Friday, January 29, 2016
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 Lobby. At 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)
Thursday, January 14, 2016
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?
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.
Tuesday, January 5, 2016
"Kermit Gosnell, Planned Parenthood, and severability doctrine – A fresh look at Whole Woman’s Health v. Cole"
SCOTUSBlog just posted my contribution to their symposium on the Supreme Court's abortion case from Texas: "Kermit Gosnell, Planned Parenthood, and severability doctrine -- A fresh look at Whole Woman's Health v. Cole."
I explore a few important and underappreciated aspects of the case. General-interest readers are likely to find the first two points (about Kermit Gosnell and Planned Parenthood) more interesting, while those curious about details of legal analysis should find the severability discussion worth perusing.
Thursday, December 31, 2015
The current volume of the Stanford Law & Policy Review contains several law and religion articles. While all may be of interest to MOJ readers, three may be of particular interest. Here are the titles and a brief description from the SLPR webpage.
Constitutional Contraction: Religion and the Roberts Court
Marc O. DeGirolami, Professor of Law & Associate Dean for Faculty Scholarship, St. John's University
This Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the Constitutional Law of religious freedom.
26 Stan. L. & Pol'y Rev. 385 (2015)
Addressing Three Problems in Commentary on Catholics at the Supreme Court by Reference to Three Decades of Catholic Bishops' Amicus Briefs
Kevin C. Walsh Professor of Law, University of Richmond School of Law
Much commentary about Catholic Justices serving on the Supreme Court suffers from various shortcomings. In identifying and countering these shortcomings, this Article assesses the votes of the Justices - Catholic and non-Catholic alike - in the full set of cases form the Rehnquist Court and the Roberts Court (through June 2014) in which the United States Conference of Catholic Bishops filed an amicus curiae brief.
26 Stan.L.& Pol'y Rev. 411 (2015)
Archetypes of Faith: How Americans See, and Believe in, Their Constitution
Aliza Plener Cover, Associate Professor, University of Idaho College of Law
This Article offers a new framework to illuminate how American faith in the Constitution is sustained over time. It builds upon the evocative Passover story of the Four Sons—one of whom is wise, one wicked, one simple, and one who does not know how to ask—and argues that these archetypes resonate deeply in the constitutional context.
26 Stan.L.& Pol'y Rev. 555 (2015)
I nominate my article for the prize of most unwieldy title, Marc's for most legally insightful, and Cover's for most culturally insightful.
Saturday, December 26, 2015
The holidays can be hard as well as joyful.
Horizontal celebrations of Christmas connectedness remind us of the vertical dimensions of human existence.
We can even occasionally forget that Christmas is only the second-most vertical of Christian holidays. But this forgetfulness is temporary. On reflection, horizontal and vertical fuse as our horizon extends backwards and forwards.
We feel the loss of loved ones as we observe children immersed in the present. We treasure what their future promises both them and us ... all children of a loving God. And we project ourselves into their presentness as we remember the past.
Christian faith, hope, and love converge.
* * *
I've been thinking lately about John Marshall's eulogy for his wife, Polly. I'd read it multiple times before it occurred to me to wonder who was his audience and why he wrote it. I'm still not sure. But I can report that it was found together with his will. The manuscript somehow came into the possession of a granddaughter. It is a beautiful tribute from a grieving man, and very much worth sharing.
Tuesday, December 22, 2015
I've blogged a bit lately about Walker Percy and recently came across this passage from his book, Lost in the Cosmos: The Last Self-Help Book, which I thought I would share:
“Thought Experiment: You are a native of New York City, you live in New York, work in New York, travel about the city with no particular emotion except a mild boredom, unease, exasperation, and dislike especially for, say, Times Square and Brooklyn, and a longing for a Connecticut farmhouse. Later you become an astronaut and wander in space for years. You land on a strange, unexplored (you think) planet. There you find a road sign with an arrow, erected by a previous astronaut in the manner of GIs in World War II: 'Brooklyn 9.6 light-years.' Explain your emotion.”
― Walker Percy,
Friday, December 18, 2015
Politics as a vocation, politicians as a mirror of society, and the two-way street of influence (Mary Ann Glendon)
I've been reminded recently of a lecture by Professor Mary Ann Glendon.
The topic is Politics as a Vocation, and the lecture featured reflections from Cicero and Burke. Here is an excerpt from an interview with Professor Glendon about the topic that seems particularly timely now:
Some argue that we should spend more time influencing politics, while others say we must first change culture. Ultimately, would you say that politics is upstream from culture or the reverse?
As Vaclav Havel once pointed out, politicians do, in a sense, mirror their society, and that’s why people sometimes say a country gets the kind of politics it deserves. But, he added, the words and example of a public figure can also influence society. It will always be a two-way street.
Classic Catholic answer: Both/and.
In this time of Trump, we must redouble our efforts to highlight the words and example of public figures who bring out the highest and best in our society.
