Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, June 29, 2017

History repeats itself. Or, an implication of a state-established church?

From Sweden:  

Sweden's Prime Minister says no priest working for the Church of Sweden should be allowed to refuse to wed same-sex couples. . . .  

Löfven, who is not religious himself, said the state church should an "open democratic church...that stands for equal rights of all people. People who love each other, regardless of their sex, should have the same right to marriage."
He favors changes in church law that would make a willingness to perform same-sex weddings a requirement for ordination.
 
Are there any John Fishers in waiting in Sweden, I wonder?

June 29, 2017 in Garnett, Rick | Permalink

Monday, June 26, 2017

More on Trinity Lutheran

I have very little to add to Marc's and Tom's helpful reflections on today's Trinity Lutheran case.  Like Marc, I'm struck by the complete irrelevance to the Court's reasoning of the Blaine Amendments' anti-Catholic history, context, and purpose (for more on that, see, e.g., this).  I wonder what (if anything) this silence means for the "animus" argument in the context of the "Travel Ban" litigation?   

I do think it is worth noting -- primarily by way of a response to a suggestion made by Melissa Rogers in this news story -- that nothing in the case turned on the fact that Trinity Lutheran's pre-school (quoting the Chief Justice's opinion) "admits students of any religion."  That is, contrary to the argument in this amicus brief, it would not be the case that allowing a church-run daycare that did prefer co-religionists to participate in an evenhanded, secular-purpose program like the one at issue somehow constitutes government subsidization of (invidious) "discrimination." 

June 26, 2017 in Garnett, Rick | Permalink

Tuesday, June 20, 2017

Prof. Philip Hamburger on the Blaine Amendments and Anti-Catholic Prejudice

Over at First Things, Prof. Philip Hamburger lays out the history, context, and meaning of the so-called Blaine Amendments and their relevance to the pending Trinity Lutheran case.  Here's a bit:

In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.

This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.

If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.

June 20, 2017 in Garnett, Rick | Permalink

Monday, June 19, 2017

The Freedom of Speech at SCOTUS today

It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech.  Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses.   Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. 

As many Prawfs readers will know, groups of law professors weighed in on both sides of the case (see, e.g., here and here).

June 19, 2017 in Garnett, Rick | Permalink

Monday, June 5, 2017

Some thoughts on today's church-plan case

Today, the Supreme Court handed down a unanimous ruling, in a case called Advocate Health Care Network v. Stapleton, interpreting a particular provision of the federal employee-benefits statute, ERISA. Justice Kagan's opinion is a clear, engagingly written, concise, and technically sound example of the judicial craft. It also vindicates Congress's important effort to protect the religious freedom of religious hospitals, charities, and social-welfare institutions and has clear implications for ongoing debates about these institutions' religious liberties, about the freedom of conscience in the healthcare context, and about the separation of church and state.
 
The provision at issue in Monday's ruling had a clear purpose: to respect the important contributions that religious institutions, including hospitals, make to the common good and to keep government officials out of the business of deciding which institutions are 'really' religious and which are not.  Congress was affirming the bedrock principle that religious freedom and exercise are not limited to private prayer or weekend worship; rather, they include providing care to the sick, the poor, and the vulnerable.
 
For several years, activists and class-action lawyers have worked to convince courts to interpret Congress's effort narrowly, in a way that would have imposed significant costs on religious institutions and undermined their faith-inspired social-welfare activities.  The Court's decision both affirms and embraces Congress's sound judgment, decades ago, to prevent regulators from trying to enforce a line between what 'churches' do in private and what religious institutions do in the public square.
 
Increasingly, it is being argued that the distinctive mission and character of religious institutions should lose legal protection when these institutions are involved in providing health care, or work to provide adoption services or foster care, or cooperate with government to solve problems of poverty, human trafficking, education, and so on.  Many believe that these institutions should not be allowed to object, as a matter of religious conscience to -- for example -- providing abortions or abortion referrals.  And while it is primarily the job of Congress and other legislators to protect these institutions' religious-conscience rights, today's decision by the Court is a welcome and well-crafted vindication of one such effort.

