Mirror of Justice

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Friday, March 27, 2015

The Loyola decision out of Quebec

MOJ readers are likely familiar (here, here, here (Religion Clause blog), here, etc.) with the long-running saga of Loyola High School in Montreal to resist a government mandate that it teach a general ethics-and-culture course in a way that, the School believes, conflicts with its Catholic character.

Well, the Supreme Court of Canada's decision is finally here.  (Congrats to my friend Victor Muniz-Fraticelli for being cited!)  At first, the reports were that Loyola won big -- and it does seem that they won -- but, getting down into the weeds, it's still troubling, I think, what the Court seems to agree the government is allowed to demand.  Here is an interesting account ("What Did Loyola Really Do?").

Here is the holding:

The Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary given the statutory objectives. As a result, it did not reflect a proportionate balancing and should be set aside. The appeal is allowed and the matter remitted to the Minister for reconsideration.

There's more explicit balancing talk here -- and, later, more cites to Aharon Barak and Habermas -- than we are used to, probably, in American cases, but . . . so far so good.  Catholic schools may teach Catholicism (pretty much?) as if it is true.  Early on in the majority opinion, there's this:

 Freedom of religion means that no one can be forced to adhere to or refrain from a particular set of religious beliefs. This includes both the individual and collective aspects of religious belief. Religious freedom under the Charter  must therefore account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.

Also good.  Read the whole thing!

March 27, 2015 in Garnett, Rick | Permalink

Thursday, March 26, 2015

Another nice review of Garnett & Brinig, "Lost Classroom, Lost Community"

Here's a nice review by Will Seath, at the Fare Foreward site, of Nicole Garnett's and Peg Brinig's new bookLost Classroom, Lost Community:  Catholic Schools' Importance in Urban America.  A taste:  

Lost Classroom, Lost Community’s sobering last chapter asks readers to imagine the implications of cities without Catholic schools; the loss of quality social capital-building education in traditional neighborhoods, leaving families unable to afford alternatives to poor quality public schools struggling in the wake of others seeking refuge away from their declining neighborhoods.  “Our cities may well survive (indeed, they may have to survive) without Catholic schools,” Brinig and Garnett conclude, “but our evidence suggests strongly that they would be better off if they did not have to do so.”

March 26, 2015 in Garnett, Rick | Permalink

"Correcting Misimpressions about Religious Freedom"

Here is an op-ed of mine, which ran today in the South Bend Tribune, in which I try to respond to what I regard as some of the misconceptions (and, frankly, the misinformation) about RFRA-type laws (like the one that was signed into law by Gov. Pence, in Indiana, today.)  In a nutshell:

In fact, the act is a moderate measure that tracks a well-established federal law and the laws of several dozen other states. Contrary to what some critics have suggested, it does not give anyone a “license to discriminate,” it would not undermine our important civil-rights commitments, and it would not impose excessive burdens on Indiana’s courts. . . .

The act’s standard is applied in many jurisdictions across the land and it has long enjoyed support from across the political spectrum. This standard is not new; we have plenty of evidence about how it works. We know that courts have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections. Fighting invidious public discrimination is, American courts agree, a public interest of the highest order. Contrary to the concern quoted in the recent Tribune piece, a business owner or medical professional who invoked the act as a “license” to engage in such discrimination would and should lose. The act creates a balancing test, not a blank check. . . .

March 26, 2015 in Garnett, Rick | Permalink

"It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own."

That's from a superb essay on originalism and "the rule of the dead" by Joel Alicea in the latest issue of National Affairs. Alicea's piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:

By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, "Decisions of yesterday's legislatures...are enforced...because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones." That is, "[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept." We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.

This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, "the people" exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.

This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless. 


These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: "We will obey your laws — so long as they mean what we say they mean." The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism's core philosophical assumptions.

Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead. 

March 26, 2015 in DeGirolami, Marc | Permalink

Tuesday, March 24, 2015

"The Theocracy Brief"?

At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures).  Here's the primary part of the post:

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

As it happens, the brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case.  It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.  

Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that.  But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why."  



March 24, 2015 in Garnett, Rick | Permalink

Starr on "The First Freedom: Religious Liberty in America" at Touro

Pres. Kenneth Starr (Baylor University) is delivering a lecture at Touro, on March 26, called "The First Freedom:  Religious Liberty in America."  More information is available here.  And, you can watch it live here.  Should be great!

March 24, 2015 in Garnett, Rick | Permalink

Monday, March 23, 2015

A Religious Constitution -- Christian, Jewish, Islamic?

