Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, April 14, 2017

Esbeck on discretionary religious accommodations and "third-party harms"

Prof. Carl Esbeck has posted a succinct, and very helpful, response to the currently popular theory that discretionary religious exemptions violate the Establishment Clause whenever they result in "third-party harms."  Here is the abstract: 

The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these new burdens, an accommodation for those holding conflicting religious beliefs or practices. Such religious exemptions are enacted at the discretion of the legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. In an unbroken line of cases now spanning a century, the Supreme Court has seven times rejected the argument that a religious exemption contravenes the Establishment Clause. In some instances, no doubt, lawmakers should exercise their discretion and deny an exemption for religious observance. What is not the law is that the presence of adverse effects on those who do not benefit from an exemption causes an otherwise lawful accommodation to violate the Establishment Clause.

Cases involving a religious preference are being confused with exemptions. An exemption occurs when a dissenter’s religious practice is simply left alone even as others are made to labor under a new burden of the legislature’s creation, be it a tax or regulatory duty. Government does not establish religion by leaving it alone. An exemption, rather, ensures that a new regulatory burden on others is not also thrust in the path of individuals who are already inclined to follow the dictates of their faith. Because the government’s exemption is not the causal agent behind the religious observance, any harm to third parties is the result of private conduct. Harm redressable under the Establishment Clause must be injury that was caused by the government, not private actors.

A preference, on the other hand, arises when the government takes note of a disagreement in the private sector that involves religion. If a law is adopted that takes the side of the religious disputant, the government is intentionally preferring religion. The favoritism occurs in a situation not of the state’s creation, but in circumstances arising out of private social or market forces. Should the form of the government’s intervention go on to “unyieldingly” side with religion such that any costs to others are not weighed in the balance, then the Court will strike down the preference. The operative Establishment Clause rule is that persons in the private sector should not be forced to readjust their lives just so that a neighbor can better conform to his or her religion.

Along with the foregoing preferences, progressives want religious exemptions to be balanced against any incidental harms that befall third parties. They want this not as a matter of legislative discretion, but as a constitutional imperative. This not only misconceives the nature of the Establishment Clause, but the argument assumes that “third-party harm” as a juridical category can be both defined and bounded. It cannot. Additionally, the logic behind this category is in danger of expanding and could end up overwhelming most every religious exemption.

The founding generation did not regard a religious exemption as an establishment. Moreover, there are presently thousands of religious exemptions in local, state, and federal law. To abolish them all because they are thought to be unconstitutional under a novel theory would work primarily to the injury of religious minorities. That would bring a sea change in the venerable American practice of extending a welcoming hand to diverse religions.

April 14, 2017 in Garnett, Rick | Permalink


Regular MOJ readers (and those burdened by social-media connections with me) will know that, for quite a while, I'd been looking forward to the release of Martin Scorcese's production of "Silence", by Shusaku Endo.  I saw it -- in a theater, even! -- last week and was moved, impressed, provoked, and unsettled.

There are a lot of reviews and interpretations out there already (some of which seem to be more about the author's theological or political hobby-horses than about the book, the film, the author, or Scorcese), and I won't try to referee the arguments here.  The film is, like the book, ambiguous -- deliberately so, I've always assumed.  I do not pretend to know what Scorcese "intended" to communicate, but -- as I saw it -- the production paints statist anti-Christian persecution as the evil that it was, and is; depicts sympathetically the pain (physical and spiritual) that such persecution causes; and admiringly portrays the courage of martyrs, even as it evokes sympathy for those who stumble (as we all do).  The sound, the imagery, the color, the scenes and settings - all great. Highly recommended.

A blessed Easter to all! 

April 14, 2017 in Garnett, Rick | Permalink

Friday, April 7, 2017

More evidence -- in this case, tragic evidence -- about the importance of school choice

St. Anthony's high school in Newark is, after years of struggling, going to close.  This shouldn't have to happen. 

