Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Thursday, August 7, 2014

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church."  (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.)  Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously).  Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

 UPDATE:  John Inazu's (excellent) response is available here.

August 7, 2014 in Garnett, Rick | Permalink

Wednesday, August 6, 2014

Protecting your civil right to shut down the other guy's free speech

Back in the 90s, when I was serving on the U.S. Commission on Civil Rights, I heard witnesses before the Commission and even members say some pretty ridiculous things.  But matters seem to have gone from bad to worse. A current Commissioner---former Nancy Pelosi aide Michael Yaki---is pushing the cause of campus "speech codes." This, mind you, from a guy whose job is to defend people's civil rights.  Here's the story from Yahoo News:


August 6, 2014 | Permalink

Monday, August 4, 2014

Catholic Social Teaching and public-employee unions

Prof. Meghan Clark argued recently, in this piece ("Power to the Public Workers"), that the deeply rooted Catholic principles and teachings having to do with the dignity of work and workers mean, in practice, that public-employee unions should not be distinguished from private-sector-employee unions when it comes to collective bargaining and other labor-related policies.

I have contended often here at MOJ and elsewhere  that "it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions."  To quote an earlier post:

(The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minionand Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It isnotgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

Prof. Clark writes:

Our teachers, librarians, police, firefighters, sanitation workers, and all civil servants actively contribute to the common good. They and their jobs are not lesser because their wages are funded by your taxes. They have equal dignity with private employees. In this current wave of hostility toward public workers, Catholic social teaching reminds us that the dignity of all workers—public and private—grounds their basic right to association, including the right to unionize and bargain collectively. 

I agree entirely with the first three of these sentences, but have to respectfully disagree with the suggestion that public employees' "equal dignity" means that the content and limits of their "right to unionize" are or should be the same as that of private-sector employees.  That the employer is not "capital" but is, instead, the political community is, it seems to me, very relevant to questions about the employer-employee relationship.  The employer -- again, the political community -- has obligations not only to its employees, but also to citizens, taxpayers, and -- as the looming crisis in underfunded public-employee pensions reminds us -- future generations.

August 4, 2014 in Garnett, Rick | Permalink

School vouchers, intolerance, and justice: A response to Michael S.

A few weeks ago, Michael Scaperlanda shared this post, "School Vouchers in a Time of Increasing Intolerance," in which (among other things) he invited my thoughts about and reactions to his suggestion that the Blaine Amendments, "as ugly as they were[, could] be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy[.]"

It is, I am afraid, true (as Michael's post suggests) that we can expect public funds and support -- including not just vouchers, but also tax-exempt status, access to public forums and programs, even accreditation -- to come with heavy-handed regulatory "strings" that will often be in tension with the mission and character of authentically Catholic schools.  But, the anti-Catholic Blaine Amendments (which have, in some states, had the effect of limiting public funds for Catholic schools and the families who support them) will not really be any help, I'm afraid.

Now, in my view (and in Michael's, I know) -- see here and here for more -- it is unjust for communities to limit public funding of education to education that takes place in state-run institutions.  It is unjust -- and Catholic social teaching is clear on this point -- to deny parents the support or assistance necessary for them to send their children -- if they want to send their children -- to Catholic schools.  That said, and as Michael reminds us, the danger has always been real -- and school-choice opponents have often emphasized it -- that public funding would come with mission-compromising regulations.  I do not think this danger is a sufficient reason to stop trying to bring about more just school-funding policies.  It should be kept clearly in view, though, as policies are designed and debated.

I do not believe that Catholics and the Church can -- in this country, given all the on-the-ground givens -- just "walk away" from our institutions and this means -- again, given all the givens, that we cannot just "walk away" altogether from public funding and potentially entangling regulations.  It's not just that we need our institutions, or that they do a lot of good work, or that we have become overly dependant on public support.  It is, in addition, that the political authority is not going to allow us to walk away.  The argument that non-state institutions may and should be not only incentivized, but compelled, to come into ideological congruence with the practices and commitments of state organizations used to be marginal and radical, but it now seems entrenched comfortably in the mainstream.   Blaine Amendments or no, vouchers or no . . . it will be an increasingly difficult political and legal fight to preserve Catholic institutions' ability and freedom to be -- assuming they want to be -- Catholic institutions.

August 4, 2014 in Garnett, Rick | Permalink

"New Urbs" at The American Conservative

Readers of MOJ are probably very(!) familiar with my love-hate interest in "New Urbanism", about which I've often blogged here.  That interest prompted me to read this, at The American Conservative, about a new project of their called "New Urbs":

. . . Over the course of the next year, The American Conservative will be opening a discussion on how to rebuild America’s communities and sense of place by fostering humane, sustainable, and walkable built environments, made possible by a grant from the Richard H. Driehaus Foundation. For while the breakdown of community and the family is a consistent theme in conservative circles, the conversation very rarely gets beyond some mix of exhortation towards traditional values and demands for rollback or reform of the welfare state. That’s where a school of urban design called “New Urbanism” comes into play.

Just as an individual is embedded in a family, and a family is embedded in a community, so too a community is embedded in its neighborhood. The patterns we live in can bring us into the sort of constant, casual, incidental contact that builds bonds between neighbors, or they can silo each of our families away, leaving civil society to wither as the “place between” is filled with asphalt and strip malls. As Paul Weyrich, William S. Lind, and Andres Duany wrote in “Conservatives and the New Urbanism” in 2006, “Edmund Burke told us more than two hundred years ago that traditional societies are organic wholes. If you (literally) disintegrate a society’s physical setting, as sprawl has done, you tend to disintegrate its culture as well.” New Urbanists aim to reinvigorate those traditional structures, like the classic Main Street with living space above the storefronts, and other homes right around the corner. . . .

