Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, September 16, 2018

Robert Louis Wilken at the Center for Law and Religion

We are delighted to host Professor Robert Louis Wilken (the author of one of my favorite books on the history of the early Church) tomorrow to discuss his forthcoming book, "Liberty in the Things of God." 

Professor Wilken's presentation is the first at our Colloquium in Law and Religion this fall, a seminar at St. John's Law School that my colleague, Mark Movsesian, and I co-teach. More soon on the substance of Professor Wilken's very interesting new book concerning the intellectual origins of the idea of religious freedom.

September 16, 2018 in DeGirolami, Marc | Permalink

Monday, September 10, 2018

First Things Supreme Court Roundup: "Kennedy's Last Term"

Kevin Walsh and I have this year's Supreme Court roundup at First Things: Kennedy's Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call "the influence of social, technological, and moral change on Supreme Court doctrine" (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii. 

Something from the conclusion:

What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.

But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.

Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.

We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the ­institution.

The shift on the new Court should be measured not by the distance between Kennedy and ­Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerry­mandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.

Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.

Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.

September 10, 2018 in DeGirolami, Marc | Permalink

Monday, August 20, 2018

Delahunty & Ratelle on Giving the Laity a (Nonbinding) Role in Appointments of Diocesan Bishops

Here is an interesting and provocative proposal by Professor Robert Delahunty and Mr. Andrew Ratelle in response to the ongoing crisis of the Church concerning widespread, decades-long sexual abuse of children by bishops and other clerical leaders.

The crux of the proposal concerns lay involvement in appointment and removal of bishops. A bit from the post:

Revolutionary as it may yet seem, lay involvement in Church governance is by far the norm throughout Christian history. The clergy was one of two pillars that upheld the universal Church. The second was historically the nobility—the knights, landowners, and men of property—whose practical means and expertise propped up, and occasionally held in check, the more spiritual mission of the priests and bishops. Historically, the nobles were in turn supported by the peasantry, commoners who lived by the work of their hands in exchange for the protection offered by their feudal employer.

As the middle ages developed, an increasing number of social gradations between these two lay classes appeared until the dawn of the modern age, when the nobility and the commoners effectively joined into once distinct class. The knight and the peasant are essentially one, with the modern laity taking a share of the responsibilities of both. It is their duty not just to provide for, but to defend, the universal church, exercising their role in a range of natural competencies best suited to their state in life. Lest we forget it was the advocacy of two extraordinary members of the laity, in the persons of St. Francis of Assisi and Catherine of Siena, who helped correct the errors of the papacy in their own time. Chivalric orders like the fiercely independent Knights Templar held both the clergy and royalty in check for generations because of their roles not just on the battlefield, but in the financial sector. It was the Christian laity that held the line against apostate bishops and Emperors during the time of the Arian heresy, and it was laymen like Dante Alighieri, who put their professions on the line in condemnation of corruption in the Vatican.

The failure to recognize this normative function of the laity creates the conditions in which abuses like the current McCarrick scandal emerge. No single blog post can hope to cover the full scope of what the laity’s response should be.  We aim here only to start a conversation by making five suggestions ....

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

I mostly wanted simply to note the argument here and the post. There is much to think about and discuss in it, and I hope my colleagues will weigh in. Lay involvement in selection/appointment implicates all sorts of complicated questions. One of these is about just what the Church would get if it went in this direction. What it will get will depend upon the formation and knowledge of the laity in Catholicism. But perhaps we are, at this point, not entitled to wish for another Ambrose or Augustine, and instead should simply insist as an initial matter on an end to the present disasters.

August 20, 2018 in DeGirolami, Marc | Permalink

Tuesday, July 10, 2018

Implications of the Umpire Analogy in Judge Kavanaugh's Scholarly Writing

Judge Brett Kavanaugh's scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial "neutrality." I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.

For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann's book on statutory interpretation), he wrote: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges." Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: "I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.

It's a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change. 

Statutory Interpretation

Kavanaugh's primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries--clear or ambiguous--to settle on. Kavanaugh argues that in consequence a judge's predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it's off and running with the substantive canons of interpretation.

Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her "best reading of the statute," guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms ("dogs, pigs, sheep, and other animals" should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that "other animals" should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the "common denominator." But I'm not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh's "best reading of the statute" approach, one which he agrees must make use of context.

