Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Wednesday, April 1, 2015


Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter's recent post: "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."

One might have thought, even relatively recently, that religious freedom was a "civil right." But no longer: it is now said to be the enemy of "civil rights." And I suppose that what is "weaponized" will depend on one's perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state's interest in vindicating specific sorts of dignitarian harms, that have been "weaponized." But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here's how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I'll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.


April 1, 2015 in DeGirolami, Marc | Permalink

Monday, March 30, 2015

Free Exercise By Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.

  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight. 

March 30, 2015 in DeGirolami, Marc | Permalink

Thursday, March 26, 2015

"It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own."

That's from a superb essay on originalism and "the rule of the dead" by Joel Alicea in the latest issue of National Affairs. Alicea's piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:

By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, "Decisions of yesterday's legislatures...are enforced...because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones." That is, "[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept." We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.

This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, "the people" exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.

This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless. 


These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: "We will obey your laws — so long as they mean what we say they mean." The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism's core philosophical assumptions.

Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead. 

March 26, 2015 in DeGirolami, Marc | Permalink

Monday, March 23, 2015

Two Reviews: Inazu on Smith, Movsesian on Russell

A couple of interesting new book reviews. First, a review by John Inazu of Steve Smith's most recent book, The Rise and Decline of American Religious Freedom, over at the Hedgehog Review (though John's original title, "Steve Smith, Optimist" really sang). Here's the ending:

Smith published Rise and Decline just prior to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Holt v.Hobbs, and it’s worth considering how those cases fit his story. Both were wins for religious liberty, but both were statutory rather than constitutional decisions. In one sense, the focus on statutes is completely unsurprising given the state of constitutional free exercise concerns. But it’s not clear that these statutory protections by themselves alter the direction of Smith’s narrative of decline. For that kind of directional change, we would need the Court to re-examine its reasoning in the 1990 peyote case, Employment Division v. Smith. Such a re-examination would be entirely warranted. As Laycock rightly noted in an amicus brief filed just this month, the rule announced in the peyote case came unexpectedly (the rule “was neither briefed nor argued” to the Court) and the decision “cannot be said to have become embedded in the law.” But the Supreme Court has thus far not budged. And as long as that decision stays on the books, Smith may have been better off basing the title of his latest book on an article he wrote in the Harvard Law Review a few years ago: “Discourse in the Dusk: The Twilight of Religious Freedom?” Even then, Smith’s question mark might be too optimistic.

Second, my colleague Mark Movsesian's review over at the Liberty Law blog of Gerard Russell's book, Heirs to Forgotten Kingdoms. Here are Mark's concluding paragraphs:

There is a danger in treating Copts and other Middle Eastern Christians like this. A major obstacle to getting American Christians interested in the plight of Middle Eastern Christians is the fact that they seem so foreign, so distant from the lived experience of Christianity in the United States. Accounts like Russell’s inadvertently emphasize the “otherness” of Middle Eastern Christians, thereby making it even less likely that they will draw the attention of Americans in a position to help. Of course, this is not Russell’s intention. As I say, he has genuine sympathy and admiration for all these groups, including the Christians. But his portrayal of them may have an unintended and unfortunate effect.

Nonetheless, this is an enjoyable and valuable book, instructive and a pleasure to read. It should appeal to anyone with an interest in the history of religion and the Middle East—indeed, anyone with an interest in the human spirit itself.

March 23, 2015 in DeGirolami, Marc | Permalink

Wednesday, March 11, 2015

On Remembering and Forgetting

A worthwhile reflection at the always interesting Hedgehog Review by Wilfred McClay. Here's an interesting bit on the difference between memory and unfiltered, endlessly accreting deposits of historical data:

Memory is the very core of our personal identity, and it is most powerful when it is purposeful, and selective. Above all, it requires that we possess stories and narratives—contexts—that link facts in ways that are both meaningful and true, rather than treat them as a mass of disaggregated data, to be exploited as we, or others, might wish. What makes for intelligent and discerning memory is not the mere capacity for massive retention, but a certain balance and order in the mental economy of remembering and forgetting. In other words, memory takes an active role in thinning out the mental trees so that the forests can be discerned. We need to retain less if we are to remember more. In so doing, we may rediscover the enduring virtues of ink on paper, of scripta that remain in one place, as the vehicle for a new kind of samizdat, one that eschews the digital grid altogether.

