Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Wednesday, May 27, 2015

ABA Journal: "Faith and fiscal responsibility cause many conservatives to change their view of the death penalty"

The ABA Journal reports

As with much social-issues reporting, it is difficult to get a sense of the magnitude of the reported shift in attitudes. The article quotes Kent Scheidegger, an excellent prosecution-oriented lawyer, as saying the shift in conservative attitudes is overblown:

“It’s a strategy of the other side to find people who fit that mold and promote them,” he says. “Every great once in a while you get a murder victim’s family member who says they are opposed and they get lots of support and exposure. Now they’re trying the same thing with people they identify as conservatives.”

That may be the case; hard to say. But perhaps the strategy is more effective these days because conservatives who oppose the death penalty are more numerous these days. That seems to be the case in Virginia, anyhow. A good example of a shift is former Virginia Attorney General Mark Earley,Sr., who described his changed perspective at a symposium last year at the University of Richmond School of Law

May 27, 2015 in Walsh, Kevin | Permalink

Friday, May 22, 2015

A challenging premise, human dignity, and "reasoned moral response"

"The premise is that there is a spark of humanity in everyone that is ultimately more defining than whatever delusions, depression, and negative emotions culminated in the act of murder." 

But there is also this: "Clarke saved his life at the expense of his dignity. Kaczynski was furious, and remains so."

And this:

In death-penalty cases, the jury is asked to make a "reasoned moral response" to evidence about the offense and the offender. In federal law, the process involves "weighing" aggravating and mitigating factors. Each juror is permitted to give any mitigating factor whatever weight that juror thinks it deserves. Jurors don't need to come to agreement about what is mitigating and what the mitigators are "worth." A single juror can prevent the unanimous verdict that is necessary to authorize the death penalty.

Now the odd thing: This "reasoned moral response" is given by jurors who already said they were willing to vote for death. Anyone against the death penalty is excluded.

Clarke's task is to create "reasoned moral response." It's not just a recitation of trauma but something more comparable to the work of a novelist. In Paradise Lost, the Devil is the most interesting character, famously. It's thought that Dostoyevsky's best work rose from a polemic waged against the hollow characters of Gogol, whose shells he stole and reinhabited from within, allowing the reader to get close enough so that when murder happens, we sympathize, not with the crime, but with the anguish of the character who committed it.

May 22, 2015 in Walsh, Kevin | Permalink

Thursday, May 21, 2015

One reading of some signs of the times: Time to kill the death penalty

A commentary by George Will in the Washington Post and a piece by Ben Crair at The New Republic (not sure what to call it, as it's not billed as an editorial or opinion piece but reads like one)provide reasons to think that the death penalty is ripe for repeal or drastic limitation. (HT: How Appealing)

I hope that legislators in Virginia (where I live) can follow the lead of legislators in Nebraska and vote to eliminate the state death penalty.

At a minimum, those legislators who support the death penalty should have the courage of their convictions and replace lethal injection with the firing squad as a method of execution. In comparison with lethal injection using experimental protocols, the firing squad is quicker, more reliable, and less vulnerable to constitutional challenge.

May 21, 2015 in Walsh, Kevin | Permalink

Wednesday, May 20, 2015

Some reading to accompany pages 1-5 of Judge Posner's latest (and hopefully not long for our law) opinion on the contraceptives mandate

Judge Posner is back with another opinion rejecting Notre Dame's attempt to secure exemption from the contraceptives mandate, as required by the Religious Freedom Restoration Act. I couldn't make it past page five before desiring to post some readings to accompany his recitation of the case. 

Three points:

1. For a fuller explanation of the materials discussed in the paragraph on pages 2-3 that concludes with a recommendation to read the D.C. Circuit's Priests for Life opinion for "a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception," take a look at Helen Alvaré, No Compelling Interest: The "Birth Control" Mandate and Religious Freedom, 58 Vill. L. Rev. 379 (2013). Note also the failure of Judge Posner's formulation here at the outset to map onto the level of specificity required by Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal

2. For the claim on page 4 that the Administration formulated its religious employer exemption "mindful of the dictate of the Religious Freedom Restoration Act," look at the portion of the Federal Register cited by Judge Posner for support, which makes no mention of RFRA. As explained and documented in an amicus curiae brief I co-authored on behalf of Senator Hatch and other lawmakers who enacted RFRA, "the government ignored RFRA in formulating the narrow religious exemption at the outset and only attended to its requirements because of litigation and the reaction to public scrutiny." 