The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply "finding" clarity/ambiguity, of the judge's predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public. 

Constitutional Interpretation

Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, "rather indeterminate," and at worst, "empty of real, determinate, objective meaning." They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are "mood-setters." And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.

Or consider the issue of exceptions to certain constitutional rights--the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral--non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas's dissent in Whole Woman's Health v. Hellerstedt). But one can see a critical unity in Kavanaugh's objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.

Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: "At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases." And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised "history and tradition," together with "precedent," as important for his judicial method in his acceptance last night.

We'll have to wait and see if and how these threads come together if he is confirmed.

July 10, 2018 in DeGirolami, Marc | Permalink

Saturday, July 7, 2018

The Talking Cure (once again)

In light of its pertinence again--it's an issue that never seems to go out of style--and what I believe to be a prototypically "Response One" form of engagement in the column Rick links to below, I'm reposting this from seven years ago (I'm old now) on the unavoidable shallowness of inquiries about religion for political ends.

***

Jacques Lacan’s famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject’s hangups and mental infirmities, came to my mind during the recent exchange between Rick Garnett, Paul Horwitz, Rob Vischer, and others (see here) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions.  Yesterday, as my colleague Mark notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.

But I had a thought that may strike some as perhaps a little heterodox.  I want to make a point in (partial, limited) defense of the Rortian “religion as conversation-stopper” view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago). When candidate X claims that she is informed in her thinking about political issue Y by her religious beliefs and traditions, this is sometimes (not always, but often enough) not the sort of claim that can be understood thoroughly by the public through thorough public discussion, stimulated by extensive question and answer sessions devised by journalists otherwise hostile to the candidate’s political position. What is more likely to happen is that religion — whether the candidate’s or not — will be used as a kind of instrument through which the journalist’s political orientation can be reaffirmed and re-cemented.

Two points are often heard against this view, which I’ll call Response One and Response Two. Response One is that this is the candidate’s own fault. She, after all, is using religion for political advancement of one kind or another. Why is it not then fair to use religion to knock her down — to erase the political advantage that she has gained, and to strike political blows against her to boot?  The candidate did not have to mention religion; but now that she has, religion is “fair game.” Response Two is that engaging with the candidate’s religious views takes religion and the candidate herself seriously — it engages in discursive good faith with the candidate.  We do not say to the candidate, “You have improperly introduced a forbidden subject into the political exchange.”  We say instead, ‘We want to understand you, and since your religious tradition seems to be important enough to you that you raise it to explain, or ground, or at least situate your position, we would like to probe your religious views by the medium of public discourse. We’d like to understand your view, which you’ve informed us is religiously grounded, by talking through it to see if we find it persuasive. Talking will help.”

I want to examine the responses in turn. Response One is motivated by an adversarially political aim, and it seems to me that it is a true reflection of the way in which political discourse is conducted.  That is because political discourse is, fundamentally (though of course not universally), shallow.

Continue reading

July 7, 2018 in DeGirolami, Marc | Permalink

Monday, July 2, 2018

NY Times Op Ed with Walsh on the Court, the Culture, and the Justice to Come

Kevin Walsh and I have an op ed today in the New York Times about the Supreme Court, the culture, and what to hope for from whoever replaces Justice Anthony Kennedy. A bit:

 [W]ith Justice Anthony Kennedy’s retirement last week, many of our fellow conservatives are suddenly buoyant. They believe everything is about to change. It is a perennial temptation. If only one or two justices had been different — a Robert Bork rather than an Anthony Kennedy, an “anybody else” rather than a David Souter — then, it is imagined, we would inhabit a different constitutional universe. The problem is simply a matter of personnel. Now at last we will get our chance to fix the country, they think.

Let us not get our hopes too high. Even if Justice Kennedy is replaced with an actual conservative, as we hope and expect, the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least. Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.

Why? Because law, like politics, generally conforms to the culture. The Supreme Court is shaped by the culture that surrounds it; its instinct is to follow, not to lead. Consider the sexual autonomy cases of the 1960s and ’70s, or the cases involving civic displays of religion in the 1980s and ’90s, or the gay rights cases of this century. In each instance, the court channeled the views of a preferred emerging cultural constituency — about the sexual revolution, about secularization, about same-sex relationships — in recognizing the corresponding rights. The Psalmist was right to warn against trust in princes…

To be sure, law is important. It forms the culture around us, just as much as it is informed by it. Indeed, the Supreme Court has made itself a powerful symbol of an American yearning to resolve profound cultural conflict once and for all. It has come to exercise a potent didactic function over the past several decades. It instructs us, scolds us and exhorts us to follow it. It has become a relentless smasher and refashioner of rights.

