Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, July 5, 2018

Judge Amy Coney Barrett

Here's a short reflection I wrote regarding my friend and colleague, Judge Amy Coney Barrett, who is (apparently) being considered to replace Justice Anthony Kennedy.  The bottom line (as I see it):

Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.

July 5, 2018 in Garnett, Rick | Permalink

Sunday, July 1, 2018

Some thoughts on Justice Kennedy and his retirement

Alexander Hamilton predicted that the Supreme Court would be the weakest of the national government's three branches. Many would say that things have not turned out that way and would hold up Justice Kennedy's three decades on the Court as an example.

Justice Kennedy was Pres. Reagan's third nominee to replace Justice Lewis Powell, and the fact that Powell's replacement was Kennedy, rather than Robert Bork, would prove to be hugely consequential.
 
Over the years, Justice Kennedy appeared to "swing" or "switch" back and forth between the Court's more liberal and more conservative blocs, but he held, in fact, a fairly consistent judicial philosophy that prioritized free-speech rights and personal autonomy. Perhaps more than any other justice during his tenure, he believed it was the Court's role and obligation to supervise and second-guess political decisions and resolve social and cultural controversies. His conception of a broad and dramatic judicial role was most famously illustrated in his abortion and gay-rights decisions. In the Planned Parenthood v. Casey decision, he joined an opinion that not only asserted the Court's role as final arbiter but also called on citizens to end their disagreements about abortion policy. Obviously, this call has not been heeded, and Kennedy's critics will say it was presumptuous to issue it.
 
Other areas where Justice Kennedy's vote made significant differences include the debate over federalism and the national government's powers, religious liberty, church-state relations, affirmative action and voting, school choice, and limits on capital punishment. Both political "conservatives" and "liberals" can find much they welcome, and much they reject, in his 31-year record on the Court.
 
It seems likely, judging from the current administration's nominees so far, that Justice Kennedy's retirement and replacement change the Court's balance and case-law in some -- but by no means all -- areas. After all, the vast majority of the Court's rulings are not 5-4, ideologically divided cases. Instead, in most cases and for most of the year, the Court works on technical questions of statutory interpretation and operates by substantial consensus. It is, all things considered, unfortunate that the Court and its composition have come to matter so much with respect to disputed and divisive policy and moral questions that our Constitution is best understood as leaving to the political process. It would be a welcome result of the upcoming confirmation battle if both political parties in Congress take it as an occasion to recommit themselves to Hamilton's vision.      

July 1, 2018 in Garnett, Rick | Permalink | Comments (0)

Wednesday, June 27, 2018

Court invalidates agency-fees requirement for public employees

The Supreme Court's decision in Janus is here.  In my view, while the stare decisis concerns about overruling Abood (which I have always thought was, to quote Justice Aliton, "poorly reasoned"), this result is the correct one, in that Abood and mandatory agency-fees had become outliers in the Court's First Amendment doctrine and precedents.  There will, of course, be a flood of commentary focusing on the political /partisan implications of the ruling, but I don't believe that commentary should obscure what I regard as the basic point that a public employee should not be required, as a condition of public employment, to support financially (and therefore, under the Court's precedents, to associate with) partisan and political activities to which he or she objects.  

I'll also note -- as I have many (Ed.:  Too many, Rick) times on this blog, that it is (with all due respect to the USCCB) mistaken to claim that Rerum Novarum, or the Church's social teaching on work and workers' rights more generally, requires or even counsels support for legal requirements that public employees support the partisan activities of today's public-employee unions. Nor is it "libertarian," or "individualistic," or "Randian," etc., to conclude that a Supreme Court charged with enforcing the First Amendment should invalidate such requirements.

Workers (in the public and in the private sectors) have a constitutional and moral right to form associations and to advocate in and through those associations for their interests. They do not, in my view, have either a constitutional or a moral right to enlist government power to require those who have different views about those interests to contribute to their partisan or inescapably political activities. (It is clear that the pre-Janus requirements that public-employee unions allow objecting workers to withhold funds for ideological activities are not strictly observed.)

