Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, May 3, 2016

Two passages from Edmund Burke, A Letter to William Smith, Esq., on the Subject of Catholic Emancipation

I recently had occasion to come across this letter by Edmund Burke: A Letter to William Smith, Esq., on the Subject of Catholic Emancipation

One portion of it reminded me of a homily by Fr. Walter Burghardt, S.J., that I was privileged to hear as a graduate student. Its theme was the danger of religious indifferentism. On that topic, here's Burke to Smith:

You need make no apology for your attachment to the religious description you belong to. It proves (as in you it is sincere) your attachment to the great points in which the leading divisions are agreed, when the lesser, in which they differ, are so dear to you. I shall never call any religious opinions, which appear important to serious and pious minds, things of no consideration. Nothing is so fatal to religion as indifference, which is, at least, half infidelity. As long as men hold charity and justice to be essential integral parts of religion, there can be little danger from a strong attachment to particular tenets in faith." (emphasis added)

Another portion of it reminded me of various currents in American public life today, including in our public law:

My whole politics, at present, centre in one point, and to this the merit or demerit of every measure (with me) is referable, -- that is, what will most promote or depress the cause of Jacobinism. What is Jacobinism? It is an attempt (hitherto but too successful) to eradicate prejudice out of the minds of men, for the purpose of putting all power and authority into the hands of the persons capable of occasionally enlightening the minds of the people. * * *

* * *
As the grand prejudice, and that which holds all the other prejudices together, the first, last, and middle object of their hostility is religion. With that they are at inexpiable war. They make no distinction of sects. A Christian, as such, is to them an enemy. What, then, is left to a real Christian, (Christian as a believer and as a statesman,) but to make a league between all the grand divisions of that name, to protect and to cherish them all, and by no means to proscribe in any manner, more or less, any member of our common party? The divisions which formerly prevailed in the Church, with all their overdone zeal, only purified and ventilated our common faith, because there was no common enemy arrayed and embattled to take advantage of their dissensions; but now nothing but inevitable ruin will be the consequence of our quarrels. I think we may dispute, rail, persecute, and provoke the Catholics out of their prejudices; but it is not in ours they will take refuge. * * *

* * *

It is a great truth, and which in one of the debates I stated as strongly as I could to the House of Commons in the last session, that, if the Catholic religion is destroyed by the infidels, it is a most contemptible and absurd idea, that this, or any Protestant Church, can survive that event. Therefore my humble and decided opinion is, that all the three religions prevalent more or less in various parts of these islands ought all, in subordination to the legal establishment as they stand in the several countries, to be all countenanced, protected, and cherished, and that in Ireland particularly the Roman Catholic religion should be upheld in high respect and veneration, and should be, in its place, provided with all the means of making it a blessing to the people who profess it, -- that it ought to be cherished as a good, (though not as the most preferable good, if a choice was now to be made,) and not tolerated as an inevitable evil. If this be my opinion as to the Catholic religion as a sect, you must see that I must be to the last degree averse to put a man, upon that account, upon a bad footing with relation to the privileges which the fundamental laws of this country give him as a subject. I am the more serious on the positive encouragement to be given to this religion, (always, however, as secondary,) because the serious and earnest belief and practice of it by its professors forms, as things stand, the most effectual barrier, if not the sole barrier, against Jacobinism. The Catholics form the great body of the lower ranks of your community, and no small part of those classes of the middling that come nearest to them. You know that the seduction of that part of mankind from the principles of religion, morality, subordination, and social order is the great object of the Jacobins. Let them grow lax, skeptical, careless, and indifferent with regard to religion, and, so sure as we have an existence, it is not a zealous Anglican or Scottish Church principle, but direct Jacobinism which will enter into that breach. Two hundred years dreadfully spent in experiments to force that people to change the form of their religion have proved fruitless. You have now your choice, for full four fifths of your people, of the Catholic religion or Jacobinism. If things appear to you to stand on this alternative, I think you will not be long in making your option. * * *

* * *
January 29, 1795. Twelve at night.
(emphases added)

May 3, 2016 in Walsh, Kevin | Permalink

Sunday, April 3, 2016

Questions to consider while reading Kaveny on "The Case of the Little Sisters of the Poor"

Thank you to Michael Perry for directing us to the recently posted paper by Professor Kaveny on "The Case of the Little Sisters of the Poor." I haven't carefully considered the precise claims in Profeesor Kaveny's paper yet, but I've seen enough to post with questions now.

