Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, June 30, 2016

Islamic Constitutionalism

I have argued against anti-Sharia laws in the U.S., but I have steered clear of debates about Sharia as applied in Muslim-majority countries. In light of outrageous examples of how Sharia is interpreted and enforced in some areas of the world today, fears about Sharia are a leading source of anti-Muslim sentiment. To the extent that Muslims favor Sharia, it is taken as evidence of Islam’s incompatibility with the premises of the American political system. But what if today’s Sharia-based governments are themselves misguided interpretations of Muslim history – not just in terms of the law’s content, but in terms of the legal order underlying the law’s application?

Asifa Quraishi-Landes has published her lecture, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible. She traces the “separation of legal authority in pre-modern Muslim lands that has all but disappeared today” between “siyasa, created by the rulers, and fiqh, created by the fiqh scholars.” As Muslim-majority countries emerged from colonial rule, they maintained a centralized, monistic legal order:

This colonialist mutation of legal-political systems in Muslim-majority lands has, sadly and ironically, created theocratic-leaning Muslim governments. But it is not the integration of religion and state that has caused these new Islamic theocracies. Rather, it is the integration of religion with legal monism that has created this phenomenon. . . . [W]ith independence in the twentieth century, many Muslims organized themselves into social and political organizations (often called “Islamism”) to remedy the wound of the colonialist purging of sharia in Muslim lands. But these Islamists operated with a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal and political authority, they instead took the nation-state structure inherited from their European colonizers for granted, and simply concentrated their efforts on making that central state “Islamic.” . . . .

Muslim history shows that theocracy is not the inevitable result of every religious government, and secularism is not the only way to solve religious differences. For religious Muslims, it bases the legitimacy of state action directly on sharia principles. For secularists, it requires state lawmaking to be justified on something other than religious pedigree. It does this by articulating a model of government in which religious laws (fiqh) are only one of a two-part sharia-as-rule-of-law system, the other being state lawmaking based on human determinations of the public good (maslaha). This bifurcated system of law provides a way for a Muslim government to formally recognize fiqh rules without imposing them on those who do not want it.

The whole paper is worth reading.

June 30, 2016 in Vischer, Rob | Permalink

Movsesian, "The Smartphone and the Virgin"

My colleague, Mark Movsesian, has a very interesting essay updating the Henry Adams original. The essay connects in important ways to our Center's Tradition Project at St. John's, the first leg of which will occur this fall. A bit:

Like Adams’s dynamo, too, the Smartphone represents forces essentially destructive of tradition. In the civilization of the Virigin and Smartphone dynamo, Adams wrote, people found it impossible to honor or even to understand the claims of the past. In his essay, Adams recalled visiting the cathedral of Amiens with the American sculptor Augustus Saint-Gaudens. Adams noticed that Saint-Gaudens seemed unmoved by the spiritual power of the place—by the power of the Virgin, who had made the cathedral possible. Gibbon had felt the energy of Gothic cathedrals when he visited them in the eighteenth century, and had condemned it; Ruskin had praised it in the nineteenth. But by the twentieth, people no longer felt the energy at all. Saint-Gaudens admired the dignity of the architecture and the beauty of the sculptures, but perceived no meaning in them: “The art remained, but the energy was lost even upon the artist.”

The Smartphone likewise acts as a solvent on tradition, including religious tradition. Tradition depends on community—more precisely, on a community that sees itself as existing through time, an idea that is captured in the Christian tradition by the communion of saints. Such a community has claims on the individual by virtue of the fact that it has existed before him and will continue to exist after him. The individual is not completely submerged in the community; that would be a kind of totalitarianism. But he cannot create an entirely new world for himself, either. He draws his identity though his participation in a pre-existing, and in significant respects unchanging, order.

The Smartphone draws the user out from that sort of community. True, the Smartphone can promote a certain kind of community, a network of contacts who share interests, ideologies, even religious convictions. But it favors ephemeral interactions with strangers. It’s very easy to add people to your Contacts list—and just as easy to remove them and replace them with others. More important, the Smartphone encourages the user to spend his time in a virtual world he has curated all for himself. Not to mention the relentless, rapid updating of information to which the Smartphone has accustomed us. What claims can tradition have in a culture that values immediacy over everything else, and that has come to expect an update every five minutes?

June 30, 2016 in DeGirolami, Marc | Permalink

Wednesday, June 29, 2016

McFixity (ONE Form of Authoritarianism by Quiet Colonization)

Kevin's welcome reply to my recent paper arguing that Catholics especially, but all other reasonable people of good will as well, should reject McLaw, A Catholic Way to Cook a Hambuger? [You Bet], ignores the point I had hoped to make, preferring instead to make another point, a point no one I aimed to be in serious conversation with would deny.  Yes, of course, human law, and therefore human lawmakers, must make choices not dictated by higher law; it's called determinatio of higher law by human law, as we all know.  Two versus three or thirteen senators -- not a matter of natural  (let alone divine positive) law!  Even so, I would contend that my argument against textualism should have purchase with those who do not share my higher law starting point.

My argument against textualism addresses something altogether different from the need for human lawmakers to make determinatio.  My argument goes to the fact that textualism's original (and personal) sin is designedly and systematically to discard the possibility of law *exactly* by substituting *probability* for *actual meaning*, that is,  by substituting schedules of probable meanings  for the (perhaps elusive) meanings promulgated by the (admitted) lawmaker.  I readily grant, of course, that sometimes schedules of probable meanings are the best available *surrogate* for the lawmaker's actual meaning, but textualism, by its own boast, doesn't bother to stop and genuflect before the lawmaker as it processes by in favor of the expedient that is probability.  

