Mirror of Justice

Sotomayor, Abortion, and Religion

In what was undoubtedly the intellectual low point in the Supreme Court's oral arguments in Dobbs v. Jackson Women’s Health on Wednesday (here), Justice Sonia Sotomayor suggested that the State’s interest in the life of a human being developing in utero is inherently religious.  In questioning Mississippi’s Solicitor General Scott Stewart, she asked (pp. 29-30):

How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it … because it assumes that a fetus's life at -- when? You're not drawing -- you're -- when do you suggest we begin that life?

Put to one side Sotomayor’s half-witted suggestion that the question of when the life of a human being begins is only philosophical – that it is not a biological question which science has already settled.  Never mind that she is quite confident that science can answer the question of when a human life ends (pp. 20-21).  Never mind that the biologists’ amici brief in Dobbs (here, filed on behalf of neither petitioner nor respondent) makes clear that the overwhelming view of biologists around the world (including those who favor abortion) is the view that human life begins at fertilization and that this view “can only be supplanted by an alternative view if there are paradigmatic shifts to axiomatic concepts within biology” (p. 4).

To correct Sotomayor’s wrong, but oft repeated accusation, Justice Samuel Alito asked Stewart “[A]re there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability?”  Stewart noted, sensibly enough, that “there's a wide array … of people of kind of all different views and -- and of no faith views who -- who would reasonably have that view, Your Honor” (p. 32).

Stewart’s observation that support for unborn human life can be found among the non-religious should be sufficient to answer the charge that this view in unavoidably religious.  But this charge against the defenders of unborn human life long precedes even Roe.  The proponents of abortion have long sought to discredit the pro-life movement as a sectarian effort to impose religious beliefs on a pluralistic society that includes many non-believers.

Like an old joke that falls flat whenever it is told, but that some people insist on telling and retelling, again and again, the reasons why it is little more than an ugly accusation – a mean-spirited and profoundly unfunny smear – must be spelled out.

Indeed, because Sotomayor’s claim is so confused, yet so frequently articulated, and is likely to be heard again and again with even greater frequency in the future (regardless of what happens in Dobbs), it is worthwhile to examine the charge more closely now.

In an article published in 2013 (here), I engaged in a line-by-line analysis of Justice John Paul Stevens’ abortion opinions in Thornburgh, Webster and Casey demonstrating the vacuous nature of the claim that laws seeking to afford some protection to the human child developing in utero are religious and so invariably violate the Establishment Clause of the First Amendment.  In that article, I noted that in Thornburgh (476 U.S. at 778) Stevens does not defend his claim that the State’s interest in the developing human “increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to surroundings increases day by day.”  He simply regards it as “obvious.”  But this is naked assertion.  To defend this claim would require Stevens to confront his own value preferences in favoring certain characteristics as significant, and recognizing that these preferences are no more or less “religious” than those he dismisses with that label.

If describing a claim as “religious” means that the claim depends upon value judgments that are ultimately unprovable from an empirical point of view, then the perspective that regards the unborn as something of incalculable worth is no more or less “religious” than the perspective that regards them as being of no value whatsoever—a trivial item of refuse easily discarded and soon forgotten. (p. 839)

John Noonan first made this point in his book, A Private Choice (1979), in responding to Larry Tribe’s 1973 Foreword in the Harvard Law Review.  There is no reason to exempt the selection of those criteria that would exclude fetuses and embryos from consideration as beings of moral worth and dismiss as theological and illicit those criteria that include fetuses and embryos as such beings. Rather, an argument must be made that certain criteria are inescapably “religious” and others properly “secular.”

Sotomayor’s questions indicate that she is oblivious to all this.  Her questions rely upon the same unstated and undefended assumptions.

It is possible that the question “Should X be considered Y?” is inherently religious because answering it necessarily relies upon religious premises or the exercise of religious judgment. 

For example, consider the following question: “Should the Gospel of Thomas be considered the inspired word of God on par with the Gospels of Matthew, Mark, Luke, and John?  Should Christians include it within the canon of New Testament texts?”   Whether the question is answered in the affirmative or the negative – whether concluding that the text is canonical or apocryphal – answering the question requires the exercise of theological judgment. 

The same could be said about the judgment involved in the classification of other things: “Should what looks to be a piece of bread be considered the Body and Blood of Christ?”  “Should a cow be thought of as a sacred animal that should not be slaughtered for food and should be allowed to wander free?”  “Should a kirpan dagger be treated as a sign of faith that must be worn at all times?”