The abstract alone puts me on the defensive. In it, Professor Kaveny charges that "the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others." Further, "[t]his distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy."

These claims hit home because I represent the Little Sisters of the Poor, and have since the beginning of this saga. In so doing, I have tried my best to draw on an accurate understanding of Catholic moral theology and federal law. 

I initially tried to help the Little Sisters avoid going to court. After President Obama expressed openness to an expanded exemption, we filed comments explaining why the Administration's initial offerring was unacceptable. Those comments drew directly from the Little Sisters' public statements -- statements that were written, I unfortunately need to add, without the input of any lawyers or PR types. 

I failed ... and the government failed us, by promulgating revised regulations that remained problematic. 

The Little Sisters wanted to stay faithful both to their religious mission and to federal law. RFRA, among other provisions of federal law, was on their side. And so the case came. 

We ended up in court--with more, and more suitable, lawyers--because the regulations required the Little Sisters to arrange their health benefit plans contrary to how they had arranged them for years in compliance Catholic social teaching. The contraceptive mandate threatened to alter the status quo the Little Sisters had maintained for many years successfully, for many years without controversy, and until then without breaking federal law. 

The Little Sisters' alleged misunderstanding of "Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others" (in Professor Kaveny's words) predates by decades the Obama Administration's controversial implementation of the women's preventive health services provision. As I read Professor Kaveny's paper, then, here are some of the questions that will be on my mind:

(1) Have the Little Sisters of the Poor always misunderstood "Roman Catholic moral teaching" in arranging their health benefits to exclude contraceptive and abortifacient coverage?

(2) If the Little Sisters' pre-existing health benefits arrangements rested, instead, on a proper understanding of "Roman Catholic moral teaching," what was it about the Obama Administration's regulation that altered the analysis under Catholic moral theology? 

(3) Does it matter to theological analysis of compliance with this regulation whether it was promulgated in violation of a federal statute, namely the RFRA?

(4) If Professor Kaveny had been a lawyer advising the Little Sisters of the Poor when the initial regulation had been promulgated, would she have advised them to roll over and abandon their longstanding arrangements? What, concretely, would she have advised?

 (5) If it is to be regretted that "the adversarial nature of the legal process has pressed [the Little Sisters of the Poor] to understand both their own obligations and those of the government in a binary manner," who is more responsible for this state of affairs: (a) the Little Sisters and their lawyers, or (b) the Administration and its enablers?

April 3, 2016 in Walsh, Kevin | Permalink

Friday, March 25, 2016

How does the Court avoid a 4-4 split in the Little Sisters of the Poor case?

I've received some skeptical reactions to the concluding assertion in my prior post on the Little Sisters of the Poor case that "it's difficult to see how the government wins." The question on people's minds is how the Little Sisters and their fellow petitioners pick up a fifth vote after Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito. 

This is a fair question. And the fair answer is that I can't say with certainty (nobody outside the Court can!), but the probabilities look good given the various arguments aired and at work in the case.

I start with the assumption that the Justices would like to avoid a 4-4 split on these cases. They've been dealing with some of these cases on their shadow docket for a while now, and they do not want to prolong uncertainty or perpetuate disuniformity. So they want to find a way to avoid an even split if they can. 

Next, any break from 4-4 is most likely to be in petitioners' favor. It's possible that the government loses on substantial burden yet somehow wins on strict scrutiny. But I don't think that's in the cards after considering the briefs and observing arguments.

