Mirror of Justice

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Thursday, January 22, 2015

TBT: When the March for Life made the U.S. Reports

Today's March for Life seems as good an occasion as any to share this portion of Justice Scalia's dissent in Planned Parenthood of S.E. Pa. v. Casey blasting the plurality's assertion that the Court needed to be even more unwilling than normal to reconsider precedent when that precedent has been the object of intense national controversy:

[T]he notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 6; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition--then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change--to show how little they intimidate us.

January 22, 2015 in Walsh, Kevin | Permalink

Wednesday, January 21, 2015

Did Justice Ginsburg endorse the Establishment Clause third-party burdens argument in Holt v. Hobbs?

I agree with Rick and Marc in rejecting the existence of a general rule that the Establishment Clause prohibits RFRA- or RLUIPA-required accommodations that impose third-party burdens (or allegedly impose such burdens, depending on one's understanding of the benefit/burden baseline). In my view, the Hobby Lobby amici curiae brief by Nathan Chapman lays out a better reading of the governing law than that adopted by the scholars linked in Rick's post. Unlike Rick and Marc, however, I do not read Justice Ginsburg's Holt concurrence as endorsing an Establishment Clause-based limit on third-party accommodations that should otherwise properly be recognized under RLUIPA and RFRA.

To assess this disagreement, one needs to follow Justice Ginsburg's Holt citations to her Hobby Lobby dissent: "See [Hobby Lobby], at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting)." {BTW, gotta love these Supreme Court citation conventions! See ___ (gratuitous personal op. at _:);)_).}

Justice Ginsburg's position in the cited portions of her Hobby Lobby dissent is that consideration of third-party burdens is part of the appropriate application of RFRA and RLUIPA. She does not adopt the view that these burdens could give rise to a freestanding Establishment Clause limitation on what would otherwise be required by those statutes. True, the Holt-cited portions of Justice Ginsburg's Hobby Lobby dissent do rely on Cutter v. Wilkinson and Estate of Thornton v. Caldor, which are Establishment Clause cases. But they also rely on Wisconsin v. Yoder and Prince v. Massachusetts, which are not.

Footnote 25 of Justice Ginsburg's Hobby Lobby dissent (not cited in her Holt v. Hobbs concurrence) most directly addresses the influence of the Establishment Clause on RFRA/RLUIPA analysis. It opens with the statement: "As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." But the closing sentence relies on United States v. Lee, which was neither a third-party burden case nor an Establishment Clause case: "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.' United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)." This is consistent with the position set forth in the Chapman brief, which is that Cutter interprets RLUIPA (and RFRA, by extension) to incorporate consideration of third-party burdens into the application of the statutorily required strict scrutiny.

If this reading of Justice Ginsburg's opinion is correct, then Justice Ginsburg actually agrees both with Rick that "the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry," and also with Marc, that "the strict scrutiny standard of RLUIPA and RFRA, if 'properly appl[ied],' itself incorporates the Establishment Clause limits raised by cases like Thornton."

January 21, 2015 in Walsh, Kevin | Permalink

Friday, January 16, 2015

Blaming Corwin for constitutional confusions

The J. Reuben Clark Society and Career Development Office here at the University of Richmond School of Law hosted an excellent lecture yesterday by Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit. The flavor of the lecture can be seen in its title: A Constitution We Are Confounding: Some Observations on the Constitution as Written and the Constitution as Taught.

At the risk of oversimplification, the basic claim of the lecture was that the case method of teaching initiated in the last few decades of the nineteenth century, together with a judge-centered understanding of constitutional law traceable to Marbury v. Madison, have underwritten a "common law" way of teaching constitutional law that slights the writtenness and legal fixity of the Constitution.

In reflecting on Judge Bybee's historical narrative, the case method seems more to blame than Marbury. In my view, formed largely by Christopher Wolfe's insightful arguments in The Rise of Modern Judicial Review, the practice that we now call "judicial review" is different in important respects from the practice engaged in by Chief Justice Marshall.

One piece of evidence for this claim of partial discontinuity is terminological. As Mary Sarah Bilder has explained, it was not until the early twentieth century, through the writings of Edward Corwin, that "judicial review" became the standard term for the practice of refusing to apply unconstitutional statutes as law in the course of deciding a case. 