To repeat, the arbitrariness inherent in textualism that I identified in my argument has nothing to do with whether the number of senators is two rather than three, but with, rather, whether judges or legislators can licitly -- that is, legally --  decide (or collude) to make the legal meaning of "two," or "three," "stationary source," or "the judicial Power"  be a function of recorded (or speculative?) probabilities.  The compressed argument against textualism in my present paper presupposed (with benefit of citations)  earlier papers of mine, beginning with Brennan, "Realizing the Rule of Law in the Human Subject," 43 Boston College Law Review 227 (2002). See also Brennan on "Avoiding the Authoritarianism of 'Textualism'" 83 Notre Dame Law Review 761 (2008)

My position, in sum, is that human lawmaking must be isomorphic with the method of human intelligence (because human intelligence in good working order is methodical, not episodic), or else divinely inspired; otherwise it's just better or worse authoritarianism; and, furthermore, that law is what the lawmaker means the law to be (assuming it is for the common good, etc.), not what interpreters interpolate via probabilities about meanings, except to the extent that such interpolations are, contingently, the very best the interpreter can  deliver in aid of making what the lawmaker promulgated effective.  Textualism is a remote second best, if that, but certainly not the higher road.

June 29, 2016 in Brennan, Patrick | Permalink

What is the anthropological vision of work in a world in which work is unnecessary?

I have always suspected that the movie "Wall-E" was a more accurate glimpse of the future than I care to admit -- how do we get our minds around a world in which technology has made systemic underemployment a permanent and growing reality?  An experiment in Oakland is hoping to begin providing some answers from a public policy standpoint.  For MoJ purposes, how does and should the Church engage this (apparent) social trajectory?  The Church has taught the "value of work not only because it is always something that belongs to the person but also because of its nature as something necessary." (Compendium of the Social Doctrine of the Church para. 287)  But how do we honor its necessity to human identity and meaning when it is no longer necessary to the economic functioning of society?  Our political leaders are unlikely to provide much guidance in the near term -- bringing jobs back to the U.S. by negotiating "great deals" -- is not a long-term answer.  In addition to the other grounds on which the Church has resisted certain technological innovations, should we also resist innovation that defies the commitment to work as a necessary expression of the human person's dignity?  I think the answer to that is no (or we should have been protesting long before now), but here's the unavoidable question that follows: what is the role of work in an authentic anthropology of the human person when work is no longer economically necessary for a large portion of the population?  If these questions have already been explored through the lens of Catholic intellectual tradition, I'd welcome pointers on where to find those conversations.

June 29, 2016 in Vischer, Rob | Permalink

What is the contribution of human positive law, fixed as posited, to the common good of a political community?

Patrick's #2 post on his Catholic judging, anti-McLaw paper invites attention to his actual paper itself, beyond the abstract. 

Until reading the paper, I had not paid sufficient attention to how it proceeds by weaving together an array of insights from a decade of Scarpa Conferences at Villanova Law. Although mention of this enterprise is at the center of the abstract, it is not until I read the paper that I appreciated how it is also at the center of this particular writing project.

The paper has seven parts, aptly titled Parts I through VI, followed by Part VII, Conclusion. As its title indicates, the paper is both about judging and about law. The two are related, of course, but they are also distinct.

For now, I'd like to focus on a single claim about an evil of textualism made at the end of Part VI, right before the beginning of the end of the paper. To understand this claim in context, though, it is useful to consider the three last paragraphs of Part VI together. Patrick writes:

I do not seek a perfect constitution. It would be a fool’s errand, because among us humans the good always is under construction (or destruction). I seek instead a constitution that optimizes legal and thus cultural conditions for constructing the good. Any constitution worthy of its supporters/subjects should assist those it rules by assisting them to perfect both themselves and the common good. (A point more or less clear already with Aristotle, but lost on modernity). To grasp this is to call for a constitution interpreted according to the common law method, with due modification, and this exactly because that method is isomorphic with the method of human intelligence itself, in that it is methodical and therefore potentially progressive and cumulative. Methodism with a small-c must be recovered and sustained if we are to escape McLaw.

Justice Scalia contended that our Constitution once was, and should again be, “rock solid.” Such would be McLaw: rock solid. Dynamic human intelligence, by contrast, is a rock on which to build exactly because it allows knowledge, both theoretical and practical, to “make [its] slow, if not bloody entrance.”

There are no cosmic guarantees that knowledge will make an entrance (we remain at liberty to elect nescience and evil), and meanwhile McWorld through its agent McLaw does violence to human potential, and specifically to our potency for social obedience to divine law, by attempting to stop history by the currently enacted rules (which fallible humans enacted fallibly). Textualism is an antidote that reduplicates but also radicates the evil: arbitrary fixity. One could do worse than the common law judge ridiculed by Scalia as “Mr. Fix-it.” For example, Judge Ronald McDonald, Mayor McCheese, the Hamburglar, and the rest of McWorld at play.

The "evil" here is "arbitrary fixity." Missing from this assessment is an acknowledgment of how some human positive law, fixed as posited, contributes to the common good of a political community. We have, for example, two houses of Congress, not one or three. We have one President, not two consuls. We have judges with life tenure, not fixed terms. Citizens of one state traveling into another are entitled to the privileges and immunities of citizens of that state, not to be treated as complete foreigners. The Constitution is to be amended in some ways, apparently to the exclusion of others. The Constitution is supreme law, not to be treated as foreign law by state judges. And we could add to this list, generated thus far by picking one (arbitrarily fixed?) feature from each of the first six Articles of the Constitution.

