Saturday, April 30, 2016
Of course it does. Religious faith -- and religious authority -- are inconvenient and threatening to statist and anti-human dictatorships. This bit probably isn't intended by the PRC to be funny:
China has taken an assertive tone with Tibetan Buddhism, too, emphasizing that Beijing holds authority over the reincarnation of the Dalai Lama. In November, Zhu Weiqun, a top ethnic and religious-affairs leader, wrote that having political control over reincarnation constitutes “an important manifestation of the Chinese central government’s sovereignty over Tibet.”
Mark Zimmerman reports, here, that Richard Doerflinger, "the U.S. bishops’ legislative point man for pro-life issues for nearly four decades," is retiring. "Everything old is new again," he commented recently. Here's a bit:
Doerflinger sees many signs of hope for the pro-life movement, including the personal witness of Pope Francis. “He’s doing something very important, getting back to the core message of God’s love and mercy. It’s in that context all these issues have to be placed,” he said.
The pro-life advocate also is inspired by “the crowds of young people we see every year at the Vigil Mass and March for Life. We have very enthusiastic young Catholics who understand these issues and are ready to take the lead on them.” . . .
I had the privilege of teaching one of Mr. Doerflinger's children at Notre Dame Law School and was able to meet him a time or two. Like the article says, he was, and is, a "pro-life giant." Well done, faithful servant.
Thursday, April 28, 2016
Ed Whelan has six posts at NRO following his original comment on the Fourth Circuit panel decision last week in G.G. v. Gloucester County School Board. Whelan's sixth post here links to the prior five. And, for those interested in more, Judge Niemeyer's dissent, beginning on page 45, is very clear and well worth the read in full.
It's a longstanding piety -- at least since the Land O'Lakes statement -- among many in Catholic higher education specifically that Catholic universities should not be beholden to or bound by "external" authorities -- meaning, usually, ecclesiastical authorities. But, of course Catholic universities are tightly constrained by and seem more than willing to be constrained by a wide range of "external" authorities, including accrediting and licensing bodies, government conditions on funding and contracts, grantmaking bodies, and -- of course -- the NCAA.
As this USA Today story describes, things are moving rapidly toward a confrontation between religious institutions' rules and expectations regarding sexual morality, on the one hand, and the expanding understanding on the part of the NCAA (and corporate sponsors of athletics) of the non-discrimination norm. Here is just a bit:
The Education Department said in 2014 that transgender students are protected by Title IX. Since, dozens of religious schools — mostly smaller and lesser known, and none of the schools mentioned in this story — have asked for waivers that allow them to deny admittance to transgender students. And that has turned into a flashpoint for the NCAA.
Recently more than 80 LGBT organizations wrote a letter to the NCAA urging it to divest membership of religiously affiliated schools that ask for such waivers. “These requests,” the letter said, “are directly in conflict with the NCAA’s longstanding commitment to diversity and inclusion for all people regardless of sexual orientation and gender identity.”
. . .
Schulz, chair of the NCAA board of governors, expressed willingness to take up the issue.
“I really liken it to some of the issues in the deep South for African American student-athletes going back to the 1960s,” he says. “We can look back now and say, ‘I can’t believe these teams weren’t playing each other because they had African-American basketball players.’ We can look back now and say, ‘That is unfathomable.’
“I’m not so sure that we wouldn’t look back in 20 or 30 years and say the same thing about some of our LGBT athletes. … We need to talk about it, but at the same time the NCAA has a powerful bully pulpit. And if we talk about inclusivity, I think it’s important that we take a stand on these social issues.”
In my view (as I've written here and here) it is usually a mistake to think that the non-discrimination norm, appropriately understood, requires governments (or, I am inclined to say, bodies like the NCAA) to punish, regulate, or even discourage religious institutions from adopting policies that reflect and promote their religious mission, even with those policies are not congruent with the rules that control the liberal state itself. The NCAA should allow, say, BYU or Baylor to be themselves. (I do not agree that policies reflecting traditional religious teachings on sexual morality are usefully compared to race discrimination.) But, I am not optimistic either that the NCAA et al. will stay their hand or that religious universities with major sports programs will resist. We'll see. . ..
UPDATE: . . . and we are seeing ("NCAA Will Not Host Final Four in Anti-LGBT States").
Wednesday, April 27, 2016
The five constitutional controversies addressed by Justice Nemo in a paper just posted to SSRN (here) concern matters of interest to many MOJ readers, including capital punishment, same-sex marriage, physician-assisted suicide, and abortion. Here's the abstract:
In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.
That is, Justice Nemo’s five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?
This paper is drawn from my new book, which will be published early next year by Cambridge University Press: A Global Political Morality: Human Rights, Democracy, and Constitutionalism.
As many readers know, the Supreme Court is currently considering Trinity Lutheran Church v. Pauley, a case about discrimination against churches in state funding programs. The Religious Liberty Appellate Clinic at St. Thomas, which I supervise, filed an amicus brief on behalf of several church-related groups and other religious organizations.
The case involves exclusion of a church from a Missouri state program that provides funds to non-profit institutions to help them resurface their playgrounds using rubber from recycled tires. Trinity Lutheran Church, which operates a preschool and day-care center, applied for funds because its current playground surface posed dangers to children who fell while playing. The church would have qualified for a grant, but the state excluded it solely because it was a church. Trinity argues that this discrimination against religion violates the Free Exercise Clause.