Those interested in the lively issues presented by religious constitutionalism might want to check out the Clark Lecture to be held at the Rutgers School of Law (Camden)  this Thursday, March 26th (corrected from March 24th), at 4pm.  Details are here.   I will be addressing the question I was assigned:  "What would a Christian constitution, in a predominantly Christian nation, look like?"  

March 23, 2015 in Brennan, Patrick | Permalink

Two Reviews: Inazu on Smith, Movsesian on Russell

A couple of interesting new book reviews. First, a review by John Inazu of Steve Smith's most recent book, The Rise and Decline of American Religious Freedom, over at the Hedgehog Review (though John's original title, "Steve Smith, Optimist" really sang). Here's the ending:

Smith published Rise and Decline just prior to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Holt v.Hobbs, and it’s worth considering how those cases fit his story. Both were wins for religious liberty, but both were statutory rather than constitutional decisions. In one sense, the focus on statutes is completely unsurprising given the state of constitutional free exercise concerns. But it’s not clear that these statutory protections by themselves alter the direction of Smith’s narrative of decline. For that kind of directional change, we would need the Court to re-examine its reasoning in the 1990 peyote case, Employment Division v. Smith. Such a re-examination would be entirely warranted. As Laycock rightly noted in an amicus brief filed just this month, the rule announced in the peyote case came unexpectedly (the rule “was neither briefed nor argued” to the Court) and the decision “cannot be said to have become embedded in the law.” But the Supreme Court has thus far not budged. And as long as that decision stays on the books, Smith may have been better off basing the title of his latest book on an article he wrote in the Harvard Law Review a few years ago: “Discourse in the Dusk: The Twilight of Religious Freedom?” Even then, Smith’s question mark might be too optimistic.

Second, my colleague Mark Movsesian's review over at the Liberty Law blog of Gerard Russell's book, Heirs to Forgotten Kingdoms. Here are Mark's concluding paragraphs:

There is a danger in treating Copts and other Middle Eastern Christians like this. A major obstacle to getting American Christians interested in the plight of Middle Eastern Christians is the fact that they seem so foreign, so distant from the lived experience of Christianity in the United States. Accounts like Russell’s inadvertently emphasize the “otherness” of Middle Eastern Christians, thereby making it even less likely that they will draw the attention of Americans in a position to help. Of course, this is not Russell’s intention. As I say, he has genuine sympathy and admiration for all these groups, including the Christians. But his portrayal of them may have an unintended and unfortunate effect.

Nonetheless, this is an enjoyable and valuable book, instructive and a pleasure to read. It should appeal to anyone with an interest in the history of religion and the Middle East—indeed, anyone with an interest in the human spirit itself.

March 23, 2015 in DeGirolami, Marc | Permalink

Friday, March 20, 2015

Saturday is World Down Syndrome Day!

Tomorrow (3/21) is World Down Syndrome Day. 
Celebrate by watching this great video put out by the Jerome LeJeune Foundation (named after the geneticist who discovered that Down Syndrome was caused by trisomy 21 (3 copies of the 21st chromosome), currently on the road to canonization.
Or this inspirational story about the basketball team of at Lincoln Middle School in Wisconsin defending one of their cheerleaders with Down Syndrome.
Or do yourself a real favor spend some time celebrating with a person with Down Syndrome!

March 20, 2015 in Schiltz, Elizabeth | Permalink

Thursday, March 19, 2015

Baude's "flouting the rule of law" critics should explain precisely which rule of law his proposal flouts

In the dust-up over Will Baude's op-ed proposal for plaintiff-specific compliance in King v. Burwell, one peculiar feature stands out. Some of Baude's legal critics contend that the Obama Administration's adoption of his proposal would flout the rule of law even while they do not identify any particular rule of law that the Administration would be violating. As far as I have been able to discern to this point, there is none.     

The opening paragraph of Noah Feldman's Bloomberg View commentary contends that "[o]beying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law." But one reads that essay in vain for an identification of which specific rule of law would be violated, flagrantly or not. Feldman's opening sentence asks: "Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed?" The problem with this sentence--as we know Feldman knows from elsewhere in his commentary--is that Baude makes no such proposal. Baude's proposal is not to ignore the Supreme Court's judgment, but to obey the Court only with respect to the plaintiffs in the case. 

Relatedly, Josh Blackman's commentary at National Review Online describes Baude's proposal as a "procedural putsch" (though it is probably more precisely pegged only as "precedential parsimony").  Blackman accuses the Obama Administration of making "unprecedented assertions of power" that "have flouted the rule of law," but he ultimately differentiates the question of legal correctness from the rule of law. "Even if legally correct," he writes of plaintiff-specific compliance,"this practice should be emphatically rejected." 