There is a sense in which we can describe these as "arbitrary" fixities. We reasonably could have chosen otherwise. But we needed to choose. And we continue to benefit as a political community by legal technology that treats those choices as fixed in place. Reason did not fully specify the choices to be made. But reason required that choices be made. And once made, the result of those choices need to be fixed in place in order to achieve the full benefits of the kind of constitutive choices made and promulgated through the constitutional text.

All of this is part of the straightforward natural law case for a particular kind of human positive law. It appeals is both Catholic and catholic.

I have not said anything yet in this conversation about judging. But I can at least observe that how to judge in accordance with the Constitution as law depends on what kind of law the Constitution is. This is one of the main points of the recent paper, Enduring Originalism, that Jeff Pojanowski and I have written. (Currently at 99 downloads ... free paper about the classical natural law foundations of positive-law originalism for the 100th downloader!)

As in this post, so in that paper, we do not say much about the activity of constitutional adjudication. But as we think through what we can and should say, we will have to think carefully about Patrick's proposed Methodism.

June 29, 2016 in Walsh, Kevin | Permalink

Tuesday, June 28, 2016

Walsh and Bachiochi on the abortion decision

Here are our own Kevin Walsh and Erika Bachiochi on yesterday's deeply disappointing decision in Hellerstedt.  Must-reading (thanks to SCOTUSBlog).  

I've read commentary by some on the pro-life side who contend that the decision represents only a minor set-back.  Charlie Camosy, for example, says it's not the "decisive setback . . . it seems to be."  I hope he's right, but I fear he's too optimistic.  It's not simply that Justice Breyer and his colleagues decided that the regulations in question didn't do enough to protect women's health to justify the burden they thought the regulations imposed on the abortion right.  More troubling is what seems to me the fact that the so-called "undue burden" standard has been racheted up (just as, in my view, "strict scrutiny" was racheted down in the college-admissions case last week).  And, even though Justice Kennedy had said for a majority in the partial-birth-abortion case, a decade ago, that the state has an interest in protecting fetal life and respecting the dignity of the unborn child throughout pregnancy, he joined Justice Breyer's opinion which I predict will be read by many as holding that, before viability, the state's only legitimate regulatory interest is protecting the health of women obtaining abortions.  We'll see.

June 28, 2016 in Garnett, Rick | Permalink

"This case is an ominous sign"

Here is Justice Alito's opinion, dissenting from the Court's denial of cert in the Storman's case.   It's a sobering read, especially for those who are tempted to think that it's "culture warrioring" to be worried about, and to attempt to resist, the contemporary challenges and threats to religious freedom.

June 28, 2016 in Garnett, Rick | Permalink

Thursday, June 23, 2016


Kevin's characteristically good-natured response to the abstract of my paper, "A Catholic Way to Cook a Hamburger? The Catholic Case Against McLaw," not yet to the paper itself, in which I argue that there is a Catholic way to do law, evoked memories of a wonderful trip I took long, long ago.  

The trip was memorable for many reasons, but the relevant one concerns toilets. A good friend and I took an overnight train from Budapest (where he was living) to Brasov, Romania, in  Transylvania, for several days of backpacking and camping.  The train ride, on that hot summer night, was long, especially so because the air-conditioning wasn't working in our car on the train and the windows in our cabin were stuck shut.  We were traveling "First Class," but in immediately post-Communist countries and the decimated infrastructure bad government had produced.  More to the point, the toilets on the train were not working.  I don't know why, but they weren't.  Naturally, this made things dicy for all concerned, and there were many concerned on that long train on that long trip on that long night.  I'll never forget it.  By the time we reached Brasov soon after dawn, my friend and I were each desperate to use the restroom.  Our first hope, to use the facilities at the Brasov train depot, was dashed by our not having the Romanian coins that would allow entry.  The adjacent fields were a possibility, we feared, but we started the walk from the depot to downtown Brasov hoping that there would be a more dignified alternative.  Shops and the like were not yet open.  Not ten minutes later, we saw a billboard for a McDonald's that was advertised to lie a kilometer or so ahead, at the heart of historic Brasov.  We were elated at the prospect of relief that would not occur in the wild.  Sure enough, McDonald's was open earlier than every other commercial establishment, the bathroom facilities at that McDonald's were *remarkably* similar to those of every other McDonald's I've visited.  We were grateful, indeed, not to be disappointed by what McDonald's had promised and then, in fact, allowed.  My friend said at the time, and I recall it distinctly, that this was part of the genius of McDonald's, its uniformity and, therefore, reliability.  

Kevin's desire for uniformity in the workings and products of federal courts, even, as I see it, at the price to be paid, inevitably, by doing things in a way that contradicts the way human intelligence is intransigently structured to deliver, if it is to deliver, progressive and cumulative instantiations of the good, doesn't cause me to doubt the good that the reliably working restroom at the McDonald's in Brasov delivered in the relevant respect.  On the other hand, (1) the McDonald's in Brasov, just as all others, did not serve food in the focal sense of the term "food"; (2) that McDonald's was a blight on the organic integration of the city; and (3) doing actual justice in law is not at all like the successful flushing of a toilet, even in a federal court.     

June 23, 2016 in Brennan, Patrick | Permalink

The California Abortion-Mandate Case

California (by order of an administrative agency, not the legislature) has required all insurance companies in the state to include abortion in all health-insurance plans. In particular, it ordered seven commercial insurers (Blue Cross of CA, etc.) to add abortion coverage to their policies that did not already have it. The mandate covers what everyone agrees are abortions; the dispute over whether drugs like Ella or Plan B cause abortions of new embryos is irrelevant here.