As some feverishly speculate about which 5-to-4 decisions of the recent past will soon vanish, we counsel patience. Conservatives have rightly criticized the judicial manufacture of rights; let us not make the mirror-image mistake of urging immediate doctrinal demolition. The legal landscape may change for the better through erosion and accretion, rather than avulsion and ill-considered construction.

Chief Justice John Marshall once wrote that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” But today, new constitutional law is born and killed off in waves in response to the felt imperatives of cultural change. This is the Supreme Court we have now, borne of the culture we have now. No bright, shiny, new justice can change it alone.

July 2, 2018 in DeGirolami, Marc | Permalink

Wednesday, June 27, 2018

Religious Freedom Gestalts

When the big Obamacare case came down in 2012, one of the most interesting features of the resulting ferment was Larry Solum's insight that the disagreement between the sides could be understood as a fundamental divergence as to overarching conceptions of the scope of the Commerce Clause and the validity of the "New Deal Settlement." A "gestalt" is an organizing framework for understanding a particular legal issue--a jurisprudential weltanschauung. A gestalt is "the big picture that integrates a high-level description of doctrine with vindicating narratives and justifying normative theories." The gestalt does not mandate a particular outcome. But it situates and shapes the general perception of a case in such a way as to orient the interpreter in a very particular direction. 

Larry's insight was that there are competing gestalts when it comes to the Commerce Clause. One gestalt--informed heavily by the New Deal--has it that "Congress had plenary and virtually unlimited legislative power—subject, of course, to the limits imposed by the individual rights provisions of the Constitution." "Imagine," wrote Larry,

a sea of federal power that spans the globe. The New Federalism decisions of the Rehnquist Court created islands of state power, including the anticommandeering principle of Printz v. United States and New York v. United States, the expanded Eleventh Amendment sovereign immunity doctrine of Pennhurst State School and Hospital v. Halderman, and the Lopez and Morrison limits on the Commerce Clause. Thus, the prevailing gestalt underwent modification—the ocean of federal power was dotted with isolated islands of state sovereignty—but the basic pattern (the sea of federal power) remained intact.

The alternative gestalt, in Solum's telling, accepts the New Deal Settlement but adopts a "this far and no further" attitude toward it. The New Federalism cases (Lopez, Morrison, and now possibly NFIB, etc.) correct the errors of the most extreme of the New Deal gestalt cases (e.g., Wickard) and invert the oceanic metaphor. It is state, not federal, power that controls the gestalt. Or at least it should and it will.

I want to suggest that recent cases involving religious freedom, and many future cases, reflect a working out of a parallel set of gestalts as to religious freedom. And the competing gestalts are likely to become more fixed in the coming years--more distinct and therefore less capable of reconciliation. They are fundamentally different ways of seeing things.

In what one could call the "dominant" or perhaps "establishment" gestalt--the Everson dispensation, let's call it--the Court vigorously polices any suggestion that what has been the historically dominant religion in this country--Christianity--appears to receive any preferential treatment, recognition, or even historical acknowledgment by the government. That has been, as I discuss here, the primary way in which "separation of church and state" has been worked out as informing the Establishment Clause since 1947. The working out of the Everson dispensation was a project undertaken over decades by its champions, ostensibly under the banner of "religious neutrality" but in reality with a very distinctive effect (if not an intent) that was not neutral whether or not so perceived. Free exercise, for the Everson dispensation, existed in the majority of the 20th century primarily as a gesture of noblesse oblige to the unthreateningly strange and exotic. It was never intended to extend a set of legal defenses for traditional forms of Christianity, since Christianity held a dominant historical and socio-cultural position that needed to be destabilized. The effect of this dual action of the dominant gestalt was systematically to shrink the public political presence of Christianity in the national civic ethos and at the same time to increase the importance of "religion" as an individual right of spiritual self seeking. This was "religious freedom" in the dominant gestalt, and it was an enormously successful jurisprudential project from the early 20th century through the early 21st. For this project, the objective was continuing progress along the lines mentioned. To continue to shrink the civic and political influence of Christianity while at the same time rendering the idea of "religion" as an individual good more powerful. But a vital part of this project involves the monitoring of Christian civic influence and efforts towards its continuing diminution. For adherents of the dominant gestalt, cases like Hobby Lobby, Masterpiece Cakeshop, and Town of Greece, are evidence of dangerous stalling. Cases like Trump v. Hawaii in combination with Masterpiece are deeply threatening because they are evidence that Christianity (or, in even more strongly held versions of the claim, "white" Christianity) continues to be preferred over other religions despite the best efforts of the Everson dispensation's champions. It is no consolation at all to hear the Trump v. Hawaii majority's reassurance that the Everson dispensation still controls for holiday displays and high school graduations. Failure to progress is regression.

