Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Wednesday, July 23, 2014

Esbeck on the new Executive Order

At the Cornerstone blog, Prof. Carl Esbeck has a helpful piece ("Differences:  Real and Rhetorical") regarding the President's recent Executive Order having to do with sexual-orientation and gender-identity discrimination by federal contractors.  In it, Esbeck responds to certain claims made by a group of prominent legal academics, in their own letter opposing any religious exemptions in the Order.  Esbeck concludes:

How do we live together as a people despite our deepest differences? The nation’s better practice, historically, was to bracket off religious conscience and thereby stop making religious scruples fair game for partisan debate. America’s unique contribution to government theory was to separate matters of religious conscience from the machinery of politics and the will of the majority. That approach has brought us sectarian peace despite our unprecedented religious pluralism. Why trade in a system that has served this country so well for one that has served others so poorly?

July 23, 2014 in Garnett, Rick | Permalink

Arkes replies to Garnett re: RFRA, Hobby Lobby, etc.

Prof. Hadley Arkes asked me to post the following reply to my recent post, and I am happy to do so:

I’d like to respond to a couple of the concerns that Richard Garnett raises in his post today on my arguments about Hobby Lobby.   I need to recall to him and my other friends that I have been thoroughly sympathetic to the use of RFRA.  What I've argued is that RFRA is apt and useful because it creates, for the religious, that zone in which the government would have to bear a heavier burden of justification when it restricts personal freedom.  The saving grace of RFRA is that it secures, for the religious, the kind of protection that the courts used to offer more fully for many others when the judges were far stricter in testing the justifications for laws that restricted private rights.

But as Garnett rightly says, my own view [is] that the case could have been argued on deeper foundations.  One friend of mine, experienced in litigation on religion, argued that Hobby Lobby could have been argued even more clearly on the Takings Clause.  Richard Epstein and the libertarians would invoke principles of freedom of association in fending off these intrusions into a private family arranging its private business.   Are they wrong for conceiving other ways of arguing the same case?  What I've been pointing out is that these arguments, draw from the principles of a regime of law,  are not diminished moral arguments. For they draw their meaning from the understanding of the "human person," a term given deeper resonance by our religious teaching.   Only those beings we call “moral agents” can impart a moral purpose to inanimate matter;  and so yes, it is no trivial matter to justify the restrictions placed on these kinds  of beings, as they seek, even in prosaic matters, to honor their own understanding of the ways of life rightful for them.  My pitch has been that if we begin from the classic understanding of the moral ground of the law, and the burdens of justification that the government should rightly bear, we will have provided an even former moral grounding for religious freedom.

But I have a question in turn:  Garnett says that he doesn’t agree with my argument against a “right to be wrong,” but he never sets out that argument or actually explains why it is wrong. 

He also cites this passage of mine in which I sought to bring together the strands of the argument that, taken together, would have a powerful effect in striking at the very ground of the law:

I’ve argued … that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Now I’m curious:  Have I not given an accurate account the strands that have actually been woven through these cases?  If I have any of these wrong, I would be glad to find out that I’m wrong. But if those strands are there, as I’ve marked them out here, why would they not be the carrie[r]s of principles quite destructive for the laws?

Forgive me one more point on a question I posed in First Things, and which I haven’t seen addressed yet:   

The Catholic Church doesn’t argue on abortion by appealing to revelation or belief.  It argues in the reasoning of natural law, a combination woven of embryology and principled reasoning.  And so I raised the question of whether the protections here under RFRA would apply to the Catholic businessman, reasoning on the matter in the style of the Church, but not to the businessman who uses precisely the same moral reasoning used by the Church, even while he disclaims any religious affiliation?   As I've pointed out, this was exactly the problem faced by Congress in the Civil Rights Restoration Act of 1988:  Would they give an exemption only to religious hospitals in sparing them the obligation to perform abortions?  Or would they honor also the moral objections of those hospitals that were morally opposed to abortions but had no religious definition?

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Arkes' reply clarifies nicely one of our disagreements.  He says that "the case could have been argued on deeper foundations" and, in response, I say, "no, it could not."  The "Takings" and "freedom of association" arguments that Arkes mentions are, at the present time and given the current legal givens, losing arguments (regardless of how deep their foundations go and regardless of their moral appeal).    