There are questions whether the order violated the state administrative procedure act (the agency did not go through notice and comment). But on the substantive questions whether this violates conscience protections, two things happened this week: (1) The US Department of Health and Human Services (HHS) rejected a complaint that that the California order violates the federal Hyde-Weldon Amendment, which prohibits any recipient of federal funds (including a state) from discriminating against a "health care entity," including a "health insurance plan," on the ground that it does not cover abortion. (2) In a federal lawsuit against the state, the district court denied the state's motion to dismiss claims brought by religious organizations alleging that the mandate violates their state and federal constitutional rights of religious freedom. The denial of the motion, of course, simply means that the challenge survives on the pleadings and enters the discovery phase.

Here are some initial thoughts on the case. The California mandate could have a serious effect on the conscience of those opposed to abortion. But there are some complexities in the case that require exploring.

It appears that California has allowed at least one exemption for a plan offered to religious employers. More about that issue in a minute. But first, the main ground for HHS's decision to reject the Hyde-Weldon complaint--a ground that seems incorrect to me.

A. "Plan" versus "Employer"?

In its letter rejecting the Hyde-Weldon complaint and closing its investigation, HHS  says that the "health insurance plan" protected by Hyde-Weldon includes only the insurer who issues the plan, not the employer who maintains it and pays for it. Because the insurers in California did not object to adding abortion coverage, HHS says, Hyde-Weldon is not violated. That reading makes Hyde-Weldon silly and keeps it from accomplishing its goal of protecting conscience on abortion. HHS's position creates a simple end-around by which California and other states can impose on the conscience of thousands of employers simply by ordering that no abortion-excluding plans be available. It is more natural, and more consistent with the Amendment's purpose, to read "health insurance plan" to cover the employer's plan. (For similar reasons, objecting employers should have legal standing to challenge the California mandate; it clearly causes them concrete harm by making plans without abortion coverage unavailable.)
(HHS and the state say that the employer can avoid the imposition on conscience by self-insuring: but that is difficult and complex for many small employers. Just how difficult will probably be an issue emerging in discovery in the litigation. But although self-funding is increasing among small businesses, it still involves taking on risks that many such employers (including, presumably, smaller religious organizations) cannot handle--and reportedly several states, including California, are considering restricting small businesses' capacity to self-insure.)
But even on the premise that Hyde-Weldon only applies to insurers, HHS's reasoning seems wrong. The HHS letter says that Hyde-Weldon protects only those entities that object to abortion coverage, and these insurers didn't object to adding it. But Hyde-Weldon doesn't require a conscientious objection in order to apply: by its terms, it prohibits a federally-funded state from "subject[ing] any individual or institutional health care entity to discrimination on the basis that the health care entity does not provide for, pay for, provide coverage of, or refer for abortions" (emphases added). The trigger for protection is simply that the plan doesn't cover abortion, not that the insurer objects to covering it. Hyde-Weldon seems literally to prohibit California's order to insurers. Following the plain meaning would also protect the moral objections of employers and employees.
B. A Religious-Employer Exemption that Apparently Has Been Granted


The HHS letter (p. 2) says that Blue Cross of CA received authorization from the state to offer a plan to religious employers that excluded elective abortion. But that does not dispose of the case, for at least three reasons:

First, it sounds like the approval may have been a one-off--its availability not made clear to anyone else. 
Second, according to the federal court complaint (paras. 66-67), California authorized a religious-employer plan,  but it covered abortions for rape and incest as well as the mother's life. The plaintiff church, Skyline Wesleyan, objects to paying for abortions in those first two categories.
     The district court opinion (at p. 8) notes this partial exemption, saying: "Plaintiff alleges that Defendants have granted partial exemptions to the coverage requirement to religious employers that request such exemptions but that Defendants have been unwilling to grant any employer the complete exemption that Plaintiff seeks." And the court adds that "In light of Defendants’ system for granting exemptions, the parties may wish to investigate whether they can come to an arrangement that will meet the needs of all stakeholders." Id. n.2 (citing Zubik v. Burwell). Given these facts, California arguably has a practice of "individualized exemptions" that triggers strict Free Exercise Clause scrutiny even under Employment Division v. Smith. (The complaint also mentions some categorical secular exemptions in the underlying state statute, which likewise might be enough to trigger strict scrutiny.) The existence of these exemptions  may also undercut an asserted compelling interest in mandating that every plan cover abortion. (The compelling interest test cannot apply by virtue of a state RFRA, since California does not have one; and the level of scrutiny under California's free exercise clause is uncertain.)


Third and finally, abortion is a serious enough matter for the objector's conscience--the taking of a distinct human life--that even for-profit businesses (at the very least, some) ought to be protected from being forced to cover it. As the Supreme Court said in Burwell v. Hobby Lobby, if the government mandated employers to cover unquestioned abortions (and here, again, there is no dispute they are abortions), "[t]he owners of many closely held corporations could not in good conscience provide such coverage, and thus [the government] would effectively exclude these people from full participation in the economic life of the Nation." (Again, the self-insurance option can be difficult for smaller businesses.)