I understand the political and practical difficulties posed by plaintiff-specific compliance in King v. Burwell. And I understand why some others of Baude's critics disagree with his proposal even while acknowledging that he is right about its legal permissibility. But the "rule of law" criticisms are of a different sort, and they remain puzzling insofar as they are untethered from what one might call "the law of law." 

In the United States, there are three ways that a court's judgment can have binding legal effect: the law of preclusion, the law of precedent, and the law of remedies.

Of these three types of "law of law," both the law of preclusion and the law of precedent operate primarily in other, later cases. If the government were to lose in King v. Burwell, a non-party to that case could almost certainly use non-mutual offensive issue preclusion to win another challenge to the subsidies in a later case. [UPDATE: D'oh! Shouldn't have needed to be reminded, as I was shortly after posting, about United States v. Mendoza. Non-mutual offensive issue preclusion is unavailable against the federal government.] But it would not even be necessary to rely on preclusion, for every court would be bound as a matter of precedent to hold the subsidies illegal. To the extent that the doctrines of preclusion and precedent operate only in other, later cases, however, their reach extends only to whichever other, later cases there happen to be. Given the nature of the relief sought in King v. Burwell, there may not be very many such cases.

By contrast with the law of preclusion and the law of precedent, the law of remedies at least has the potential to provide for broader binding effect in King v. Burwell itself. If legally authorized, a nationwide injunction against the responsible government officials would authoritatively forbid any further implementation of the challenged subsidies. But the legal propriety of a nationwide injunction is far from clear.

Josh Blackman addressed some of the issues relevant to nationwide injunctive relief in two earlier posts criticizing Baude's proposal, ultimately suggesting that "unusual factors" in this case would allow for a nationwide injunction. But the reason that he had to rely on "unusual factors" is that the usual approach toward injunctive relief would require that the injunction should only be as broad as necessary to give the plaintiffs relief from their injury, and the King plaintiffs do not advance nationwide injury requiring nationwide relief. (It might also be worth noting that Blackman discusses D.C. Circuit precedent about nationwide injunctions, but not the seemingly more confining Fourth Circuit precedent that would govern in King if the Supreme Court itself does not specify the scope of injunctive relief. See, e.g., Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 434-36 (4th Cir. 2003) (reversing nationwide injunction that was "broader in scope than that necessary to provide complete relief to the plaintiff" and that "did not carefully address only the circumstances of the case").)

Another way of coming at the scope-of-injunctive-relief issue is to imagine that the King plaintiffs had sought to represent a class of all subsidy-eligible plaintiffs and asked a court to certify that class under Rule 23(b)(2). Would it have been proper to certify the King plaintiffs as representatives of such a class? Not a chance. Why, then, should they be able to secure an injunction that would accomplish the same result?

The reason this all seems confounding is that it would usually be foolish to engage only in plaintiff-specific compliance with a Supreme Court ruling. But that is largely because of all the court losses that would follow in later cases. Those losses would be attributable, however, to the law of precedent and the law of preclusion, not to a nationwide remedy. And it would be a mistake to treat the potential absence of enough later cases in which precedent or preclusion would compel practical nationwide compliance as an argument for authorizing nationwide injunctive relief.

Perhaps I am missing something. But until Baude's "flouting the rule of law" critics explain which particular rule of law would be violated by adoption of his proposal, I don't know how to find my way to agree with them on this point. 

To say that plaintiff-specific compliance is legally permissible is far from suggesting it would be advisable for the Obama Administration to follow that course. There is much that is legally permissible that is inadvisable for any number of reasons. And I would not advise being so grudging in King v. Burwell.

It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court's crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.

March 19, 2015 in Walsh, Kevin | Permalink

Archbishop Chaput on Human Dignity and Dignitatis Humanae

Over at First Things, you can read Archbishop Chaput's March 17 lecture, "Of Human Dignity:  The Declaration of Religious Liberty at 50."  In his address, "outline[s] what the Church teaches about religious freedom"; "list[s] some of the key religious liberty challenges heading our way"; and "talk[s] about why the Council was right."  Like the man says, "highly recommended."

Here's a bit:

In the mind of the Council, religious liberty means much more than the freedom to believe whatever you like at home, and pray however you like in your church. It means the right to preach, teach and worship in public and in private. It means a parent’s right to protect his or her children from harmful teaching. It means the right to engage the public square with moral debate and works of social ministry. It means the freedom to do all of this without negative interference from the government, direct or indirect, except within the limits of “just public order.”

And, in his discussion of threats and challenges, there's this:

The biggest problem we face as a culture isn’t gay marriage or global warming. It’s not abortion funding or the federal debt. These are vital issues, clearly. But the deeper problem, the one that’s crippling us, is that we use words like justice, rights, freedom and dignity without any commonly shared meaning to their content.

