Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.SCOTUSblog's case page has links to all the briefs.
Thursday, February 11, 2016
One of the topics we've discussed often, over the years, at MOJ is the challenge (and importance) of building and maintaining meaningfully (and therefore interestingly) Catholic institutions, including universities. The recent news out of Mt. St. Mary's University provides (among other things) an occasion for thinking not only about what it means for a university to be meaningfully, pervasively "Catholic." Does a university's "Catholic" character constrain -- and, if so, how? -- the strategies and tactics that administrators may employ in responding to what they regard as the challenges facing higher-education institution's generally? (Here's another news story, thanks to Crux.)
Wednesday, February 10, 2016
In this editorial, Commonweal asks whether the "Supreme Court will fatally weaken labor" in the Friedrichs case. In my view, the Court's Abood case was wrong the day it was decided and it should be overruled.
Let me start with agreement. The Editors open with this:
Labor unions can be corrupt, obstructionist, and maddeningly bureaucratic. They are also important mediating institutions—John Paul II called them “indispensable”—that serve as a counterweight and check on government as well as corporate power. In that role, unions are essential to the health of democracy, and crucial to promoting participation in the political process.
I agree. (I might insert a caveat, though: It is not clear that public-sector unions consistently or effectively serve as a "counterweight and check on government . . . power." They sometimes support and contribute to government power . . . when that power is being exercised in ways that align with those unions' interests.)
As the editors note, the power and membership of private-sector unions has declined in recent decades, while "[p]ublic-employee unions have remained relatively strong, thanks to the acceptance by government and unions alike of collective bargaining and binding arbitration." As I see it, though, some governments have "accepted" these -- and they have done so when doing so was in the political interests of the parties in power in those governments -- while others have not. One of the criticisms of public-sector unionism, as it is practiced today, is that it too often does not involve negotiation or checking, but instead mutual-benefit arrangements between some politicians, on the one hand, and public-sector unions, on the other.
The editors acknowledge that public-sector unions contribute consistently and generously to the Democratic Party. They write, next, that "[t]he Friedrichs case has been steered through the lower courts by a right-wing libertarian group that is not coy about its hope that in overturning Abood the Court will deal a devastating blow not just to the union movement, but to the Democratic Party." I don't see why this group should be "coy" about wanting to undermine the power of the Democratic Party, especially if -- in that group's views -- the power of the Democratic Party is being unfairly (and, they think, unconstitutionally) augmented through funds obtained not through contributions but through exactions on objecting public employees.
In any event, though, the First Amendment question should be asked and answered without regard to the ideological leanings either of the group challenging the agency-shop deal or the party that benefits from that deal. And, I think that question has a clear answer. The editors suggest, in one sentence, that the First Amendment theory the challengers are relying on is tainted by association with Citizens United (another case that is widely misunderstood and that was correctly decided) and with the "money is speech" theory. But, as many have pointed out, the Court did not say that "money is speech"; it said that "forbidding spending money on speech burdens the right to speak," which it clearly does. Here, the claim is that requiring someone to spend money on speech burdens the right not to speak. (That the freedom of speech includes the right not to speak is well established. See, for example, the classic flag-salute case.) I am sure the editors would agree that it would be unconstitutional for a government to require public employees to contribute, as a condition of employment, to the production, printing, and mailing of political literature for the Republican Party. So, it seems to me, the editors' objection is not really to the claim that mandatory dues implicates the First Amendment, but to the conclusion that the challengers' First Amendment rights outweigh the benefits that agency-shop arrangements provide to public-sector unions. As they conclude:
Free speech has not, and should not, trump every other right or social good. The right of association and the dignity that follows from having an effective voice in the workplace are equally important.
The Constitution does protect the freedoms of association and assembly and I agree that the associational rights of unions "weigh" just as much as the speech rights of employees. However, this case does not implicate the right of public-sector workers to associate; it does implicate the current ability of public-sector unions to require workers to engage in expressive association. Whatever public or moral interest there might be in maintaining that ability is outweighed -- given our First Amendment -- by the objecting employees' rights.
