Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Monday, July 27, 2015

NC's School Choice Program Upheld

I'm happy to report that the North Carolina Supreme Court has upheld the state's school choice program against state constitutional challenges. (The main case is Hart v. State; a second ruling, Richardson v. State, relies on Hart.) The program provides scholarships to low-income students to use at the private school of their choice, religious or secular. The plaintiffs brought a variety of challenges, which boiled down to three arguments:

(1) The state cannot fund private schools at all. (E.g., the plaintiffs said, the clause requiring the state to maintain a "uniform system of schools" means that funded schools must be uniformly public.) The court answered that the uniformity clause only applies to policies within the public school system and does not prohibit the state from funding other educational opportunities. This is the opposite result from the one the Florida Supreme Court reached in 2006 in striking down that state's program under a similar "uniform education" provision (Bush v. Holmes).

(2) The state failed to include sufficient safeguards for the educational quality of schools participating in the program. This allegedly violates, e.g., the requirements that legislation serve a public purpose, and as well as the state's duty to "maintain the right of the people to the privilege of education"). The court responded that since some (most?) private schools were educationally adequate, claims of inadequacy were not the basis for a facial challenge to the program. (This reasoning might suggest there could be an as-applied challenge to a particular school's inadequacy, although the court isn't entirely clear on that.)

(3) Finally, the plaintiffs said, the program authorized the participation of schools that discriminate on the basis of religion, in violation of the provision that no person shall "be subjected to discrimination by the State because of race, color, religion, or national origin." The court held that the plaintiffs--state taxpayers--lacked standing to bring this claim because they did not claim they had been personally subjected to discrimination (e.g. denied employment or admission by a school on grounds of religion).

     Basically, the  plaintiffs' problem on the religion question was that there was no North Carolina  anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them). So the plaintiffs tried to shoehorn their objection to religious schools into the provision prohibiting state discrimination based on religion. But the round peg didn't fit the square hole: they hadn't been discriminated against just because they were taxpayers, and moreover their equation of discrimination by the school with discrimination by the state misstates Con Law 101 principles about state action.  [UPDATE: I struck out "anti-establishment" above because, as Marc points out, the 19th-century Blaine-type restrictions on aid to "sectarian" schools can certainly be seen as doing something quite different from promoting pluralism as anti-establishment provisions do. I didn't mean to weigh in here on that issue--although I basically agree with Marc on it.] 

     The religious liberty clinic I supervise at St. Thomas, together with the Christian Legal Society,  filed a brief for several amici on the merits of the religious-discrimination claim. We emphasized that a religious school's employment and admissions decisions on ground of religion involve a constitutionally protected right to form a community based on religious ideals, and that the state could legitimately preserve that while also supporting the education those schools provide. (We also pointed out the basic state-action error.) The court didn't reach these arguments.

A passage in the court's discussion of the "public purpose" doctrine sums up the basic message of this decision:

Although the scholarships at issue here are available only to families of modest means, and therefore inure to the benefit of the eligible students in the first instance, and to the designated nonpublic schools in the second, the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.

July 27, 2015 in Berg, Thomas | Permalink

Monday, July 20, 2015

Schneck on PP, the 20-Week Ban, and Support for Pregnant Women

At U.S. Catholic, Steve Schneck laments how the outrage over the Planned Parenthood video will likely devolve into familiar abortion politics, leaving little or nothing done legislatively about--for example--ending late-term abortions where the child could well be viable and, "many agree[,] feels  pain." He describes the proposal from Democrats for Life about how to move forward, on the late-term ban that currently has no prospects in the Senate:

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, [Kristen] Day  and [Charlie] Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life.

(Disclosure: Schneck and I are both board members of DFLA.)

The U.S. is extreme among the Western industrial nations in how little we restrict abortion (Western European prohibitions kick in after three or four months). We are also the only OECD nation that does not guarantee some paid maternity leave. This moment presents another opportunity to take a different approach.

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf
By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf

July 20, 2015 in Berg, Thomas | Permalink

Thursday, July 9, 2015

Religious Freedom Sessions at the Christian Legal Society Conference (NEW ORLEANS! IN OCTOBER!)