3. For the claim that Notre Dame came within the scope of "the exemption" as a result of new regulations in 2013, take a look at the portion of the Federal Register cited by Judge Posner for support. Rather than expand the exemption to include religious employers like Notre Dame, these regulations provide an "accommodation" for these non-exempt religious employers. In response to commenters who argued that "the proposed definition of religious employer was too narrow and should be broadened to include all employers, both nonprofit and for-profit, that have a religious objection to providing contraceptive coverage in their group health plan," the promulgating Departments said that they were "finalizing without change the definition of religious employer in the proposed regulations." This definition was limited to houses of worship and integrated auxiliaries; it did not include Notre Dame.

May 20, 2015 in Walsh, Kevin | Permalink

Thursday, May 14, 2015

"[T]he government should look at China and aspire to do better."

Some basic, but unfortunately on-point advice from Mark Rienzi for the Obama Administration: Do better than China on religious liberty. 

The Administration (and others interested) should read Professor Rienzi's USA Today op-ed on a topic I briefly blogged about previously: "American nuns, Chinese booze and religious persecution." 

(Interesting sidenote: The op-ed is not about same-sex  marriage, but USA Today apparently saw fit to include "gay-marriage" in the web address: http://www.usatoday.com/story/opinion/2015/05/13/china-religion-america-government-gay-marriage-column/27130999/. It would have been really interesting if they had also sought to include "pizza," "memories," "Indiana," or some combination like "Hoosier-pizza-gay-marriage-China-religion-memories-america-take-out-government.")

May 14, 2015 in Walsh, Kevin | Permalink

Wednesday, May 6, 2015

"Virginia Bishops call for radical shift in Commonwealth's death penalty debate"

Bishop Francis X. DiLorenzo (Richmond) and Bishop Paul S. Loverde (Alexandria) have issued a statement seeking to shift away from discussing methods of execution in Virginia to discussing the end of executions in Virginia. 

" [I]n Virginia and elsewhere," they write, "we are having the wrong debate. We should no longer debate which inmates we execute or how we execute them. Instead, we should debate this: If all human lives are sacred and if a civilized society such as ours can seek redress and protect itself by means other than taking a human life, why are we continuing to execute people?"

I agree that there is something missing from a debate that focuses on means to the exclusion of ends. But rather than abandon the debate on means, I incline more towards a both/and approach that debates both ends and means. Because lethal injection cannot be carried out properly, we should not be using lethal injection on anyone ... which leads to the question why we should be trying so hard to execute anyone at all.

Because the best way to enter the debate the bishops seek to have on capital punishment itself may be first to _win_ the debate on lethal injection as a means, the method-of-execution debate remains one worth having.

May 6, 2015 in Walsh, Kevin | Permalink

Tuesday, May 5, 2015

Do Hobby Lobby skeptics have a problem with what Chinese authorities in the Xinjiang region are doing to weaken Islam?

It is being reported that "Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in 'eye-catching displays,' in an attempt to undermine Islam’s hold on local residents."

Taking as given the reported governmental purpose, this government action in the United States would not only violate RFRA (if engaged in by the federal government) but also the First Amendment (if engaged in by any governmental actor). Yet Hobby Lobby skeptics seem committed to the idea that for-profit entities cannot engage in a (statutorily or constitutionally) protected exercise of religion.

Surely a story like this one would cause them to rethink their legal analysis, right?

May 5, 2015 in Walsh, Kevin | Permalink

Monday, May 4, 2015

Justice Sotomayor on "us giving gays rights to marry..."

