Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, September 26, 2017

Debating Religious Liberty and Discrimination

Commonweal has published my review of an important new book, Debating Religious Liberty and Discrimination, by Ryan Anderson, Sherif Girgis, and John Corvino.  Here's an excerpt from my review:

The book’s fourth and, in my view, most important lesson: restoring relationships across the political divide does not necessarily require shared beliefs, but it will require shared work. The book’s tone in this regard was set by the introduction, jointly authored by Corvino, Anderson, and Girgis. They identify foundational principles and recite a history of religious liberty in our country. In an era of rampant “fake news” accusations, setting out agreed facts before proceeding to engage arguments is (unfortunately) a bold gesture. When it comes to religious liberty and nondiscrimination, if we cannot agree on where we should go, can we at least agree on how we arrived where we are? The authors can and do. Consensus about the facts should not be mistaken for concession on the normative claims, though; neither side pulls any punches in the arguments that follow. Anderson and Girgis identify specific areas of consensus with Corvino after 237 pages of back-and-forth criticism. Robust, honest, and respectful argument can be an impetus to authentic, if not total, agreement.

You can read the whole review here.  You can - and should! - buy the book here.

September 26, 2017 in Vischer, Rob | Permalink

Friday, August 18, 2017

Confederate monuments and empathy

I confess that Public Discourse is not the first place I would have expected to see a stirring call to take down Confederate monuments, but Matt Franck offers just that today, and it is worth a read.  Key excerpt:

For these [monuments] are in their turn a gratuitous slap in the face of people who have felt the sting too much already. For a white Yankee like me, they’re bad enough. For black Americans, they must be intolerable. Large and forgiving natures might look on the statues now as relics of an ugly past that the country has in many ways overcome, fading into the background of noisy traffic in the modern, bustling South. But recent events in Charlottesville suggest that this overcoming is by no means a finished business. The statues should go, in order to deprive today’s feckless white supremacists of rallying points at the feet of monuments erected by yesterday’s more successful white supremacists.

and

Understanding the principled difference between the founding generals and statesmen of the United States—including the slave owners—and the founders and generals of the Confederate States can give us a bulwark against the slippage that President Trump evidently fears. No one ever erected a statue of George Washington in order to communicate his race’s superiority and to lord it over others.

As Franck acknowledges, reasonable (and non-racist) citizens can disagree about this.  But what's so troubling -- and this is my own editorializing -- is the utter failure among many opponents of removal to acknowledge the non-frivolous reasons for removal, much less empathize with our neighbors for whom removal would represent a burden lifted.  (I don't think the failure runs both ways -- African Americans growing up in the South are not ignorant of the arguments for Southern heritage and history.) 

Setting the tone for this failure, of course, is our President.  He doesn't have a monopoly on a lack of empathy (see, e.g., "basket of deplorables"), but combined with his lack of intellectual curiosity, utter self-absorption, and willingness to leverage fear of "the other" for strategic political advantage, President Trump's glaring lack of empathy threatens to foment social divisions in our country to an extent unseen for generations.  To be clear, I'm not suggesting that he is the source of our divisions - he is exacerbating them.

When I first became a dean, I was talking with another dean who was nearing the end of a very long and successful tenure.  I had identified a range of important leadership qualities such as vision, integrity, transparency, and confidence.  He responded, "No, the most important quality in a leader is empathy."  The longer I serve in a leadership role, the more obviously and undeniably true I find his observation to be. 

August 18, 2017 in Vischer, Rob | Permalink

Wednesday, August 16, 2017

Cardinal O'Malley on Charlottesville

I have found myself struggling for words that might appropriately convey any helpful insights for our nation's current crisis of moral leadership, but I'm grateful that Cardinal Sean O'Malley has offered a reflection that calls us back to the central importance of ideas and ideals:

Nations live and flourish because of their ideas and ideals, not simply because of their material wealth or power. Our ideas and ideals express our identity and set the standards for our behavior as citizens. For the United States a core statement of our identity is expressed in the phrase “E Pluribus Unum”, from many peoples we shape one nation. This treasured civic truth reflects and is rooted in the biblical heritage of belief in the dignity of all people, and a shared humanity.