But the question as to whether the enity in the womb is a "person" is not of this sort. In the debate over abortion, the claim that the entity developing in the womb is or is not a “person” is normative (i.e. a rights-bearer, a subject of concern, respect, and protection by the State) rather than descriptive (e.g. a being that is sentient, feels pain, is self-conscious, or has the capacity for reason), but it is not religious.

It is not “religious” to argue that a human being of a young age (e.g. an infant or toddler) should be regarded as a “person” and so enjoy the same respect and protection as a human being of a more advanced age (e.g. an adolescent or adult) who is regarded as a “person.”  And the judgment that an entity is a human being – an organism that is a member of the species homo sapiens – is not normative at all but biological (i.e. conceptual and empirical).

Of course, one could use religious reasoning and employ religious premises to argue that a given entity ought to be regarded as a “person.”  One could argue that a given being is a “person” infused with an immortal soul by God.   One could argue that the entity in the womb bears the image of the divine and is precious in the eyes of God.

But the proponents of legal protection for the unborn – both in terms of personhood and in some status short of that – do not do so on the basis of religious premises. 

If the claim implicit in Sotomayor’s questions is to be anything more than an ugly slur, then she must show that the view that favors protection for the unborn relies upon religious premises.  This is precisely what she and others have failed to do.  They are instead content to repeat a bad joke – to tell it again and again knowing that it appeals to the prejudices of its audience.  But the real laughingstock in law is those who abandon reason, rely on accusation, and trade in religious prejudice.

Commentary on the Dobbs arguments

Here (Our Sunday Visitor) and here (The Volokh Conspiracy) are some quick comments I contributed regarding yesterday's oral arguments in the Dobbs case. In my view, the justices will, and should, jettison Roe and Casey, and adopt the approach for which the late Chief Justice, William Rehnquist, advocated in his Casey dissent.  A bit:

To be sure, it makes sense for the court to value stability and predictability in the law. Sometimes, there are good reasons to carry on with a past mistake. And it is important that the court not only be perceived as, but in fact be, a judicial, not a merely political, institution. The meaning of the Constitution should not and does not change simply because its composition does.

The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation. In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably. . . .

At one point during the arguments, Justice Sotomayor observed that many of the most famous cases where the court rejected past precedent involved expanding the rights of individuals. In her view, this fact weighed strongly against undoing the errors in Roe and Casey.

Her view is wrong, though, for at least two reasons. First, reversing Roe will respect the rights of individual citizens to have a say, and to try to convince their neighbors on a fundamental moral and policy question. Next, and no less important, the court’s confession of error would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections. That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.

Faith Groups Say the Build Back Better Act Would Exclude Faith-Based Child Care and Pre-Kindergarten Providers

Two bishop chairmen on behalf of their committees of the U.S. Conference of Catholic Bishops (USCCB) have cosigned a coalition letter to the U.S. Senate Committee on Health, Education, Labor, and Pensions Chair Patty Murray (D-WA) and Ranking Member Richard Burr (R-NC) with other faith groups raising urgent concerns that the Build Back Better Act’s (BBBA) child care and universal pre-kindergarten programs would exclude faith-based providers.

“Expanding affordable child care and pre-kindergarten is a worthy goal to help working families. However, the current child care and universal pre-kindergarten (UPK) provisions in the Build Back Better Act will suppress, if not exclude, the participation of many faith-based providers,” wrote Cardinal Timothy Dolan of New York, chairman of the Committee for Religious Liberty, and Bishop Thomas Daly of Spokane, chairman of the Committee on Catholic Education, together with numerous organizations representing denominations, schools, and charities.

Full article at USCCB: https://www.usccb.org/news/2021/faith-groups-say-build-back-better-act-would-exclude-faith-based-child-care-and-pre

"States Must Stop Discriminating Against Religious Schools"

Here is a short opinion piece, which I wrote with my Notre Dame Law School student, Olivia Rogers, on the Supreme Court's upcoming school-funding case, Carson v. Makin.  A bit:

Across the country, parents and communities are demanding choice, opportunity and accountability in education. Any meaningful response to these demands will include authentically religious schools and will support those who choose them. In Carson, the justices should reaffirm that the Constitution does not permit governments to discriminate against vital partners in the crucial, common task of educating children.

