Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, June 25, 2018

The Red Hen & Resistance

Over the weekend, the President’s press secretary, Sarah Huckabee Sanders, was asked to leave a Virginia restaurant by the owner after employees voted to refuse service based on the press secretary’s behavior defending the President’s policies.  There are reasons to be concerned with this and similar incidents. The Red Hen’s owner explained, “We just felt there are moments in time when people need to live their convictions. This appeared to be one.”

I’m all for moral agency in the commercial sphere, but I need some clarity about the moral claims at issue here.  A question for the Red Hen owner: what conviction – moral? political? culinary? -- would have been implicated, much less violated, by serving a meal to Sanders and her family? The Red Hen was not asked to cater a Trump rally or administration meeting.  If our moral convictions expand to encompass a guilt-by-association mindset applicable to all aspects of officials’ private lives, our era promises to become even more corrosive to political discourse and meaningful respect for rights of conscience, properly understood.

Would a Catholic restaurant owner be justified in refusing service to a late-term abortion provider, for example? I don’t think so.  What would be the objective of that exclusion?  What is the risk of scandal being avoided?  What edifying moral claim is being presented to the community?

Note that I’m not arguing that the Catholic restaurant owner or Red Hen owner should be legally prohibited from denying service based on a person's political views or practices – just that denying service for those reasons would not be morally justified.  (Even on the moral dimension, I don't think there is much helpful insight to draw from the Masterpiece Cakeshop case -- refusing service because you are morally opposed to what a person stands for is different than refusing to participate in an act that you believe is immoral.)

A broader point about emerging strains of “resistance” in American politics. The Church teaches that “[r]esistance to authority is meant to attest to the validity of a different way of looking at things.” (Compendium para. 400) Resistance, understood in this light, is not about public shaming, virtue signaling, or the intentional destruction of lives and reputations. It is not the all-consuming “No!”  It is, in the end, about the “Yes”—articulating and living out of an alternative vision of what can be.  Denying someone service in a place of public accommodation based on who they are or what they have done might feel good, but it is not resistance.

June 25, 2018 in Vischer, Rob | Permalink

Saturday, June 23, 2018

A RFRA-Based Defense in a Criminal Prosecution?

I received an email two days ago announcing that five professors of law and religion, including Virginia Law's Micah Schwartzman and Cornell Law's Nelson Tebbe, had

filed an amicus brief in support of Dr. Scott Warren, a humanitarian aid worker who faces up to twenty years in prison for providing food and shelter to migrants crossing the Arizona desert. The amicus was filed in an Arizona federal court, and contends that Dr. Warren is entitled to an accommodation from being criminally prosecuted for acting on his sincerely held religious beliefs. Dr. Warren, is a member of No More Deaths/No Mas Muertes, a humanitarian aid organization that works to reduce deaths and suffering along the US-Mexico border by providing water, food and clothing to migrants crossing the Arizona desert. When doing this work, humanitarian workers routinely discover the bodies of migrants who have died due to lack of water, food or shelter in the rugged and remote desert terrain.

Last January, Warren was arrested and charged with three felonies for “harboring migrants” after Border Patrol agents allegedly witnessed him giving food and water to two migrants in the desert near Cabeza Prieta national wildlife refuge in Southern Arizona. Warren was arrested shortly after No More Deaths released a report documenting the systematic destruction by Border Patrol of water and food supplies left in the desert for migrants. Over a nearly four-year period, 3,856 gallons of water had been destroyed by federal officials. The report linked to video showing border patrol agents kicking over gallons and pouring them out onto the ground.

Warren has filed a motion to dismiss the indictment in his case under the Religious Freedom Restoration Act (RFRA), arguing that his sincerely held religious beliefs compel him to provide aid to people who are suffering — and dying — in the desert. Warren testified at the evidentiary hearing on his RFRA motion that for him “providing humanitarian aid is a sacred act.” He also described how spiritually devastated he has been when he has come upon human remains in the desert: “The work that we do in discovering, working to identify and recover the people who have died is one of the most sacred things that we can do as humanitarian aid workers in Southern Arizona and in the desert … we witness and we are present for people and for their families, the people who have died and who have perished.” When asked why he risked violating the law by providing water, food and clothing to migrants in the desert, he testified “Based on my spiritual beliefs, I am compelled to act. I’m drawn to act. I have to act when someone is in need.”