The achievement of Corwin of perhaps the greatest interest for Catholic legal theory is his influential mangling of the relationship between natural law and American constitutional law. Corwin developed and evangelized an account of natural law "under the skin" of the Constitution that collapses the natural law into a misunderstood version of the common law and ends up in ignoring the written Constitution as positive law. My Richmond colleague Gary McDowell, criticizing "Corwin's corrosive constitutionalism" has described the result of this thinking:

[A]ppeals intended to square the Constitution with the demands of natural law will be made through the courts. The result will be for judges to create judicial doctrines derived from what they perceive to be the dictates of natural law by Corwin's "rugged massage" of the Constitution's text. To believe, Corwin said, that "judicial review is confined to the four corners of the written Constitution" does no justice to the influence of "natural law ideas" on judicial review.

January 16, 2015 in Walsh, Kevin | Permalink

Tuesday, January 6, 2015

Beever on the value of law as an object of contemplation

This past summer, Marc DeGirolami linked to Allan Beever's The Declaratory Theory of Law. I recently had occasion to read another piece by Professor Beever: Formalism in Music and Law. The concluding section touched a chord, so to speak, such that I thought I would pass it along to MOJ readers. Here's a bit:

Of course, music has its functions. Its most significant function is to give pleasure to listeners. But its ability to do this would be almost entirely eliminated were listeners to attend to its function rather than its form. The final movement of Mozart’s Symphony no 41 in C Major, K 551 contains the most breath-taking combination of sonata form and fugue. This astonishing achievement can afford us enormous pleasure. But a ‘listener’ who focused on her own pleasure would fail to hear it and would in all likelihood be bored. Music is cognitive. It does not work like drugs and its effect on us is not the same as its effect on cows (apparently, cows produce more milk when they are played classical music).

Of course, no such argument can be constructed for law. The law is not justified as an object of contemplation. But there remains an illuminating analogy here. Part, only a small part, of the value of law flows from its being an object of contemplation. In a very similar way to music, it enriches the lives of many lawyers. Do we not sometimes revel in the law’s intricacies and delight in its complexities? Is it not true that much of the pleasure of studying the law comes from such? Can we not describe law as, in some way, beautiful? If that sounds just too outlandish, it is worth remembering that many mathematicians swear that mathematics is beautiful and frequently compare it to Bach’s music. If mathematics can be beautiful, surely anything can be. These questions are not rhetorical. Those who hold that legal categories are a mere smokescreen for policy must answer them in the negative. For them, the canvas of the law is really a window to be seen though. They appreciate law as the owners of cows appreciate music (‘Yay, more milk. Isn’t Mozart great?’).


*** What does contemplation of the law reveal? The law, of course. But that is not all. When we treat it as an object of contemplation in its own right and not as a window to be seen though, it also reveals justice. And we are in desperate need of this. *** [W]e are so powerfully affected by functionalism that many of us cannot see the world beyond it. It is no surprise, then, that many want to look through the law to its alleged functions. But just as contemplation of art can change the way that we see the world, so can contemplation of the law. It is often rightly said that wheat fields never look the same after one has seen van Gogh’s paintings of wheat fields; and, to one captured by functionalism, the world will never look the same again after attending to the law. That contemplation is possibly the most powerful experience of justice as a pervasive phenomenon that it is possible to have.

January 6, 2015 in Walsh, Kevin | Permalink

Monday, December 22, 2014

Fourth Circuit holds North Carolina abortion ultrasound show-and-tell requirement unconstitutional compelled speech, creates circuit split over standard of review

A three-judge panel of the United States Court of Appeals has unanimously affirmed a district court decision holding unconstitutional one portion of North Carolina's informed consent for abortion requirements. The provision held unconstitutional by the panel required a doctor to perform a pre-abortion ultrasound, to display the images to the pregnant woman (unless she chose not to view), to explain what the display shows (including "the presence of external members and internal organs, if present and viewable"), to offer an opportunity to hear the fetal heart tone, and to obtain and keep a certification that these requirements were followed. The Fourth Circuit panel analyzed the provision as a compelled speech requirement and held that the provision failed intermediate scrutiny. Judge Wilkinson wrote the opinion for the court in Stuart v. Camnitz, in which Judge Traxler and Judge Duncan joined.