June 23, 2016 in Berg, Thomas, Current Affairs | Permalink

Wednesday, June 22, 2016

Trump and the Idolatry of Safety

Yesterday Christian leaders gathered in New York at Donald Trump's behest. Aside from bizarre elements (e.g., Trump wondering whether he could bring us back to the day when attending Sunday School was "automatic"), the attraction of many Christian leaders and laity to Trump based on their understandable longing for safety in a dangerous world, particularly when the price of that safety is the abandonment of certain Christian values and principles, stands as a stark reminder that golden calves come in many forms. 

Shortly after the Orlando massacre, I noted that Trump retweeted someone's undoubtedly heartfelt message imploring the candidate to "please make us safe."  This simple retweet, to me, captures one (of many) disturbing element(s) of Trump's candidacy.  He is inhabiting the biblical role of Aaron, playing on the people's fears and anxieties and offering a golden calf for their worship -- in this case, the idol is our own safety.

Though the dangers take new forms, we have lived in a dangerous world since the Fall.  Political candidates can and should offer new ideas to address those dangers, but unrealistic promises that safety is achievable should be met with skepticism.  A candidate's promise of safety rises to the idolatrous level, in my view, when the prescribed means of guaranteeing safety require us to reject the God-inspired lens through which we are called to view the world.  Trump's statements and policy proposals regarding Muslims and Mexican immigrants, for example, are in significant tension with the Gospel's demand for solidarity and recognition of human dignity. 

I do not mean to suggest that debates about stricter immigration policies or the consideration of religion's role in terrorism are categorically beyond the pale.  The more obvious problem comes from stigmatizing groups -- as Trump frequently does -- instead of engaging ideas -- as Trump appears to avoid whenever possible.

On this front, John Inazu's important book, "Confident Pluralism," is instructive, especially chapter six.  Building on insights from Erving Goffman and Lee Bollinger, John explains why confident pluralism "rejects stigmatizing others through our speech," but does require us "to distinguish between stigmatizing and causing offense."

Trump suggests that safety is achievable if we reject "political correctness" and demonstrate the courage to do what needs to be done to root out the dangerous "others" in our midst.  It is an illusory promise of safety through a quite real imposition of stigma, and we should reject both the means and the ends.  God calls us to faithfulness, not to safety.

June 22, 2016 in Vischer, Rob | Permalink

A response to Michael P. and "Religious Liberty in the Culture Wars"

Michael Perry linked here to John Gehring's recent post at Commonweal, "False Choices & Religious Liberty."   Michael says the piece is "terrific" and "balanced."  I'm afraid I cannot agree, notwithstanding my appreciation for Mr. Gehring's past work with the USCCB.

Now, I tend to prefer center-right policies on most issues, and Mr. Gehring works for a progressive public-policy agency, and so it's not remarkable that he and I evaluate differently some of the current policy debates in which the right to religious-freedom is implicated.  (Certainly, we both agree that there is a place for -- as his agency's title puts it -- "Faith in Public Life.")  Still, my disappointment with the piece is not, I think, a result of this difference.  In my view, the piece to which Michael linked does not accurately describe -- indeed, it tendentiously describes -- those debates.  As I see it, Mr. Gehring labels certain very real choices as "false" as a kind of short-hand way of contending that one choice rather than another should be made.

For starters, after saying that the debate over religious liberty is "unhinged" -- though his criticism is clearly directed only at the USCCB's "side" of that debate -- he writes:

At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

It's hard to see this sentence as an invitation to dialogue, balance, or re-hinging.  This sentence simply repeats activists' talking points -- it is, in fact, not the case that, generally speaking (there are always exceptions), religious liberty has been "perver[ted]" into a "bludgeon" for any such purpose.  It is, instead, being employed, defensively, against activists and powerful interests who are invoking "women's health, workers' rights, and LGBT equality" in order to marginalize, and often demonize, traditional religious believers and to interfere with the religious missions of religious institutions.  It is all well and good to bemoan the "culture wars" -- I regret them, too, and wish they would cease -- but, despite what some commentators say, the fact is that these "wars" are being waged more by Apple and Planned Parenthood than by the USCCB.

Next, Mr. Gehring's piece's claim that the "choice" between a meaningful right to religious freedom and equality, health care, etc., relies heavily on an implicit assumption that religious institutions -- like Catholic schools and hospitals -- are simply wrong in their religious commitments.  So, he lists among the perversions of religious freedom those schools that have fired teachers who have entered into legal same-sex marriages, but doesn't seem to acknowledge these schools' argument that, as Catholic schools, they have as part of their mission forming students in the Church's moral anthropology and understanding of marriage and that -- no doubt with great regret -- they don't have many options in these situations.

Then, Mr. Gehring pivots and observes that "progressives also need a better approach that fosters dialogue and common ground instead of division."  And, indeed they do.  I've been a part of a number of legislative and other efforts -- in partnership with scholars who identify as progressives -- to find such common ground, but I'm afraid it's been very challenging.  The reality is that even reasonable accommodations, let alone genuine appreciation for what my friend John Inazu calls "confident pluralism," doesn't hold much appeal for progressive activists and politicians at the moment.  For many, it's easier, it seems, to call people "bigots" or to insist that religious-freedom must yield to the demands of the current understanding of the antidiscrimination norm.  (More on this point, from me, in this paper.)