We speak the same language, but the words don’t mean the same thing. Our public discourse never gets down to what’s true and what isn’t, because it can’t. Our most important debates boil out to who can deploy the best words in the best way to get power.

And he concludes, quoting St. John Paul II's "be not afraid!", with this:

There’s too much beauty in the world to lose hope; too many people searching for something more than themselves; too many people who comfort the suffering; too many people who serve the poor; too many people who seek and teach the truth; too much history that witnesses, again and again, to the mercy of God, incarnate in the course of human affairs. In the end, there’s too much evidence that God loves us, with a passion that is totally unreasonable and completely redemptive, to everstop trusting in God’s purpose for the world, and for our lives.

I must admit -- or confess -- to an increasing inability to really embrace and express the hope that Archbishop Chaput holds up.  As my friend and colleague, Bob Rodes (RIP), put it:

Gods plan made a hopeful beginning 
man spoiled its chances by sinning
we hope that this story
will end in Gods glory
but at present the other sides winning.


March 19, 2015 in Garnett, Rick | Permalink

Wednesday, March 18, 2015

Notre Dame's excellent Laetare Medal selection

I am delighted by the news that the University of Notre Dame will award this year's Laetare Medal to Aaron Neville.  (I admit, I have nominated Neville several times, including this year.)  Although I'm not a huge fan of some of his biggest pop hits, the Neville Brothers are, in my view, one of the country's all around best bands.  Take a few minutes to read this nice piece about Neville's faith.   Then go listen to his Ave Maria.  And then -- why not? -- kick out the jams with "Fiyo on the Bayou" (here).

March 18, 2015 in Garnett, Rick | Permalink

Sunday, March 15, 2015

Two Virginia governors with different estimations of various things Catholic

As a Catholic Virginian, it was somewhat jarring to read in the same sitting Thomas Jefferson's correspondence from approximately two hundred years ago and a statement of Terry McAuliffe's spokesman reported in Friday's Richmond Times-Dispatch. From Jefferson there was condemnation of various dogmas of the Catholic faith, while from McAuliffe's spokesman there was confusion about Catholic teaching.

Governor McAuliffe's spokesman publicly professed him to embrace what Jefferson privately condemns-- Catholic faith. But it remains unclear what the governor's professed faith has to do with his actions in office. The spokesman portrays Catholic teaching on the protection of unborn human life and the definition of marriage to require a man and a woman as improper for implementation in public law: "The governor is a lifelong Catholic who takes his faith very seriously. . . . He also believes in keeping government out of decisions that should be left to women and their doctors, or to consenting adults who love each other.” 

As for Jefferson, it is difficult to know which of his many expressions on matters of false faith would be the best to quote for a flavor of his thinking. But an aside in his Halloween 1819 letter to William Short includes a helpful list of examples of the "imputation of imposture, resulting from artificial systems, invented by ultra-Christian sects, unauthorized by a single word ever uttered by [Jesus]," from which Jefferson believed it desirable to rescue the enlightened teachings of Jesus (whom Jefferson described in the same letter as the "greatest of all reformers of the depraved religion of his own country").

Jefferson's list of imputations of imposture contains "[t]he immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, regeneration, election, orders of Hierarchy, &c."

Given this list, Jefferson would presumably be disappointed to find the spokesman of the present governor of Virginia professing Governor McAuliffe a "lifelong Catholic who takes his faith very seriously." But this disappointment would probably be offset by attention to Governor McAuliffe's public actions with respect to the law over his spokesman's public words with respect to the governor's faith. 

March 15, 2015 in Walsh, Kevin | Permalink

Thursday, March 12, 2015

Amicus Brief in Marriage Cases: Protecting Same-Sex Marriage and Religious Liberty

Doug Laycock and I have filed an amicus brief in the same-sex-marriage cases on behalf of ourselves, David Blankenhorn of the Institute for American Values, and Professors Marie Failinger and Edward Gaffney. It argues that the Court can and should protect both the right to civil marriage for same-sex couples and strong rights to religious liberty for religious objectors. From the summary of argument:

       The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.
       The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages.

Tom B.

March 12, 2015 in Berg, Thomas | Permalink

If There Is Room for Zaytuna College, Is There Room for Gordon College and Authentic Catholic Universities?


Zaytuna College

Word comes that Zaytuna College, an Islamic institution located in Berkley, California, has received initial accreditation from the Western Association of Schools and Colleges, the same body from which UC Berkley and Stanford University receive their accreditation.  Some on the political right (Breitbart) are not happy about this development, in part because of the anti-Semitic and anti-Israeli statements of some individuals involved in founding Zaytuna.  In addition, they report that Hazam Yusuf, the College's president, signed a much publicized letter condemning ISIS but supporting the establishment of a caliphate and the imposition of the death penalty under sharia law for Muslims who openly renounce Islam.