The Court's application of heightened scrutiny created a seemingly direct split with the Fifth Circuit on the standard of review for an ultrasound show-and-tell, as well as with the Eighth Circuit if the split is viewed at a slightly higher level of generality.  For conflicting scholarly views on the constitutionality of laws like North Carolina's, compare Casey and a Woman's Right to Know: Ultrasounds, Informed Consent, and the First Amendment (by Scott W. Gaylord and Thomas Molony), with Compelled Disclosures (by Caroline Mala Corbin).


December 22, 2014 in Walsh, Kevin | Permalink

Thursday, December 11, 2014

"The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History." (Lord Acton)

Like many, I have read reports about the recently released Senate report on torture, but have not read the report. And if I were to read the report, I'm sure that I would have many questions that remain unanswered. But in thinking about the issues raised by the reports, it helps to be as clear-eyed as possible about the immorality of torture as an intrinsic evil. An act that is intrinsically evil is one that is never permissible, regardless of its circumstances. 

The relationship between intrinsic evil and the criminal law is complicated. So, too, the relationship between moral judgment and the judgment of history. For a stringent take on both, though, one can turn to Lord Acton. I have included below some selections from his letters, which can be viewed in context at the Online Library of Liberty's page, Acton on Moral Judgment in History:

No doubt the responsibility in such a case is shared by those who ask for a thing. But if the thing is criminal, if, for instance, it is a licence to commit adultery, the person who authorises the act shares the guilt of the person who commits it.

Here again what I have said is not in any way mysterious or esoteric. It appeals to no hidden code. It aims at no secret moral. It supposes nothing, and implies nothing but what is universally current and familiar. It is the common, even the vulgar, code I appeal to.

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority, still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.

Here are the greatest names coupled with the greatest crimes; you would spare those criminals, for some mysterious reason. I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher for the sake of historical science.

Quite frankly, I think there is no greater error. The inflexible integrity of the moral code is, to me, the secret of the authority, the dignity, the utility of History.

If we may debase the currency for the sake of genius, or success, or rank, or reputation, we may debase it for the sake of a man’s influence, of his religion, of his party, of the good cause which prospers by his credit and suffers by his disgrace. Then History ceases to be a science, an arbiter of controversy, a guide of the Wanderer, the upholder of that moral standard which the powers of earth and religion itself tend constantly to depress. It serves where it ought to reign; and it serves the worst cause better than the purest. . . . My dogma is not the special wickedness of my own spiritual superiors, but the general wickedness of men in authority—of Luther and Zwingli, and Calvin, and Cranmer, and Knox, of Mary Stuart and Henry VIII., of Philip II. and Elizabeth, of Cromwell and Louis XIV., James and Charles and William, Bossuet and Ken.

The greatest crime is Homicide. The accomplice is no better than the assassin; the theorist is worse.

Of killing from private motives or from public, from political or from religious, eadem est ratio; morally the worst is the last. The source of crime is pars melior nostri, what ought to save, destroys; the sinner is hardened and proof against Repentance.

Crimes by constituted authorities worse than crimes by Madame Tussaud’s private malefactors.

Murder may be done by legal means, by plausible and profitable war, by calumny, as well as by dose or dagger.

December 11, 2014 in Walsh, Kevin | Permalink

Monday, December 8, 2014

Oral argument before Tenth Circuit panel to be held this morning in the Little Sisters of the Poor mandate challenge

A three-judge panel of the United States Court of Appeals for the Tenth Circuit will hear oral argument this morning in three cases brought by religious nonprofits seeking relief under RFRA and the First Amendment from compliance with the federal government's contraceptives mandate. These three cases are Little Sisters of the Poor v. Burwell, Southern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. The three judges are Judge Scott M. Matheson, Jr., Senior Judge Monroe G. McKay, and Senior Judge Bobby R. Baldock.

Of these three cases, the Little Sisters of the Poor case is probably the highest profile because the Little Sisters' case was only of only two in which religious nonprofits who sought preliminary relief were without it by late afternoon on New Year's Eve 2013. Justice Sotomayor's grant of temporary relief to the Little Sisters that evening , followed by the full Court's provision of such relief a few weeks later, was covered by national press. (The other case was Notre Dame's, but Notre Dame did not seek the same emergency Supreme Court relief that the Little Sisters sought.)