The government seemingly came in from the lower courts riding high on "no substantial burden," but that position did not fare well in questioning at the Court. Most of the government's arguments accordingly focused on the elements of strict scrutiny: compelling interest and least restrictive means. On these elements, though, the government's arguments and evidence are underdeveloped. 

One of the more interesting developments at oral argument was the government's attempt to avoid several less restrictive means by gerrymandering its claimed compelling interest to exclude them. Chief Justice Roberts picked up on this near the beginning of Solicitor General Verrilli's argument. "Your compelling interest," observed Chief Justice Roberts "is not that women obtain contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners, hired by the Little Sisters. In other words, it seems to me you can't say that what you're trying to do is make sure everybody has this coverage. You want to make sure they have it through the program set up by the Little Sisters, and that's what they object to."

Justice Kagan picked up on the government's contraction of its compelling interest as well. One of her questions for petitioners' counsel limited the universe of accommodations available to those that ran through petitioners' plans: "Is there any accommodation that the government would offer that would in fact result in women employees of your clients, or students of your clients, getting health care as part of an employer-based plan or a student-based plan, getting contraceptive coverage? Is there any accommodation that would be acceptable?"

One problem with the government's approach, as Michael McConnell has noted, is that it is "entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest." And another problem, he further notes, is that the government already expects to serve its interests in contraceptive coverage and other preventive services for many other employees outside of the employer-based health system by using the exchanges. 

Which brings us to the brief by Douglas Laycock that was mentioned by both Justice Kagan and Justice Ginsburg at oral argument. These Justices invoked this brief's arguments when petitioners' counsel pointed to the government's failure to justify the line that the agencies drew between exempt and nonexempt religious organizations.

At least as of the time of their questions, these Justices appeared to have accepted Professor Laycock's argument that scrutinizing this line to see if the government drew its exemption too narrowly would threaten specific religious exemptions. The gist of the argument is that the government won't provide specific religious exemptions at all if judicial scrutiny of their boundaries would result in willy-nilly judicial expansion.

The argument fails, however, if there is a guiding principle for judges to use in assessing the government's decision on the shape of its exemption. And here there are two. 

The first is RFRA itself. When the agencies decided on regulations to implement the women's preventive services provision, they were obligated to follow both the ACA and RFRA. The government obscures this by treating its exemption for churches and integrated auxiliaries as a matter of administrative grace. As Professor Laycock himself recognizes, though, and as Hobby Lobby holds, imposing the contraceptives mandate directly on religious objectors would violate the RFRA. 

Even if someone rejects the idea that the exemption for churches and integrated auxiliaries was required by RFRA, nobody can deny that the implementing agencies were at least required to follow RFRA's commands in formulating their regulatory regime. And it is this requirement for RFRA compliance in the regulatory process that provides a second principle for assessing the shape of any resulting exemption. When the government grants a specific religious exemption in its RFRA-governed rulemaking, it has to give a reason for the exemption that it provided. And this is crucial because, at the very least, the government's own reason for giving an exemption can provide courts a principle for assessing the line that the government has drawn between exempt and nonexempt entities.

The truth is that interest-group politics best explains the line drawn by the government. But interest-group appeasement is not an adequate rationale for the agencies to explain their action. So they said something else in the Federal Register, namely that exempt entities were more likely to employ co-religionists. That rationale, however, applies equally to petitioners, who enjoy the Title VII exemption to hire co-religionists, as Paul Clement argued in his rebuttal: "Their original justification for the line they drew, Justice Kennedy, was that the exempted organizations would be more likely to hire co-religionists and, therefore, less likely to have employees who would use the products. My clients equally enjoy the Title VII exemption which gives them the right to hire co-religionists so their original rationale applies equally to my clients. You have to draw a sensible line." 

Contrary to Professor Laycock, holding the government to its own rationale when it implements rules in accordance with RFRA by providing exemptions does not pose a mortal threat to specific religious exemptions. It protects against circumvention of RFRA itself.