Stay tuned . . .

August 4, 2014 in Garnett, Rick | Permalink

Sunday, August 3, 2014

His saltem accumulem donis, et fungar inani munere. (Story, J., quoting Virgil re: Marshall)

The 1837 Term of the Supreme Court was a hard one for Justice Joseph Story. His mentor and friend, the great Chief Justice, had died, and the Taney Court was tacking away from John Marshall's course. Story's dissents in some of the cases that marked the clearest departures from Marshall's jurisprudence are personal and powerful. Perhaps the most poignant is his dissent in Briscoe v. Bank of Kentucky, 36 U.S. 257 (1837). The concluding paragraph:

I am conscious, that I have occupied a great deal of time in the discussion of this grave question; a question, in my humble judgment, second to none which was ever presented to this court, in its intrinsic importance. I have done so, because I am of opinion (as I have already intimated), that upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent. I have another and strong motive-my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional; I have felt an earnest desire to vindicate his memory from the imputation of rashness, or want of deep reflection. Had he been living, he would have spoken in the joint names of both of us. I am sensible, that I have not done that justice to his opinion, which his own great mind and exalted talents would have done. But with all the imperfections of my own efforts, I hope that I have shown, that there were solid grounds on which to rest his exposition of the constitution. His saltem accumulem donis, et fungar inani munere.

The concluding lines are from Virgil's Aeneid. They express an intent to honor the revered deceased with one's perhaps futile labors. Some translations: 

  • "let me at least bestow upon him those last offerings, and discharge a vain and unavailing duty" (Routledge Guide to Latin Quotations)
  • "these offerings at least let me heap upon my descendant's shade, and discharge this unavailing duty" (Rivington et al. 1821)
  • "this unavailing gift at least I may bestow" (Dryden)

August 3, 2014 in Walsh, Kevin | Permalink

Query this

When a monarch formally -- but not functionally -- vacates his palace only to occupy -- perhaps along with his considerable staff -- the rooms formerly reserved for guests in, say, the guesthouse, who benefits?  And why?  

August 3, 2014 in Brennan, Patrick | Permalink

"The lavish homes of American archbishops"

CNN has the story.

August 3, 2014 in Walsh, Kevin | Permalink

Roger Sherman on religious objection both to bearing arms and to "getting substitutes or paying an equivalent"

In reading over accounts of various debates in the First Federal Congress, I came across an interesting description by Congressman Roger Sherman of the nature of the religious objection that some had to bearing arms. The context is debate over proposed wording of a part of the Second Amendment that did not make it into the final version. The proposed amendment stated: "A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms." 

Sherman opposed inserting the non-compulsion language into the Constitution, in part because the states would be able to govern the militia and would not so arbitrarily. The point here is not to describe the debates over this language in full but simply to take note of the nature of the religious objection as described by Sherman. That objection, in Sherman's view, extended not only to being personally compelled to bear arms but also to personally obtain a substitute or pay an equivalent. Sherman stated: "It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other ...." (Congressional Register, August 17, 1789)

The situations are not entirely parallel, but we can see in this description of religious objections some similarities to the current debates over the HHS contraceptives mandate. Many of those who object to including the coverage explicitly in their plan also object to "getting substitutes or paying an equivalent." Some view this religious moral judgment as wrong or misguided, while others think it inapplicable to the "accommodation" (which the Administration has suggested is going to change yet again). As Sherman's description shows, however, this kind of objection to getting a substitute to do what one cannot do directly is hardly unprecedented. 

August 3, 2014 in Walsh, Kevin | Permalink

Friday, August 1, 2014

Divisive Words and Threats to Unity: Political and Cultural

The divisions that exist among us in the United States, in both political and cultural terms, and that seem to be widening and threatening our core unity as a nation, do reflect some fundamental differences of perspective and on principles of good governance and how best to enhance human thriving. Nonetheless, inflammatory accusations, name-calling, and hyperbolic rants add inestimably to that division. Especially worrisome is what appears to be the near-universal tendency to assume venality in the hearts of those on the other "side" of a partisan/political/ideological/cultural/religious divide. Peggy Noonan today in the Wall Street Journal, in her typically thoughtful and common-sense style, writes about the special responsibility of those in political leadership not to indulge in such rhetoric. Here is an excerpt:
No nation's unity, cohesion and feeling of being at peace with itself can be taken for granted, even ours. They have to be protected day by day, in part by what politicians say. They shouldn't be making it worse. They shouldn't make divisions deeper.
In just the past week that means:
The president shouldn't be using a fateful and divisive word like "impeachment" to raise money and rouse his base. He shouldn't be at campaign-type rallies where he speaks only to the base, he should be speaking to the country. He shouldn't be out there dropping his g's, slouching around a podium, complaining about his ill treatment, describing his opponents with disdain: "Stop just hatin' all the time." The House minority leader shouldn't be using the border crisis as a campaign prop, implying that Republicans would back Democratic proposals if only they were decent and kindly: "It's not just about having a heart. It's about having a soul." And, revealed this week, important government administrators like Lois Lerner shouldn't be able to operate within an agency culture so sick with partisanship that she felt free to refer to Republicans, using her government email account, as "crazies" and "—holes."
All this reflects a political culture of brute and mindless disdain, the kind of culture that makes divisions worse.
To call ourselves political leaders would be to flatter ourselves and over-estimate the influence of the Mirror of Justice. Nonetheless, we too need to be conscious of the effect that incivility in the "blogosphere" -- and especially the too easy attribution of malice and bad motives to others -- weakens the civil ties that can and should still bind us and that are necessary to any meaningful work toward the common good.

August 1, 2014 in Sisk, Greg | Permalink