Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, September 20, 2017

Some misguided defenses of Sen. Feinstein's questioning of judicial nominee

During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.  A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.

More surprising, and disappointing, than these scholars' defenses have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal.  [UPDATE: What I say below applies also to Cathy Kaveny's Washington Post op-ed, defending Feinstein's questioning.]  In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing.  Read the linked-to pieces for yourself.  Then, consider these thoughts of mine, for what they are worth:

 - (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role.  It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations.  This kind of questioning does not violate the "No Religious Tests"  Clause of the Constitution.

 - (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views.  In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X.  This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.

 - (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken).  The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different.  Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations.   Rather, Sen. Feinstein said this:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.


This is not an appropriate question.  (Nor was Sen. Durbin's "are you an orthodox Catholic?")  This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism.  It's what was done to Al Smith and John F. Kennedy.  Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your faith commitments."   Sen. Feinstein's critics are right; her defenders are wrong.  The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they).  The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly."   

September 20, 2017 in Garnett, Rick | Permalink

The Dialectic with Tradition

A few posts ago, I recommended Matthew Crawford's book, The World Outside Your Head. To convince MOJers to pick it up, I wanted to offer an excerpt. From the book's final chapter, in a section called "The Dialectic with Tradition," I pull here the lessons from Crawford's study of organ-makers. (This is transcribed from the audio, so excuse formatting or other mistakes.) 

We moderns have inherited a view that pits the technical spirit versus tradition. Partisans of the first will say it embodies reason and that the latter amounts to little more than inherited prejudice. For their part, partisans of tradition often see in technology a spirit of vandalism that can only destroy meaningful human activity. But to be in conversation with a tradition is a kind of rationality, a mode of thinking that helps us get at the truth about things....

 

The dialectic between tradition and innovation allows the organ-maker to understand his own inventiveness as a going-further in a trajectory he has inherited. This is very different from the modern concept of creativity which seems to be a crypto-theological concept: creation ex nihilo. For us, the self plays the role of God and every eruption of creativity is understood to be like a miniature Big Bang coming out of nowhere. This way of understanding inventiveness cannot connect us to others or the past. It also falsifies the experience to which we give the name creativity by conceiving it to be something irrational, incommunicable, unteachable.... 

 

According to the Enlightenment concept of knowledge we explored [earlier in the book], the exemplary sort of knower is a solitary figure and his knowing happens always in the present tense. He is not encumbered by the past nor does he recognize the kind of authority that operates in communities. His arguments are demonstrative... they float free of any particular historical circumstances or set of lived experiences. Tradition is thus disqualified as a guide to practice. Tradition may convey some truths, it will be conceded. But to be ratified as such, the truths in question must be scrutinized by a mode of reasoning that is independent of what came before. To be rational is to think for oneself. For the most part, this Enlightenment understanding views tradition as a darkness that grips men's minds and a habit of inflexibility to be rooted out. But this view gets a lot wrong.

 

As we saw also in the case of scientific apprenticeship [earlier in the book], in the development of any real competence, we don't judge everything for ourselves, starting from scratch each morning. Rather we have to begin by taking a lot on faith, submitting to the authority of our teachers, who learn from their teachers. The individualist conceit that we do otherwise - and the corresponding discredit that falls on tradition - makes people feel isolated. As we learned from Tocqueville, this isolation brings with it a certain anxiety which we try to relieve by looking around to see what others - our contemporaries - are thinking and feeling. The rugged individualist becomes the statistical self....

In the book, Crawford dives deep again and again into various sorts of expertise (e.g., short order cook, hockey player, glass-maker, motorcyclist, engineer) to show, among other lessons, the reality of the human person as a situated, embodied self who develops competency and independent judgment within the tradition within which he or she works, "going-forward from" but always dependent upon it.  In a word, we are only capable of independent judgment - of thinking for ourselves and innovating anew- when we've appropriated the traditions from which we come. Only then can we look back with reasoned critique. But in making our critique, we best be weary of tearing out root and branch that which has given us the capacity to do so. 

September 20, 2017 in Bachiochi, Erika | Permalink

Democracy Basics: St. Thomas shows us how to have an argument

I am not on social media much, but from what I gather the vitriol that seems often to characterize the medium has heated up on religious matters. Whether it's with regard to the unconstitutional treatment of judicial nominee Amy Barrett, Fr. Martin's new book, Building a Bridge, or Pope Francis (always Pope Francis), online religious warfare is apparently at its zenith. This should concern all who care about faith - but even more broadly, all who care about reason. After all, it is the capacity to offer coherent reasons for one's perspective, as well as the capacity to listen and civilly engage those who differ, that makes constitutional democracy possible--and well, we live in one. 