Plainly, the views of at least some Zaytuna administrators represent something out of the mainstream relative to the views of most college administrators.  Although it is unlikely that such views will be greeted by shouts of "Je Suis Charlie!" (and putting to one side the merits of such views), there can be no doubt that they constitute a contribution to the plurality of views that the First Amendment was designed to foster and protect.  (Holmes' "marketplace of ideas" includes the souk).

Of greater importance is the pluralism in higher education that Zaytuna College itself represents.  Zaytuna expressly identifies itself as a "Muslim liberal arts college" and forthrightly states that its "aim and ambition is to fully participate in a renewal of the teachings embedded in the Islamic religious tradition so that students may grasp their relevance to the present world" (see here).  Zaytuna's mission is "to educate and prepare morally committed, professional, intellectual, and spiritual leaders who are grounded in the Islamic scholarly tradition and conversant with the cultural currents and critical ideas shaping modern society" (Id.).

One might ask what sort of "moral commitment" Zaytuna is seeking in its students?  Here, the College makes clear that "[s]tudents, faculty, staff and visitors are strictly forbidden" from using or promoting the use of tobacco, alcohol and "illegal or controlled drugs or intoxicants" (here p. 49).  Violation of this policy may be grounds for expulsion.  Men and women must dress modestly and in a way "consistent with the dignity adherent to representing a Muslim institution of higher education" (Id. at 48).  "Clothing is inappropriate when it is sleeveless, revealing, or form fitting" and women's skirts and trousers "must be full length" (Id.).  Moreover, "Muslim students should not visit bars, discos, casinos, or other places where actions prohibited in Islam (e.g. drinking alcohol) are the primary activity" (Id. at 49).

With respect to housing, all student housing is single-sex and "students of opposite gender are not permitted to visit each other in student housing" (Id. at 66).  Violation of this policy may be grounds for expulsion.  Beyond this, in order to foster "spiritual growth" and "moral formation" consistent with "Islamic norms," when outside of class "students should study and socialize with members of their own gender" (Id. at 49).

Most significantly, Zaytuna's student catalogue provides that "[d]ating, sexual activity, or romantic relationships among unmarried Muslim students are not allowed either on campus or off campus" (Id.).  Violations of this policy "are deemed serious and will result in disciplinary action, which may include expulsion" (Id.).  The catalogue expressly provides that "[s]tudents of other faiths are also expected to abide by the Honor Code, although they are not required to attend extracurricular religious services and prayers and are free to practice their own faith or philosophy" (Id. at 37).  The Honor Code does not specifically prohibit "dating" or "sexual activity" but these prohibitions, which  do expressly apply to Muslim students, could be applied to non-Muslims under the Honor Code's general principles of "Propriety and Modesty" and "Sobriety and Restraint," and as the Dean of Student Life may provide (Id.).  The catalogue does not specifically mention homosexuality, and I suppose it is possible to interpret Zaytuna's catalogue as not prohibiting "sexual activity" between two students of the same sex who are married under state law, but I somehow doubt that administrators at Zaytuna would subscribe to such a reading.

In previous posts on MOJ Rick Garnett has commented on the current threat to Gordon College's accreditation, and by implication, the threat to institutional pluralism and the religious liberty of other religiously affiliated colleges and universities foreshadowed by this incident (see here, here, and here). 

Gordon is a Christian college that expects its students, faculty and staff to abide by Scriptural standards of conduct and refrain from "blasphemy, profanity, dishonesty, theft, drunkenness, sexual relations outside marriage, and homosexual practice."   Gordon makes clear that these actions "will not be tolerated in the lives of Gordon community members, either on or off campus" (see here).  

Gordon's accrediting body, the New England Association of Schools and Colleges' Commission on Institutions of Higher Education initiated a process to determine "whether Gordon College's traditional inclusion of 'homosexual practice' as a forbidden activity . . . [is] contrary to the Commission's Standards for Accreditation," a process that now requires a the College to submit a report in September 2015 (see here).

Why the difference?  Why is the Islamic college granted accreditation and the Christian college threatened with revocation of its accreditation?  It may be a difference in standards between the NEASC and the WASC.   There doesn't appear to be the equivalent of NEASC's non-discrimination norm in Standard 11.5 (here) in the WASC  standards (here) although WASC's diversity policy (here) would seem to allow for the application similar regulatory pressure.  Or it may be a difference in the relative zeal of the enforcers.