Which brings me back to the opening question for this post: How avoid a 4-4 split? 

To state the obvious, a resolution in petitioners' favor would require at least one of the Hobby Lobby dissenters to join (at least as the outcome) with the four Justices that remain from the Hobby Lobby majority. Given how the government's case collapses once one recognizes the obvious mismatch between the scope of the regulatory exemption and the rationale given for it, the most likely candidates for voting in some way for petitioners are Justice Kagan and Justice Breyer. Their pre-judicial experience with legislation and rulemaking positions them to best appreciate how it has resulted that government lawyers have found themselves stuck defending as legally justified line-drawing that was politically motivated. And as judges, both Breyer and Kagan appreciate how judicial oversight of the administrative process can sniff out the effects of political influence that is insufficiently tethered to the even-handed advancement of actual government interests. 

Neither Justice Breyer nor Justice Kagan nor any of the other Justices needs to draw up once-and-for-all criteria for identifying inappropriately gerrymandered religious exemptions. The Justices need only hold the government to its expressed rationale in the administrative record for why it drew the lines that it did. 

When RFRA intersects with rulemaking, judges are not RFRA's front-line enforcers. They are, instead, a refuge for religious exercise that is protected by RFRA but that is subordinated to interest-group politics in the administrative process. One workable way to make RFRA operate as intended is for the judiciary to hold the government to its own rationale for the regulatory lines it has drawn.

March 25, 2016 in Walsh, Kevin | Permalink

Thursday, March 24, 2016

A few takeaways from oral arguments in the Little Sisters of the Poor case

Most reports of yesterday's oral arguments in the Little Sisters of the Poor case suggest that the Court is likely to split 4-4. That may be, I suppose, but who knows? In any event, this suggestion of an split understates just how bad of a day it was for the federal government. If Justice Scalia were still on the Court, the stories would be describing the argument as a government rout.

Even with the Court composed as it is, the government's position coming out was substantially weakened from what it was going in. Post-argument, there is less reason to simply assume that the Hobby Lobby dissenters will not recognize the valid religious liberty claims of the nonexempt religious nonprofits appearing yesterday (in contrast with the religious liberty claims of for-profit corporations). Apart from the identity of the nonexempt entities, the big asserted difference between Hobby Lobby and the Little Sisters' case was supposed to be the government's "accommodation," which is just an alternative means of compliance for nonexempt religious nonprofits who can purportedly hand the obligation off to somebody else while washing their own hands of complicity. If nothing else, it became clear that a majority of the Court understood that the government's alternative means of compliance does not make contraceptive coverage under it independent of the nonexempt religious nonprofits. 

Here are a few takeaways that I left arguments with yesterday and that still seem right after having slept on them:

  1. Every circuit court that ruled for the government in these cases held that the contraceptives mandate imposed no substantial burden under RFRA. A majority of the Court yesterday seemed unlikely to agree.

  2. The government has characterized its accommodation for nonexempt religious nonprofits as a simple opt out coupled with an "independent" coverage obligation imposed on third parties. A majority of the Court yesterday seemed to reject this characterization.

  3. The government has somehow succeeded up until this point in (A) insisting on contraceptive coverage for employees of nonexempt religious nonprofits that is "seamless" from the employees' point of view, while (B) simultaneously asserting that the resulting coverage is "independent" of the employer's choice. A majority of the Court yesterday seemed to appreciate that makes no sense.

If these observations are right, it's difficult to see how the government wins. 

March 24, 2016 in Walsh, Kevin | Permalink

Sunday, March 6, 2016

Canada's Catholic hospitals should facilitate assisted suicide or lose government funding?

From the Orwellian "assisted death" in the headline to the national civil liberties group arguing for government power to force violations of religious conscience, this article from The Globe and Mail shows that there is nothing exceptionally American about the impulse to use the spending power of government to impose an orthodoxy of "assisted autonomy." 