Here is a passage from our brief that gives the gist of its argument:
By its exclusion, the state has denied equal treatment with respect to one of government’s core functions: protection of the safety and health of persons within its jurisdiction. In a real sense, such an exclusion treats religious persons as less than equal citizens – as it would if the state were to deny other safety benefits such as police or fire protection. The children who attend petitioner’s preschool and daycare are entitled to the same eligibility for state safety benefits asare children who attend nonreligious institutions.... When a Lutheran child trips or falls on an “unforgiving” surface, her head injury is no less serious than if she attended a nonreligious private school.
Luke Kane, J.D. class of 2018, did excellent drafting work on the brief.
Monday, April 25, 2016
NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented. Get your copy here! My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included. Here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!
Friday, April 22, 2016
In this piece, commenting on (among other things) the awarding of this year's Laetare Medal to Vice-President Biden and Speaker Boehner, my former Notre Dame colleague Cathy Kaveny writes:
What has changed in the past seven years? We now have widespread recognition that the barricades of the culture wars are collapsing upon us. No war—even a culture war—can become an indefinite and customary state of affairs without disastrous consequences. We can only recover by learning how to work together again—despite our deep differences—and learning to see the good in one another.
There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality. It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.
I'm not entirely sure what Cathy means with her statement that "the barricades of the culture wars are collapsing upon us," but if she means that the institutions, actors, and forces I just mentioned are winning -- are overrunning the defensive "barricades" -- then I certainly agree. They are not giving up or seeking a truce or peace, and there's no reason to think that they plan on finding ways to work together across deep differences. Like Cathy, I think, I would very much prefer a politics that involved sincere and civil efforts to find common ground where it exists, to take half-a-loaf over nothing, to welcome incremental improvements and not insist on revolutions or routs, that didn't involve boycott threats and "bigotry" charges, etc. I agree entirely with Cathy that politics is the art of the possible, that those who embrace the Church's social and moral teachings -- in their entirety -- have no choice but to not let the perfect be the enemy of the good, and that more "balance," compromise, and charity are needed in our politics. I agree that it is "counterproductive" to insist on unattainable policy goals (though I think we cannot mute -- and Pope Francis is not telling us to mute -- our truth-telling about the injustice of our abortion regime).
At the same time: it's a mistake to imagine that we can wish or good-will away the ongoing campaign against the Church's witness, work, and freedom. This campaign is, again, a reality. It has very real implications for, and poses non-imaginary threats to, our hospitals, universities, schools, social-welfare agencies, and social-justice activism. It involves, first, conditions on funding, tax-exempt status, accreditation, and licensing, but it will not stop with conditions that we will be able, in theory, to take or leave. By all means, let's work (and pray) for a better politics. Let's be realistic, pragmatic, and -- perhaps -- resigned to certain new realities. Let's also keep our eyes open.
Interesting commentary by University of St. Thomas law prof Charles Reid, here. An excerpt:
One of the most important contributions that Catholic social thought can make to today’s progressive politics is a theory of the state as guarantor of a just and fair economic playing field. Bernie Sanders and others would be well-advised to draw deeply from this tradition.
In doing so, they would find themselves at odds with the last three-plus decades of political discourse, which has been all about de-legitimizing the state. When Ronald Reagan said in 1981 that “government is the problem, not the solution,” he likely did not believe it himself. But his rhetoric was careless. And surely it stands behind much of the reckless talk and dangerous politics emanating from Donald Trump, Ted Cruz, the Tea Party fanatics, and the Ayn Rand libertarian right.
Wednesday, April 20, 2016
Deferring to the U.S. Department of Education's Title IX guidelines and a January 2015 statement from the DOE's Office of Civil Rights, a Fourth Circuit panel ruled in favor of a transgender student up and against the student's school yesterday, holding that the school violated Title IX when it restricted students' bathroom use to their biological sex (rather than chosen gender identity). Ed Whelan writes at Bench Memos: "The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX 'requires schools to provide transgender students access to restrooms congruent with their gender identity.'” Whelan posts a portion of Judge Paul Niemeyer's dissent which is well worth reading. Here's the money quote: "Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes."
The student's Equal Protection claim is pending before the district court thus was not at issue in the case decided yesterday. Still, Niemeyer's understanding of biological sex as the essential legal marker is in keeping with the line of Equal Protection cases that take seriously "inherent" biological difference, even as they treat "sex stereotyping" (what we'd now likely refer to as "gender stereotyping") as sex discrimination. Though I don't pretend this is a full analysis, I thought it'd be helpful to point out quickly some relevant language in the Court's decisions vis-a-vis biological difference.
Remember Justice Ginsburg writing for the Court in United States v. Virginia (1996) in which the Court struck down the historic male-only admissions policy of Virginia Military Institute: “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity." And Justice Kennedy writing for the Court in Nguyen v. INS (2001), upholding the INS' differential treatment of American mothers and fathers in their children's citizenship proceedings: "To fail to acknowledge even our most basic biological differences...risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real."
For sex discrimination law to serve its function--for the rule of law to govern--sex as a legal term has to mean something in particular.