Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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

Thursday, May 3, 2018

When Businesses Refuse to Serve for Religious Reasons

That's the title of MOJ-friend and Seton Hall law prof Angela Carmella's new paper. The subtitle:  "Drawing Lines between 'Participation' and 'Endorsement' in Claims of Moral Complicity".

The abstract:

The owners of small businesses and others involved in for-profit work occasionally refuse to provide a service to a patient, client, or customer on the grounds that to provide the service would render them complicit in immoral conduct in violation of their religious beliefs. Some of these conscientious refusals might be protected by legislation, regulation, or court decision, as in the case of a doctor refusing to perform an abortion, or an employer refusing to provide employees with contraception coverage. The new question raised—and soon to be answered by the U.S. Supreme Court—is whether wedding vendors (bakers, florists, and the like) who refuse to provide goods and services to same-sex couples will be similarly protected or whether they will be required to abide by the non-discrimination norms of public accommodations law. For those weary of religious claims in the culture wars, the very notion that the Court might extend legal protections to wedding vendors in such situations tends to cast doubt more generally on religion-based refusals in the for-profit context.

The purpose of this article is to draw a bright line between the traditional category of complicity claims and this newer category of wedding vendor claims. Traditional claims typically involve health care personnel and others refusing to participate in activities they consider to be immoral—most often those that entail ethical issues surrounding the beginnings and endings of life, such as assisted reproduction and assisted suicide. In contrast, this newer set of claims involve wedding vendors refusing to endorse activities they consider to be immoral, like the marriage of a same-sex couple. Herein lies the critical distinction: participation in immoral activity is not the same thing as endorsement or approbation of someone else’s immoral activity. The wedding vendors concede the distinction, as they expressly claim the right not to endorse a message with which they disagree, but they seek to extend the protections of traditional complicity jurisprudence to their claims. The article contends that the traditional complicity jurisprudence, which allows businesses to refuse to participate in activity they consider immoral, has little, if anything, to say about refusals to approve the conduct of others. The Supreme Court should not extend this jurisprudence to the wedding vendor context.

You can download the paper here.

 

May 3, 2018 in Perry, Michael | Permalink

Sunday, February 11, 2018

BRIEF OF AMICUS CURIAE UNITED STATES CONFERENCE OF CATHOLIC BISHOPS SUPPORTING RESPONDENTS

SUMMARY OF ARGUMENT

The Catholic bishops of the United States have long and consistently supported the right of workers to organize for purposes of collective bargaining. Because this right is substantially weakened by so-called “right-to-work” laws, many bishops—in their dioceses, through their state conferences, and through their national conference—have opposed or cast doubt on such laws, and no U.S. bishop has expressed support for them.

Petitioner invites this Court to constitutionalize the “right-to-work” position—instantly, without exception, for all fifty states, almost irreversibly—in the public sector. Petitioner’s proposed rationale for this dramatic move appears designed to lay the foundation for a still more dramatic one: constitutionalizing, in a subsequent case, the “right-to-work” rule in the private sector as well. The Court should decline this invitation. It should leave constitutional space for the public policy position supported for so long by so many bishops and bishopled institutions, rather than declare still another such position outside the bounds of what policymakers are permitted to implement by law. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (definition of marriage); Roe v. Wade, 410 U.S. 113 (1973) (prohibition of abortion). By its decision in this case, the Court should not only preserve that room for debate as to the public-sector context now, but avoid any threats to it in the private-sector context in the future.

[You can download the USCCB's amicus brief at this link:

Download 20180119105844172_16.1466 bsac usccb amicus

February 11, 2018 in Perry, Michael | Permalink

Wednesday, November 15, 2017

Ethics at the Edges of Law

That's the title of a new book by Cathy Kaveny.  The subtitle:  Christian Moralists and American Legal Thought.  The book, published by Oxford University Press, "proposes new methodological approaches to Christian ethics-using law as a source and conversation partner; shows how religion can move beyond treating law as a locus of the culture wars to seeing it as a source of moral knowledge and wisdom; and demonstrates how examples from secular law can help us integrate special ethics, like medical ethics, with broader questions of social justice."  You can read about the book--and about Cathy--here.  Highly recommended:

"Cathleen Kaveny's new work brilliantly demonstrates not only that law can be a fruitful conversation partner for theological ethics, but that it is a necessary one. Her mastery of the fields of law, ethics, and theology is marshaled throughout as she probes perennially vexing problems and explores new questions. Highly original, sometimes provocative, always illuminating, Ethics at the Edges of Law is a tour de force." --Linda Hogan, Professor of Ecumenics and former Vice-Provost of Trinity College Dublin

"Ethics at the Edges of Law is one of the most important recent books at the intersection of law and theology. Kaveny's thoughtful and at times unconventional engagement with some of the major twentieth-century figures in these two disciplines offers glimmers of both tragedy and hope-and a reminder that our lived experiences unfold in the shadow of both."--John D. Inazu, Sally D. Danforth Distinguished Professor of Law and Religion, Washington University in St. Louis

"Cathleen Kaveny is one of the most important scholars in the interdisciplinary field of law and religion since the field began to flourish about forty years ago. Ethics at the Edges of Law is a superb book. In it, Kaveny succeeds in doing precisely what she set out to do, namely, 'jump start . . . a complementary interdisciplinary conversation . . . centered in religious studies and theology and reaching out to the legal field.'"--Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University

November 15, 2017 in Perry, Michael | Permalink

Tuesday, October 10, 2017

Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage

That's the title of a new paper by Rob Kar, Professor of Law and Philosophy at the University of Illinois.  The paper is Rob's contribution to a volume edited by Robin Fretwell Wilson:   The Contested Place of Religion in Family Life (Cambridge University Press 2018).  Rob is eager for critical feedback on the paper:   [email protected]   The paper is available here.

The abstract:

Recent developments toward the legalization of same-sex marriage in the West are often viewed as a triumph for secularism in a religious-secular culture war. That assumption foments ongoing division and hostility between some committed religious observers and some LGBT persons and their supporters.

The assumption is also wrong. The recent legalization of same-sex marriage in the West has underappreciated religious and spiritual causes and potential. It is the partial result of the historical emergence of a love-based social institution of marriage in the West. These developments, which began in the 17th to 18th centuries, further allowed for the emergence of what this article calls "transformational marriage". Given the development of transformational marriage, there are now weighty reasons -- both religious and secular -- to support these marriages among anyone who chooses to enter into them. Debates over same-sex marriage should be removed from the contemporary religious-secular culture wars.

To show this, this chapter offers a blend of religious, scriptural, moral, secular and psychological arguments, which provide a basis for previously opposing camps to reach an "overlapping consensus" on the value of transformative marriage for all people. An overlapping consensus is the polar opposite of a religious-secular culture war: it is a consensus that can be affirmed, for different reasons, by the opposing religious, philosophical and moral doctrines likely to thrive over generations in a more or less just constitutional democracy. Hence, there are good reasons for people of good faith on all sides of this conflict to support the development of this overlapping consensus and remove the issue of same-sex marriage from the culture wars.

October 10, 2017 in Perry, Michael | Permalink

Conscience v. Access

A new paper I've just posted to SSRN may be of interest to MOJ readers.  The paper--my contribution to a volume edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press 2018)--is titled:

Conscience v. Access and the Morality of Human Rights,
With Particular Reference to Same-Sex Marriage

The paper is available here.  The abstract:

Little remains to be said about “conscience v. access” that has not already been said — and often well said. Or so it seems to me. (Not that a consensus has been achieved. Far from it.) But “little” is not “nothing”. My aim in this chapter: to bring the morality of human rights to bear, and to do so with particular reference to conscience-based opposition to same-sex marriage. In particular, my aim is to bring to bear two rights that are fundamental parts of the morality of human rights: the human right to religious and moral freedom and the human right to moral equality. On "the morality of human rights", see Perry, Michael J., A Global Political Morality: Human Rights, Democracy, and Constitutionalism (April 25, 2017) available at: http://ssrn.com/abstract=2956843.

The intuition of many persons — an intuition I share — is that the conscience-based claim for an exemption from an antidiscrimination law pressed by the florist (baker, photographer, etc.) who is morally opposed to same-sex marriage presents us with a more complex and difficult issue than the conscience-based claim for an exemption pressed by the florist who is morally opposed to interracial marriage. My argument in this chapter serves to provide a rational vindication of that intuition; it serves to explain why as a matter of principle — specifically, as a matter of the human right to moral equality — the two conscience-based claims merit different responses, even if it is not unreasonable for lawmakers, in legislating, or for judges, in adjudicating, to reach the conclusion that, all things considered, the former claim too should be rejected.