Unfortunately, it is quickly back to unhelpful and incomplete accounts of the issues at stake.  Particularly unfortunate is his embrace of the partisan and inaccurate descriptions of the various state-level RFRA proposals that have become so controversial.  He repeats the false claim that these laws would allow public-accommodations discrimination against gays and lesbians and so are like odious Jim Crow laws.  (For a more accurate account of the Indiana proposal, in particular, see this . . . by me.)   He concludes with this:

It’s wrong to pit religion against equality for all Americans. False choices box us into suffocating corners. Saving religious liberty from the quicksand of reckless rhetoric and political posturing won’t be easy. Progressives and conservatives squaring off in public debates have a choice. We can continue to exchange dueling press releases and self-righteous tweets—or sit down, humble ourselves, and search for common ground. “Come now, let us reason together, says the Lord,” the prophet Isaiah tells us. The comfortable and convenient path is well worn. Taking a harder road is worth the struggle if it leads to principled conversations and respect for the complexity of conscience.

There are some good ideas here but, again:  The fact is that religious-freedom claimants are seeking accommodation, not a complete win.  Respecting the "complexity of conscience" doesn't mean fining bakers and photographers, or pulling religious colleges' accreditation, or denying federal funds and contracts to religious social-service agencies that adhere to orthodox Christian teachings on sexuality and family, or requiring Catholic hospitals to provide abortions, or mandating that religious universities change their student-life and housing policies to match the current Administration's views on gender.  Lord knows I'm sick of smug, snarky, and self-righteous tweets.  But, to "humble" oneself means to not dismiss efforts to resist religious-freedom-burdening mandates and penalties as "perversions" and "bludgeons."

For my own part, I'm entirely open to working and talking with Mr. Gehring, or anyone else, about the "search for common ground."  But the search won't get far if one characterizes one's interlocutors' positions and aims in the language of "dueling press releases."

June 22, 2016 in Garnett, Rick | Permalink

Tuesday, June 21, 2016

Religious Liberty in the Culture Wars

Commonweal has just published a terrific article titled False Choices & Religious Liberty:  Is There a Better Way Forward?  Terrific in part because balanced.  It begins with this:

The U.S. Conference of Catholic Bishops launches its annual Fortnight for Freedom campaign this week. A recent video from the conference illustrates how unhinged the debates over religious liberty have become. Pairing images of Islamic State militants ready to behead Christian prisoners with ominous warnings of the Obama administration’s harassment of religious ministries epitomizes how the hierarchy risks making itself its own worst enemy on the issue. (For more, see the recent Commonweal editorial, “Lights, Camera, Contraception?”) Even many faithful Catholics who should be most sympathetic to the church’s arguments have grown weary of the divisiveness and worry that the all-consuming quality of the religious-liberty battle now seems to define American Catholicism. At the same time, the perversion of religious liberty into a bludgeon against women’s health, workers’ rights, and LGBT equality has caused some progressives to forget that religious freedom is a fundamentally liberal value. Finding a better approach that rescues religious liberty from the culture wars is challenging, essential work.

Read the rest, here.

June 21, 2016 in Perry, Michael | Permalink

Is there a Catholic way of making hamburgers ... at your local McDonald's?

I look forward with some trepidation but with greater hope to reading Patrick's Catholic case against McLaw. Truth can be uncomfortable, but I must seek it out, like it or not. And because I happen to agree with much of what Justice Scalia has said about the law and judging, I am sure to be challenged by Patrick's paper. 

One thought prompted by reading the abstract: Is there some version of Justice Scalia's comparison of hamburger making and judging that might be true when we focus on who is making which hamburgers and why? Suppose federal courts were like your local McDonald's. Would there be a Catholic way of judging analogous to a Catholic way of cooking hamburgers? 

Hopefully this comes as a surprise to nobody, but the hamburger maker at your local McDonald's doesn't exist. That's because no hamburgers are made there. The chef cooks/heats up frozen hamburger patties processed at a hamburger plant. Is there a Catholic way of doing that? I doubt it, at least in any way that matters to how the hamburger tastes. 

And if not, then maybe there is no Catholic way of deciding questions of federal law, at least insofar as judges themselves don't make lawburgers, but just prepare and serve up what was made at the national law plant.

I realize this is an implausible way, for many, of understanding the relationship between the judicial power and federal law. But I do know of at least one Supreme Court Justice who avowed a claim of this sort. Here's Chief Justice John Marshall in Osborn v. Bank of the United States:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law. 

To push our comparison (perhaps past the breaking point). Suppose the judge is the hamburger "maker" at your local McDonald's. His skill is never to be exercised for the purpose of making the best hamburger as he conceives it, but for the purpose of making the best hamburger as the McDonald's corporation (or whatever the controlling entity that decides the ideal hamburger) conceives it. Something may be lost by the subordination of his idea of the best hamburger to the corporation's. But if he's doing his job and the hamburger plant has done its job, then that hamburger should taste the same in San Francisco as in South Bend (assuming that's one of the qualities of the McDonald's hamburger dictated by corporate).

It might not be the best burger in town, but you know what you are getting. And that's not so unattractive, after all, when it comes to federal courts, at least if you subscribe to the idea "The Federal Courts as a Franchise."

June 21, 2016 | Permalink

Monday, June 20, 2016


Here , below, is the abstract of a paper  I recently posted on SSRN: "A Catholic Way to Cook a Hamburger: The Catholic Case Against McLaw."   It owes much to my fellow contributors to MOJ over these many years, but none of them is responsible for its content, of course.  It also owes a great deal to the late Justice Antonin Scalia, whom I would like to thank across the chasm for all that he did to make us think harder about law, especially by inviting respectful disagreement.  


Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.

This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, celebrates, in turn, the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture, at Villanova. Its carefully circumscribed account of and argument for a Catholic way to do law is developed through conversation with some of the dozens of jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference; they include Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.

To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify." But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."