I welcome others' reactions, of course! 

June 27, 2018 in Garnett, Rick | Permalink | Comments (0)

Tuesday, June 26, 2018

Prof. Carl Esbeck on Trump v. Hawaii and the Establishment Clause

MOJ-friend and law-and-religion expert Prof. Carl Esbeck (Missouri) has shared this essay on today's Trump v. Hawaii decision and its implications for Establishment Clause claims:

The President’s Immigration Travel Ban:

What Trump v. Hawaii Has to Say About Stating a Claim Under the Establishment Clause

Carl H. Esbeck[*]

 It is little appreciated that the United States Supreme Court’s decision today in Trump v. Hawaii, No. 17-965, in addition to addressing the scope of presidential power concerning the entry of foreign nationals into the country, concerns the First Amendment on religious freedom. In particular, the case is instructive regarding the elements for stating a claim under the Establishment Clause, as well as clarifying those harms that are redressable by the clause.

Writing for a 5-4 Court, Chief Justice Roberts held that President Trump did not exceed his authority as outlined in congressional legislation. He also said that he did not today reach the Establishment Clause question, but only because a lower standard of review is applied to constitutional claims in this context of immigration and national security concerns. The case is far from over, however, as the matter was remanded back to the lower courts for further proceedings. That could entail additional fact finding and renewal of claims not before the Court today.

At the center of Trump v. Hawaii is Proclamation No. 9645, an order captioned Enhancing Vetting Capabilities and Process for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.[1] The proclamation is the third iteration of President Trump’s so-called “immigration travel ban” directed at foreign nationals from eight nations, six of which are Muslim-majority in population. The central allegation is that the President, by targeting nations with overwhelming Muslim majorities, was motivated by discriminatory intent toward those of the Islamic religion. Throughout the country lawsuits were filed alleging that the executive order: (i) conflicted with the President’s authority as detailed in congressional legislation; (ii) exceeded the President’s power in the Constitution; and, (iii) violated the First Amendment on religious freedom. Finding the pleadings meritorious, federal district courts entered nationwide preliminary injunctions against the President and the departmental secretaries charged with implementing the proclamation. The injunctions were later upheld in various circuit courts of appeal.[2]

Trump v. Hawaii came to the Supreme Court from the Ninth Circuit. The case was decided in the circuit on the bases that in issuing Proclamation No. 9645 the President exceeded his authority under congressional statutes.[3] The Ninth Circuit did not reach the Plaintiffs’ alternative claims, among which were claims under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). The Supreme Court granted certiorari on the question concerning presidential powers, as well as on the claim that the proclamation violated the Establishment Clause.[4]

The suit was brought by three types of plaintiffs.[5] The State of Hawaii alleged proprietary harms to its own agencies and loss of revenue, including hindering the operation of the state university in enrolling students and recruiting qualified faculty.[6] Three individual Plaintiffs, Dr. Ismail Elshikh and John Does 1 and 2, alleged that as U.S. citizens they had a statutory right to bring family that are closely related by blood or marriage to live in the United States. But the planned relocations were waylaid by the proclamation. Finally, an associational Plaintiff, Muslim Association of Hawaii, Inc., likewise had members whose family relocations were interrupted, and it reported that the entity was losing members because they found affiliation with an Islamic organization brought members unfavorable attention.[7] These individual and associational Plaintiffs are Muslim and, unlike the State of Hawaii, they can allege religious injury. Aliens abroad typically have no constitutional rights, but these domestic Plaintiffs raised their own legal rights and averred losses and injuries specific to themselves.

Deferential Review Under the Establishment Clause?