June 5, 2017 in Garnett, Rick | Permalink

"When the Ku Klux Klan Tried to Shut Down Religious Schools"

A helpful reminder from Prof. Thomas Kidd about the context of the Pierce v. Society of Sisters case and, let's be candid, about the roots of too much of today's opposition to school choice.  My only quibble might be with the headline, given that the Klan had no problem with "religious" public schools (i.e., the "public" schools of the day were not, in today's terms, "secular").

June 5, 2017 in Garnett, Rick | Permalink

Wednesday, May 24, 2017

"Objection to Conscience: An Argument Against Conscience Exemptions in Healthcare"

That's the title of a paper posted to SSRN by Alberto Giubilini (of "After-Birth Abortion" fame).  Here's the abstract:

I argue that appeals to conscience do not constitute reasons for granting healthcare professionals exemptions from providing services they consider immoral (e.g. abortion). My argument is based on a comparison between a type of objection that many people think should be granted, i.e. to abortion, and one that most people think should not be granted, i.e. to antibiotics. I argue that there is no principled reason in favour of conscientious objection qua conscientious that allows to treat these two cases differently. Therefore, I conclude that there is no principled reason for granting conscientious objection qua conscientious in healthcare. What matters for the purpose of justifying exemptions is not whether an objection is ‘conscientious’, but whether it is based on the principles and values informing the profession. I provide examples of acceptable forms of objection in healthcare.

This is, I think, the way things are going.  Those who acquire the power to (re)define the "principles and values informing the profession" will, increasingly, do so in a way that renders un-"acceptable" Christian commitments and practices and excludes those with such commitments from the professions (including law).  

If you haven't read Legutko, I suggest you do.

May 24, 2017 in Garnett, Rick | Permalink

Tuesday, May 23, 2017

Dugan reviews Dreher's "Benedict Option"

My friend and former student Conor Dugan has this review up, at Catholic World Report, of Rod Dreher's The Benedict Option.  It's worth a read.  I think Conor's does a better job than most reviews of "getting" what (it seems to me) Dreher is proposing.  In keeping with what many of us here at MOJ have been writing for years, Conor hones in on the centrality of anthropology:

The first chapters of The Benedict Option are largely diagnostic, an assessment of where we are and how we got here. Contrary to critics of the book, Dreher’s diagnosis is not overly pessimistic or declinist (nor is it, as one virtue-signaling academic claimed, a lament for a white-Christianity that is no longer), but realistic. Indeed, while I can understand criticisms of Dreher’s proposal for how we ought to respond to the barbarism that we face, for the life of me, I cannot understand how people can reject his assessment of the world as it is now. We might not like it, but the portrait Dreher paints seems largely accurate. ...

We've forgotten what nature is—the sheer givenness of nature and its intrinsic meaning and intelligibility. As Pope Benedict stated beautifully in his last Christmas address to the Curia as Pope:

[T]he attack we are currently experiencing on the true structure of the family, made up of father, mother, and child, goes much deeper. While up to now we regarded a false understanding of the nature of human freedom as one cause of the crisis of the family, it is now becoming clear that the very notion of being – of what being human really means – is being called into question. . . . [S]ex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society. The profound falsehood of this theory and of the anthropological revolution contained within it is obvious. People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.

May 23, 2017 in Garnett, Rick | Permalink

Friday, May 19, 2017

Prof. Michael Hernandez on religiously-affiliated law schools

Courtesy of Paul Caron, here's a new paper from Michael Hernandez (Regent) called "In Defense of Pluralism:  Religiously Affiliated Law Schools, Olympianism, and Christophobia."  The abstract:

Daniel Webster observed that “Christianity, general, tolerant, Christianity, Christianity independent of sects and parties” was the foundation of our liberties and legal system. In the spirit of this tradition, I have explained in my scholarship that the law must zealously guard religious liberty for all, while the substance of law should be based on principles of truth knowable by and accessible to all and not on principles unique to one faith. In other words, a Christian-based jurisprudence does not inherently involve the imposition of uniquely Christian principles and, thus, is not theocratic. This Essay responds to direct challenges to religiously affiliated educational institutions and explains why a principled pluralism rooted in the enduring traditions upon which this nation was built must include accommodating the right of religiously affiliated institutions to act in accordance with their faith principles.