Not Quite Silenced: Understanding the censoring of John Courtney Murray

The Roman parable of John Courtney Murray looms large in the modern American Catholic imagination. The Jesuit theologian argued that the First Amendment was in keeping with Catholic orthodoxy at a time when the Holy See still insisted that the American model of religious freedom was a suboptimal church-state arrangement—tolerable only when the optimal arrangement, a Catholic confessional state, was out of reach. Officially censored by the Holy Office in 1954, Murray’s ideas would be vindicated a few years later by the Second Vatican Council, and specifically by the Declaration on Religious Freedom (1965), which Murray himself helped draft. As former Commonweal editor Margaret O’Brien Steinfels once said, it is “the Catholic rule of thumb, that anyone with a good idea for changing Church teaching or practice, I think here of John Courtney Murray, ought to be made to suffer for it.” Yet, so far, we have known only the contours of Murray’s pre-conciliar ordeal. Despite the meticulous historical work of Joseph A. Komonchak, who has been painstakingly piecing together evidence from a wide array of personal, ecclesiastical, and governmental archives, a crucial perspective was still missing: that of the Holy See itself.

Full article at Commonweal: https://www.commonwealmagazine.org/not-quite-silenced

"Roe and Casey Were Grievously Wrong and Should Be Overruled"

The Harvard Journal of Law and Public Policy has published, online, an article-ized version of the amicus brief that Chuck Cooper and his colleagues submitted -- and that I was pleased to join -- in the Dobbs case.  It's called "Roe and Casey Were Grievously Wrong and Should Be Overruled."  As it happens, the title captures pretty well the argument!

Breen and Strang Respond to Interlocutors on Catholic Legal Education

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: "A Light Unseen: A History of Catholic Legal Education." Deans of several Catholic law schools (including Rob Vischer), as well as other learned academics (including Rick Garnett), offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

Christ the King and "Quas Primas"

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."  A bit:

"[T]he Church, founded by Christ as a perfect society, has a natural and inalienable right to perfect freedom and immunity from the power of the state; and that in fulfilling the task committed to her by God of teaching, ruling, and guiding to eternal bliss those who belong to the kingdom of Christ, she cannot be subject to any external power."

This is, to put it mildly, a striking proposal.

 

Mary Ann Glendon's Rice-Hasson Lecture at Notre Dame Law School

The Notre Dame Law School was honored to welcome Prof. Mary Ann Glendon, who delivered on Wednesday the inaugural Rice-Hasson Distinguished Lecture. Her topic was "Human Ecology and the Lawyer's Vocation."  You can watch a recording of the lecture, here.

Prof. Glendon drew on writings of Pope Francis and his two predecessors, to develop the intriguing proposal that our cultural, institutional, and human "ecology" requires care, attention, and stewardship, no less than our natural/environmental one.

AAPC-style damage control and the Texas Heartbeat Act

I've seen people wondering out loud on social media the past few days about what might be going on with the Texas Heartbeat Act at the Supreme Court. I have not quite caught up with all the briefing, but I did get a chance to listen to the arguments recently. With apologies to anyone else who has advanced the line of analysis below, it's not one that I've seen out there but that seems plausible to me.

First, let's put aside the question of whether there is anything unconstitutional about the Texas Heartbeat Act. Just assume that at least five Justices think that there is. 

Second, assume that the unconstitutionality comes not from any textually discrete portion or temporally discrete set of possible applications but from the combination of all the features of the statutory scheme.

Third, identify what aspect of the scheme can be disregarded in order for the currently apprehended/assumed unconstitutionality to go away.

It is this third step that is most analytically liberating. For there need not be one-to-one correspondence between what makes a statutory scheme unconstitutional and what follows as a matter of being declared unconstitutional. Suppose a statute ABCDE, in which A, B, C, D, and E are distinct textual provisions of an act that each contribute something different to its operation. Now suppose that ABCDE as a combination is unconstitutional. It can but need not follow that A, B, C, D, and E are all to be judicially disregarded as unconstitutional. But it might also be enough that A or B or C or D or E be treated as not-law.

Something of this sort happened in Barr v. American Association of Political Consultants (2020). That was the robocalls-to-cellphones case in which the Court held (1) the robocalls-to-cellphones ban was unconstitutionally content-based because of its exception for government-backed debt collection robocalls, and (2) the ban was still enforceable going forward, because (3) the offending exception could be severed. 