Because the alleged religious discrimination was directed at foreign nationals, the Government argued that Plaintiffs’ constitutional claims were subject to a standard of review that was highly deferential to the Government. Kleindienst v. Mandel[8] held that courts should engage in only limited judicial review when a U.S. citizen contends that the denial of a visa to an alien abroad violates the citizen’s own constitutional rights. Under Mandel, the Government need only give “a facially legitimate and bona fide reason” for its adverse decision toward entry of a foreign national said to have caused harm to the U.S. citizen filing suit.[9] Once the Government has stated to the court a lawful reason for its actions and the reason appears truthful, that is the end of the matter. The citizen-plaintiff does not get to probe into whether the Government’s explanation is pretextual.

In a parallel case, the Fourth Circuit earlier found that the Government’s proffered national security rationale for the proclamation was not bona fide.[10] There also have been exceptions to the rule in Mandel involving constitutional rights like free speech and due process. So far, however, the exceptions are few and the direction of the law is uncertain. Finally, some Justices were on record as wanting to modify Mandel and permit pretextual challenges. Chief Justice Roberts, for the Court, noted the conventional Mandel rule but elected not to apply it. Slip op. 30-32. Instead, he applied a rational-basis standard of review which does permit pretextual challenges. Slip op. 32. He likely took this path so as not to lose his majority, divided as there likely were over Mandel. The Chief Justice proceeded to find that the proclamation was rational and so administered. Slip op. 33-38.

While claiming to not reach the Establishment Clause claim, the majority proceeded to lower the rigor of its protection to rational basis in this limited context. This drew a dissent by Justice Sotomayor. Slip op. 15-16 n. 6 (Sotomayor, J., dissenting). This is so, rejoined the Chief Justice, not just as to the Establishment Clause but as to all constitutional rights and restraints. Slip op. 32-33 n.5. It is all because of the special context of executive authority concerning national security and immigration. So, on remand, the less rigorous standard will apply to the Plaintiffs’ Free Exercise Clause claim, but not to the RFRA claim and its requirement of strict scrutiny. Citing Romer v. Evans, the Court says that a showing of animus against a class would show irrationality. Slip op. 33. What is not clear is if a law can fail rational-basis review in the absence of animus.

The Supreme Court, however, did not need to resolve whether to follow the Mandel rule here, or fashion a new one of rational-basis review. As will be shown below the Establishment Clause claims fail on bases as straightforward as the Constitution’s text.

What Does the Establishment Clause Prohibit?

            The Supreme Court’s case law has developed two lines of authority or rules under the Establishment Clause that are possibly relevant here.

Rule 1 is that the Establishment Clause prohibits government from intentionally discriminating among religions, that is, preferring one religion over another. In such cases the injury is a type of discrimination, such as a religious claimant missing out on some governmental advantage afforded those of other religions.

The leading case is Larson v. Valente.[11] In Larson, the Supreme Court held that the Establishment Clause was violated by state legislation regulating solicitation by charities where the statute purposefully favored long-standing or well-known churches over new religious movements. There was evidence that legislators explicitly sought to assist well-known or familiar churches because they were deemed not in need of oversight, whereas certain new religions were suspect and their fund-raising methods aggressive and so unwelcome.[12] To intentionally favor one group of religions over another group of religions is to advance the former and suppress the latter. So it makes sense to regard the legislation in Larson as a forbidden “establishment” of the favored churches.

            Instances of government openly favoring one religion over another are uncommon. Gillette v. United States[13] is the only other Establishment Clause case of this sort to reach the High Court. In Gillette, the complaint was that a religious exemption to the military draft accommodated those who opposed all wars for religious reasons but did not accommodate those who opposed only unjust wars for religious reasons. The claimant was deemed to have stated a prima facie claim under the Establishment Clause for government preferring one religious doctrine over a competing doctrine. However, the Court went on to hold that Congress had sufficient nonreligious reasons to justify making the distinction. Because there was no intent to favor one religion over another religion, there was no violation of the Establishment Clause.[14] Larson is thus the only case decided by the Court where the religious claimant actually succeeded in proving a violation of Rule 1.