Although the complaint was filed over a year ago, this morning's hearing is the first time that lawyers for the Little Sisters of the Poor (as well as two Christian Brothers entities with whom the Little Sisters offer a health benefits plan) will appear in a courtroom with government lawyers to argue in person. Everything else has been done on paper.

The arguments were originally scheduled for September, but ended up being moved back to today. As the Little Sisters have noted: "December 8th is the feast of the Immaculate Conception, the patroness of the United States and our Congregation’s patroness. Little Sisters around the world renew their vows each year on the feast of the Immaculate. Please be assured of our prayers for you on this beautiful feast day." 

This kind of correspondence is not without precedent. The Supreme Court heard oral arguments in Hobby Lobby on March 25, the Feast of the Annunciation. (Admittedly, the Catholic Church does have many feast days.) In any event, even if you can't make it to the Byron White United States Courthouse in Denver this morning, please keep the Little Sisters, Christian Brothers, and their lawyers in your prayers. (If you're Catholic, you can do this while discharging your duty to attend Mass on this holy day of obligation.)

December 8, 2014 in Walsh, Kevin | Permalink

Friday, November 21, 2014

The interpretive significance of the Constitution's positivity in a classical natural law jurisprudence

At The Originalism Blog, a recent post by Mike Rappaport distinguishes among "three main arguments for originalism" and explores a hybrid approach "that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law."

The three main arguments for originalism Rappaport identifies are: "1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law)." Later in the post, Rappaport links "the positivist theory" to a theory that relies on a "rule of recognition." This linkage makes clear that the third kind of argument in Rappaport's taxonomy really is "positivism" rather than simply about the original meaning of the Constitution being positive law. This distinction is important because positivism need not be the only game in town when it comes to jurisprudential frameworks for (1) understanding the Constitution as positive law, or (2) underwriting a positive-law-based argument for some form of constitutional originalism. 

In particular, it seems to me that classical natural law jurisprudence has the potential to provide a powerful set of arguments for something like what Steve Sachs has recently (and aptly) called "original-law originalism." To be clear, I do not contend that classical natural law jurisprudence on its own does (or can) prescribe anything nearly as specific as, say, original-law originalism. The idea instead is that classical natural law jurisprudence may be able to explain the kind of positive law that the Constitution is in a way that supports original-law originalism as a jurisprudentially superior approach to rival theories of constitutional interpretation. 

This post is but a stab at a start. Whether to continue this inquiry and how far to take it will depend on how well arguments that I have not yet worked out actually do work out. (For earlier analysis and discussion of some issues that I may touch on, see this exchange between Robert George and James Fleming published in 2001 in the Fordham Law Review: George essay, Fleming critique, George reply, Fleming surreply, additional comments by George).

A good place to begin is classical natural law theory's account of the law's authority. Finnis writes:

Natural law theory's central strategy for explaining the law's authority points to the under-determinacy (far short of sheer indeterminacy) of most if not all of practical reason's requirements in the field of open-ended (not merely technological) self-determination by individuals and societies. Indeed, the more benevolent and intelligent people are, the more they will come up with good but incompatible (non-compossible) schemes of social coordination (including always the 'negative' coordination of mutual forbearances) at the political level--property, currency, defence, legal procedure, and so forth. Unanimity on the merits of particular schemes being thus practically unavailable, but coordination around some scheme(s) being required for common good (justice, peace, welfare), these good people have sufficient reason to acknowledge authority, that is, an accepted and acceptable procedure for selecting particular schemes of coordination with which, once they are so selected, each member of the community is morally obligated to cooperate precisely because they have been selected--that is, precisely as legally obligatory for the morally decent conscience. (CWJF IV.5.114-14)

Situating the Constitution of the United States within this account, the moral obligatoriness of the Constitution takes the form of legal obligation to cooperate with the Constitution as the posited scheme of coordination for serving the common good.

(Note: References to the Collected Works of John Finnis will take the form "CWJF Volume.Chapter.Page(s).)