October 10, 2017 in Perry, Michael | Permalink

Wednesday, August 23, 2017

Law Professor Lawrence Joseph: Acclaimed Poet

Lawrence Joseph, the Tinnelly Professor of Law at St. John’s University School of Law, is--as many of you know--an acclaimed poet.  Larry's new book of poems--his sixth--has just been published by Farrar, Straus and Giroux.  Information about the book,  So Where Are We?, is available here.

And a wonderful interview with Larry that will appear in Commonweal in September is available now online (here).  Well worth reading!

August 23, 2017 in Perry, Michael | Permalink

Friday, April 28, 2017

A Global Political Morality: Human Rights, Democracy, and Constitutionalism

Yesterday I posted to SSRN the introduction to my new book.  Several issues I address in the book are issues that engage many MOJ readers:  the religious v. secular grounds of human rights (chapter 2); the human right to religious/moral freedom (chapter 4); the proper role of the judiciary in resolving constitutional controversies that are also moral controversies, such as the constitutional controversies over capital punishment, same-sex marriage, and abortion (chapters 5-6); and human rights of the socioeconomic sort—such as the human right to adequate healthcare—which are the sort of human rights with which Catholic social teaching has long been concerned (chapter 7).  Here is a link to the introduction.  The abstract:

This SSRN posting consists mainly of the introduction to my new book: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017). The “global political morality” to which the title refers is what I call “the morality of human rights”. In the book, as I explain more fully in the introduction, I pursue several related inquiries that lie at the interface of human rights theory, political theory, and constitutional theory.

The first two inquiries concern the morality of human rights: 1. What are “human rights”? 2. What reason (or reasons) do we have--if indeed we have any — to take human rights seriously?

The next two inquiries concern the relationship of the morality of human rights to democratic governance: 3. How does the morality of human rights support democratic governance? 4. How does the morality of human rights limit democratic governance? I address the latter question with particular reference to the human right to religious and moral freedom.

The final three inquiries concern the relationship of the morality of human rights to certain constitutionalism-related questions: 5. In the context of the Constitution of the United States, what theory of judicial review takes seriously both the human right to democratic governance and the other human rights that are limits on democratic governance? 6. What are the implications of that theory of judicial review — a theory that comprises a (limited) affirmation of an originalist understanding of constitutional interpretation — for the constitutional controversies over, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion? 7. Should human rights of the socioeconomic sort, such as the human right to adequate healthcare, be constitutionalized — and if so, should they also be judicialized?

April 28, 2017 in Perry, Michael | Permalink

Wednesday, April 5, 2017

Health Care and the Gospel

That's the title of a new piece by Timothy Stoltzfuss Jost in Commonweal.  The subtitle:  "Where Are the Lawmakers of Faith?"  Tim, who is Mennonite, is Robert L. Willett Family Professor of Law at Washington and Lee University School of Law.  I recommend Tim's piece (here) to all MOJ readers.  I was privileged to be Tim's colleague during 1981-82, which was my final year at Ohio State (before heading off to Northwestern for a fifteen-year stint) and Tim's first year there.

April 5, 2017 in Perry, Michael | Permalink

Wednesday, March 29, 2017

Prophecy Without Contempt: Religious Discourse in the Public Square

That's the title of the book by Cathleen Kaveny that was published one year ago this month (Harvard University Press).  Professor Kaveny is the Darald and Juliet Libby Professor at Boston College, where she holds a joint appointment (School of Law, Department of Theology).

On Friday, April 7, 1:30-5:00 PM, at the McMullen Museum of Art, 201 Commonwealth Avenue, Boston, there will be a program, focused on Professor Kaveny's book, entitled "Prophecy Without Contempt:  A Conversation About Religion, Identity, and Exclusion in Our New Political Era".  The three speakers are an extraordinarily impressive group:  Jonathan Lear, John U. Nef Distinguished Service Professor, Committee on Social Thought and Department of Philosophy, University of Chicago; Charles Taylor, Professor Emeritus, Department of Philosophy, McGill University; and Rowan Williams, 104th Archbishop of Cantebury and Master of Magdalene College, University of Cambridge.  Professor Kaveny will respond.  The program is presented by The Clough Center for the Study of Constitutional Democracy, Boston College. 

March 29, 2017 in Perry, Michael | Permalink