 

We have not always as a nation reflected the best of our ideas and ideals, but they stand as a goal toward which we strive. Our country is once again in a moment when the civic and biblical heritage is being attacked and tested. We need to reassert and reaffirm the belief that one nation is meant to include all: the multiple races, cultures, ethnicities and religions which make up our country.

 

The angry and violent mob which gathered in Virginia this past weekend, by word and deed, contradicted our national creed and code of civil conduct. As a nation in the past century we led the struggle against the pagan ideas of Nazism. Those who seek to resurrect a new form of Nazism and extreme nationalism – those who denigrate African Americans, who preach and practice anti-Semitism, who disparage Muslims, those who threaten and seek to banish immigrants in our land – all these voices dishonor the basic convictions of the American political and constitutional traditions. They must be opposed in word and deed. As a Catholic bishop I welcome the opportunity to stand with other religious leaders of the land in opposition to the voices of fragmentation and hatred. As the Archbishop of Boston, it is my responsibility to call the Catholic community which I serve to remember the basic truths of faith and reason which are so central at this moment. The truth that our rights and our duties to each other derive from God. The truth that we can successfully oppose hatred and bigotry by civility and charity. These truths can bind us together across racial, religious and ethnic communities. They can help us celebrate our pluralism as a rich treasure which strengthens this land. Today when our unity is tested, when our basic truths of faith and reason are violated, as people of faith and as citizens we must uphold our ideas and ideals. My prayer is that we can rise to this challenge. My belief is that we are surely capable of doing so

August 16, 2017 in Vischer, Rob | Permalink

Wednesday, August 2, 2017

Nondiscrimination for All

Jonathan Rauch has an article in National Affairs that offers a thoughtful take on the roots of today's SSM/religious liberty stalemate:

Culturally, what the country learned from the civil-rights movement is that discrimination is everywhere and always wrong, and therefore must be everywhere and always illegal and unacceptable. In the racial paradigm, discrimination cannot just be minimized. It must be eradicated. Every diner, drinking fountain, and swimming pool open to the public must be open to blacks. In practice, after all, any lesser standard was exploited by racists as a tool of Jim Crow. In principle, the very existence of discrimination diminished African-American dignity.

This lesson contributes to our current predicament, according to Rauch: to religious liberty advocates, once sexual orientation gains any protection under anti-discrimination laws, religious objectors will find zero accommodation for dissenting practices; to gay rights advocates, once religious objectors gain any legal accommodation, gays will be stuck perpetually in a second-class status.  Rauch points out that this framing of the issue ignores the fact that "anti-discrimination law as enacted in countless jurisdictions and as interpreted by the courts is nothing close to being as absolute as today's activists and popular culture typically suppose."

Anti-discrimination laws targeting race offer fewer context-based exceptions than disability laws; age, religion and gender protections are at various points in between:

It's important to stress that this is a spectrum, not a hierarchy. It does not rank anti-discrimination rules from "better" or "stronger" at the race end to "worse" or "weaker" at the disability end. It also does not rank the social importance of various groups or the validity of their nondiscrimination claims. It is not a competition. Rather, the spectrum reflects the natural diversity of needs, situations, and histories of groups seeking protection and of the social contexts in which they are embedded.

Can we approach GLBT anti-discrimination protections as a debate over the most appropriate spot on the spectrum (as Utah did), rather than pretend that the spectrum doesn't exist?  If so, does that hold promise for other areas where cultural divisions over moral truth have led to zero-sum legal battles? 

August 2, 2017 in Vischer, Rob | Permalink

Monday, July 3, 2017

Singer on Religion & Discrimination

Harvard law prof Joseph Singer has posted an article titled, Property and Sovereignty Imbricated: Why Religion is Not an Excuse to Discriminate in Public Accommodations.  He argues that "public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect."  From the conclusion:

Property may limit sovereignty, but it can only do so through normative judgments about the legitimate scope of property claims. Sovereignty may define property, but in a free and democratic society it can only do so legitimately by ensuring that free and equal persons are neither attacked nor abandoned in the street with money in their hands.

As such, those who oppose SSM are free not to celebrate same-sex marriages, free not to accept LGBTQ persons as equal members in their churches, free to speak their minds, etc., but "such freedoms end at the market's edge."