Or the difference may due to a desire on the part of accrediting bodies to appear to be open and welcoming to those who are deemed appropriately "diverse" -- a category that does not include traditional Christianity.  Is it due to a fear of Islam or of appearing Islamaphobic and of reprisals that would ensue following a denial of accreditation?  Whereas religious identity can be discounted and treated as an empty remnant where Christianity is involved?

If this is not the case -- if the decision to grant accreditation to a college like Zaytuna is in fact principled, based on a genuine respect for diversity and institutional autonomy in higher education as it relates to religious identity -- then surely a similar decision can encompass a Christian college like Gordon.

Presently, there is no threat to Catholic colleges and universities that express their identity in similar policies regarding the behavior of students, faculty and staff (Catholic elementary and secondary schools are, of course, another matter, see here).  This may be due to the fact only a handful of Catholic colleges and universities maintain standards regarding student sexual conduct beyond sexual activity that is non-consensual (compare the standards at Notre Dame and Franciscan-Steubenville with those at Marquette and Loyola-Chicago).  But if the accrediting bodies are allowed to bludgeon small Christian colleges like Gordon in the name of an intolerant tolerance, does anyone really believe that that will be the end of it?






March 12, 2015 | Permalink

Religious Freedom "against" Civil Rights

This piece, by Profs. Sarah Barringer Gordon and Nomi Stolzenberg, presents what I think is an inaccurate account of the current efforts to secure religious exemptions and accommodations in various states.  Now, authors rarely get to pick the titles of their pieces (in my experience, anyway), and so I don't think Profs. Gordon and Barringer should be blamed for the headline, "State Legislatures Pit Religious Freedom Against Civil Rights."  Still, as I tried to set out, in this forthcoming essay

the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty?



March 12, 2015 in Garnett, Rick | Permalink

Wednesday, March 11, 2015

On Remembering and Forgetting

A worthwhile reflection at the always interesting Hedgehog Review by Wilfred McClay. Here's an interesting bit on the difference between memory and unfiltered, endlessly accreting deposits of historical data:

Memory is the very core of our personal identity, and it is most powerful when it is purposeful, and selective. Above all, it requires that we possess stories and narratives—contexts—that link facts in ways that are both meaningful and true, rather than treat them as a mass of disaggregated data, to be exploited as we, or others, might wish. What makes for intelligent and discerning memory is not the mere capacity for massive retention, but a certain balance and order in the mental economy of remembering and forgetting. In other words, memory takes an active role in thinning out the mental trees so that the forests can be discerned. We need to retain less if we are to remember more. In so doing, we may rediscover the enduring virtues of ink on paper, of scripta that remain in one place, as the vehicle for a new kind of samizdat, one that eschews the digital grid altogether.

March 11, 2015 in DeGirolami, Marc | Permalink

Tuesday, March 10, 2015

"Room for Debate" on religious accommodations, health, and children

I'm one of the contributors to today's "Room for Debate" feature at the New York Times.  The theme is "Parents' Beliefs vs. Their Children's Health" (which, in my view, might be a bit question-begging, but anyway .  . .).  My contribution, "Parents' Beliefs Should Be Honored, Within Reason," is here (and has a title that I did not select).   A bit:

If a regulation – even a sensible one that serves well the public good – imposes a significant burden on someone’s religious practice or conscience, we are willing to consider an accommodation if, all things considered, it would not undermine our ability to promote important government interests and public goals. Religious beliefs and objections do not and should not supply an absolute license to violate general laws, but they do and should deserve special care and consideration by policymakers. . . .

March 10, 2015 in Garnett, Rick | Permalink

Schaerr and Anderson on the upcoming SCOTUS marriage cases

Here is a Heritage Foundation backgrounder, by Ryan Anderson and Gene Schaerr, on the upcoming SCOTUS marriage cases. The paper focuses on the question of the appropriate role of the federal judiciary in directing or concluding the current debate about both what marriage is and what our laws regarding marriage should be. I expect the Court to decide that the Constitution requires states to include same-sex couples within their category of legal marriage but also think that the rationale the Court majority offers could well matter, going forward, for purposes of religious accommodations, etc.  (See this, for more.)  


March 10, 2015 in Garnett, Rick | Permalink

An interesting exchange on Steven Smith's most recent book

It appears that the good folks at the Pepperdine Law Review put together a really interesting conversation about Steven Smith's most recent bookThe Rise and Decline of American Religious Liberty.  (A must-read, in my view.)   Here is his response, "Situating Ourselves in History," to contributions by Nelson Tebbe ("What Is at Stake?"); Andy Koppelman ("Theorists, Get Over Yourselves"), and Paul Horwitz ("More Vitiating Paradoxes").  