March 6, 2016 in Walsh, Kevin | Permalink

Friday, March 4, 2016

"Harvard’s role in the movement was in many ways not surprising."

A powerful theme in contemporary constitutional law is the idea of progress. Catholic legal theory both cautions and confounds when one considers what counts as progress in our constitutional order.

Here's one measure of how far we've progressed. A toxic brew of ideas about race, immigration, and crime once held by upper-class Harvard types is now standard fare served up by the presently leading candidate for the Republican nomination. (HT: How Appealing)

March 4, 2016 in Walsh, Kevin | Permalink

Sunday, February 21, 2016

Fr. Scalia's Homily: "We are gathered here because of one man."

As a follow-up to Rick's post, here is a transcript of Fr. Scalia's moving, mildly humorous, and theologically profound homily. As a teaser, here's the part right after the opening acknowledgments and expressions of gratitude:

We are gathered here because of one man. A man known personally to many of us, known only by reputation to even more. A man loved by many, scorned by others. A man known for great controversy, and for great compassion. That man, of course,

Continue reading

February 21, 2016 in Walsh, Kevin | Permalink

Sunday, February 14, 2016

A lesson from Justice Scalia on the most important event in human history

Ed Hartnett passes along this story about Justice Scalia that reveals much about him as a man of faith, as a student, and as a teacher:

He spoke at Seton Hall on our Charter Day -- essentially the school's birthday --  about his experience as a history student at Georgetown. He recalled a professor who asked him, "what was the most important event in history?"  He answered with several significant events that he had learned about as a history major. The professor responded "no" to each answer. Finally, he gave up, and the professor provided the answer, "the Incarnation." 

Professor Hartnett gets the effect of this just right: "The lesson stayed with him, and the story stayed with me."

February 14, 2016 in Walsh, Kevin | Permalink

Friday, January 29, 2016

Blanshard's Baker Library revelation at Dartmouth College

In gathering up some library books and removing old post-its from them, I (apparently, again) came across the following passage from Mark Massa's superb book, Anti-Catholicism in America: The Last Acceptable Prejudice. This passage identifies the moment at which the anti-Catholic crusader Paul Blanshard decided to devote his talents to a new kind of muckraking, with the Catholic Church as his target. Apparently this happened at my undergraduate alma mater, Dartmouth College, in a place where I spent a lot of time, the stacks of Baker Library. Curiously enough, the work that triggered Blanchard, Davis's Moral and Pastoral Theology, is the same work cited by Justice Alito in footnote 34 of his opinion for the Court in Hobby LobbyAt least Dartmouth had some good books in its library.

Here's Massa's account:

[T]he event that would reveal the path that brought Blanshard fame (of infamy) for several decades occurred while he was browsing in the Dartmouth College library. He came upon a four-volume work by the English Jesuit Henry Davis entitled Moral and Pastoral Theology. His eyes "bulged with astonishment" at the hypocrisy of sexually repressed celibate priests who "dared to prescribe the most detailed and viciously reactionary formulas" on sexuality, childbirth, and birth control. As Blanshard would later describe this accidental encounter, he stood dumbstruck in the Baker Library:

Did the public really know this amazing stuff? Why should I not take this volume and other documents of the Catholic underworld and do a deliberate muckraking job, using the techniques that Lincoln Steffens and other American muckrakers had used in exposing corporate and public graft in the United States? Why not? This was apparently one field not yet preempted by the muckrakers.

After a "short dip into the lower reaches of Catholic medical dogma," Blanshard went to Washington, D.C., and began "long research into Catholic documents which was to occupy much of my time and energy for several years." Blanshard's course on Catholic "dogma" took him to carrels in the Library of Congress and even into the belly of the Beast itself, the library of the Catholic University of America.

The fruits of this intensive study were the articles in the pages of The Nation. Blanshard never discovered anything in the complex webs of intellectual traditions that comprise Catholic theology, canon law, and philosophy that even nuanced the blinding insight he claimed to have had that fateful afternoon at Dartmouth College. Like the faith delivered to the saints of old, his original sense that the "viciously reactionary formulas" of the old Roman Church represented a looming threat to democratic culture in general and to the political traditions of the United States in particular never wavered.