Rule 2 is that the Establishment Clause prohibits government from enforcing a religious preference, that is, an intentional preferring of religion over the secular. In such cases the injury is temporal or nonreligious. For example, the harm is a pecuniary or economic loss, as in Estate of Thornton v. Caldor[15] and Larkin v. Grendel’s Den.[16] Or the temporal injury is a state’s hindrance of open academic inquiry, as in Edwards v. Aguillard[17] and Epperson v. Arkansas.[18] Or the harm is the inability to hold a public office due to a religious test, as in Torcaso v. Watkins.[19] In each of these cases there was an intentional favoring of religion over the secular, which fits the First Amendment’s text of forbidding the “mak[ing of a] … law respecting an establishment of religion.“[20] As can be seen, a claimant does not have to first subscribe to a religion to successfully state a claim under the Establishment Clause.

The reverse of Rule 2, namely, the government favoring the secular over the religious, is not a forbidden establishment. This is only common sense. The plain text of the clause forbids the “mak[ing of a] … law respecting an establishment of religion.” Nothing in the text prohibits going the other way, namely: preferring the secular over religion. Government cannot establish a religion by aiding the secular. Rather, any favoring of the secular over religion will have to be framed as a challenge under the Free Exercise Clause.

In their briefs, Plaintiffs quote McCreary County v. ACLU of Kentucky,[21] where courts seeking to determine whether an act by an official had an improper “religious purpose” are instructed to look to “the text, legislative history, and implementation of the statute, or comparable official act” in question.[22] Applying this test, Plaintiffs aver that a governmental law disfavoring religion can implicate the Establishment Clause.[23] That is not just wrong, but silly—a mindless application of the three-prong Lemon test wholly disconnected from the constitutional text the Plaintiffs are invoking. A government cannot establish a religion by disfavoring it. To make matters worse, in its Opening Brief the Government seems to go along with Plaintiffs and repeats the error that official acts “of favoring or disfavoring religion can implicate the Establishment Clause.”[24]

In her dissent, Justice Sotomayor cites McCreary County, as well as Larson, Edwards, Epperson, and other cases decided under the Establishment Clause for the proposition that the clause is violated not only when religion is favored over the secular but when the secular is favored over religion. Slip. op. 2-3 (Sotomayor, J., dissenting). But all the cases cited are ones where government favored religion over the secular, never the reverse. And for good reason: it makes no sense to say the government is establishing religion when under the facts it is suppressing religion.

Application of these Rules on Remand

The State of Hawaii is not a religion, nor does it subscribe to one. So Rule 1, which requires discrimination among religions, is of no use to the State. Rule 2 requires an intentional preferring of religion over the secular. But the State’s claim goes in the other direction, to wit:  by discriminating against Muslims the proclamation prefers the secular concern for national security over religion. So Rule 2 is of no use to the State. Hawaii cannot state a claim under the Establishment Clause.

            The individual and associational Plaintiffs are Islamic and allege a colorable claim of religious injury. Rule 1 is that the Establishment Clause prohibits government from intentionally preferring one religion over another religion. Islam is disfavored. But does Proclamation No. 9645 advance Christianity, Judaism, or some other religion by discriminating against Muslims? I suppose it is remotely possible to envision Christianity or Judaism as receiving some benefit from Proclamation No. 9645, but it is just as likely or more so that the fortunes of other religions are unaffected or even damaged by the proclamation.[25] In any event, that either Christianity or Judaism are advanced by the proclamation is wholly speculative and unproven by the Plaintiffs. Rule 1 is out.

Nor does Proclamation No. 9645 establish or otherwise prefer Islam over the secular, the subject of Rule 2. Indeed, if anything the proclamation does the opposite: preferring the secular concern for national security over religion. Preferring the secular over religion is the opposite of establishing religion. Rule 2 is out.

It follows that neither the State of Hawaii nor the individual and institutional Plaintiffs can state a claim under the Establishment Clause.

What About the Free Exercise Clause?