June 20, 2016 in Brennan, Patrick | Permalink

Saturday, June 18, 2016

First Anniversary of Laudato Si'

Laudato Si' was published on June 18, 2015.  For a wonderfully informative account of what has followed, in the past year, read this account.  An excerpt:

For those long engaged in environmental issues, the encyclical proved a valuable rallying tool, one that opened doors, spurred mobilization and generated not-seen-before excitement within Catholic circles.

"I cannot wish for anything better," said Cardinal Peter Turkson, president of the Pontifical Council for Peace and Justice, which oversaw the first draft of the encyclical. Since its publication last June 18, Turkson has served as its chief promoter, traveling across the globe to deliver countless talks on Laudato Si'.

"I think it has proven to be really transformative," said Tomás Insua, co-founder of the Global Catholic Climate Movement. "But there's definitely a long way to go to really get this encyclical to really sync in our Catholic identity and really drive transformational change." ...

As far as the long-term impact, Turkson placed Laudato Si' into the larger compendium of social encyclicals, describing them together "like a big river," with new tributaries forming as it flows forward. Like past encyclicals, such as Rerum Novarum, it too will stimulate future teachings and ideas, he said.

"But it is forever going to inspire the church's teaching on ecology and integral ecology."

June 18, 2016 in Perry, Michael | Permalink

Percy on "estrangement" and transcendence

"The Coming Crisis in Psychiatry" (1957):

What has gone wrong?  A clue is perhaps to be found in Fromm's ambiguous treatment of transcendence.  If there is any one feature which all existentialists agree upon as an inveterate trait of human existence, it is transcendence.  . . .  In Friedrich Nietzsche's words, man is he who must transcend himself. . . . [E]ven the atheistic existentialists would be candid enough to admit man's incurable God-directedness[.]

God is absent, said Johann Christian Holderlin; God is dead, said Nietzsche.  This means one of two things.  Either we have outgrown monotheism, and good riddance; or modern man is estranged from being, from his own being, from the being of other creatures in the world, from transcendent being.  he has lost something--what, he does not know; he knows only that he is sick unto death with the loss of it.

June 18, 2016 in Garnett, Rick | Permalink

Friday, June 17, 2016

Percy on "Man as a wayfarer", "A Canticle for Leibowitz", anthropology . . . and Justice Kennedy?

From "Diagnosing the Modern Malaise" (1985):

Christendom began to crumble, perhaps most noticeably under the onslaught of a Christian, Soren Kierkegaard, in the last century.  Again I am not telling you anything new when I suggest that the Christian notion of man as a wayfarer in search of his salvation no longer informs Western culture.  In its place, what most of us seem to be seeking are such familiar goals as maturity, creativity, autonomy, rewarding interpersonal relations, and so forth.

It's all anthropology . . . Or, as Percy says in "Rediscovering 'A Canticle for Leibowitz'" (1971):

[T]he mystery has to do with conflicting anthropologies, that is, views of man, the way man is.  Everyone has an anthropology.  There is no not having one.  If a man says that he does not, all he is saying is that his anthropology is implicit, a set of assumptions which he has not thought to call into question. . . .  One still hears, and no one makes much objection to it, that "man is made in the image of God."  Even more often, one hears such expressions as "the freedom and sacredness of the individual."  This anthropology is familiar enough.  It is in fact the standard intellectual baggage of most of us.  Most of the time it doesn't matter that this anthropology is a mishmash, disjecta membra. . . .

June 17, 2016 in Garnett, Rick | Permalink

Thursday, June 16, 2016

Hand-down days and constitutional law in the cave

There's nothing like a hand-down day at the end of June to amplify a particular kind of anxiety in those who worry, with Justice Alito, about "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation." 

One way of getting at the problem is to think of decision-day "analysis" as constitutional law in the cave. Are we not like the prisoners who "assign prestige and credit to one another, in the sense, that they rewarded speed at recognizing the shadows as they passed, and the ability to remember which ones normally come earlier and later and at the same time as which other ones, and expertise at using this as basis for guessing which ones would arrive next"? (The Republic, 516c-d.)

For those interested in more developed thoughts along these lines, check out Steven Smith's trenchant assessment of our constitutional law, The Constitution in the Cave (available in both a McGeorge Law Review version and a First Things version). 

Okay, it's 9:59, so off to SCOTUSBlog I go. 

June 16, 2016 in Walsh, Kevin | Permalink

Wednesday, June 15, 2016

Will OT 2015 be remembered as The Term of No 5-4s?

In updating some slides for a Rotary Club presentation, I didn't see any 5-4 opinions for the Court this entire Term. For obvious reasons, the Term will end that way as well.

(Note: My source is the Supreme Court's "slip opinions" page. I just went through and scanned quickly for the vote spread in the slip opinions released before Justice Scalia's death on February 13. If I missed anything that should count as a 5-4 opinion for the Court, please let me know. The closest I saw was Campbell-Ewald v. Gomez, which was 6-3 on the judgment, but Justice Thomas concurred only in the judgment. Also, is anyone aware what 5-4 action there has been this term on the "shadow docket"?)

The 4-4 and 5-3 cases are the most obvious candidates for cases that took shape originally as 5-4 cases. But you can't estimate just from the resulting vote split, as it is most likely that the 8-0 decision in Zubik v. Burwell took shape before oral argument as a 5-4 case. We may see other examples of this going forward, as well.

June 15, 2016 in Walsh, Kevin | Permalink

Index of Pope Emeritus Benedict's General Audiences

Among the many delightful people associated with Notre Dame's Center for Ethics and Culture that I got to spend time with in Rome over the past week is Ken Hallenius, Communications Specialist.  Ken has created a very cool index linking to all of Pope Benedict XVI's general audience reflections.  He has organized them by topic, such as "Prayer", "Faith", "Holy Women", "Doctors of the Church". 