Katherine Franke, Sulzbacher Professor of Law at Columbia Law School, authored the brief on behalf of herself and Caroline Mala Corbin, Professor of Law at the University of Miami School of Law, Micah J. Schwartzman, Joseph W. Dorn Research Professor of Law at the University of Virginia School of Law, Elizabeth Sepper, Professor of Law at Washington University School of Law, and Nelson Tebbe, Professor of Law at Cornell Law School.

“Given that this is the first case in which a RFRA claim has been raised as a defense in a federal criminal prosecution under immigration law we felt it was important that we provide the judge guidance on how to structure his consideration of a religious liberty claim in this context,” said Professor Franke. “The relation of religion to immigration law enforcement is all the more compelling given that Attorney General Jeff Sessions has quoted biblical text to justify the federal government’s aggressive immigration policies,” she continued. The law professors’ amicus brief is available here.

I wonder what MOJ's religious liberty scholars--Tom Berg, Rick Garnett, et al.--think of the argument presented in the brief.

June 23, 2018 in Perry, Michael | Permalink

Tuesday, June 19, 2018

Bray on Liturgical Change and Doctrinal Change

Sam Bray has an extremely interesting reflection on a change in the language of a central prayer in the Book of Common Prayer, the General Confession in Morning and Evening Prayer. The prayer contains the line "And there is no health in us," whose meaning is either that there is no spiritual health in us or that we are not the authors of our own salvation. Either way, the phrase suggests, as Sam puts it, that "we are prone to curve inward away from God, we need his forgiveness."

But the phrase has proved troublesome and has been touched up in several revisions. The cause of the trouble is that it is felt to sound a little rough to modern speakers and hearers. It needed some kind of toning down. Really, no health at all in us? Not even a little bit of health?

The Anglican Church in North America, in a recent update, changed the language to: "And apart from your grace, there is no health in us." That keeps Cranmer's original phrase, but softens it a little bit to reassure people that God does not think us totally irredeemable just the way we are. And the added phrase is surely not wrong; it's true that God's grace is necessary for spiritual health as well as salvation.

And yet, as Sam notes, "truth does not quite settle the question," since many things that are true do not make it into the prayer. Sam shows how the absolute language and sentiment of the original is in keeping with many other Biblical passages (Isaiah, Psalms, Daniel, and even in Luke). This is language without qualification, a pattern of speaking that may be seen even in the Beatitudes ("Blessed are the poor in spirit," not Blessed are those who are often, even if not 100% of the time, spiritually impoverished) and elsewhere. As Sam says, "Even where a qualification is denotatively true, its destruction of the proper attitude can make it connotatively false."

There is much more in Sam's rich reflection, which considers the rhetorical power of the original and the changed versions (matters of style are not only matters of style, and, as Sam says, "the form can be an integral part of the message") as well as the genuine difficulties facing would-be revisers who wish not to damage the true sense of the original. You should read it.

June 19, 2018 in DeGirolami, Marc | Permalink

Monday, June 18, 2018

Religious Condemnation of Family-Separation Policy

    Thankfully, the administration's policy of separating migrant children from parents at the border--including in the case of families who present themselves as asylum seekers [SEE UPDATE BELOW]--is coming under condemnation from religious leaders, including several who have supported President Trump in most other ways. The Catholic bishops, unsurprisingly, took the lead.

    There have also been good critical analyses--some with nuance--of Jeff Sessions' invocation of Romans 13 as a defense for the policy. From The Atlantic:

       Romans 13 is significant to American history because it played a critical role in the American Revolution. Loyalists who favored obedience to King and Parliament quoted Romans 13 for obvious reasons. “Let every soul be subject unto the higher powers,” the text read in the language of the time....

       But surprisingly, political and religious leaders who favored the American Revolution were even more eager to quote Romans 13. Their reasoning turned on the justification that Paul gave for obeying government. Sessions said that government was created “for the purpose of order,” but Revolutionary clergy quoted Paul directly: “Rulers are not a terror to good works, but to the evil.” In a study of how the Bible was used in the American Revolution, the historian James Byrd argues that “American patriots” rejected against the notion that Romans 13 required unconditional obedience. Instead, he wrote, they preached from the text “to deny that Paul gave kings the right to be tyrants.”