The founders of our republic took a great risk in presuming human beings could engage in public-spirited dialogue about matters of the common good. But to them, the historical alternative was not all that appealing. And we might be reminded of that from time to time. Religious warfare - even of the increasingly digital variety - leads neither to changed hearts nor minds, and it certainly does not lead to peace among people. It degrades the human person - who by his capacity to reason most distinguishes him from the animals - and it degrades the common life we live together. 

So I was happy to see Bishop Barron's address to employees at Facebook earlier this week. Bishop Barron, like Pope Benedict and others before, does even more good in his defense of reason than even in his defense of the faith. His talk, "How to Have a Religious Argument," brings together many of his recurring themes, but most especially that faith is opposed to neither reason nor science. The talk is outstanding as a matter of apologetics. There is simply no one better.

But perhaps the talk is most instructive in its final minutes when he walks the audience through the medieval method of disputation as best exemplified by the great St. Thomas Aquinas. Thomas formulates arguments for atheism far better than the modern atheists, Barron tells his audience; perhaps you might go and read them. No argument is off the table; best to know your interlocutor's argument better than even they do, noting points of agreement when you see them; treat each person with whom you disagree with the respect he or she deserves.

None of us is Thomas Aquinas, and few of us can treat an opposing argument with the charity and dexterity Bishop Barron does, but we can all seek to improve along these lines. As Catholic lawyers, we have an obligation to do so. For if not us, who else will? 

Bishop Barron offers a way forward, but not just for religious argument. The medieval approach to dialogue, disagreement, and debate that Barron recommends would do our republic a whole world of good.  If we cannot restore the capacity for reason-giving, if all disagreement becomes a battle of the will to power, we have seized to be a republic. I, for one, am not ready to give up on that project yet. 

September 20, 2017 in Bachiochi, Erika | Permalink

Call for Papers: Law and Development Conference - The Catholic University of America and Jagiellonian University in Krakow, Poland

Cua-logo.gif   Jagellonian logo

The American Law Program at the Catholic University of America School of Law and the Jagiellonian University in Krakow, Poland are hosting a fabulous conference next year which will be of interest to all MOJ readers and contributors.  They have issued a call for papers and I encourage all to consider a submission.  Here is a summary of the purpose of the conference which will be held in Krakow - a beautiful city if you have not had the pleasure of teaching there.  I have highlighted the specific aspects that may be of interest.

"Academic purpose: The research project’s aim is to look at the concept of ‘development’ from alternative perspectives and analyze how different approaches thereto influence law. ‘Sustainable development’ is about balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept present in Catholic social teaching.

‘Development’ may be seen as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application. It is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker.

This research project is also about how different approaches to ‘development’ and their impact on law may coexist in pluralistic and multicultural societies and how to evaluate their legitimacy. The problem may be analyzed from the overarching theoretical perspective as well as based on case studies stemming out from different legal branches."

The details regarding submission and the opportunity for publication are as follows:

Dates: March 16, 2018

Arrangements: 300-word paper proposals should be submitted by October 10, 2017 at okspo@uj.edu.pl Successful applicants will be notified by October 20, 2017. Accommodation for selected speakers at the university’s hotel will be provided by Jagiellonian University (two nights for speakers from Europe, 3 nights for speakers from outside Europe). Travel costs must be provided by participants.

Publication: The best conference papers will be published with Catholic University Law Review. Final draft will be due by late January 2018 for those who would like to be considered for publication. 

 Should you have any questions, please reach out to my colleagues: Prof. Leah Wortham (wortham@law.edu) and Prof. Megan Labelle (labelle@law.edu)

September 20, 2017 in Leary, Mary G. | Permalink

Tuesday, September 19, 2017

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018


In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
2018.

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the
conference.

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

September 19, 2017 in Garnett, Rick | Permalink

Nussbaum & Thorpe: The "Error has no rights" Error persists

A good read.

Here's a bit:

[T] idea that “error has no rights" . . . has often (and, John Courtney Murray contends, wrongly) been labeled a medieval teaching of the Catholic Church. Whatever its source, the maxim has substantial appeal: Why should a state tolerate error? If civil unity matters, why risk infection from wrongheaded ideas? Many of the darkest moments in church–state relations drew strength from this view — from Calvin’s burning of Michael Servetus to the Inquisition, the beheadings of Bishop John Fisher and Thomas More, and the Saint Bartholomew’s Day Massacre. Legal rights should protect the good — we repeatedly hear. They ought not be asserted in the defense of evil. Fortunately, both church and state in the West generally reject that totalitarian idea.

September 19, 2017 in Garnett, Rick | Permalink

Sunday, September 17, 2017

Becket Fund Constitutional Law Fellowship - call for applications

From the Merry Band at Becket:

Becket is currently soliciting applications for our Constitutional Law Fellowship, to begin in September 2018.


The fellowship gives recent law school graduates immediate, hands-on experience litigating cutting-edge constitutional cases. Under the mentorship of experienced Becket attorneys, fellows will participate in all aspects of trial and appellate litigation, gaining valuable experience in litigation strategy, research, writing, and oral advocacy. The fellowship is an excellent stepping stone to private practice, academia, or a permanent position at Becket.

Applications will be received on a rolling basis starting now until December 31, 2017. Interviews will be conducted thereafter with offers made typically by the end of January 2018. The fellowship begins in September 2018. Fellowship terms are for one year and offer a competitive salary and benefits.

Applications should include a cover letter addressed to Becket's recruitment chair Hannah Smith, along with a resume, transcript, writing sample, and references. Applications should be emailed to Chelise Fox at cfox@becketlaw.org.

September 17, 2017 in Garnett, Rick | Permalink

"The Splendor of Truth in 2017"

I very much enjoyed this essay, in First Things, by Archbishop Chaput.  A bit:

. . . Next year, 2018, marks the twenty-fifth anniversary of the release of Veritatis Splendor, John Paul’s great encyclical on the “splendor of truth.” Written to encourage a renewal in Catholic moral theology and a return to its classical Catholic roots, Veritatis Splendor grounds itself in a few simple convictions. Briefly put: Truth exists, whether we like it or not. We don’t create truth; we find it, and we have no power to change it to our tastes. The truth may not make us comfortable, but it does make us free. And knowing and living the truth ennoble our lives. It is the only path to lasting happiness.

In the years that have passed, the crisis of truth has only seemed to grow. Our age is one of cleverness and irony, not real intellect and character. Today the wisdom of Veritatis Splendor is more urgently needed than ever.

It’s common, even among people who identify as Catholics, to assume that the Church’s moral guidance is essentially about imposing rules, rules that breed a kind of pharisaism. But this is exactly wrong. It’s an error that radically misunderstands the substance of Catholic teaching. It’s also one of the worst obstacles to spreading the faith.

John Paul II knew this. . . .

September 17, 2017 in Garnett, Rick | Permalink

Saturday, September 16, 2017

Amicus Brief in Masterpiece Cakeshop: Protect Both Sides

Doug Laycock and I have filed a brief in the Masterpiece Cakeshop case on behalf of amici who include a variety of religious and religious-freedom organizations: the Christian Legal Society, the LDS (Mormon) Church, the National Association of Evangelicals, the Union of Orthodox Jewish Congregations, the Queens Federation of Churches, and others. The brief has several important emphases, which are to one extent or another distinctive--sometimes quite different from other briefs in the case. Here are four representative passages:
 
From the statement of interest of amici: 
 
     Amici are religious organizations who accept that same-sex civil marriage is the law of the land. But some deeply religious Americans, including some of amici’s members, cannot in good conscience assist with same-sex weddings. Now that the Court has protected the liberty of same-sex couples, it is equally important to protect the religious liberty of these conscientious objectors. Most of these amici are involved in ongoing efforts, mostly unsuccessful so far, to negotiate legislation prohibiting sexual-orientation discrimination while providing religious exemptions. 
 
     Laws protecting the liberty of both sides are extremely difficult to enact in our polarized political environment; too many on each side resist liberty for the other. These amici believe that religious liberty is a God-given right, that it reduces human suffering, and that it is an essential means by which people with deep disagreements live together in peace. A fundamental purpose of the Constitution is to protect the liberty of both sides, and especially so when powerful factions seek to deny that liberty. 
 
From the summary of argument, parts I and II:
 
     The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.
 
     This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding. 
From the summary of argument, part III:
 
     Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 
 
     A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.
 
     B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....
 
     D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.
From argument section IV, re lack of a compelling governmental interest on these facts:
 
     [Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.
 
     Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.
 
     Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.] 

September 16, 2017 in Berg, Thomas, Current Affairs | Permalink

A comment on the "Masterpiece Cakeshop" case

Here's my contribution to the SCOTUSblog symposium on the upcoming Masterpiece Cakeshop case.  Here is a bit:

. . . One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.

That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.

This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.

So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience? . . .

 

September 16, 2017 in Garnett, Rick | Permalink