April 7, 2017 in Garnett, Rick | Permalink

Helfand on anti-Catholicism . . . and Trinity Lutheran

Here's an excellent piece by Prof. Michael Helfand (Pepperdine) on anti-Catholicism and the upcoming Trinity Lutheran case.  (I wrote about the case here.)

April 7, 2017 in Garnett, Rick | Permalink

Wednesday, April 5, 2017

Sen. Tim Kaine's misguided and disappointing attack on Judge Gorsuch

Here is a link to Sen. Kaine's op-ed in which he contends that Judge Gorsuch, if confirmed to the Supreme Court, "jeopardizes women's rights."  As we were told often, during the campaign, Sen. Kaine is a practicing, educated, well formed Catholic, and so it is surprising and disappointing that he would, in his piece, present the very idea of "complicity" as if it were something exotic or troubling.  Put aside disagreements about the Court's application of the RFRA in Hobby Lobby and put aside also questions one might have about the religious objections raised in that case or in the Little Sisters litigation.  Kaine writes:

"All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others."

"The wrongdoing of others"? Who are these "others," and what did they do wrong? They are the women who work for Hobby Lobby, and their "wrongdoing" was their desire to make their own choices about using contraception.

Moral questions of complicity in others' behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner's beliefs about contraception conflicted with the ACA. So Judge Gorsuch's decision to inject his own editorial comment about women's "wrongdoing" was an insulting characterization of a personal choice protected by the law. His two uses of the phrase "all of us" also suggest that he was making a point far broader than what the parties to the case had presented to him.

But, of course "[m]oral questions of complicity in others' behavior had . . . to do with the legal question in this case."  The entire point of both sets of cases was that the RFRA claimants objected, for reasons they described as religiously-informed moral reasons, to being required by the coverage mandate to be complicit in what they regarded as wrong.  (Indeed, probably the leading -- even if, to me, unconvincing -- academic criticism of Hobby Lobby focuses precisely on the dangers the authors see in incorporating "complicity" into religious-freedom law.)  I understand, certainly, that Sen. Kaine (and, probably, most people) do not think that, in fact, the conduct in question is "wrongdoing" but that "ha[s] nothing to do with the legal question in [the] case[s]."  (This response by Kaine to a fact-checker reflects a similar mistake.)   

April 5, 2017 in Garnett, Rick | Permalink

Sunday, April 2, 2017

Some Pope St. John Paul II posts, on the anniversary of his death

Here are just a few, from the archives.  RIP.

"The Jurisprudential Legacy of Pope John Paul II" (here).

"Pope John Paul II and the Law" (here).

Calendar of the Beatification (here).  

"Remembering Pope John Paul II" (here).

"MOJ reflections of the first feast of St. John Paul II" (here).

"John Paul II and the Crisis of Modern Times" (here).

April 2, 2017 in Garnett, Rick | Permalink

Monday, March 27, 2017

"To Win Again, Democrats Must Stop Being the Abortion Party."

So argues Thomas Groome in today's New York Times.  He writes:

By tradition and by our church’s teaching on social justice, many Catholics could readily return to voting reliably Democratic. But for this to happen, their moral concerns regarding abortion must get a hearing within the party, rather than being summarily dismissed. How might that happen?

To begin with, Democratic politicians should publicly acknowledge that abortion is an issue of profound moral and religious concern. As a candidate, Barack Obama did just that in a 2008 interview, saying, “Those who diminish the moral elements of the decision aren’t expressing the full reality of it.”

Democrats should not threaten to repeal the Hyde Amendment, which forbids federal funds to be used for abortion except in extreme circumstances. They could also champion an aggressive program to promote adoption by strengthening the Adoption Assistance Act of 1980 and streamlining adoption procedures. The regulations in many states seem designed to discourage it.

Democratic politicians should also continue to frame their efforts to improve health and social services as a way to decrease abortions. The abortion rate dropped 21 percent from 2009 to 2014. That downward trend would most likely end if Republicans eliminate contraception services provided through the Affordable Care Act.