A pleading framed as the government preferring the secular over religion requires turning to the Free Exercise Clause. However, from the plain language of the clause’s text (“make no law … prohibiting the free exercise of [religion].”), a person or organization must first have a religion before it can be exercised.[26] The State of Hawaii has no religion to exercise and thus can suffer no religious burden or injury. Hawaii cannot state a claim under the Free Exercise Clause.

The individual and associational Plaintiffs do have a colorable claim of religious injury and did set out in their amended complaint a count under the Free Exercise Clause. Under Oregon Employment Division v. Smith[27] and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,[28] the federal government is prohibited from singling out a religion, such as Islam, for adverse treatment. Animus need not be shown, just intent.[29] Normally such laws receive strict scrutiny and will be sustained only if the government can satisfy the compelling interest test.[30]

The Plaintiffs’ Free Exercise Clause and RFRA claims were not in the Court’s grant of certiorari. However, today Trump v. Hawaii was remanded to the lower courts for further proceedings. Slip op. 38-39. Normally the individual and associational Plaintiffs would have an opportunity to show that the proclamation was issued with discriminatory intent. However, the Court today held that all constitutional rights were subject to mere rational basis review. Slip op. 32-33 n.5. In the holding today and given this record, the Court found the proclamation rational, so on remand it will be difficult to prevail on the Free Exercise Clause unless the record is reopened and new and rather damming evidence is admitted. The RFRA claim, however, is by its own terms not limited by the special context of national security and presidential authority.

* * *

Nothing in the foregoing is to be taken as condoning governmental discrimination against Muslims or the President’s intemperate remarks on Islam and immigration. Both are to be deplored.

 

[*]R.B. Price Professor Emeritus and Isabella Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri.

 

[1] 82 Fed. Reg. 45,161 (Sept. 24, 2017).

[2] See, e.g., Int’l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir. 2018) (en banc), petition for cert. filed U.S. Sup. Ct. No. 17-1270.

[3] Hawaii v. Trump, 878 F.3d 662, 683-98 (9th Cir. 2017) (per curiam).

[4] 138 S. Ct. 923 (Jan. 5, 2018). A few weeks earlier the Court had granted a stay of the injunction pending appellate review. 138 S. Ct. 542 (Dec. 4, 2017).

[5] The multiple counts in Plaintiffs’ third amended complaint are summarized in Hawaii v. Trump, 878 F.3d at 674.

[6] Id. at 682.

[7] Id. at 678, 681-82.

[8] 408 U.S. 753 (1972).

[9] Id. at 770.

[10] Int’l Refugee Assistance Project, 883 F.3d at 264-65.

[11] 456 U.S. 228, 253-54 (1982).

[12] Id. at 231-33, 246-47 n.23, 250-51, 254-55.

[13] 401 U.S. 437 (1971).

[14] In contrast to a claim of intentional discrimination among religions, when a general law has a disparate effect among religions the Establishment Clause is not violated. See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 696 (1989) (limitations on charitable deductions in federal income tax law that had disparate impact on the giving patterns of members of a particular church did not violate the Establishment Clause); Bob Jones University v. United States, 461 U.S. 574, 604 n.30 (1983) (discrimination among religions that have differing beliefs concerning race was not purposeful, but the unintended effect of the IRS’s facially neutral regulation); cf. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) (dicta to effect that state regulatory act was not generally applicable legislation having disparate impact, but intentionally drafted to favor well-known churches while targeting new religious movements).

[15] 472 U.S. 703 (1985) (upholding claim by department store against Sabbath labor law).

[16] 459 U.S. 116 (1982) (upholding claim by tavern seeking liquor license blocked by nearby church).

[17] 482 U.S. 578 (1987) (striking down state law that required teaching of creation in public school science classes if evolution is taught).

[18] 393 U.S. 97 (1968) (striking down state prohibition on teaching evolution in public school science classes).

[19] 367 U.S. 488 (1961) (atheist kept from public office because state required oath professing belief in God).