One of the most remarkable assertions in the oral arguments over whether the Fourteenth Amendment requires "a state to license a marriage between two people of the same sex" emerged in Justice Sotomayor's interjection at the beginning of respondents' argument on Question 1:

MR. BURSCH: Thank you, Mr. Chief Justice, and may it please the Court:

Respondents are not saying we're not ready yet. Respondents are really echoing the questions that --­­ that Justice Breyer was asking.

This case isn't about how to define marriage. It's about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts? And we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage. And I think this whole case really turns on the questions that Justice Scalia asked.  

JUSTICE SOTOMAYOR: I'm sorry. Nobody is taking that away from anybody. Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry. I suspect even with us giving gays rights to marry that there's some gay people who will choose not to. Just as there's some heterosexual couples who choose not to marry. So we're not taking anybody's liberty away. 

Justice Sotomayor's interjection is remarkable less for its substance on the surface than for the substance embedded in the phrasing, "even with us giving gays rights to marry ...."

Who knew that constitutional rights were for the Justices of the Supreme Court to give or withhold? They, and not "we the people," are the "us" doing the "giving" in Justice Sotomayor's description of what is at issue in Obergefell v. Hodges.

Call me naïve, but this it not how constitutional law is supposed to work.

May 4, 2015 in Walsh, Kevin | Permalink

Wednesday, April 29, 2015

Dignity, nobility, and degradation at the Supreme Court

While other Justices focused more heavily on ideas of liberty and equality during yesterday's oral arguments on same-sex marriage at the Supreme Court, Justice Kennedy's questioning of the lawyer defending the state respondents' definition of marriage focused on the idea of dignity. Unfortunately, Justice Kennedy's opinion for the Court in Windsor shows him to have previously been deeply confused about the sources of dignity in a limited, republican government. 

Dahlia Lithwick's write-up for Slate captures Justice Kennedy's perspective in yesterday's first argument well:

As for Justice Anthony Kennedy, if we know anything at all about him it is this: You don’t tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedy’s vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. He’s the dignity-whisperer.

* * *

Later in the argument, Bursch [representing the state respondents] circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”

Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.

It is, of course, degrading to Justice Kennedy to be spoken of in this way. But is it inaccurate? Irreverent, sure. But not inaccurate. Indeed, there is something already degraded about the Supreme Court as an institution when one arguably requires such irreverence to accurately account for the dynamics of oral argument as Lithwick has done here. 

As for the "ennoblement" that Justice Kennedy believes the state confers through its marriage licenses, one might note somewhat pedantically that one cannot take ennoblement-through-state-marriage-law too literally as a proposition of law. After all, Article I, Section 10 provides that "No State shall ... grant any Title of Nobility." And nobody thinks (or ought to think) states have been violating this constitutional prohibition by conferring the designations of "husband," "wife," and "spouse" on individuals.

More fundamentally, and more to the point, as I previously wrote in criticism of Justice Kennedy's opinion in Windsor, the State does not confer dignity

Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not "confer" dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary.

April 29, 2015 in Walsh, Kevin | Permalink

Tuesday, April 28, 2015

Marius Victorinus and Mirror of Justice: We are glass

My remarks at the Ninth Annual Scarpa Conference were a (mostly) connected series of reflections on how it might matter to the Mirror of Justice project that the blog is constituted by the contributions of (mostly) Catholic legal theorists. 

I can’t do justice with the written word to the content of my oral reflections—which began, not incidentally, by appealing to the conference attendees’ mercy. But if I had to relate my primary theme to a contemporary pop song, I would use “Glass” by Thompson Square

The title “Mirror of Justice” is a traditional Marian appellation. Mary, Mother of Jesus (the original “MOJ”), reflects the Sun of Justice, God.