Ken also brought to my attention this excellent essay by Amy Wellborn, very critical of the Vatican's framing (but not the act) of the recent elevation of Mary Magdalenes’ July 22 memorial to a feast.   Wellborn discusses the book she wrote about Mary Magdalene a few years ago (now out of print, but perhaps to be made available in digital form soon). 

June 15, 2016 in Schiltz, Elizabeth | Permalink

Percy on Science, Scientism, and the Nature of the Person

From "From Facts to Fiction" (1966):

If the first great discovery of my life was the beauty of the scientific method, surely the second was the discovery of the singular predicament of man in the very world which has been transformed by this science.  An extraordinary paradox became clear:  that the more science progressed, and even as it benefited man, the less it said about what it was like to be a man living in the world. . . .  After twelve years of scientific education, I felt somewhat like the Danish philosopher Soren Kierkegaard when he finished reading Hegel.  Hegel, said Kierkegaard, explained everything under the sun, except one small detail:  what it means to be a man living in the world who must die.

June 15, 2016 in Garnett, Rick | Permalink

Walker Percy on Christianity and Narrative

From "How To Be an American Novelist in Spite of Being Southern and Catholic" (1984):

The Christian ethos sustains the narrative enterprise in ways so familiar to us that they can be overlooked.  It underwrites those very properties of the novel without which there is no novel:  I am speaking of the mystery of human life, its sense of predicament, of something having gone wrong, of life as a wayfaring and a pilgrimage, of the density and linearity of time and the sacramental reality of things.  The intervention of God in history through the Incarnation bestows a weight and value to the individual human narrative which is like money in the bank to the novelist.

June 15, 2016 in Garnett, Rick | Permalink

Tuesday, June 14, 2016

New England Jesuits Oral History Program: Fr. Robert J. Araujo, S.J.

Our dear friend and MOJ colleague, Fr. Araujo, left behind -- among other things! -- a really nice interview, with Fr. Paul Kenney, S.J., which has been preserved thanks to the New England Jesuits Oral History Program.  You can get it here (and you should!).  Among (many) other things, Fr. Araujo reflects in the interview on his participation in the Mirror of Justice project over the years.  Check it out.

June 14, 2016 in Garnett, Rick | Permalink

Reno on "The Loving Intellect"

Rusty Reno wrote, recently:  

What does it mean to be an intellectual? The word comes from the Latin word for understanding, intellego. Lego has dense, multifaceted meanings: to choose, select, collect, and gather. It also means to read. When inter gets added, which means “between,” we get a compound meaning, something like “to read between the lines.” Intellego translates the Greek wordkatanoesis, which can be translated as “knowing across.” If we put these clues together, we come up with a basic working definition of an intellectual. He is someone who can see the differences between things (choosing) and the connections between them (collecting). He attends to reality as it presents itself, but penetrates deeper as well. An intellectual can read not just words and books, but reality and the world. He knows the stories things tell or the ideas they express. In the case of the Christian intellectual, he knows how reality directs us towards the logos, which is the person of Christ.

The goal of the intellectual life, therefore, is to see things as they are, in themselves and together. The fullest kind of knowing knows across as well as about, among as well as in. The same applies to reading, the lectio in the word “intellectual.” We are always reading across words; we read individual words in relation to the others. Discerning an ­argument or message requires synthesis, a “­knowing across.” . . .


June 14, 2016 in Garnett, Rick | Permalink

Berger on "The Good of Religious Pluralism"

Is "pluralism" a given, to be "dealt with" or "managed" -- or, is it a good thing in itself?  The answer depends, I suppose, on what we mean by "pluralism."  With the question in mind, here's an interesting essay by Peter Berger, in First Things, called "The Good of Religious Pluralism."  (The essay summarizes Berger's recent bookThe Many Altars of Modernity.) Here's a bit:

Secularization theory was not completely false; it was a massive exaggeration of what was a correct insight. It is beyond dispute that secular discourse, probably originating in modern science and technology, has transformed human life. (One such transformation: In premodern societies, almost half of all children died before age five; today most children, even in poor countries, live to adulthood.) The distinguished Canadian philosopher Charles Taylor wrote a big book with the title A Secular Age (2007). He gives a rich description of what he calls the "secular frame," a view of the world without religious transcendence. But he exaggerates the degree to which this discourse has pushed religion to the margins. We don't live in a secular age; we live in a pluralist age.

This pluralist age has important implications for religion, but they are different from those of secularity. We can speak of two pluralisms. The first concerns the fact that many religions and worldviews coexist in the same society. This is not unique to the modern era. The second kind of pluralism involves the coexistence of the secular discourse with all of these religious discourses. This pluralism, which is uniquely modern, has tended to accentuate the first kind, the pluralism of religions and worldviews. When I'm sick and my doctor is Jewish or Hindu, our shared secular vocabulary gives us a commonality that makes our religious differences something almost scandalous. How is it that we can agree on medical and other scientific or technical questions, yet not on ultimate matters?

There are some people who avoid the scandal of pluralism because they operate exclusively within a secular or a religious discourse (say, atheist Swedish sociologists, or Russian monks who practice the perpetual Jesus Prayer). However, most people of faith today manage to operate within both discourses. The question is not whether this can be done; we know that millions of people do it. The interesting question is how they do it.

June 14, 2016 in Garnett, Rick | Permalink