I will be speaking at the Christian Legal Society's national conference in New Orleans on October 2 and 3. (An especially fine time of year to visit NOLA, and a fascinating group of featured speakers, overall topics, etc.) First I'll join a panel on religious freedom issues, on the 2nd; then on the 3rd, I'll do a follow-up workshop on "Why Progressives Should Care About Religious Freedom." I hope these will give food for thought on very challenging issues (the whole conference is sub-themed "practicing law in turbulent times"). And then there will be great food for savoring, only blocks away. Y'all come down!

July 9, 2015 in Berg, Thomas | Permalink

Friday, July 3, 2015

"What Every American Should Know"

Here is a thoughtful piece that explains well why, in an ever-changing America, we need both "cultural literacy" and multiculturalism: that is, an expanded and changed shared core of literacy. Just a couple of bits (read the whole thing):

The more serious challenge, for Americans new and old, is to make a common culture that’s greater than the sum of our increasingly diverse parts. It’s not enough for the United States to be a neutral zone where a million little niches of identity might flourish; in order to make our diversity a true asset, Americans need those niches to be able to share a vocabulary. Americans need to be able to have a broad base of common knowledge so that diversity can be most fully activated. . . .


As the cultural critic Albert Murray wrote in his 1970 classic The Omni-Americans, the essence of American life is that it relentlessly generates hybrids. American culture takes segments of DNA—genetic and cultural—from around the planet and re-splices them into something previously unimagined. The sum of this—the Omni—is as capacious as human life itself, yet found in America most fully. This is jazz and the blues. This is the mash-up. This is everything creole, mestizo, hapa. In its serious forms, multiculturalism never asserted that every racial group should have its own sealed and separate history or that each group’s history was equally salient to the formation of the American experience. It simply claimed that the omni-American story—of diversity and hybridity—was the legitimate American story.

July 3, 2015 in Berg, Thomas | Permalink

Thursday, July 2, 2015

Comments on Obergefell, the Marriage Holding, and Religious Liberty

I have comments on Obergefell up at America and the Cornerstone religious freedom blog of the Berkley Center at Georgetown. They continue in the vein I've pursued, that we should protect both same-sex-marriage rights and meaningful religious-liberty rights. The Court has, correctly in my view, protected the former; we'll now see if courts and legislatures protect the latter. In the two recent pieces, I try to argue: (1) The majority opinion's assurances about the right to "teach" religious principles should not be read to denigrate, by omission, the distinct right to "exercise" religion (i.e. to operate consistently with those principles). (2) The majority's conclusion that the state's denial of marriage rights demeans same-sex families does not say that the traditional view of marriage is per se demeaning (the Court elsewhere says the view often rests on "decent and honorable" premises). There is no conclusion in Obergefell that the traditional view is inherently demeaning such that people who exercise that view in their own religious institutions are bigoted and ineligible for accommodation.

July 2, 2015 in Berg, Thomas | Permalink

Thursday, June 18, 2015

The Church-Signs Case, Amicus Brief, and Freedom of Assembly

Reed v. Gilbert is a unanimous--and clearly correct--decision upholding a start-up church's challenge to a crazy-quilt town ordinance that severely limited both the size and duration of the church's roadside signs directing people to its worship services. (The church, which met in a local school, effectively could not put up the signs until late the evening before the service.)

But behind the unanimity in invalidating the ordinance is pretty substantial division on whether to analyze it under strict scrutiny (the majority) or something less (Kagan and Breyer concurrences in the judgment). The division reflects the increasingly evident fact that the Court's "conservatives" interpret free-speech rights more broadly than the "liberals" do. The liberals' concurrences bring up various government regulatory interests that involving prohibiting or requiring speech (securities filings, required signs urging people to wash their hands after leaving a petting zoo, etc.). Looming in the immediate background of this case is the recurring divide over the extent to which free-speech rights might cut into general government regulation.

Justice Kagan raises some reasonable questions about whether strict scrutiny should be automatically triggered just because a sign ordinance makes distinctions based on a sign's content (by, for example, favoring historical-marker signs or highway signs advertising the availability of coffee). The amicus brief filed by the Christian Legal Society and others, written by the St. Thomas Religious Liberty Appellate Clinic, agreed with the majority's analysis here but also offered a narrower potential principle. We argued that laws discriminating against announcements of, and directions to, noncommercial events--as the town's ordinance did here--should trigger strict scrutiny under the distinct First Amendment freedom of assembly. We made use of John Inazu's groundbreaking work on that freedom.