I'm with Steve, I admit, in thinking that "Barzunesque" "gloom" might be the appropriate response to the current state of religious-freedom law and conversations, and that Nelson's and Andy's "don't worry, it won't be too bad" assurances don't quite dispel it for me but . . . we'll see.  In any event, this is a very engaging collection of papers.

March 10, 2015 in Garnett, Rick | Permalink

Marshall on political liberty, the Declaration of Independence, and Jefferson's 1801 inaugural address

A recent reading of some of John Marshall's correspondence provides grounds to doubt both the standard narrative of the American Revolution offered in the Declaration of Independence and the counter-narrative offered by Christopher Ferrara in Liberty, the God that Failed: Policing the Sacred and Constructing the Myths of the Secular State, from Locke to Obama

The contents of the Declaration of Independence, including its recitation of a "long train of abuses and usurpations," should be well known.

Here is Ferrara describing his counternarrative:

In the final decades of the 18th century radical coteries in America and France, guided by the thought of Hobbes, Locke, and the philosophes of the "moderate" Enlightenment, and animated by a burning antipathy toward monarchs and institutional religion, employed propaganda, the exploitation of popular grievances, and political theater to incite a small segment of the populace, almost entirely in key urban areas, to revolt against existing authority. (Ferrara, Liberty, the God that Failed at 8)

To the extent that Ferrara's counter-narrative captures some aspects of the American Revolution, it captures more of a Jeffersonian strand than to represent the thought and actions of individuals like George Washington and John Adams. This counter-narrative thus shares a Jefferson-centric way of thinking with the standard narrative rooted in the Declaration of Independence.

Writing to Edward Everett in 1826 to acknowledge his receipt of Everett's oration on the fiftieth anniversary of independence, John Marshall described the Declaration of Independence as more of a public-relations piece than an account of the true reason for the American Revolution, even while insisting that "[t]he war was a war of principle." Here's Marshall:

Allow me to express the peculiar satisfaction I felt at reading your statement of the causes in which our great revolution originated. Our resistance was not made to actual oppression. Americans were not pressed down to the earth by the weight of their chains, nor goaded to resistance by actual suffering. "They were not slaves rising in desperation from beneath the agonies of the lash; but freemen snuffing from afar 'the tainted gale of tyranny.'" This view of the subject is not only more consistent with the fact, but is more honorable to the intelligence of those virtuous patriots and sensible men who dared to lead us into the mighty conflict. The long list of tyrannical acts which is found in our declaration of independence, and which swells the papers of the day, was judiciously inserted as tending to produce unanimity, and was justified by the irritated feelings of the moment; but the time is arrived when the truth may be declared, and it is most honorable to our ancestors to declare it. The war was a war of principle, against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression. (John Marshall to Edward Everett, August 2, 1826)

Twenty-five years prior, a Marshall letter to Charles Cotesworth Pinckney on the day Marshall administered the oath of office to Jefferson reveals the distance in political philosophy between Marshall and Jefferson. Marshall wrote:

To day the new political year commences--The new order of things begins. Mr. Adams I believe left the city at 4 OClock in the morning & Mr. Jefferson will be inaugurated at 12. There are some appearances which surprize me. I wish however more than I hope that the public prosperity & happiness may sustain no diminution under democratic guidance. The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country--if he does not they will soon become his enemies and calumniators.

4 OClock

I have administered the oath to the President. You will before this reaches you see his inauguration speech. It is in the general well judged & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.

(John Marshall to Charles Cotesworth Pinckney, March 4, 1801)


March 10, 2015 in Walsh, Kevin | Permalink


Like many Americans, I’ve been watching the news closely since last fall when the death of Michael Brown drew thousands of people to the streets and to social media to protest the use of excessive force against minorities, and to challenge more broadly what they see as a culture that places no value on their lives. This movement, which organizes around the hashtag BlackLivesMatter, sees itself as “a Call to Action and a response to the ways in which [black] lives have been de-valued.”

Protesters’ grievances were bolstered with last week’s release of a report from the Department of Justice finding that the Ferguson Police Department intentionally discriminated against African Americans. The report contains examples of many shameful practices that are easy to condemn. But in part because the report's findings are so egregious, it also would be easy to write Ferguson off as an aberration—proof that the real problem lies with a renegade law enforcement agency that hasn’t yet adopted modern values about racial justice.

Days after the Justice Department released its report, tragedy struck again with the death of Tony Robinson. Like Michael Brown, Tony was a young, unarmed black man who was shot during what appears to have been an altercation with a police officer. But that’s where the "bad police make for angry citizens" story gets a lot more complicated and uncomfortable.

I know because Tony is from my hometown. It’s not Ferguson.