First, if you only have time to read one article by Professor Singer this holiday weekend, read his earlier paper, Normative Methods for Lawyers, which is an insightful and important analysis of legal education.  It has been required reading for every 1L student at St. Thomas since it was published.

Second, while I have only skimmed his new paper, I think he's focusing on the less interesting question (how can we justify public accommodation laws in the face of religious liberty objections?) instead of what I believe is a more pressing one: how should we craft public accommodation laws in light of our deep religious and moral pluralism?  Should we draw a distinction between a provider turning away LGBTQ persons from purchasing "off the rack" goods or services and a provider refusing to contribute customized, creative services to the celebration of a relationship to which they object?  For example, what does the relationship between property and sovereignty teach us about the law's appropriate treatment of Barronelle Stuzman? 

July 3, 2017 in Vischer, Rob | Permalink

Sunday, July 2, 2017

The Justice Gap: a nation heading in the wrong direction

As we celebrate our nation this week, it's a good time to take stock of areas in which we have more work to do to measure up to our founding ideals. The Legal Services Corporation recently released a report on “the justice gap” in our country, underscoring the scandalous failure to provide meaningful resources to meet the legal needs of low-income Americans (i.e., those living at or below 125% of the federal poverty level). Among the most striking estimates:

  • 86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help;
  •  71% of low-income households experienced at least one civil legal problem, including 97% of households with victims of domestic violence or sexual assault, 80% of households with kids under 18, and 80% of households with disabled persons;
  • Courts are flooded with unrepresented litigants, even in high-stakes cases -- in New York state courts, for example, 98% of tenants in eviction cases and 95% of parents in child support cases were unrepresented.

Instead of making forward progress, we face an uphill battle even to maintain the status quo.  Last week, the House subcommittee responsible for LSC funding proposed a 24% cut to the agency, which is, sadly, an improvement from the White House's proposal to eliminate the LSC entirely.  We can do better.

July 2, 2017 in Vischer, Rob | Permalink

Friday, June 23, 2017

Justice Declaration

Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform.  With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed."  The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards.  You can read the "Justice Declaration" here.

June 23, 2017 in Vischer, Rob | Permalink

Monday, June 12, 2017

Why the anti-Sharia movement is (at least in the U.S.) anti-Muslim

I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim.  An excerpt:

The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.

 

The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)

 

These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.

Feedback, as always, is welcome.

June 12, 2017 in Vischer, Rob | Permalink

Political Leadership in 2017 (a/k/a Defining Deviancy Down)

Senator Kirsten Gillibrand is the latest reminder of an unfortunate lesson the Democrats have drawn from President Trump's election: show your populist streak by swearing more in your speeches.

Jeet Heer now argues in the New Republic that we need more of this, not less: 

The new wave of swearing isn’t the cause of a breakdown in civility, but a symptom of a national crisis. These are dire times in the U.S. The president is a manifestly unfit kleptocrat who may have obstructed justice, but he’s not going to be impeached anytime soon because he has the support of his party. The only proper response is a full-scale attack on the political system, which requires rallying the public by letting them know just how foul things are—a task best accomplished with foul language. Trump represents an existential threat to American democracy. In this state of emergency, there’s no room for wimpy euphemisms and lofty rhetoric.

Lovely.  Nothing is off limits, of course, because we have never faced such an existential threat to our political system!  A leader could invoke "the better angels of our nature" in 1861 because that leader probably knew nothing about national division and discord.  If that leader had ever encountered a Trump-sized threat, he'd have been invoking fewer angels and dropping more F-bombs.  And why raise a hand to stop the demolition of traditional norms of civility -- norms that, I feel obliged to point out, bear no culpability for the economic dislocation at the root of our current "anti-establishment" moment -- when we can grab a sledgehammer and join in the fun?

Well, at least the election has caused Democrats to rethink their litmus test on abortion rights.  Oh wait

June 12, 2017 in Vischer, Rob | Permalink

Monday, June 5, 2017

Imposing on law students' "moral independence"

DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.”  She explains:

When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.

An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.”  If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity?  And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?

Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely.  That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates.  It's not about equipping our students for lives of "moral independence," whatever that means.  Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms.  This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either.  Such conversations are a big part of what it means to be a profession.

June 5, 2017 in Vischer, Rob | Permalink