Mirror of Justice

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Monday, September 8, 2014

A fascinating "what if?" about colonial America

What if the first American colonists had been Catholics seeking refuge from Elizabethan persecution?  A new book from Oxford ("God's Traitors:  Terror and Faith in Elizabethan England") tells the story:

Over the summer of 1582 a group of English Catholic gentlemen met to hammer out their plans for a colony in North America — not Roanoke Island, Sir Walter Raleigh’s settlement of 1585, but Norumbega in present-day New England.

The scheme was promoted by two knights of the realm, Sir George Peckham and Sir Thomas Gerard, and it attracted several wealthy backers, including a gentleman from the midlands called Sir William Catesby. In the list of articles drafted in June 1582, Catesby agreed to be an Associate. In return for putting up £100 and ten men for the first voyage (forty for the next), he was promised a seignory of 10,000 acres and election to one of “the chief offices in government”. Special privileges would be extended to “encourage women to go on the voyage” and according to Bernardino de Mendoza, the Spanish ambassador in London, the settlers would “live in those parts with freedom of conscience.”

Religious liberty was important for these English Catholics because they didn’t have it at home. The Mass was banned, their priests were outlawed and, since 1571, even the possession of personal devotional items, like rosaries, was considered suspect. . . .

Sir William Catesby did not sail the seas or have a role in the plantation of what — had it succeeded — would have been the first English colony in North America. He remained in England and continued to strive for a peaceful solution. “Suffer us not to be the only outcasts and refuse of the world,” he and his friends begged Elizabeth I in 1585, just before an act was passed making it a capital offense to be, or even to harbor, a seminary priest in England. Three years later, as the Spanish Armada beat menacingly towards England’s shore, Sir William and other prominent Catholics were clapped up as suspected fifth columnists. In 1593 those Catholics who refused to go to church were forbidden by law from traveling beyond five miles of their homes without a license. And so it went on until William’s death in 1598.

Seven years later, in the reign of the next monarch James I (James VI of Scotland), William’s son Robert became what we would today call a terrorist. Frustrated, angry and “beside himself with mindless fanaticism,” he contrived to blow up the king and the House of Lords at the state opening of Parliament on 5 November 1605.


September 8, 2014 in Garnett, Rick | Permalink

"Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Prof. Colb"

[A reader, Christian E. O'Connell, sent in the following, and asked if I would be willing to post it at MOJ.  I am happy to do so.]

Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Professor Colb

Christian E. O’Connell [*]


In her recent essay at Justia’s Verdict, titled “What Counts as an Abortion, and Does It Matter?,” Cornell law professor Sherry Colb waxes philosophical about the normative and empirical claims she perceives to be at work in Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (“RFRA”) controversy recently decided by the U.S. Supreme Court.

Professor Colb laments as “underdeveloped” the factual issues raised by the Hobby Lobby plaintiffs’ claims about the so-called “morning-after” pills and intra-uterine devices to which they object, while acknowledging strong arguments in favor of judicial deference to such claims.  (I’ll refer here to the RFRA claimants in the consolidated litigation as, collectively, the “plaintiffs.”)  Yet, Colb argues, the plaintiffs’ premise that human life begins at conception suggests a standard for assessing whether participation in a given birth control method violates a RFRA claimant’s religious commitments.  She submits that, by that standard—even if the embryo’s humanity and the drug’s implantation-inhibiting potential are conceded—it’s doubtful whether the morning-after pill “is an abortifacient that literally kills embryonic life,” and accordingly whether there is any corresponding violation of religious beliefs.

Nevertheless, the formal distinctions on which Colb’s thesis relies are suspect in this context, and it’s far from clear in any event that they support her conclusion.

Continue reading

September 8, 2014 in Garnett, Rick | Permalink

Notre Dame crushes Michigan . . . and there was much rejoicing

As this post discusses in more detail, the media hype about a "storied rivalry" (etc.) between the Fighting Irish and the Skunk Bears has manage to inflate a relatively recent and not-THAT-long series into something it's not.  Of course, it could have been a "storied rivalry" (etc.) had Michigan officials (like many others in the Big 10 and elsewhere) in the first half of the 20th century not based decisions regarding the University of Notre Dame on fears and prejudices regarding Catholicism.  In Catholic Heaven, I suspect this was the reaction.