And following up, evangelical historian John Fea:

       Romans 13 teaches that Christians should submit to government,  but it does not seem to require unconditional submission.  It is not an easy verse to apply and we must be very careful about applying it universally....

       Is the stripping of children from their families at the Mexican border atrocious enough for Christians to violate Romans 13?  I would say yes.  Of course this entire point is moot because, as far as I understand it, there is no American law requiring ICE officials to take children away from their parents. [emphasis added]

UPDATE: Good point from Rick about taking parental rights seriously in all contexts. And I'll amend to language closer to his for describing most of the cases: "the US government is separating families who seek asylum in the US by crossing the border illegally." Although in some cases it appears to have been applied even to persons who present themselves at a port of entry and claim asylum consideration.

June 18, 2018 in Berg, Thomas, Current Affairs | Permalink

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

Comey and Moral-Theology Debates

     I'll make this a quick post, without detailed analysis or links to supporting news stories. The Inspector General's Report for DOJ seems to confirm that Jim Comey decided to disregard department rules by commenting in July 2016 on the decision not to prosecute Hillary Clinton. (Having then commented in July, he felt he had to notify Congress in October that the investigation had been  reopened.) Giving him the benefit of the doubt, he decided to disregard the rules because he thought that: (a) there was a leadership void at the top of the Department (Attorney General Lynch's partial withdrawal, although not recusal, from the case); (b) Clinton was going to be elected President; and (c) failing to comment on the decision--and failing to give notice of the (briefly) reopened investigation--would undermine her credibility as president by opening the door for  people to argue that the department had given her favoritism and a whitewash. We now know that Comey substantially erred in predicting the consequences of his acts, and perhaps in analyzing the state of the election in the first place.

      It seems possible for this episode to become an example used in ethics courses, religious (moral-theology) or secular, to explore issues concerning deontological versus consequentialist (or proportionalist) ethics. One major criticism against the latter is that we lack the ability--at least, we overestimate our ability--to predict the consequences of actions. Thus we should stick with rules that reflect either deductions from foundational premises or (in rule-consequentialism) the accumulated wisdom about what consequences will likely follow. Comey's misjudgment, then,could serve as a dramatic example for this argument.

     Of course, that doesn't end the debate about "following the rules." There still may be cases in which the rules must be disregarded, even if Comey was wrong to think this was one of them. Segregation and civil disobedience present a strong example where positive law had to give way to higher-law principles. But I don't know if even Comey claims this was that sort of case (although his book, which I haven't read, is called A Higher Loyalty).

     But this also doesn't end the debate over "rules vs. consequences." There are, of course, many times in which two concrete but conflicting rules both might apply to a situation; we have to decide what the scope of each rule is. Some moral theorists, like R.M. Hare in Moral Thinking, have identified this as the function of consequentialism/utilitarianism: to resolve conflicts between prima facie duties.

     The previous two paragraphs are just ruminations by a non-expert in moral philosophy and moral theology. The main point I wanted to make is that Comey's misjudgment might be used, in ethics/moral-theology education or debates, as a prime example of the problem of uncertainty in predicting consequences. Comey's errors in prediction, and thus in judgment, were very substantial--but I don't think they were so substantial that they keep his actions from being a useful example.

June 18, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, June 16, 2018

"Masterpiece Cakeshop and Protecting Both Sides," at Take Care Blog

Expanding on our previous analysis of Masterpiece Cakeshop at SCOTUS Blog, Doug Laycock and I now have a piece up at the Take Care blog. As many MOJ readers know, the Supreme Court found the state adjudicators had displayed impermissible  "hostility" to the bakers' religious beliefs, as shown by (1) over-the-top statements by commissioners about Phillips' belief and position and (2) the state's differential treatment of three other bakers who were allowed to refuse to make a cake with an anti-same-sex message on it, while Phillips was not allowed to refuse to design a cake celebrating a same-sex wedding.