[20] Care must be taken not to confuse a religious preference with a religious exemption. The Establishment Clause will strike down an unyielding religious preference. Religious exemptions are altogether different, however, and have been consistently upheld by the Supreme Court because exemptions do not entail “state action” that causes harm to others. See Carl H. Esbeck, Do Discretionary Religious Exemptions Violate the Establishment Clause?, 106 Kty. L. J. no. 4 (June 2018).

[21] 545 U.S. 844 (2005).

[22] Id. at 862 (internal quotation marks omitted).

[23] Cf. Int’l Refugee Assistance Project, 883 F.3d at 256 (“The Plaintiffs allege that the Proclamation violates the Establishment Clause by disfavoring Muslims.”).

[24] Trump v. Hawaii, U.S. Sup. Ct. No. 17-965, Brief for the Petitioners, p. 65 (filed Feb. 21, 2018) (emphasis added).

[25] When a Muslim community believes it is under persecution by a democratic state, that may cause tension with Christians, Jews, or other religions, or at least engender resentment toward those of other faiths who have the votes stop the persecution but fail to do so. Thus, it might be conjectured that every religion is harmed by the rise in tensions among them.

[26] There is no claim under the Free Exercise Clause unless a plaintiff first professes a religion. Frazee v. Illinois Dep't of Empl. Security, 489 U.S. 829, 833 (1989) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause; secular views will not suffice); Thomas v. Review Bd., 450 U.S. 707, 713-14 (1981) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause); Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972) (identifying religious claims that are “personal” and “philosophical” and those "merely a matter of personal preference" as not protected by free exercise). This understanding aligns with the drafting history of the Free Exercise Clause in the First Federal Congress of 1789. See Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 525-67 (2011); see especially id. at 563.

[27] 494 U.S. 872, 884 (1990).

[28] 508 U.S. 520 (1993).

[29] Shrum v. City of Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006).

[30] See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 430-32 (2006) (describing the focused, case-by-case nature of the compelling interest test in the Religious Freedom Restoration Act, which is the same test as under the Free Exercise Clause).

June 26, 2018 in Garnett, Rick | Permalink | Comments (0)

Monday, June 18, 2018

Parents' Rights in the border context . . . and beyond

One of the first papers I published, after becoming a law professor, was about parents' rights -- both generally and in the education and medical-treatment-refusal contexts more specifically.  It was called "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children" (available here).  Here is the abstract:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

I took (and still hold) a strong view of parents' rights to direct and control the upbringing of their children and I disagreed with those scholars who contended that (a) it is a mistake to talk about "parents' rights" because no one has a "right" to control another person's upbringing and development, (b) that it is a concession -- but only that -- by the state that we presumptively defer to (most) parents' choices about their children's upbringing and education, and (c) that the transmission of traditional or otherwise illiberal religious views and positions by parents to children can "count" as a "harm" that warrants state interference with the parents' practices.

This is, again, still my view.  That said, my impression is that -- in both the family-law and the constitutional-law fields -- the merits of the Pierce rule are quite contested and that many scholars hold the view that parents' power or authority to raise their children is merely delegated and should be subject to closer state supervision, in order to resist the successful transmission of illiberal or traditional religious views.  That is, the Douglas view in Yoder seems more popular than the Pierce decision.

In recent days, there has been a lot of close attention paid to the gravity of the state's decision to separate parents and children for public-policy (or, as we are seeing now, in terrorem) reasons.  I'm not an expert, but I'm inclined to agree with those who insist that it is unjust and unnecessary to have a blanket policy of separating and detaining the children of people who cross the border unlawfully and then present themselves for asylum consideration.  One hope I have for this current debate is that it will remind people of the moral and constitutional significance of the parental/family relationship and that we'll see some re-consideration by parents'-rights skeptics.  