My basic claim (in law professor speak) is that our public participation in the life of the Church, too, can serve through God's grace to illuminate matters for others, if we cooperate. My organizing text was an excerpt from from Pope Benedict XVI’s Introduction to Christianity

Augustine relates in his Confessions how it was decisive for his own path when he learned that the famous philosopher Marius Victorinus had become a Christian. Victorinus had long refused to join the Church because he took the view that he already possessed in his philosophy all the essentials of Christianity, with whose intellectual premises he was in complete agreement. Since from his philosophical thinking, he said, he could already regard the central Christian idea as his own, he no longer needed to institutionalize his convictions by belonging to a Church. Like many educated people both then and now, he saw the Church as Platonism for the people, something of which he as a full-blown Platonist had no need. The decisive factor seemed to him to be the idea alone; only those who could not grasp it themselves, as the philosopher could, in its original form needed to be brought into contact with it through the medium of ecclesiastical organization. That Marius Victorinus nevertheless one day joined the Church and turned from Platonist to Christian was an expression of his perception of the fundamental error implicit in this view. The great Platonist had come to understand that a Church is something more and something other than the external institutionalization and organization of ideas. He had understood that Christianity is not a system of knowledge but a way. The believers’ ‘We’ is not a secondary addition for small minds; in it a certain sense it is the matter itself—the community with one’s fellowmen is a reality that lies on a different plane from that of the mere ‘idea’. If Platonism provides an idea of truth, Christian belief offers truth as a way, and only by becoming a way has it become man’s truth. Truth as mere perception, as mere idea, remains bereft of force; it only becomes man’s truth as a way that makes a claim upon him, that he can and must tread.

Thus belief embraces, as essential parts of itself, the profession of faith, the word, and the unity it effects; it embraces entry into the community’s worship of God and, so, finally the fellowship we call Church. Christian belief is not an idea but life; it is, not mind existing for itself, but incarnation, mind in the body of history and its “We”. It is, not the mysticism of the self-identification of the mind with God, but obedience and service going beyond oneself, freeing the self precisely through being taken into service by something not made or thought out by oneself, the liberation of being taken into service for the whole.

I am, of course, no Marius Victorinus. (Assuming, that is, that he was all he was cracked up to be. One critic has suggested that “Victorinus acquired for a long time a reputation hardly merited by his contributions to learning, which did not rise above the mediocrity of the period.” W.S. Teuffel, History of Roman Literature, Eng. Tr., ii., pp. 337 f., quoted in F.F. Bruce, Marius Victorinus and His Works, The Evangelical Quarterly 18 (1946): 132-53. That may be a more attainable resemblance, however unfair it might be to Marius Victorinus.)

Whatever our abilities, we can reflect the divine light in various ways. And we should try. We may not be the perfect mirror, like Mary, but we can let light shine through even if refracted or broken up in various ways. Sort of like this guy (even if not as intensely or brightly):

  Augustine from VLS Chapel

I concluded my Scarpa Conference reflections by observing that "We are fragmented; we are broken. We are not the light, but we can come together and reflect the light ... even if we could always use more polish."

Echoes of this understanding could then be heard in the closing prayer that the conference presenters offered up in a reflection session led by Susan Stabile. That prayer, by Cardinal John Henry Newman, included the request: "Stay with me, then I shall begin to shine as you do, so to shine as to be a light to others. The light, O Lord, will be all from you; none of it will be mine; it will be you shining on others through me. Let me thus praise you in the way you love best, by shining on those around me." 

As I conclude this post, it is appropriate to acknowledge its difference in tone and emphasis from almost everything I have posted in the past. I more often stick to the safer path of arguing about the law, and that is typically of more interest to the internets anyway. One of the challenges of opening up a little window into the ideals and inspirations I have as I blog about legal topics from a Catholic perspective is an awareness of how much I fall short of those ideals and inspirations. Linking myself up to them publicly risks lowering these ideals and inspirations through association with my imperfect embodiment of them. Through a slight remix and transposition from the love song that it is to a message from me to the internet, it is perhaps fitting to conclude with some lyrics from "Glass":

We might be oil and water, this could be a big mistake,

We might burn like gasoline and fire,

It's a chance we'll have to take.

* * *  

I'll let you look inside me through the stains and through the cracks

And in the darkness of this moment you see the good and bad

But try not to judge me because we walk down different paths

But it brought us here together so I won't take it back

* * *

We may shine; we may shatter; we may be picking up the pieces here on after.   

We are fragile; we are human; and we are shaped by the light we let through us. 

And we break fast, 'cause we are glass. 

'Cause we are glass. 

April 28, 2015 in Walsh, Kevin | Permalink