Next, Arkes says "Garnett says that he doesn’t agree with my argument against a 'right to be wrong,' but he never sets out that argument or actually explains why it is wrong."  This is true.  Such an explanation didn't and does not seem (to me) necessary, as it was provided in Ryan Anderson's response to Arkes (and, I think, in Dignitatis Humanae).   

Third, Arkes writes:  

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Once again, I think Arkes has helpfully identified our clear disagreement.  I would "simply" say precisely what Arkes says, above.  The question whether a "coherent moral account" can be given of our current positive-law arrangements regarding religious freedom is an interesting and important one, but that question is (very) different from ones having to do with the arguments to be made in real-world, present-day courts, to judges charged with interpreting and applying not first principles of morality but unsurprisingly imperfect statutes and doctrines.

July 23, 2014 in Garnett, Rick | Permalink

MOJ joins Law Professor Blogs Network

After ten years . . . I am really happy to announce that, as of today, Mirror of Justice is now part of the Law Professor Blogs Network, and I am very grateful to my friend and longtime MOJ supporter and reader, Paul Caron, for inviting us aboard.  I hope MOJ readers like the new "look" and that you'll all continue to check in, and spread the word!

July 23, 2014 in Garnett, Rick | Permalink

Tuesday, July 22, 2014

Hadley Arkes on Hobby Lobby, "belief", and religious freedom: A response

As Mirror of Justice readers probably know, Prof. Hadley Arkes contributed a piece to the June issue of First Things called "Recasting Religious Freedom."  In that piece (and in some others) he expresses (among other things) concern not about the result in the Hobby Lobby case but in the arguments and premises on which (he thinks) many of Hobby Lobby's supporters have relied.  He is worried, for instance, that the arguments pressed by Hobby Lobby's defenders have emphasized the extent to which the contraception-coverage mandate burdens religious "beliefs" and that these defenders have uncritically accepted what he regards as an unsound claim, i.e., that there is a "right to be wrong."  

He returns to this general line of thinking in this piece ("Post-Hobby Lobby Illusions") and this one ("Backing Happily Into Heresy").  And, in these posts, he is responding to (among other things) Ryan Anderson's critique, "The Right to Be Wrong."  Ryan wrote:

. . . Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. . . . 

I agree.  Arkes' First Things piece and the more recent ones to which I have linked are, in my view, mistaken in several respects.  I won't repeat Anderson's arguments -- which I think are compelling -- but will just share a few thoughts in response to Arkes' expressions of concern.

First, Arkes writes:

I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Here, I think that Arkes is wrong.  It is not the case -- given the relevant real-world givens -- that the Hobby Lobby case "could have been won" using the argument that Arkes suggests, i.e.:  "In a regime of freedom, people have a presumptive claim to all dimensions of their freedom, and the burden lies with the government to offer a 'justification' for restricting that freedom."  Over and again, in the First Things piece and in the others, Arkes seems to be frustrated that Hobby Lobby's lawyers and defenders made the arguments that the relevant pieces of positive law invited -- it's probably fair to say "required" -- them to make.  It could well be that the Religious Freedom Restoration Act does not capture fully or well the real and true foundations of religious freedom, properly understood.  But, nevertheless, the Act is the Act, and for Hobby Lobby to win, Hobby Lobby's lawyers needed to argue -- and would have been foolish not to argue -- that the Act entitled them to win.  

Next, in "Backing Happily into Heresies" (here), Arkes appears to be arguing that Gregory Holt should lose his RLUIPA case (which the Supreme Court will hear next Term).  (Disclosure:  I signed an amicus brief supporting Holt, who is represented by Prof. Doug Laycock.)  When "we" argue that Mr. Holt's religiously motivated desire to wear a beard is one that current, valid, governing positive law recognizes and protects, we are -- Arkes says -- "walking in a haze, celebrating along the way, and backing happily into heresies, political and religious."  Specifically, we are mistakenly buying into the idea that "we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else."

But, again:  There is a piece of duly enacted legislation, RLUIPA, the meaning and implication of which is at issue in the Holt case.  And, according to that legislation, it is not a mistake, but is rather clearly and obviously the right thing to do, to put aside the business of judging the "content" of or otherwise "test[ing]" the truth or Holt's religious beliefs.  What matters is whether or not the challenged official action substantially burdens a sincerely held religious belief and, if so, whether that burden is adequately (within the meaning of RFRA) justified.  