September 8, 2014 in Garnett, Rick | Permalink

A misguided ministerial-exception decision in Indiana

I've been following closely -- and maybe some of you have been, too -- this story, here in Indiana.  My home diocese of Ft. Wayne-South Bend chose not to renew the contract of a teacher at a parochial (K-8) school after she underwent in vitro fertilization.  (The article describes this in one place as "treatment[] for infertility", which seems to misstate the diocese's position).

A local federal trial judge is allowing Emily Herx's Title VII sex-discrimination claim to go forward (but not her ADA claim).  According to the judge, Title VII's accommodation for religious employers does not apply because this accommodation does not give "freedom to make discriminatory decisions on the basis of race, sex, or national origin."  (This is true, but it is a mistake, in my view, to characterize what the Diocese did as being "discrimination" on the basis of sex as opposed to a religious-mission-related staffing decision.)  Also, the judge rejected the Diocese's ministerial-exception argument because, according to the news story, "nothing so far suggested Herx fit the definition of a 'minister' of the church."  In my view, a teacher at a K-8 parochial school is, presumptively, within the coverage of the ministerial exception.  

Stay tuned.  (And . . . expect more of this.)


September 8, 2014 in Garnett, Rick | Permalink

Catholic saint feast days, Constitution Day, and implementation flexibility via regulation

As a service to Catholic school administrators everywhere, I thought I would link to a listing of Catholic saints whose feasts fall on September 17 (at least according to the Internet). It turns out that the feasts of St. Hildegard of Bingen, St. Robert Bellarmine, St. Lambert of Maastricht, St. Satyrus of Milan, and St. Ariadne of Phrygia, among others, are celebrated on September 17. That is also the day that Congress has statutorily designated as Constitution Day

By seeming statutory mandate, every educational institution that receives federal funds "shall hold an educational program on the Constitution" on Constitution Day. See Section 111 of Division J of Pub. L. 108-447, the "Consolidated Appropriations Act, 2005," Dec. 8, 2004; 118 Stat. 2809, 3344-45). This requirement is inflexible as to date. The required educational program must be held "on September 17." As it turns out, though, the Department of Education has provided greater flexibility in certain circumstances. In federal regulations issued in May 2005, 70 Fed. Reg. 29727, the Department of Education authorized a two-week window for the required program, but only when September 17 falls on a Saturday, Sunday, or holiday:

Section 111 requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week. 70 Fed. Reg. 29727.

Hence this post's opening identification of Catholic feast days on September 17 (which this year is a Wednesday). The regulations do not define "holiday," but a Catholic educational institution receiving federal funds might be able to obtain some flexibility in the timeline for compliance with the Constitution Day requirement by explaining that the feast of St. Robert Bellarmine or St. Hildegard of Bingen, say, is a "holiday" within the meaning of the regulations. 

There are a couple of reasons for caution, though. First, this is a bit of a stretch regarding "holiday." But then again, the proviso authorizing an alternative date for compliance seems entirely made up anyway. Second, and relatedly, the regulations may be invalid because they conflict with the statutory requirement. I've asked around casually but have not been able to find good answers: What is the best argument that the Department of Education acted within its statutory authority when authorizing a different date than September 17 for holding an educational program to comply with the statutory requirement? Is there some kind of administrative law analogue to Fed. R. Civ. P. 6(a)(1)?

Having run the analysis thus far, I may as well finish up by noting a split of interpretation on whether there are any practical consequences under the law for failure to comply with the educational programming requirement. Some have suggested that non-compliant institutions may place their entire amount of federal funding at risk (which would probably be unconstitutional under NFIB v. Sebelius), while others have suggested that the requirement is entirely precatory. I tend to agree with the latter understanding. 

(Bonus question: What prominent ongoing cases does the foregoing bring to mind with its discussion of regulatory implementation flexibility contrary to statutory text and its consideration of whether "shall" is precatory?)