March 11, 2015 in DeGirolami, Marc | Permalink

Tuesday, March 3, 2015

"Why Our Children Don't Think There are Moral Facts"

An interesting piece in the New York Times yesterday. The reason provided in the article is that the public school curriculum draws a hard line between value claims (opinions) and other sorts of claims that can be "tested or proven" (facts). I wouldn't think this is solely a feature of the contemporary public school curriculum, or even of our particular moment. Indeed, this kind of critique of early education is familiar from previous periods and cultural settings. See, e.g.:

In their second chapter Gaius and Titius quote the well-known story of Coleridge at the waterfall. You remember that there were two tourists present: that one called it 'sublime' and the other 'pretty'; and that Coleridge mentally endorsed the first judgement and rejected the second with disgust. Gaius and Titius comment as follows: 'When the man said This is sublime, he appeared to be making a remark about the waterfall... Actually ... he was not making a remark about the waterfall, but a remark about his own feelings. What he was saying was really I have feelings associated in my mind with the word "Sublime", or shortly, I have sublime feelings' Here are a good many deep questions settled in a pretty summary fashion. But the authors are not yet finished. They add: 'This confusion is continually present in language as we use it. We appear to be saying something very important about something: and actually we are only saying something about our own feelings.' ....

The schoolboy who reads this passage in The Green Book will believe two propositions: firstly, that all sentences containing a predicate of value are statements about the emotional state of the speaker, and secondly, that all such statements are unimportant. It is true that Gaius and Titius have said neither of these things in so many words. They have treated only one particular predicate of value (sublime) as a word descriptive of the speaker's emotions. The pupils are left to do for themselves the work of extending the same treatment to all predicates of value: and no slightest obstacle to such extension is placed in their way. The authors may or may not desire the extension: they may never have given the question five minutes' serious thought in their lives. I am not concerned with what they desired but with the effect their book will certainly have on the schoolboy's mind. In the same way, they have not said that judgements of value are unimportant. Their words are that we 'appear to be saying something very important' when in reality we are 'only saying something about our own feelings'. No schoolboy will be able to resist the suggestion brought to bear upon him by that word only. I do not mean, of course, that he will make any conscious inference from what he reads to a general philosophical theory that all values are subjective and trivial. The very power of Gaius and Titius depends on the fact that they are dealing with a boy: a boy who thinks he is 'doing' his 'English prep' and has no notion that ethics, theology, and politics are all at stake. It is not a theory they put into his mind, but an assumption, which ten years hence, its origin forgotten and its presence unconscious, will condition him to take one side in a controversy which he has never recognized as a controversy at all. The authors themselves, I suspect, hardly know what they are doing to the boy, and he cannot know what is being done to him. 

CS Lewis, The Abolition of Man, Chapter 1 ("Men Without Chests") (1943).

March 3, 2015 in DeGirolami, Marc | Permalink

Monday, March 2, 2015

Podcast on Oral Argument in EEOC v. Abercrombie & Fitch

My colleague, Mark Movsesian, and I have a new podcast up on the Supreme Court oral argument last week in EEOC v. Abercrombie & Fitch. We discuss the background of the case, the Tenth Circuit decision, the oral argument, and then we offer some views about the implications for religious accommodation more broadly and predict the outcome.