June 18, 2018 in Garnett, Rick | Permalink

Thursday, June 14, 2018

Munoz, "Defending American Classical Liberalism"

In recent years, a number of important and interesting critiques of "liberalism", many rooted in the Catholic tradition of social and political theory, have been proposed by leading scholars and thinkers like Patrick Deneen, (our own) Adrian Vermeule and Marc DeGirolami, Ryszard Legutko, Michael Baxter, Rod Dreher, William Cavanaugh, David Schindler, Michael Hanby, etc., etc.  My colleague in Political Science, Phillip Munoz -- a scholar of the American founding -- has written a response.   Check it out.

I tend to agree with many of the critics' diagnoses of the present situation, but to disagree with the stronger genealogical claims (i.e., "what looks like today's illiberal progressivism is really the working-out of liberalism's key premises").  I tend to endorse (cling to?) the Murray-esque view that a relatively thin, primarily procedural liberalism leaves plenty of room for real human flourishing and the freedom of the Church.  But . . . I could be wrong.  I'd welcome others' reactions to Munoz's piece!

  

June 14, 2018 in Garnett, Rick | Permalink

Wednesday, June 13, 2018

A note about the Georgetown conference on "polarization" in the Church

I was scheduled to attend, but then -- unexpectedly, and to my regret -- had to miss, the recent conference at Georgetown, "Overcoming Polarization in a Divided Nation Through Catholic Social Thought."  (Learn more about the conference, and watch some video, here.)  At Distinctly Catholic, Michael Sean Winters -- who did participate -- shares some reactions.

I think Winters is right to remind us both that "polarization" is not new nor is it worse than it has ever been.  I also share the view that "civility" -- as important as it is -- needs to be discussed and thought about in the larger context of moral (and the morality of) argument.  (See, e.g., Murray:   "[S]ociety is civil when it is formed by men locked together in argument."  And he's wrong (though many other commentators are, too) to suggest that the fact Merrick Garland is not an Associate Justice somehow establishes which of the two dominant parties is more ruthless or determined in its efforts to secure its policy and other aims, especially with respect to judges, but put that aside.  I want to focus on one thing in particular, he said with respect to Prof. Helen Alvare's presentation.

[T]here remains a point of confusion that must be addressed. In the public session, Professor Helen Alvaré, law professor at George Mason University, said that she always thought the dichotomy between "social justice Catholics" and "pro-life Catholics" was a false one, because all of her pro-life friends work at soup kitchens or undertake similar work on behalf of the poor. God bless them. But, Catholic social teaching, while it commends opportunities for charity of the kind Alvaré described, also demands more. It demands justice. It demands that we look at, say, the economy through the lens of Catholic moral teaching and reach moral and anthropological conclusions based on our teaching rather than merely swallowing the dominant Hayekian ideology about markets that is so popular on the right and can be found in the classrooms of the Catholic University of America's business school.

The claim about "dominant Hayekian ideology" is misplaced (because no such "ideology" is "dominant" at CUA or anywhere else; the debate is about the extent, content, and efficacy, not the existence, of economic regulations) but the point about "justice" is worth underscoring.  Winters points out that more than personal charity directed toward the poor is required by the Church's social teachings, and that sounds right.  By the same token, though -- and I suspect Winters would not disagree -- more than support for policies that, one hopes, will result in fewer women becoming pregnant and choosing abortion is required by those teachings, too.  What is "demand[ed]" here is also "justice," and - contrary to the recent suggestion by Fr. Reese -- a "new strategy" that gives up on building a just legal regime, one that recognizes the equality and protects the dignity of each person, is not an attractive one.   

June 13, 2018 in Garnett, Rick | Permalink

"Irish Catholic Hospitals 'Will Have To Perform Abortions'"

The news, given the givens, is probably not all that surprising.   Still, there's something not a little bit . . . chilling about the tone of the PM's diktat.  "It will not, however, be possible for publicly-funded hospitals, no matter who their patron or owner is, to opt out of providing these necessary services which will be legal in this state," for example.  Well, it certainly is and would be "possible" for Catholic hospitals not to be forced to facilitate acts they (reasonably) regard as gravely wrong.  And this:

Mr Varadkar added: "That legislation will allow individuals to opt out based on their consciences or their religious convictions but will not allow institutions to do so.