September 8, 2014 in Walsh, Kevin | Permalink

Lynn school punish Gordon College students for College president's letter

Here is the story, in the Boston Globe.  Because "school president D. Michael Lindsay signed a letter to the White House last month seeking an exemption from President Obama’s executive order barring federal contractors from discriminating" -- a letter that was signed by a diverse and bipartisan group of academics, scholars, religious leaders -- the local school board is now refusing to allow "small groups of volunteers" from the College "in Lynn’s schools for student teaching or other positions to fulfill requirements toward degrees in education and social work."

Expect more and more of this kind of thing.


September 8, 2014 in Garnett, Rick | Permalink

Haldane on the Scottish referendum and religious freedom

Although it's tempting, for me, given my love of Braveheart and my sense that things went wrong at the Battle of Culloden, to root for secession/independence in the upcoming referendum, I strongly suspect (and even Paul Krugman's agreeing with me is not enough to make me change my mind) that it would be bad, even foolish, for Scotland to try to "go it alone."

I have been thinking about the issue primarily in terms of economies, currencies, and so on.  But, over at First Things, John Haldane has an interesting piece, called "Scotland on the Eve of the Referendum," which touches on another dimension of the whole debate.  He notes (among other things) that "progressive secular liberals envisage an independent Scotland as the first formal embodiment of a post-religious Europe."  And he discusses in some detail a "growing campaign to complete the work of secularization":

Of late it has become a significant strand in the campaign for independence. Something of the spirit of this is captured in the slogan of the Scottish Secular Society: “No deals, no priviliges, no exemptions.”

This campaign is principally aimed against the Catholic Church. The most recent target has been its opposition to same-sex marriage, but of longer standing is its animus against the existence of publicly supported Catholic Schools. Insofar as other Christian churches are less clear in their positions on abortion, euthanasia and marriage, or are liberal regarding them, and since they are not involved in denominational education, it is unsurprising that the secular attack is focused on Catholicism, or that it has intensified following the sexual scandal surrounding Cardinal O’Brien, the former Archbishop of Edinburgh and St Andrews.

But there is another reason for the focus and ferocity of the attack. This is the long tradition of Scottish anti-Catholicism originating in Protestant polemics, and continuing in responses to Catholic immigration which has been renewed in recent times by Poles, including priests sent from Poland to provide for them. As a result, the Church is now assailed on one side by liberal secular humanists in the press, in the professions, and among the political class, and on the other by a population that has grown up with a folk legend of Catholics as a priest-ridden, immigrant underclass. Perhaps only time and forgetfulness will dispel this historical myth but it contributes to a climate favorable to the second line of attack, that against Catholic schools. . . .

Read the whole thing.  I think (with apologies to William Wallace and all that) I'll say a prayer for the United Kingdom.

September 8, 2014 in Garnett, Rick | Permalink

Saturday, September 6, 2014

Conjugal Union: What Marriage Is and Why It Matters

In my heart of hearts, I wonder whether there actually is anyone who, in his or her heart of hearts, actually believes that some provision of the Constitution of the United States, independently of any interpreter's personal philosophical or political preferences about marriage law and policy, really does require states to opt for one conception of marriage (say, the idea that marriage is sexual-romantic companionship or domestic partnership) over a competing conception (say, the idea of marriage as a conjugal or "one-flesh" union).  The only argument I can think of that someone might rely on is the claim that the Constitution forbids irrational legislation and that the idea of marriage as a conjugal union simply lacks any basis in reason--that the only rational understanding of marriage is the idea of marriage as romantic companionship.  But that would be an awfully peculiar thing to say to Plato, Aristotle, Xenophanes, Musonius Rufus, Plutarch, Augustine, Maimonides, Thomas Aquinas, Immanuel Kant, Mahatma Gandhi, and Elizabeth Anscombe.  In any event, Patrick Lee and I offer a formal philosphical defense of the conjugal understanding of marriage (and critique of the romantic companionship conception) in our new book, published by Cambridge University Press:  Congual Union:  What Marriage Is and Why It Matters

September 6, 2014 | Permalink

Friday, September 5, 2014

On the style (and a little bit on the substance) of Judge Posner's same-sex marriage opinion

A few thoughts prompted by Paul Horwitz's observation about the style of Judge Posner's opinion in Baskin v. Bogan requiring Wisconsin and Indiana to provide and recognize same-sex marriages:

Paul is right that this opinion "speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving." It is vintage Posner. I find this vintage too tart and informal; but the taste it leaves is unmistakable. To explain why he writes this way, here's Posner quoting William Popkin describing Posner's opinion style:

The public projection of judicial authority through an authoritative institutional and individual style of presenting judicial opinions has always existed in tension with the internal professional reality that the development of the law is a messy task, fraught with conflict and uncertainty. And this has placed tremendous pressure in the Anglo-American tradition on the judicial opinion, which must implement the dual external and internal goals of preserving judicial authority and developing judicial law. That pressure has only increased in the modern legal culture where judges acknowledge the intersection of law and politics, reject the older tradition of judges authoritatively declaring law derived from legal principle, and consider an institutional base for judging to be insufficient support for justifying judicial law in a legal system where democratic legislation is now the dominant source of law. The judge is no Hercules.

This leaves modern judges with the difficult task of appealing to an external source of substantive law, without the protective armor of authoritative legal principle or a completely secure institutional base. My suggestion for responding to this difficulty . . . is to make greater use of a personal/ exploratory style of presenting judicial opinions, as illustrated by Posner’s approach. This style implements what I call “democratic judging,” which is suited to a legal culture where law and politics are clearly related and in which a democratic process is essential to maintaining the authority of government institutions.

Reflections on Judging (pp. 259-260). 

In constitutional cases like this one, Posner seemingly takes Holmes as a guide substantively as well as stylistically. Holmes had the puke test. Posner's version of this seems to be something like disdain or incredulity. This explains the charged characterizations of various arguments put forward by the states, such as "totally implausible" and "so full of holes that it cannot be taken seriously." It also explains his reformulations of various state arguments, like this one: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." 

An exploratory, "impure" judicial style need not be so harsh. A better alternative, in my view, is the kind of opinion style cultivated by Judge Sutton. Good examples of this style include his opinion upholding the individual mandate against facial invalidation and his opinion reversing a hate crime enhancement in the Amish beard-cutting case. Like Judge Posner's opinions, Judge Sutton's are conversational and accessible to an intelligent lay reader. But in contrast with Posner's Baskin opinion (or his stylistically and substantively similar partial-birth abortion opinion), one does not sense disdain for lawyers' arguments or contempt for legislators and voters. 

September 5, 2014 in Walsh, Kevin | Permalink

Upcoming public events in Philly and DC for "Lost Classroom, Lost Community"

MOJ readers are familiar (I hope!) with the important new book by Nicole Garnett and Margaret Brinig, "Lost Classroom, Lost Community:  Catholic Schools' Importance in Urban America" (U. Chicago Press).  The book was reviewed, here, by Michael Sean Winters, and here by George Weigel.

If you are in or near Washington, D.C. or Philadelphia, I'd encourage you to attend an upcoming event (one in each town) that the University of Notre Dame is hosting for Garnett and Brinig and learn more about the book and their research.  For the September 18 event in Philadelphia, go here.  For the  Sept. 17 event in Washington, D.C., go here

Here's more from the blurbage:

In the past two decades in the United States, more than 1,800 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Community examines the implications of these dramatic shifts in the urban educational landscape. (See the full press release)

More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.

This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policy debates.

Key Data from the Book

  • Catholic school closures in Chicago between 1984 and 1994 predicted substantial between-neighborhood variance in the levels of social cohesion and disorder in 1995. Using data obtained from a survey conducted by the Project on Human Development in Chicago Neighborhoods in 1995, the authors show that residents of neighborhoods where Catholic schools closed had less cohesive and more disorderly communities than residents of neighborhoods with open Catholic schools.

  • While serious crime declined across the city of Chicago between 1999-2005, it declined more slowly in police beats where Catholic schools closed. In contrast to the city-wide average of a 25 percent decline, serious crime fell by only 17 percent in police beats experiencing a school closures.

  • Between 1999 and 2005, the presence of an open Catholic school in a police beat was consistently associated with a statistically significant decrease in crime. Although the percentage difference varied by year, the crime rate in police beats with Catholic schools was, on average, at least 33 percent lower than in police beats without them.


September 5, 2014 in Garnett, Rick | Permalink