November 21, 2014 in Walsh, Kevin | Permalink

Tuesday, November 18, 2014

Animus-based invalidation of really old man-woman marriage laws

I guess I should have been reading blog posts instead of law review articles. A little earlier today, Dale Carpenter published a Volokh Conspiracy post criticizing one part of Judge Sutton's rational basis analysis in DeBoer v. SnyderThe first link in that post is to an earlier VC post by Professor Carpenter about a district court decision holding unconstitutional a Michigan law prohibiting localities from extending benefits to employees' same-sex domestic partners. And that earlier post includes a discussion about the scope of animus-based arguments against legal definitions of marriage as the union of one man and one woman. After identifying five factors for an animus analysis (textual, contextual, procedural, effectual, and pretextual) and contending that they show the unconstitutionality of the state constitutional amendments that "constitutionalized marital definitions of the first time," Professor Carpenter turns to the marriage statutes that preceded these amendments. He writes: 

Even the remaining exclusion of same-sex couples from marriage reflected in longstanding state statutes may be vulnerable to animus attacks based on the other objective factors noted above. It can hardly escape notice that states have consciously and steadfastly refused to include same-sex couples in their marriage statutes, in addition to specifically excluding them through anti-SSM state constitutional amendments and through state "mini-DOMAs" that deny all recognition to married same-sex couples from out of state. A failure to include, as well as an affirmative act to exclude, may also reflect animus against a class. That is at least a question the Supreme Court may now consider.

If animus-based invalidation extends to encompass statutory definitions from the late-eighteenth and early-nineteenth century, then the remedial question asked in my prior post has an easy answer. The remedy for animus-based invalidation of state constitutional amendments defining marriage as the union of one man and one woman cannot be a return to the status quo ante because that status quo was also unconstitutional.

This expansive understanding of animus seems to present problems of its own. For example, Professor Carpenter describes animus analysis as a type of purpose-based constitutional test. But it would not have been possible to form the purpose to exclude same-sex couples from marriage at least until it was possible to conceive of marriage as potentially including same-sex unions. That may be why Professor Carpenter focuses on conscious and steadfast refusal to expand marriage definitions, which in turn would seem to raise a state action problem. In any event, I wanted to link to Professor Carpenter's posts because they contained one answer to the question asked in my last post.

November 18, 2014 in Walsh, Kevin | Permalink

Why isn't the remedy following from animus-based invalidation of more recent marriage laws return to the status quo ante?

Judicial holdings of unconstitutionality come in various shapes and sizes. And the shape and size of the judicial remedy following from an unconstitutionality holding depends in significant part on the substantive constitutional law that specifies the precise nature of the constitutional problem identified. These are uncontroversial commonplaces.

There is often room for controversy, though, over just how the relationship between right and remedy should be specified in particular cases. One aspect of Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder that has not received as much attention as it should is his discussion of the limited remedy that would follow from invalidation of relatively recent state constitutional amendments regarding marriage on the ground that they were enacted out of anti-gay animus. This discussion comes at the end of Part II.D of his opinion, right in the analytical middle of his examination of the constitutionality of man-woman marriage definitions. (The analysis of animus-based invalidation is in the fourth of seven sections in Part II.) But the groundwork for the argument appears in Part I, where he discusses the genealogy of current marriage law in each of the four states whose definitions of marriage were at issue.

Michigan, Kentucky, Ohio, and Tennesse each defined marriage as the union of one man and one woman well before same-sex marriage was contemplated in any state. Each of these four states also enacted a constitutional amendment locking in the man-woman definition in the first decade of the twenty-first century. Sutton contends that the argument for animus-based invalidation is limited to these constitutional amendments, and that accepting that theory of invalidation would simply return each state's marriage law to the pre-amendment status quo: 

Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman--definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States' other marital laws on state constitutional grounds. No one filed such a challenge here, however.

This argument sounds right to me. But perhaps I misunderstand the scope of the argument for animus-based invalidation. If heteronormativity equals animus, for instance, then the argument for invalidation runs all the way down and back. But if a "go-slow" rationale for maintaining the pre-Goodridge status quo could defeat an animus argument against a state's more recent marriage amendment, as Dale Carpenter has suggested might be the case (see fn. 31) while also suggesting there may be other constitutional problems apart from animus, then codification of the heteronormative status quo in the late eighteenth or early nineteenth century is probably not vulnerable to an animus-based attack either. Hence the title of this post: Why isn't the remedy for animus-based invalidation of more recent marriage laws return to the status quo ante?

November 18, 2014 in Walsh, Kevin | Permalink