As I see it, these called-for developments -- while they would be welcome -- would not really do much to change the minds of those who regard, perhaps with regret, the Democratic Party as "the Abortion Party."  The first proposal -- "acknowledge that abortion is a matter of profound . . . concern" -- is obviously sound, but it need not be accompanied by any changes in platform or policy.  The second -- don't repeal the Hyde Amendment -- is also welcome, but it really involves simply maintaining a 40-year status quo.  And the final one -- "continue to frame efforts" -- is about messaging, not policy.  It seems to me that what could make a difference (but is very unlikely to happen, given the political givens) would be if the Democrats decided that their positions on abortion should roughly track those of the population as a whole.

March 27, 2017 in Garnett, Rick | Permalink

Oral Arguments today in the church-plan case

The Court heard oral arguments today in a case that has very important religious-freedom and church-state dimensions and implications but has "flown under the radar" in the public conversation.  As SCOTUSblog describes, "Advocate Health Care Network v. Stapleton (consolidated with two other related cases), . . . asks whether the Employee Retirement Income Security Act’s exemption for church plans applies to pension plans maintained by church-affiliated organizations."  Here is the brief of the USCCB, which is well worth a read.

March 27, 2017 in Garnett, Rick | Permalink

Setting the record straight about Notre Dame's Center for Ethics and Culture

A few days ago, John Gehring, of "Faith in Public Life," wrote a kind of "what I saw behind the scenes" piece about a "conservative Catholic gathering in DC's Trump Tower."  Among other things, the piece offered what was characterized as an account of some remarks by my friend and colleague, Carter Snead, who directs the Notre Dame Center for Ethics & Culture.  Based on Gehring's account, Gary Caruso -- who works in the Department of Homeland Security and who has a regular column in The Observer (the student-run newspaper at the University of Notre Dame) -- wrote a critical, indeed more-than-a-little snarky attack on what he called the "near-sighted vision" of the Center. 

As regular MOJ readers might remember, I'm a huge fan of the Center's work on campus and beyond.  The annual Fall Conference the Center puts on is one of the highlights of the academic year.  And, it turns out -- as Snead carefully and charitably sets out here -- that Gehring's account, and Caruso's attack, were misleading and misguided.  Snead concludes with this:  "We welcome everyone of good will who shares our love of civil discourse, Notre Dame, the Church and its much-needed countercultural teachings on human dignity and the common good."

March 27, 2017 in Garnett, Rick | Permalink

Wednesday, March 22, 2017

Princeton Theological Seminary pulls honor for Tim Keller

This is, I think, a very troubling (and revealing) development:

Faced with mounting criticism for its decision to give a major award to the Rev. Tim Keller, founding pastor of Redeemer Presbyterian Church in Manhattan and one of the country’s best-known conservative Christian thinkers, Princeton Theological Seminary has reversed course and said Keller will not receive the honor.

In an email to faculty and students on Wednesday morning (March 22), the president of the venerable mainline Protestant seminary, the Rev. Craig Barnes, said he remains committed to academic freedom and “the critical inquiry and theological diversity of our community.”

But he said that giving Keller the annual Kuyper Prize for Excellence in Reformed Theology and Public Witness – named after a famous Dutch neo-Calvinist theologian – might “imply an endorsement” of Keller’s views against the ordination of women and LGBTQ people.

Now, I happen to agree that institutions of higher education should carefully about whom they honor and about the meanings of the awards they confer. But, Tim Keller is eminently worthy of being honored. Yes, my understanding is that he has traditional Christian views regarding marriage and sexual morality. He also is admirably charitable and civil in addressing these and all other matters.  So, I agree with the principle that this statement reflects:

“Yes to academic freedom. Yes to listening to others whose opinions are different from our own (no matter how distasteful they may be),” Smith wrote on her blog, where she had initially blasted the award to Keller as “offensive.”

“No to giving large fancy prizes that can be confused with endorsement. Some may not be satisfied with this response. I think it’s a great compromise.”

I am not convinced, though, that it was appropriately applied in this case. 

March 22, 2017 in Garnett, Rick | Permalink