In our Take Care piece, among other things, we (1) discuss how the Court's use of decision-makers' statements in Masterpiece should/could affect the analysis on Trump's travel ban, with the blatant anti-Muslim statements leading up to it;  (2) answer defenses that have been offered for the different treatment of the two sets of bakers; and (3) defend a broader reading of the leading free exercise cases, Lukumi and Smith--one that goes beyond prohibiting clear animus toward, or targeting of, religion. Here's some of the first point:

Trump’s anti-Muslim hostility was particularly unambiguous; and with a presidential order only one person’s intent is at issue, which makes his statements even more probative than those of an individual on a multi-member body. We do not know if the Court will so rule. The immigration context adds doctrinal complications; and if the majority believes that it should infer bad motive only from statements by adjudicators, not policymakers, an executive order falls in the latter category. But the Court is willing to infer discriminatory motive from legislative statements in race- and sex-discrimination cases under the Equal Protection Clause; it’s hard to see why religious-discrimination cases should be different.

       It is vital in today’s circumstances to condemn official hostility to any religion. In polarized America, too many people show tolerance for conservative Christians but not for Muslims. But that does not justify intolerance the other way; Masterpiece was right to condemn hostility toward Phillips’ traditionalist beliefs.

 

June 16, 2018 in Berg, Thomas, Current Affairs | Permalink

Friday, June 15, 2018

Some Confusions about “Classical Liberalism,” Progressivism, and Necessity

 

    A prominent strand in defenses of “classical liberalism” is the suggestion that there is no necessary transition from classical liberalism (understood to be good) to progressive liberalism (understood to be bad). Yes, to be sure, liberals may betray the true doctrine, resulting in a corrupted and distorted version of liberalism, one in which liberation projects are enforced upon dissenters. But it is not inevitable that such a transition should occur. Whether it does occur is a matter of free choice, guided by right reason. If liberty is properly understood in relationship to natural right among free and equal citizens, there need be no such slippage to authoritarian, liberty-restricting progressivism.

    The remedy for progressive excess, on this view, is the renewal of a kind of civic virtue — the political virtue that respects the equality-in-liberty of all, especially “religious freedom,” while nonetheless insisting that natural law and divine law ought to be respected by all, even if none are to be compelled to respect it. In an Americanist version, this civic virtue is said to be the virtue envisioned by the Declaration and by the Founders, and embodied, albeit imperfectly, in the Constitution of 1789. The Founders show that it is perfectly possible, as logical matter, to combine public liberalism based on the consent of the governed with a commitment to natural rights and natural virtues, understood to include both the right and duty to worship Nature’s God.

    I think there are several conceptual confusions here. Dispelling these confusions is not in itself sufficient to refute the view I have described, but the indispensable first step is to ask the right questions. As it stands, the view is not coherently formed.

    First, there is a confusion between two very different counterfactuals (a confusion that has, incidentally, frequently bedeviled discussions of economic history).  I will illustrate with the American case. One counterfactual is what would have occurred if the requirements of civic virtue had been followed since 1789. An entirely different counterfactual is what would happen if civic virtue were renewed today. Defenses of Americanist liberalism often skip back and forth between these two distinct counterfactual baselines, even in the same paragraph or sentence. The result is that two entirely different propositions are often conflated:

    (1) If citizens had been virtuous starting from 1789, the evils of progressive liberalism would not have occurred.

    (2) If citizens would be virtuous in 2018, the evils of progressive liberalism could be undone.

    Of course, both propositions could be true, both false, or only one true. But it is a mistake to defend (1) and to think one has thereby also defended (2). The latter is much more difficult to defend than the former. Undoing X is almost always more difficult than never doing X in the first place. Suppose that it is true that the ills of liberalism do not necessarily follow from the Founding, as suggested by proposition (1). It isn’t at all clear what the cash-value of that observation might be in 2018, if it is also true (denying proposition (2)) that those ills cannot now be undone by some sort of “return to the principles of the Founders.”