Tuesday, December 15, 2015
I’ve been quite taken lately with Scott Adams’s use of his Moist Robot and Master Persuader ideas to make sense of Donald Trump. So I thought I would try on Adams’s filter for a while and see if it helped me understand matters closer to my areas of interest.
One of those is the judicial power.
Filter on, I looked around my digital world. And this is what came into focus:
Among life-tenured federal judges, Judge Posner is The Donald.
Think about it:
- Trump is a Master Wizard. So is Posner. (He even wears a robe!)
- Trump is a master of the “linguistic kill shot.” Posner wields a tomahawk for the legal equivalent. (He doesn't always make a kill, but he often garners a response.)
- Trump knows how to use media. So does Posner. (Don’t you think he knows exactly which lines in his high-profile opinions will be Slate-ified?)
- Trump is a Clown Genius. Posner is a Cat Genius.
- Trump thinks government officials should be more willing than conventional wisdom typically assumes we should be to trade off civil liberty for national security. Posner does too.
- Trump is a legend in his own mind. So is Posner. (Hint: Search the comment section for Ozymandias.)
- Trump can sense how the wind is blowing and set his sails accordingly. Same for Posner.
There’s more, of course, but let’s step back and consider concerns or counter-arguments.
Isn’t it a bit mean to compare Posner with Trump given their different day-job duties in law and politics? Maybe a bit. But not that much, and it’s a fair comparison. Trump and Posner are both highly effective people, very successful in their respective lines of work. Both would probably kind of like the comparison at some level.
Anyhow, “that’s mean” is more of a concern than a counter-argument. It does point to the question of motive, though. And here I must admit that I would like the Posner as Trump idea to stick.
Justice Scalia is my old boss, and I view him with affection. He can surely take care of himself. But some of Posner’s personal attacks on him offend me. The latest—accusing Scalia of pushing majoritarian theocracy—is particularly confounding given Posner’s own views on the Constitution and law.
Posner thinks "[t]he notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense." And he also thinks that "whatever judges do within their jurisdiction is law." Put these two together in the mind of someone who decides constitutional cases, and you have a recipe for lawless constitutional law.
Next, stir in Posner’s views on the relationship between public opinion and constitutional law. ("I do think the change in public opinion was decisive for all the courts that ruled in favor of creating a constitutional right to same-sex marriage.") And throw in the idea of Liberty as a goddess. Who’s the majoritarian theocrat now?
(Lest you think this idea of Goddess Liberty far-fetched, consider that the West Wall frieze at the Supreme Court of the United States has an allegorical depiction of Divine Inspiration speaking to Justice. Some federal judges (though not Posner) occasionally act as if they take the allegory a bit too personally.)
Anyhow, Posner is surely of the view that turnabout is fair play. If this post were to bother him in any way that he would care about enough to do anything substantial, he would probably crush me. (If I ever finish this book I'm working on, maybe I'll be lucky enough for him to write a review trashing it. But I suspect a wry smile is more likely.) I do expect “Scalia is the Trump of Article III” to emerge from somewhere, though, if it hasn’t already. So it’s not like there’s no downside to peddling the comparison.
I make no pretense of dispassion in tagging Posner as Trump, but it’s not as if I am incapable of assessing Posner dispassionately. I’ve co-authored an article about him (and Judge Wilkinson) that assesses his thought somewhat favorably (or at least not unfavorably). And who can’t recognize Posner’s particular gifts?
Lately, though, Posner’s been reminding me of someone else, and that’s Donald Trump. So I thought I’d share.
My claim that Posner Is The Trump Of Article III is obviously debatable. And it would be fun to see it debated. So hopefully this post gets picked up by a blog with a lively comment section. (Maybe someone will read it and think "How Appealing," and it then gets discovered by The Volokh Conspiracy (bat signal to Orin Kerr) or Josh Blackman?)
Thanks to Rick for the pointer to the WSJ piece on the use of Blaine Amendments. I liked this paragraph near the end of it, in which the author explains the benefits denied by application of a Blaine Amendment to forbid a religious school from receiving a state grant to resurface its playground:
Although the playground-resurfacing program in Missouri provides aid directly to schools, the program’s environmental and safety goals are entirely secular. Those recycled tire bits are not going to indoctrinate the children playing on them. Rubberized playgrounds might save knees and the environment, but they do not save souls.
The claim seems something like the legal contrapositive (if that makes any sense) of Jefferson's comment about why his neighbor's religious beliefs (in comparison with the government's) did him no harm:
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.
Michael Gerson had an op-ed worth reading at the Washington Post yesterday. It bears the title "Donald Trump presents evangelical Christians with a crucial choice." Some excerpts:
There is a fine line between reflecting the concerns of voters and performing a crude and offensive imitation that mocks and defiles their deepest beliefs. Okay, maybe not so fine a line.
Donald Trump — who knows something about crude and offensive imitations — has now taken to calling himself an “evangelical."
* * *
Trumpism has a cruelty at its core — seeking enemies and exploiting differences. And it comes into conflict with evangelicalism at some very basic points: a belief in honesty and respectfulness, a commitment to religious liberty and an inclusive conception of human dignity.