The other gestalt (I don't have a catchy name for it--let's go with gestalt #2) accepts certain basic understandings of church-state separation. Just as in the Commerce Clause division, there is not a wholesale rejection by gestalt #2 of gestalt #1. But whatever gestalt #2's "this far and no further" stance might look like, it was bypassed years ago. Gestalt #2 holds that the Everson dispensation largely has done its work: to diminish the public influence of Christianity and replace it with "religion"--always ill-defined or intentionally non-defined--as an individual experience. There are divisions within this gestalt. Some of its proponents feel that Christianity merits a special place in the national culture; some take the weaker view that it is at least not unconstitutional to recognize such a place, whether it actually exists or not; and some believe that Christianity merits at least similar (or even equal) favorable treatment to other religious traditions, generally through application of free exercise principles.  These divisions have not been fully plumbed because gestalt #2 has never achieved any real salience in 20th-21st century religion clause law. Where it generally attempts to hold the line as to Christianity today is in issues of compelling Christian believers to act in ways that violate their own convictions (Hobby Lobby, Zubik, Masterpiece, Becerra in its way). And this is precisely where, today, it comes into some conflict with the Everson dispensation, whose imperative is to continue to diminish Christianity--or at least conservative Christianity--as a force in American public life. This is gestalt #2's "this far and no further" stand, having been soundly defeated over decades in making its stand at previous possible way stations (just follow the path of Establishment Clause jurisprudence since 1947 for the grand tour). When those who favor the alternative gestalt hear proponents of the dominant gestalt cry out that Masterpiece plus Trump v. Hawaii represents a retrogression--Christianity beating back and beating out other religions--most do not share that view. It is a view that does not account for the massive losses sustained by Christianity at the Court's hands for the last near-century, and the massive reconception of the nature of "religion" undertaken by the Court's jurisprudence in that period. Of course, those losses and reconceptions were not occasioned by the Court alone. But the Court was much more than sympathetic to them; it did what it could to push them along, and successfully too. And the losses have not been limited to religious freedom cases proper. Just have a look, say the proponents of gestalt #2, at the havoc wrought by the Court's substantive due process cases. Those, in combination with the religious freedom canon of the dominant gestalt, have been devastating. Telling a Christian baker that he doesn't have to bake a cake for a ceremony he finds immoral, or a Christian company that it doesn't have to pay for contraceptive products for its employees, or a Christian pregnancy center that it doesn't have to advertise the availability and desirability of abortion...these are tiny and rather pathetic victories (most of them achieved by a bare 5-4 vote) in a wasteland of failure, to be followed in future by more failures. They are hardly signs that gestalt #2 is suddenly ascendant. They are not even signs of, as Larry puts it, a "gestalt shift."

Here's a final prediction. The divisions are likely to increase, in part because of gestalt #1's imperative of progress and gestalt #2's imperative of stasis (at best). If the prediction is correct, and if the Court's members break fairly evenly as between the two gestalts, we can reliably expect more spasms of outrage and disappointment with each new case in this area. These are not disputes over doctrine or even principle. They are deep disagreements over worldview, and over the kind of society we wish to be and become. 

June 27, 2018 in DeGirolami, Marc | Permalink

Tuesday, June 19, 2018

Bray on Liturgical Change and Doctrinal Change

Sam Bray has an extremely interesting reflection on a change in the language of a central prayer in the Book of Common Prayer, the General Confession in Morning and Evening Prayer. The prayer contains the line "And there is no health in us," whose meaning is either that there is no spiritual health in us or that we are not the authors of our own salvation. Either way, the phrase suggests, as Sam puts it, that "we are prone to curve inward away from God, we need his forgiveness."