Source: Mark Massa, S.J., Anti-Catholicism in America: The Last Acceptable Prejudice 65 (2005)

January 29, 2016 in Walsh, Kevin | Permalink

Thursday, January 14, 2016

An overlooked religious response to same-sex marriage: Justice Kennedy's Obergefell opinion

What is the most consequential religious response to same-sex marriage in recent times? 

To ask this question is to place same-sex marriage as the status quo and to frame religious responses to it as reactionary. But what if the right answer to the opening question is Justice Kennedy's opinion for the Court in Obergefell v. Hodges itself?

Isn't it?

These were some of the thoughts that went into my panel remarks a week ago at the AALS Law & Religion Section.

I've spoken on a number of difficult and sensitive topics before a range of audiences. But participating in that panel had me more twisted up with concern than I can recall for any other panel or talk. So I decided to square up with the audience and identify just how awkward the situation was for me, and why.

I explained that I was there as an unbeliever, speaking to a room packed with true believers. Most in that audience truly believed that the Constitution of the United States forbids states from continuing with the husband/wife understanding of civil marriage. They truly believed that the Supreme Court of the United States appropriately ordered a redefinition of civil marriage in state law. They truly believed that federal law commands what the Supreme Court did.

And I did not. None of it. 

That's awkward, isn't it? What could profitably be said between us, when we were so far apart on the main issue?

My basic tack was to argue that there was religion on both sides--that the object of their belief could itself be understood in religious terms. I gave several reasons for understanding Justice Kennedy's constitutionalization of same-sex marriage in Obergefell in religious terms. Among them:

1. The language of the opinion: The opinion speaks in terms of revelation, as I've previously argued

2. The operative understanding of the Constitution: The Constitution of Obergefell is not an authoritative legal document with fixed, ascertainable legal content. Instead, it is "a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Or, as the plurality opinion described the Constitution in Casey: "a covenant ... [with] written terms [that] embody ideas and aspirations that must survive more ages than one."

3. Justice Kennedy's professed self-understanding: In a 2005 interview with the Academy of Achievement, Justice Kennedy said that he thought people would be happiest if they could "find a profession ... where [they] manipulate symbols that have an intrinsic ethical content." That's what he think his job requires. Asked about the most important qualities for achievement in his field, Kennedy answered that it was important to understand that "the framers wanted you to shape the destiny of the country." And that's what he believes he is doing in his constitutional lawmaking. 

4. The operative understanding of the judicial role: A case like Obergefell, Kennedy's opinion suggests, does not call for dry legal analysis and cool, detached reasoning. The good judge must respond to the petitioners' stories. The operative understanding of the judicial role is to respond to the petitioners' stories, and the petitioners' hopes, and the universal fear of loneliness (among other things), by enforcing the central meaning of a fundamental right that is now manifest in our basic charter.

5. The social/political/cultural response: "Love wins" is not a typical response to the output of constitutional litigation. Yet people have invoked all of the theological virtues (faith, hope, and love), in describing the opinion. The White House lit up in a rainbow. President Obama described the decision as delivering "justice like a thunderbolt." People are using the opinion as a type of scripture for their marriage ceremonies. 

The point of this exercise was not simply, or even primarily, to undermine the legal authority of Obergefell. It is law of a sort, just as any other erroneous Supreme Court decision that has not been overruled is law of a sort. The real point is that Obergefell as religious response does not enable the same type of reasoned disagreement that more typically legal opinions generate. If one does not accept Justice Kennedy's revelation, as I do not, there's not that much to talk about as lawyers. Which is unfortunate. Personal testimonies and conversion certainly have their place in human experience. But these are not the sort of thing that make for good constitutional law. 

January 14, 2016 in Walsh, Kevin | Permalink