March 2, 2015 in DeGirolami, Marc | Permalink

Wednesday, February 25, 2015

Proust, "The Death of Cathedrals"

I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John Chartres Pepino). As the introduction explains, the context of Proust's essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 "Law of Separation"), and in specific what would happen to France's cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:

Suppose for a moment that Catholicism had been dead for centuries, that the traditions of its worship had been lost. Only the unspeaking and forlorn cathedrals remain; they have become unintelligible yet remain admirable.  
Then suppose that one day scholars manage, on the basis of documentary evidence, to reconstitute the ceremonies that used to be celebrated in them, for which men had built them, which were their proper meaning and life, and without which they were now no more than a dead letter; and suppose that for one hour artists, beguiled by the dream of briefly giving back life to those great and now silent vessels, wished to restore the mysterious drama that once took place there amid chants and scents—in a word, that they were undertaking to do what the Félibres have done for ancient tragedies in the theatre of Orange.
Is there any government with the slightest concern for France’s artistic past that would not liberally subsidize so magnificent an undertaking? Do you not think that it would do what it did in the case of  Roman ruins for these cathedrals, which are probably the highest, and unquestionably the most original expression of French genius? After all, one may well prefer the literature of other peoples to ours, prefer their music to ours, their painting and sculpture to ours, but it is in France that Gothic architecture created its first and most perfect masterpieces.  All other countries have done is to imitate our religious architecture without ever matching it.
And so, to return to my hypothesis, here come scholars who have been able to rediscover the cathedrals’ lost meaning. Sculptures and stained-glass windows recover their significance, a mysterious odor once again wafts in the temple, a sacred drama is performed, and the cathedral starts to sing once more.  When the government underwrites this resurrection, it is more in the right than when it underwrites the performances in the theaters of Orange, of the Opéra-Comique, and of the Opéra, for Catholic ceremonies have an historical, social, artistic, and musical interest whose beauty alone surpasses all that any artist has ever dreamed, and which Wagner alone was ever able to come close to, in Parsifal—and that by imitation.
Caravans of swells make their way to the holy city (whether it is Amiens, Chartres, Bourges, Laon, Rheims, Rouen, Paris, or whatever town you please, we have so many sublime cathedrals!), and once a year they experience the feeling they once sought in Bayreuth and in Orange: enjoying a work of art in the very setting that had been built for it. Alas, here as in Orange, they can only ever be curious dilettantes; try as they might, the soul of times past does not dwell within them. The artists who have come to perform the chants, the actors who play the role of priests may be learned, they may have imbued themselves with the spirit of the texts, and the Secretary of Education will lavish medals and compliments upon them. Yet, in spite of it all, one cannot help but think “Alas! How much more beautiful these feasts must have been when priests celebrated the liturgy not in order to give some idea of these ceremonies to an educated audience, but because they set the same faith in their efficacy as did the artists who sculpted the Last Judgment in the west porch tympanum or who painted the stained-glass lives of the saints in the apse. How much more deeply and truly expressive the entire work must have been when a whole people responded to the priest’s voice and fell to its knees as the bell rang at the elevation, not as cold and stylized extras in historical reconstructions, but because they too, like the priest, like the sculptor, believed. But alas, such things are as far from us as the pious enthusiasm of the Greeks at their theater performances, and our ‘reconstitutions’ cannot give a faithful idea of them.”
That is what one would say if the Catholic religion no longer existed and if scholars had been able to rediscover its rites, if artists had tried to bring them back for us. But the point is that it still does exist and has not changed, as it were, since the great century when the cathedrals were built. For us to imagine what a living and sublimely functioning thirteenth-century cathedral was like, we need not do with it as we do with the theater of Orange and turn it into a venue for exact yet frozen reconstitutions and retrospectives. All we need to do is to go into it at any hour of the day when a liturgical office is being celebrated. Here mimicry, psalmody, and chant are not entrusted to artists without “conviction.” It is the ministers of worship themselves who celebrate, not with an aesthetic outlook, but by faith—and thus all the more aesthetically. One could not hope for livelier and more sincere extras, since it is the faithful  that take the trouble of unwittingly  playing their role for us. One may say that thanks to the persistence of the same rites in the Catholic Church and also of Catholic belief in French hearts, cathedrals are not only the most beautiful monuments of our art, but also the only ones that still live their life fully and have remained true to the purpose for which they were built.


Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”;  “I am the lily of the valley”;  “I am the true vine.”

February 25, 2015 in DeGirolami, Marc | Permalink

Monday, February 16, 2015

Mideast Christians And ISIS

On February 18, St. John’s University Law School will host a panel, “Threat to Justice: Middle Eastern Christians and the ISIS Crisis,” at the university’s main campus in Queens, New York. The event will be co-sponsored by the Center for Law and Religion and the Catholic Law Students Association. Speakers will include Michael LaCivita (Catholic Near East Welfare Association), Edward Clancy (Aid to the Church in Need) and Mark Wasef (United for a New Egypt). My colleague, Mark Movsesian, will moderate. 

The topic of the panel could not be more urgent in light of the near-daily barbarities perpetrated by the Islamic State.

Please join us if you’re in the neighborhood. Details are here.

UPDATE: And do read this excellent article at The Atlantic by Graeme Wood, "What ISIS Really Wants."

February 16, 2015 in DeGirolami, Marc | Permalink

Tuesday, February 10, 2015

Bray on Multipurpose and Single Purpose Tools (in the Kitchen and in Law)

My friend Sam Bray has a marvelous essay just published in The Green Bag on doctrines that do many things and doctrines that do only one. Here's the beginning of the piece:

Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. The same distinction appears in legal doctrines. Some doctrines do one thing and are meant to do it very well. Others do many different things. They serve multiple functions, though perhaps all imperfectly. Cooks and cookbook authors debate the relative merits of single- function tools and multi-function tools. So do legal scholars. It often happens that a scholar will criticize a legal doctrine because it serves multiple purposes and is therefore incoherent. 

And later, in defense of multipurpose tools:

One [advantage] is about skill. The use of a multi-function tool may be taxing. Yet use can lead to skill, and skill to expertise, and expertise to mastery, a kind of hard-won excellence that is rarely possible with a single-function tool. Perhaps this is why those who are most adept at chopping, dicing, and mincing garlic often deride garlic presses, calling them “ridiculous and pathetic,” even “abominations.” Some disagree. But it does tend to be the case that those who have greater experience and expertise prefer the chef’s knife, while those who have less of each tend to prefer the garlic press. Such tendencies suggest that any assessment of these tools also requires an assessment of the person who wields them: a tool that serves multiple functions can be mastered only by someone who is capable of achieving that mastery. And the same is true for mastering a doctrine that serves multiple functions. A person with skill in granting and fashioning a constructive trust may prefer the more general doctrine, with the possibility that one function will shade slightly into another, without the sharp and artificial choice imposed by the single-function tools. But that sharp and artificial choice may be appealing to one less skilled.

And on how people with distinct roles in the law are drawn to specific sorts of tools:

Nor is it an accident that the critics of multi-function doctrines tend to be scholars, and those who use and defend them tend to be judges. In making the choice between single-function doctrines and multi-function doctrines, the interests of the bench, the bar, and the academy do not align. Judges are generalists. And attorneys are specialists who write for generalists. But scholars are specialists who write for other specialists. Those roles affect the preferences each actor has. A generalist judge might want a smaller number of doctrines, each serving multiple functions – a set of doctrines that can be resorted to again and again, even if each is used in different ways and for different purposes depending on the case. Specialists, especially those who do not write to persuade generalists, may seek an ever greater refinement of the rules, so that each rule fits its function exactly. The evidence is the enthusiasm that so many scholars have shown for critiquing multi-function doctrines and urging their replacement with single-function doctrines. But the bench has resisted this. Judges have shown no interest in these scholarly projects of deconstruction. 

In the end, Sam writes, the choice of a tool is one thing, but the choice of what to make for dinner is something else. I quite agree. Why would anybody ever cook with garlic?

February 10, 2015 in DeGirolami, Marc | Permalink