I've written many, many times here at Mirror of Justice that criticisms of some aspects of public-sector unionism, and defenses of public-employees' constitutional right to opt-out of agency-shop arrangements, are not inconsistent -- at all -- with the emphasis in the Church's social teachings on the dignity of work and the important mediating functions of labor unions. Those teachings do not prevent us either from (i) noting the implications and demands of our First Amendment or (ii) pointing out the many ways in which American public-sector unions undermine the common good (e.g., their opposition to school choice and their strong support for abortion rights).
Monday, February 8, 2016
Here is a piece by moral theologian Prof. Charles Camosy (Fordham) - author of (among other things) Beyond the Abortion Wars (which I blurbed) -- called "Yes, Catholics May Vote for Bernie Sanders." Charlie reminds readers that Catholics indeed may vote for political candidates, notwithstanding those candidates' unsound views in support of serious moral wrongs, in some cases. And, I think he's right: A conscientious Catholic "may" vote for Sen. Sanders, notwithstanding the Senator's deeply misguided views on (inter alia) abortion.
I believe there are more than a few things to like and respect about Sen. Sanders (and more than a few things -- e.g., his past sympathies for the Soviet Union -- that are highly objectionable). I would hope that not just Catholics, but thoughtful people generally, would see that many of Sen. Sanders's views and proposals are unsound and impractical, wholly and apart from their consonance or not with Catholic moral teaching. That said, as Rusty Reno and others have pointed out, Sen. Sanders (and Donald Trump, for that matter) are, notwithstanding their failures on other fronts, calling attention to the alienation many middle- and working-class Americans feel and to some of the often-overlooked costs of technological innovation, globalization, urbanization, and mobility. This alienation needs to be addressed.
In his post, Charlie asks us to assume a voter who honestly believes that (a) "Republican lawmakers rarely sacrifice other concerns in defense of prenatal children"; (b) "women are structurally pushed toward abortion"; and (c) "Catholics must favor the poor first." He thinks that such a person could have "proportionate reasons" for voting for Sen. Sanders.
There is no denying that Republican politicians have often disappointed when it comes to abortion. That said, I believe that Charlie here (and he's not alone on this) is probably not weighing heavily enough (to be fair, though, he's simply constructing a hypothetical) the reality -- a reality that has to be confronted and cannot reasonably be disputed -- that (i) the Supreme Court's caselaw constrains what can be done on the pro-life front; (ii) within those constraints, non-trivial progress has been made in terms of reasonable regulations of abortion; and (iii) this progress is due nearly-entirely to the efforts of Republican politicians (and the permission of GOP-appointed judges and justices). The argument that "the GOP talks about abortion but never actually does anything" does not square with facts (even if many of us wish more had been accomplished and are frustrated by those occasions when "other concerns" have unnecessarily trumped).
I want to put that matter aside, though, and not "fight the hypo." I'm wondering: more generally, with respect to the "proportionate reason" inquiry: Can "Candidate A supports Good Policy X (for example, "comprehensive immigration reform") be a "proportionate reason" for supporting Candidate A, notwithstanding Candidate A's support for Immoral Policy Y, if (i) Candidate A's election will almost certainly not result in the enacting of Policy X and (ii) Candidate A's election will almost certainly result in the enactment of Policy Y? Given what I take to be the givens in current American politics, the more ambitious social-welfare policies that Sen. Sanders and Charlie's hypothetical voter support are not particularly likely to emerge from a Republican Congress (or, for that matter, an American Congress). If (as I imagine) the arguments about social-welfare and economic policy are likely to stay "between the 40 yard lines" in American politics, but arguments about (say) school choice, religious freedom, and the equal dignity of unborn and elderly persons could turn out dramatically differently, depending on who is in the White House, staffing the administrative state, and picking judges . . . then it seems to me that any prudential judgments about "proportionate reasons" would need to take these likelihoods into account.