"So, just as is the case now in the legislation for the Protection of Life During Pregnancy Act 2013, hospitals like for example Holles Street, which is a Catholic voluntary ethos hospital, the Mater, St Vincent's and others will be required, and will be expected to, carry out any procedure that is legal in this state and that is the model we will follow."

The tone's a mix between a bureaucrat in a dystopian novel and a scolding kindergarten teacher.  

So . . . how will/should the Church respond?

June 13, 2018 in Garnett, Rick | Permalink

Tuesday, June 12, 2018

Fr. Justin Brophy on "The Practice of Catholicism and Modern Identity."

In Notre Dame's (excellent) Church Life Journal is an essay by my former student, Fr. Justin Brophy, O.P., called "The Practice of Catholicism and Modern Identity."  Here's a taste:

We are products of our zeitgeist more than we sometimes understand or admit. The Gospel of Jesus Christ transcends time and place, but Catholics themselves are not immune from the influences of the period in which they are born. Simply by virtue of living in the contemporary age, modern Catholics are presented with a set of peculiar difficulties that either explicitly or implicitly affect the practice of their faith.

One of the greatest challenges pressing believers today is what Benedict XVI called the “dictatorship of relativism.”[1] A prevalent part of our worldview is certainly the idea that no objective moral truths exist or that all moral truths are historically conditioned. But relativism is not the only trial modernity presents and further difficulties arise in the response to the relativist mindset. This essay is an attempt to understand one such challenge: a type of intellectualism that I find common among Catholics who come or return to the faith after a period of searching. That is, for many persons who come to the Church to escape the modern predicament, the only criterion against which they can evaluate the answers the Church offers to modern existential questions is their own autonomous judgment. . . .

Even though Christianity cannot completely accommodate itself to any age, the preceding considerations show that in fact all of us are unavoidably creatures of modernity. This is nowhere more evident than in the way many of us come to embrace the practice of faith for ourselves in the modern world.

Perhaps such a realization will also lead to an increase in charity during our disputes with one another. We are all moderns of one sort or another. We are more similar to each other than we are different—and this is to say nothing of our common identity in baptism.

Our faith is not just a set of ideas. It is a relationship with God, who in his very reality is relational, and who has held out a new relationship with us through Jesus. Human beings find meaning and purpose in developing personal relationships with God, Jesus, and each other. While this seems obvious on its face, these relationships can be difficult to realize in the modern predicament. Fear is major impediment to developing such relationships, when encumbered by the intellectualism of the modern age.. . .

June 12, 2018 in Garnett, Rick | Permalink

Murray, "The Return to Tribalism"

I recently read both Patrick Deneen's Why Liberalism Failed and Jonah Goldberg's The Suicide of the West.  Good times.  In the latter, I came across mention of a John Courtney Murray piece that I'd read before but forgotten.  It's called The Return to Tribalism and, on re-reading, it seems both prescient and timely.  Here's a bit:

I suggest that the real enemy within the gates of the city is not the Communist, but the idiot. Here I am using the word "idiot" not in its customary, contemporary vernacular usage of one who is mentally deficient. No, I am going back to the primitive Greek usage; the "idiot" meant, first of all, the private person, and then came to mean the man who does not possess the public philosophy, the man who is not master of the knowledge and the skills that underlie the life of the civilized city. The idiot, to the Greek, was just one stage removed from the barbarian. He is the man who is ignorant of the meaning of the word "civility."

What is our contemporary idiocy? What is the enemy within the city? If I had to give it a name, I think I would call it "technological secularism." The idiot today is the techno-logical secularist who knows everything. He's the man who knows everything about the organization of all the instruments and techniques of power that are available in the contemporary world and who, at the same time, understands nothing about the nature of man or about the nature of true civilization. . . .

June 12, 2018 in Garnett, Rick | Permalink