But the phrase has proved troublesome and has been touched up in several revisions. The cause of the trouble is that it is felt to sound a little rough to modern speakers and hearers. It needed some kind of toning down. Really, no health at all in us? Not even a little bit of health?

The Anglican Church in North America, in a recent update, changed the language to: "And apart from your grace, there is no health in us." That keeps Cranmer's original phrase, but softens it a little bit to reassure people that God does not think us totally irredeemable just the way we are. And the added phrase is surely not wrong; it's true that God's grace is necessary for spiritual health as well as salvation.

And yet, as Sam notes, "truth does not quite settle the question," since many things that are true do not make it into the prayer. Sam shows how the absolute language and sentiment of the original is in keeping with many other Biblical passages (Isaiah, Psalms, Daniel, and even in Luke). This is language without qualification, a pattern of speaking that may be seen even in the Beatitudes ("Blessed are the poor in spirit," not Blessed are those who are often, even if not 100% of the time, spiritually impoverished) and elsewhere. As Sam says, "Even where a qualification is denotatively true, its destruction of the proper attitude can make it connotatively false."

There is much more in Sam's rich reflection, which considers the rhetorical power of the original and the changed versions (matters of style are not only matters of style, and, as Sam says, "the form can be an integral part of the message") as well as the genuine difficulties facing would-be revisers who wish not to damage the true sense of the original. You should read it.

June 19, 2018 in DeGirolami, Marc | Permalink

Thursday, June 14, 2018

A Point of Contact, and an Agenda for Further Study: Thoughts in Response to Rick

Like Rick, I have been enjoying the ongoing ferment about liberalism and the American founding/experiment/project. It's a fun time to listen to what people have to say on the question and hear different points of view. I don't have fixed views on the genealogical doubts that Rick raises (curious to hear from others on that front), though I am in agreement that the diagnostic program--still in its infancy--is an exciting one that offers a lot for the scholar of law or politics who is interested in it.

In the spirit of fostering that program, I wanted to note a point of contact between Phillip and his targets. Phillip says this in his piece

One might accept this defense of our Founding principles yet still press an aspect of the “radical” Catholics’ third criticism — that American liberalism, whatever its original character, has produced a decadent and deplorable legal and moral culture. One might contend that even if the Founders accepted natural law, moral duties, and limits on rights, their account of freedom has proved to be too thin. It provides too much freedom for bourgeois, comfortable self-preservation, what moral theologian Servais Pinckaers calls “freedom for indifference,” and insufficient cultivation of “freedom for excellence.”

An honest assessment of America and our history must acknowledge that there is something to this criticism. The Founders held that the primary purpose of government is to secure natural rights. They believed that a just political order would preserve freedom for its citizens but that it would not command its citizens to use their freedom well.

I'd put the point perhaps slightly differently. It isn't so much that government "would not command its citizens to use their freedom well." It is that government, in at least ostensibly abjuring any interest in the substantive uses of freedom, would neglect this feature of freedom--its affective side--and would in consequence foster, never quite expressly but nevertheless relentlessly, a particular and quite non-neutral understanding of the point of the freedoms it protects. An understanding that would be internalized and entrenched over centuries, whatever the natural rights view defended by Phillip and the likes of Thomas West (whose book is very interesting) may have once looked like.

One might derive from this point of contact (if such it is) between Phillip and the "radicals" a specific research program focusing on different streams of intellectual history during the founding period (e.g., in the church-state context, but certainly not only there) with an eye specifically on the development of the idea of freedom in the subsequent decades and centuries. It may turn out both that the founding generation's ideas about the uses of freedom were quite varied (just as varied as ours are) and that there are reasons for the dominance of certain of these ideas and the recessiveness of others over the centuries.

June 14, 2018 in DeGirolami, Marc | Permalink

Wednesday, June 13, 2018

Catholic Hospitals in Ireland Will Be Required to Perform Abortions

Amazing news from Ireland, hot on the heels of the repeal of Ireland's pro-life provision. The movement from what was prohibited to what is required was...rather rapid. The classical liberal moment lasted about two weeks.

June 13, 2018 in DeGirolami, Marc | Permalink