Now, I imagine that there is a connection, or significant overlap, between (a) egregiously and dangerously misguided religious beliefs and (b) religious beliefs that the government is justified in burdening.  But, again, I do not understand why Arkes seems to be insisting that lawyers with a job to do should do something else.  (I also think it is wrong -- and contrary to Dignitatis Humanae -- to contend, as Arkes appears to contend, that the right to religious freedom does not include the right to hold and -- within the limits imposed by public order and the common good -- express and act upon religious convictions that are unreasonable or untrue.)

July 22, 2014 in Garnett, Rick | Permalink

Henry Garnet, S.J., the sacrament of confession . . . and Louisiana

This piece, "Uncle Same Eavesdropping Outside the Confessional," by Aaron Taylor, at First Things, is well worth a read.  Discussing a current controversy in Louisiana, Taylor explains why "[c]ompelling Catholic priests to violate the confessional is not only bad for the Catholic Church, but bad for America."  And . . . he gets to invoke Fr. Henry Garnet's martyrdom along the way.  

July 22, 2014 in Garnett, Rick | Permalink

Inazu on religious freedom, antidiscrimination law, and pluralism

John Inazu has a very good piece up at Christianity Today, "Religious Freedom v. LGBT Rights?  It's More Complicated."  In a nutshell:

First, we must understand the history from which they emerge. Second, we must understand the legal, social, and political dimensions of the current landscape. Third, and finally, we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing numbers of Americans who are outside the Christian tradition.

After sharing several predictions -- including the troubling "Fewer people will value religious freedom" -- Inazu develops the following point:

If I am correct about these three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors.

Pluralism rests on three interrelated aspirations: tolerance, humility, and patience. . . .

. . .The argument for pluralism and the aspirations of tolerance, humility, and patience are fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don't share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections. . . .

Inazu's claim about the declining "resonance" of "religious exceptionalism" arguments is, I suspect, accurate as a descriptive matter.  And yet . . . religion is special, and our Constitution, laws, and traditions treat it as special.  Stay tuned.

July 22, 2014 in Garnett, Rick | Permalink

Friday, July 11, 2014

A troubling development

The Boston Business Journal reports that Gordon Collegem a "Christian college on the North Shore[,] faces scrutiny from the body that accredits colleges and universities in New England."  This "scrutiny" is a result, according to the report, of the fact that "Gordon College President D. Michael Lindsay thrust the college into the spotlight a week ago by signing a letter to President Barack Obama requesting that he exclude religious institutions from an executive order barring organizations that take federal money from discrimination in hiring based on sexual orientation."

Why might this be, as I suggest, troubling?  Because, as this post describes, "the federal government relies on accrediting agencies to decide which colleges qualify for the $157 billion of federal funding provided annually to colleges and universities[.]"  Those who care about institutional pluralism and diversity should be concerned that a college President's request that a coming policy change take account of religious freedom results in such a not-so-subtle threat of punishment.

July 11, 2014 in Garnett, Rick | Permalink

Please nominate MOJ for a spot in the Best 100 Legal Blogs

More info here.  I feel confident that nominations will be appropriately appreciated by Our Lady, Mirror of Justice! 

July 11, 2014 in Garnett, Rick | Permalink

Thursday, July 10, 2014

"Can Markets Make Citizens?"

This paper ("Can Markets Make Citizens?  School Vouchers, Political Tolerance, and Civic Engagement", appears in the latest Journal of School Choice and is well worth a read.  Here is the abstract:

School voucher programs challenge the traditional role of the public school as the builder of citizens, raising the question of whether private schools can provide a civic education of equal quality. In this study, we use survey data from the Milwaukee voucher program to investigate the relative benefits in civic outcomes of attending a voucher school. We find that voucher students demonstrate modestly higher levels of political tolerance, civic skills, future political participation, and volunteering when compared to public schools students. Further analyses indicate these results may be driven in part by those students attending Catholic and other religious schools.

July 10, 2014 in Garnett, Rick | Permalink


I'm not a soccer (or "football") fan, but I thought this was great:

July 10, 2014 in Garnett, Rick | Permalink