Wednesday, February 3, 2016
I think that Perry Dane is one of the most thoughtful law-and-religion scholars out there today. Check out this new piece. Here's the abstract:
This article was originally presented during a conference on “Hosanna-Tabor and/or Employment Division v. Smith” at the Institute for Law and Religion of the University of San Diego School of Law. At its most practical, the article tries to make sense of the puzzle that that motivated the San Diego conference: the dramatic divergence in our law between doctrines of individual religion-based exemptions from otherwise-applicable rules, which are increasingly under conceptual and doctrinal attack, and religious institutional autonomy, which was resoundingly reaffirmed in Hosanna-Tabor as a principle of self-conscious recognition of the authority and juridical dignity of religious institutions.
More fundamentally, though, the article builds on two main themes. First, it argues that the three strands of the jurisprudence of law and religion -- free exercise, non-establishment, and religious institutional autonomy -- are rooted in a common theme or master metaphor: the existential encounter between the state and religion and the vision of religious communities and normative systems as distinct sovereigns. Second, it also emphasizes, the importance to the legal imagination of what I call “double-coding” -- the simultaneous, stereoscopic, and mutually transposing, affirmation of both radical principle and staid doctrine. Double-coding can appear in many places in the law, but it is particularly important in contexts such as the relation of religion and state in which the legal culture is most likely to retreat into a simple-minded solipsism about its own monopoly on authority and juridical dignity. But double-coding can only work successfully if legal doctrine, whether by conscious design or not, is open at least to pointing to something beyond itself.
The article calls on both these conceptual tools -- the master metaphor of sovereignty and the possibility of double-coding -- to try to understand the divergence between the fate of religion-based exemptions and religious institutional autonomy. The article suggests various explanations for that divergence, but focuses on the essentially contingent fact that, even during their heyday, judicial defenses of free exercise exemptions never adequately responded to some fundamental theoretical challenges and (unlike doctrines of institutional autonomy) rarely allowed for the power of double-coding to shape the legal imagination.
Justice requires discretion as well as rules, and it can coexist with mercy.
When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.
Both the review, and the book, are recommended!
Wednesday, January 27, 2016
Thursday, January 21, 2016
I recently read the much-discussed new(ish) novel by Michel Houellebecq, "Submission." There have been loads of reviews; here's just one, from The University Bookman. I cannot say that it's a cheery or uplifting read but it's certainly sharp, sobering, and provocative. (There is some great writing. I loved this line: "I knew next to nothing about the south-west, really, only that it was a region where they ate duck confit, and duck confit struck me as incompatible with civil war. Though, of course, I could be wrong.") In any event . . . in a later chapter describing the changes that take place and the policies that are adopted by the new "national unity government," led by Mohammed Ben Abbes, a charismatic member of the Muslim Brotherhood, there're several pages devoted to Chesteron, Belloc, and distributism. It turns out that Abbes had been profoundly influenced by this movement, and so sets about to "end state subsidies for big business" and "adopt policies that favoured craftsmen and small business owners. These measures were an instant hit . . .[,]"
Here's another line, which tells the reader quite a bit about the main character: "[E]ven the word humanism made me want to vomit, but that might have been the canapes. I'd overdone it on the canapes."
Tuesday, January 19, 2016
The amicus briefs in the Little Sisters case are pouring in and, as you'd expect, there are a lot (HT: SCOTUSblog). Here is a link to a brief that I signed, along with MOJ-ers Marc and Robby and a number of other Constitutional Law Scholars supporting the Little Sisters' RFRA challenge to the mandate. The main point is that it would not violate the Establishment Clause to accommodate the Little Sisters under RFRA.
Friday, January 15, 2016
This is big, big news. From Prof. Friedman: