterizations of various arguments put forward by the states, such as "totally implausible" and "so full of holes that it cannot be taken seriously." It also explains his reformulations of various state arguments, like this one: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."
An exploratory, "impure" judicial style need not be so harsh. A better alternative, in my view, is the kind of opinion style cultivated by Judge Sutton. Good examples of this style include his opinion upholding the individual mandate against facial invalidation and his opinion reversing a hate crime enhancement in the Amish beard-cutting case. Like Judge Posner's opinions, Judge Sutton's are conversational and accessible to an intelligent lay reader. But in contrast with Posner's Baskin opinion (or his stylistically and substantively similar partial-birth abortion opinion), one does not sense disdain for lawyers' arguments or contempt for legislators and voters.
MOJ readers are familiar (I hope!) with the important new book by Nicole Garnett and Margaret Brinig, "Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America" (U. Chicago Press). The book was reviewed, here, by Michael Sean Winters, and here by George Weigel.
If you are in or near Washington, D.C. or Philadelphia, I'd encourage you to attend an upcoming event (one in each town) that the University of Notre Dame is hosting for Garnett and Brinig and learn more about the book and their research. For the September 18 event in Philadelphia, go here. For the Sept. 17 event in Washington, D.C., go here.
Here's more from the blurbage:
In the past two decades in the United States, more than 1,800 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Community examines the implications of these dramatic shifts in the urban educational landscape. (See the full press release)
More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.
This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policy debates.
Key Data from the Book
- Catholic school closures in Chicago between 1984 and 1994 predicted substantial between-neighborhood variance in the levels of social cohesion and disorder in 1995. Using data obtained from a survey conducted by the Project on Human Development in Chicago Neighborhoods in 1995, the authors show that residents of neighborhoods where Catholic schools closed had less cohesive and more disorderly communities than residents of neighborhoods with open Catholic schools.
- While serious crime declined across the city of Chicago between 1999-2005, it declined more slowly in police beats where Catholic schools closed. In contrast to the city-wide average of a 25 percent decline, serious crime fell by only 17 percent in police beats experiencing a school closures.
- Between 1999 and 2005, the presence of an open Catholic school in a police beat was consistently associated with a statistically significant decrease in crime. Although the percentage difference varied by year, the crime rate in police beats with Catholic schools was, on average, at least 33 percent lower than in police beats without them.
Thursday, September 4, 2014
I think I've mentioned here at MOJ -- if not, I should have! -- my colleague Christian Smith's new book, "The Sacred Project of American Sociology." (It's excellent.) Here is an essay in The American Conservative by another colleague, Patrick Deneen, of Smith's book (as well as Jody Bottum's An Anxious Age . . . two for the price of one!). Here's a taste:
. . . In a word, both books are stories about the “sacred” nature of what we often call “secularism.” Bottum speaks of the decline of Mainline Protestantism and its replacement by the “Post-Protestant” denizens of academe, journalism, entertainment, business, most Protestant religious outside Evangelicalism, many liberal-leaning Catholics and non-Christians, and broad swaths of “non-elites” who have been shaped by these many leaders of culture and opinion. Smith writes of one segment of this population—sociologists—who are the embodiment of what Bottum calls the Post-Protestant “poster-children.” They are what we typically call “secular.” Both these books call into question the purported a-religiosity of this “secularism,” but rather point to the specifically sectarian nature of this particular form of “secularity”—not so much “Post-Protestant,” as Bottum describes, but Protestant after God.
What struck me through my juxtaposed reading of these two books is that they together tell the story of where Protestantism went and what Protestantism became when it ceased to be a “religion.” . . .
I really enjoyed Steve Smith's review of Ronald Dworkin's, Religion Without God. In the review, Steve "argues that Dworkin misunderstands the way theists typically think God relates to 'morality' [and] essay sketches a subjectivist (or 'super-subjectivist') account of morality that arguably better fits the understanding of believers in the biblical tradition than does Dworkin’s more objectivist account." Check it out.