   A second confusion is between necessity and structural propensity in politics. Illustrations are legion, both in markets and nonmarket settings. There is a structural propensity for littering in public parks, because of the Tragedy of the Commons. It’s not strictly necessary - we could all just be more virtuous! - but it’s a real propensity all the same. It is irrelevant that there exist possible worlds in which, despite the conditions of the Tragedy being satisfied, virtuous norms ensure that no littering occurs. Those worlds are sufficiently few, and sufficiently difficult to reach from a world without virtuous norms, that one cannot simply gesture in their direction and think that one has offered an argument.

   Put differently, talk of “necessity” obscures the main issue, which is the structural stability of classical liberalism. Of course one can imagine logically possible worlds in which virtuous classical liberals practice tolerance in just the right ways. The problem, however, is that those worlds — however imaginable — tend not to stick around for very long, for systemic reasons diagnosed by Maurice Cowling, Karl Popper, Carl Schmitt, and other theorists of liberalism (some of them liberals themselves). Classical liberalism licenses and in many ways structurally encourages the widespread view — indeed the fervent quasi-religious conviction — that the defense of liberty itself requires repression of those who reject liberalism’s premises. Under particular conditions, that repression will become severe, even if it is not logically necessary that it occur. The repression of dissenters from liberalism is a systematic, structural propensity. Exhortation to virtue is no more likely to solve the structural problem than is exhorting oligopolists to refrain from tacit collusion and price-fixing. One must instead break up the structure that predictably — even if not necessarily — produces the relevant ills. 

    In this way, classical liberalism resembles a soap bubble. The issue isn’t whether virtuous classical liberalism can exist, but for how long, and how robust or fragile it is when buffeted by environmental conditions. In the closely related context of theological liberalism, Cardinal Newman argued that liberalism was an unstable half-way house between atheism and Rome. Mutatis mutandis, that is the argument that needs responding to, not the straw men of logical possibility and necessity.

 

    Adrian Vermeule

 

(Some material in this post previously appeared on Twitter).

June 15, 2018 | Permalink

Thursday, June 14, 2018

A Point of Contact, and an Agenda for Further Study: Thoughts in Response to Rick

Like Rick, I have been enjoying the ongoing ferment about liberalism and the American founding/experiment/project. It's a fun time to listen to what people have to say on the question and hear different points of view. I don't have fixed views on the genealogical doubts that Rick raises (curious to hear from others on that front), though I am in agreement that the diagnostic program--still in its infancy--is an exciting one that offers a lot for the scholar of law or politics who is interested in it.

In the spirit of fostering that program, I wanted to note a point of contact between Phillip and his targets. Phillip says this in his piece

One might accept this defense of our Founding principles yet still press an aspect of the “radical” Catholics’ third criticism — that American liberalism, whatever its original character, has produced a decadent and deplorable legal and moral culture. One might contend that even if the Founders accepted natural law, moral duties, and limits on rights, their account of freedom has proved to be too thin. It provides too much freedom for bourgeois, comfortable self-preservation, what moral theologian Servais Pinckaers calls “freedom for indifference,” and insufficient cultivation of “freedom for excellence.”

An honest assessment of America and our history must acknowledge that there is something to this criticism. The Founders held that the primary purpose of government is to secure natural rights. They believed that a just political order would preserve freedom for its citizens but that it would not command its citizens to use their freedom well.

I'd put the point perhaps slightly differently. It isn't so much that government "would not command its citizens to use their freedom well." It is that government, in at least ostensibly abjuring any interest in the substantive uses of freedom, would neglect this feature of freedom--its affective side--and would in consequence foster, never quite expressly but nevertheless relentlessly, a particular and quite non-neutral understanding of the point of the freedoms it protects. An understanding that would be internalized and entrenched over centuries, whatever the natural rights view defended by Phillip and the likes of Thomas West (whose book is very interesting) may have once looked like.

One might derive from this point of contact (if such it is) between Phillip and the "radicals" a specific research program focusing on different streams of intellectual history during the founding period (e.g., in the church-state context, but certainly not only there) with an eye specifically on the development of the idea of freedom in the subsequent decades and centuries. It may turn out both that the founding generation's ideas about the uses of freedom were quite varied (just as varied as ours are) and that there are reasons for the dominance of certain of these ideas and the recessiveness of others over the centuries.

June 14, 2018 in DeGirolami, Marc | Permalink

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