Timely and important.

May 19, 2017 in Garnett, Rick | Permalink

Friday, May 12, 2017

Misunderstanding religious liberty and the freedom of the Church

Over at Commonweal, Prof. Massimo Faggioli (Villanova) has a piece  ("Continental Drift") that is, among other things, critical of Catholic bishops in the United States for their religious-liberty stance and activities.  Prof. Faggioli writes:

[T]here’s a gap in time between American Catholicism and the pontificate of Francis—not just the six- or nine-hour differences in time zones but what seems like a six- or nine-century difference in historical time. Institutional American Catholicism is longing for a relationship to a political power that is more medieval than modern or postmodern, hoping for protection from the persecution it feels in having lost cultural hegemony. This can be seen in the medieval understanding of religious liberty that has obtained since the beginning of the legal fight against certain provisions of the Affordable Care Act eight years ago. It resembles libertas Ecclesiae, the “freedom of the Church” to rule on the faithful as subjects, more than it does the concept of religious liberty laid out in Dignitatis Humanae, which is based on the freedom of conscience of the individual believer. It is an example of the “interrupted reception” of Vatican II in the U.S. Church. Vatican II tried to deal with the end of Tridentinism; its rejection brings us back not to Trent but even earlier, to a medieval Christendom as the past to which Roman Catholics ought to refer as the golden age.

This quote reflects both a mistaken view of the Church's "medieval" "relationship to . . . political power" and a mischaracterization -- indeed, a caricature ("to rule on the faithful as subjects") -- of what the Church in America has been seeking in the current American context.  The Council did not, contra Prof. Faggioli's suggestion, set the "freedom of conscience of the individual believer" against the freedom of the Church.  There's this (emphasis added):

This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.

The council further declares that the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself.  This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right.

It is in accordance with their dignity as persons-that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility-that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.

And, there's this:

The freedom or immunity from coercion in matters religious which is the endowment of persons as individuals is also to be recognized as their right when they act in community. Religious communities are a requirement of the social nature both of man and of religion itself.

Provided the just demands of public order are observed, religious communities rightfully claim freedom in order that they may govern themselves according to their own norms, honor the Supreme Being in public worship, assist their members in the practice of the religious life, strengthen them by instruction, and promote institutions in which they may join together for the purpose of ordering their own lives in accordance with their religious principles.

Religious communities also have the right not to be hindered, either by legal measures or by administrative action on the part of government, in the selection, training, appointment, and transferral of their own ministers, in communicating with religious authorities and communities abroad, in erecting buildings for religious purposes, and in the acquisition and use of suitable funds or properties.

Religious communities also have the right not to be hindered in their public teaching and witness to their faith, whether by the spoken or by the written word. However, in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion or of a kind of persuasion that would be dishonorable or unworthy, especially when dealing with poor or uneducated people. Such a manner of action would have to be considered an abuse of one's right and a violation of the right of others.

In addition, it comes within the meaning of religious freedom that religious communities should not be prohibited from freely undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity. Finally, the social nature of man and the very nature of religion afford the foundation of the right of men freely to hold meetings and to establish educational, cultural, charitable and social organizations, under the impulse of their own religious sense.

In recent years, the rights of religious communities set out above have, in various ways, become more vulnerable and, in some cases (as in the previous Administration's position in the Hosanna-Tabor case) been attacked.  The Catholic bishops in America have been correct (and entirely in keeping with the religious-freedom views of Pope Francis and his predecessors) in defending these rights and nothing about this defense sets them against the religious freedom of individual believers.

  

May 12, 2017 in Garnett, Rick | Permalink