The majority didn't take up our suggestion. But it did say that the town's argument that it could treat signs advertising events less well than other signs (e.g. those supporting political candidates or "ideological messages") was "novel" and unsupportable. So make a mental note: in the future, Reed v. Gilbert might be cited as a case where the Court recognized, if implicitly, that gatherings of people--"assembl[ies]"--enjoy strong, not weak, First Amendment, protection.

(St. Thomas student Michael Blissenbach did fine work helping to draft the CLS et al, amicus brief.)

June 18, 2015 in Berg, Thomas | Permalink

Wednesday, June 17, 2015

"Patents on Life" Conference in Cambridge, UK

I'm very pleased to tell readers about an upcoming conference, "Patents on Life: Through the Lenses of Law, Religious Faith and Social Justice," to be held at Cambridge University, England, on September 4 and 5. (See descriptions here and here.) It is co-sponsored by two institutes focused on Catholic thought and social and legal questions: the Von Hugel Institute at St. Edmund's College, Cambridge, and the Murphy Institute at the University of St. Thomas.

This will be a fantastic occasion bringing Catholic, and more generally Christian, social thought into conversation with law, ethics, and other disciplines on a range of challenging issues with deep implications for human development, social justice, the Church, industry and the marketplace, and the understanding of the human person. The brief online summary of some of the issues:

With the explosion of genetic technology and the drive to access and make use of genetic resources, the issues surrounding the patenting of living things and living material--human, animal, and plant--have become tremendously complex and important.  What is the line between patentable scientific creations and unpatentable features of nature? What effects do patents on human genes, or on genetically modified crops, have on people in poverty or in developing countries? What is a fair allocation of indigenous genetic resources among traditional peoples and multinational corporations? What role should moral objections to particular technologies play in determining whether they can be patented? And what do religious insights have to offer on these legal, moral, and social questions?

As the conference links above indicate, we will be treated to an amazing range of speakers: some of the leading patent-law scholars in Europe and the US, current and former judges handling European patent and IP cases, Catholic and other bioethcists, voices from the practicing bar and the biotech industry--as well as several important figures in the Vatican's approach to intellectual property questions, including Abp. Silvio Tomasi, the Holy See's permanent observer to the UN in Geneva; Steve Colecchi, director of the Office of International Justice and Peace for the USCCB; and the Vatican's lead officials on IP issues and on trade negotiations in Geneva.

If you are a reader in Europe, please consider coming to Cambridge in September (information here). If you're in the US, we understand it would be difficult (but Cambridge is beautiful in September!); in any event, we are working on systems for making the conference video available online after the conference ends. At least some of the conference papers will also be published.

The about-to-drop encyclical will call attention to Catholic teaching on ecology and the environment. Catholic and Christian teaching also have a great deal to say about intellectual property issues (see, e.g., some previous discussions here, here, and here)--and with biotech patents, the IP and environment questions overlap. We hope this conference will advance those connections in many ways.

June 17, 2015 in Berg, Thomas | Permalink

Tuesday, May 19, 2015

Archive: Letters in Defense of State RFRAs

The debate over state religious freedom restoration acts (state RFRAs) has obviously become white-hot, and it likely will heat up again in states in the future. For purposes of convenience and of the record, here is a collection of letters defending various state RFRAs, written to legislators considering such bills, by religious-liberty scholars--several of whom (including me) support same-sex marriage--who want to set the record straight on what such bills are actually likely to do. Among other things, the letters state that:

[From IN letter:] The most common charge opponents make against RFRA legislation is that it is a "license to discriminate." It is no such thing.... [Application of anti-discrimination laws] creates a serious conflict for religious individuals who personally provide creative services to assist with such weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is far from clear that the proposed Indiana RFRA would lead courts to recognize such an exemption....


[From GA letter:] Most RFRA cases do not involve anti-discrimination laws or suits between private parties.... Rather, they involve disputes between government and a religious individual or organization, and they arise when one of our vast array of government regulations turns out to burden one of the diverse religious practices of the American people.... State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths.

Georgia (Feb. 2015)

Indiana (Feb. 2015)

Arizona (Feb. 2014, to Gov. Jan Brewer; countering widespread misstatements about the likely effect of amendments to the state RFRA, even though some of the signers did not take a position on whether the amendments should be adopted)

Mississippi (Feb. 2014)

North Dakota (May 2012)

May 19, 2015 in Berg, Thomas | Permalink

Thursday, May 14, 2015

Brandon Paradise on "How Critical Race Theory Marginalizes the African American Christian Tradition"

Brandon Paradise (Rutgers Law) has a valuable new article on "How Critical Race Theory Marginalizes the African American Christian Tradition." It's a lengthy piece that documents how critical race theory's methodology has been overwhelmingly deconstructionist and secular, ignoring the central role of Christianity in the lives of most African Americans and in the civil rights movement.

As I read him, Professor Paradise thinks has had several troubling consequences (even though he understands how realities like white Christian support for slavery and quietism within the black church have helped spurred it). First, it has cut off critical race theory from a central aspect of the lives of a large percentage of African Americans--an ironic result given the critical-theory premise that “'the actual experience, history, culture, and intellectual tradition of people of color in America' should serve as the epistemological source for critical scholars." (Quoting Mari Matsuda.)

Second, it significantly eliminated from critical race theory the call for individual spiritual transformation that was an important part (although of course, Prof. Paradise recognizes, not the only part) of the message of M.L. King and other civil rights leaders. Third, and related, Paradise notes how the deconstructionist orientation limits the ability of the theory to appeal to universal principles of human dignity, human nature, and morality in the way that the Christianity-grounded civil rights movement did. Including that old concept of natural law, which just happens to be central to the "Letter from a Birmingham Jail." About the letter, Paradise writes:

[F]ar from offering an indeterminacy critique—the thrust of which illustrates that first principles cannot compel a specific vision of community—King resolutely argues that first principals of natural law compel him to reject a segregated vision of community in favor of a desegregated one.

Prof. Paradise then offers some sober hope about the possibilities for developing an African-American Christian approach to law:

Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. However, not all is grim. While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American
Christian approach to law has a natural and substantial constituency outside of the ivory tower.

Lengthy, but as Larry Solum would say, "highly recommended." In this more pluralistic age, civil-rights theory and practice surely can't be grounded solely in the Christianity that inspired the movement of the 1960s: I think Prof. Paradise would recognize that. But he makes a good case that Christianity has been far more marginal among the theorists than it ought to be.

May 14, 2015 in Berg, Thomas | Permalink

Thursday, April 30, 2015

"'Why Am I Here?' Protestantism and Catholic Legal Theory"

That's the title of my  short contribution to the wonderful Scarpa Conference that Patrick organized (many thanks, Patrick). Here's the opening:

I’m a Protestant, a mainline Protestant, an Episcopalian even.  But for ten years I have been the non-Catholic “participant-observer” at the Mirror of Justice.  The other bloggers have been very hospitable to me, even though they may not have fully understood why I’m here.  So that is my question for today, the one immortalized by Admiral James Stockdale in the 1992 vice presidential debate: “Who am I?  Why am I here?”  What does Protestantism have to contribute to the Catholic legal theory project, and why would a Protestant (or a Catholic legal theorist) care?

One of the theses is that Catholicism and Protestantism have different characteristic emphases that apply to the nature and purposes of law. Borrowing from David Tracy, Andrew Greeley, Mark Massa, and others, I describe these as "analogical" versus "dialectical." The former (characteristically Catholic) emphasizes how God is present in features and institutions of the world, including but not only the Church; the latter (characteristically Protestant) emphasizes the distance between God and human beings and worries about investing human institutions, including the institutional Church,  with too much reverence of importance. And:

Protestant and Catholic traditions must, and do, find ways to sound themes that are most explicit or central to the other tradition.  Instead of polemics about how the other side gets it wrong, we should recognize the other’s dominant themes in our own tradition and learn from how the other tradition articulates those themes.

More specifically, to justify a principle, practice, or institution, we need both analogical arguments and dialectical arguments.  We need to show both how it facilitates humans’ virtuous capabilities and how it protects against selfishness and pretension.

... With suggestions about how to apply this to religious freedom and some other areas of law.

April 30, 2015 in Berg, Thomas | Permalink