Madison police aren’t the riot gear type. I know because I have had the privilege of spending time in the field with them, observing them on ride-alongs, at community forums, and in criminal justice working group meetings. They are engaged, thoughtful, and well-trained on the subject of racial inequity. Madison police have been national leaders in engaging with community stakeholders to address disparities in the criminal justice system—disparities that, notably and despite many efforts, remain among the highest in the country.  

Tony’s death and the protests that have followed it are reminders that problems of racial inequality aren’t limited to bad agencies or officers. More importantly, they should remind us to listen more closely to the thousands who are protesting. They don’t just want to blame police for isolated incidents of force—they want change on a much bigger scale. Although the #BlackLivesMatter movement was sparked by police actions, activists’ demands for justice go beyond ending police brutality, and call for an end to mass incarceration and voter disenfranchisement, and access to better education, housing, food, and living wages.

Their cries for justice are ones we need to hear. Evangelium Gaudii discusses the dangers of marginalizing people and the unintended violence it can bring:

[I]n many places we hear a call for greater security. But until exclusion and inequality in society and between peoples are reversed, it will be impossible to eliminate violence. The poor and the poorer peoples are accused of violence, yet without equal opportunities the different forms of aggression and conflict will find a fertile terrain for growth and eventually explode. When a society . . . is willing to leave a part of itself on the fringes, no political programmes or resources spent on law enforcement or surveillance systems can indefinitely guarantee tranquility. This is not the case simply because inequality provokes a violent reaction from those excluded from the system, but because the socioeconomic system is unjust at its root. (59)

There aren’t easy answers for how to fix deeply broken systems or eradicate prejudices or remedy inequities that have existed for generations. But if it’s true, as Pope Francis says, that ending exclusion starts with being capable of “feeling compassion at the outcry of the poor [and] weeping for other people’s pain,” Chief Mike Koval’s example seems instructive. Unlike in Ferguson, where police responded to protests that followed Michael Brown’s death by tear gassing crowds, Chief Koval responded to Tony’s death by immediately meeting and praying with Tony's family, and by publicly apologizing for “the loss of a young African American man, who life was ended far too soon.”

That seems like a promising start.

March 10, 2015 | Permalink

Monday, March 9, 2015

Steven Smith on wisdom and "reason" in the law

Here's another new paper by Prof. Steven Smith, to my mind one of the most perceptive legal scholars around:

This paper, written for a conference at Pepperdine on “Wisdom, Law, and Lawyers,” begins by considering the meaning of wisdom as well as some possible tensions between wisdom and “reason.” The paper then argues that the kind of reason celebrated in the classical common law tradition can be interpreted as an (imperfect) embodiment of the insights associated with wisdom, but that modern legal thought tends to aggravate the tensions between wisdom and reason, and thus to reduce law to foolishness. The tendency is evident in the recent rush of decisions invalidating traditional marriage laws.

March 9, 2015 in Garnett, Rick | Permalink

GVR in Notre Dame's HHS Mandate case

The Supreme Court this morning granted certiorari, vacated the Seventh Circuit's decision denying Notre Dame's RFRA challenge to the HHS mandate, and remanded for reconsideration in light of Burwell v. Hobby Lobby Stores Inc. Given that the Seventh Circuit's decision pre-dated Hobby Lobby, this course of action makes good sense. (The petition and related briefs are linked at SCOTUSBlog.)

March 9, 2015 in Walsh, Kevin | Permalink

What might Martin Luther King Jr. say to Richard Susskind about lawyers?

I've posted a (relatively) new paper on SSRN, Martin Luther King Jr.'s Lessons for Lawyers in a Time of Market Disruption.  The abstract:

This essay, delivered as the 2014 Tabor Lecture at Valparaiso University Law School, argues that our conception of the lawyer’s work lacks a rich and full understanding of the human person. This absence may not only hurt the lawyer’s ability to derive meaning from her work and advance the common good, but also may contribute to a perception that lawyers are becoming expendable in a market of fungible business service providers. The failure is starkly apparent when one considers the anthropological commitments that permeated the work and worldview of Martin Luther King Jr. Though he was not a lawyer, he was an advocate for the interests of others, and he was a Christian who was able to live out his beliefs in ways that were accessible and influential to those who did not share the underlying religious premises. While King’s moral duties were not constrained by the more particular fiduciary duty that lawyers owe to their clients, I believe that lawyers overstate the degree to which their moral agency is so constrained, and in doing so, abdicate moral responsibility for their work. Lawyers who endeavor to practice with the person at the center, as King did, will act as: (1) subjects; (2) healers; (3) prophets; and (4) realists.

March 9, 2015 in Vischer, Rob | Permalink