Note the imprecise wording of (3). It's not so much the exception itself that offended. An exception does not abridge speech. The abridgement comes from the ban. The offending thing was the ban-with-exception as a package. But even though the ban-with-exception was unconstitutional, the ban remained enforceable after AAPC was decided. (Put aside for now whether severance is a thing that Courts do, or just a metaphor that has spun out of control. It's the latter, but that need not detain us here.)

There are any number of ways in which AAPC-style damage control could operate on the assumed-to-be-unconstitutional combination known as the Texas Heartbeat Act. For example, I haven't studied Texas law enough to know whether something like this would work, but presumably there is some pre-existing enforcement authority in some of the named defendants that would enable their enforcement of the Texas Heartbeat Act's criminal-law-like prohibition against performing certain abortions but for the provision that specifically singles out certain officials and says that they cannot enforce the THA. If that's right, then judicially disregarding that provision alone would be enough for the private suit to go forward, which is the only issue before the Court in the current posture. 

I haven't done the work to know if something like this might be a path the Court could take. But once one recognizes the possibility of AAPC-style damage control in situations of unconstitutional combinations, then one can appreciate one reason why a quicker answer may not have been forthcoming from the Court. It could also be, of course, that the opening assumption of this post is wrong; maybe there are not at least five firm votes for unconstitutionality. For now, we'll have to wait, see, and occasionally speculate.

A Reasonable Hope for Dobbs: Negate Roe's Negation of Prenatal Personhood

I was privileged over the last few days to participate in the 21st annual Fall Conference of the deNicola Center for Ethics and Culture at Notre Dame. What a gift to the Church and the Academy this Center and its activities are. I hope many people can watch the talks and discussions as they appear on the deNicola Center's YouTube channel. (If you watch just one panel, it should be "The Dignity of the Sexed Body: Asymmetry, Equality, and Real Reproductive Justice," featuring Erika Bachiochi, Abigail Favale, and Leah Libresco Sargeant. If a whole panel is too much and you want to see just one (non-plenary) talk, then ub this Year of St. Joseph, you have to go with Elizabeth Lev's visually and spiritually inspiring talk on depictions of St. Joseph in art as part of "The Dignity of Saints" presentation.)

The original title of my presentation was "Unwinding the Anti-Magisterium in the Supreme Court's Abortion Opinions." This promised too much for a talk that was to be between 18 and 20 minutes long, so I changed it to "Unwinding the Anti-Magisterium in Dobbs v. Jackson's Women's Health." (I was also pleased that this narrowed version clocked in at 18:59.) 

Because this presentation was on the undercard, no video recording of it will appear on YouTube. An audio recording (of my talk only, not of others on my panel or of the Q&A) is available here . A .pdf version of my slides is available here.

The talk is pitched to the audience of people attending a conference entitled "I Have Called You by Name: Human Dignity in a Secular World." Although discussing the law (accurately, I hope), it is not directed toward an audience of legal specialists. 

The bottom line of my reasonable hope for Dobbs is on slide 30/32: "Even if the Court does not affirm
prenatal personhood, it should negate Roe’s negation of prenatal personhood." 

The only thing I'd add at this point is that second point on slide 31/32 about nonjusticiability as an antidote to the abortion (anti-)magisterium is misleading. It says "Take the stance that the Court lacks judicially manageable standards to replace its perception of personhood with Congress’s or state governments’ perceptions." What I meant to say, instead, is that the Court should recognize that it lacks judicially manageable standards to put in place its perception of personhood in preference to Congress's or state governments' perceptions (with the implicit qualifier that these perceptions need to be reasonable in order to be acceptable).

Professor Rick Garnett to Speak at University of Chicago Law School on November 16th

Students for Religious Liberty, St. Thomas More Society, Christian Legal Society, Jewish Law Students Association present:

LAST RIGHTS, Religious Liberty, the Death Penalty, and Ramirez v. Collier 

Feat. Professor Rick Garnett

Nov. 16, 2021 

12:15 P.M. 

Room I 

2022 Notre Dame Church, State & Society Writing Competition

 

The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.

 

Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.

 

Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted. Papers already published, or in the process of being published, are not eligible.

 

Submissions: Papers must be submitted by March 1st, 2022. Winners will be announced on or before May 6th, 2022. Papers must be e-mailed in .pdf form. Each submission must include a cover letter (that summarizes the paper and states the paper word count) and resume in a separate .pdf document. Papers should not include author names in order to ensure that submissions to judges can be scored with anonymity. Emailed submissions should be sent with “2022 Writing Competition” in the subject line, and addressed to: [email protected]

 

Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.

Download 2021-2022 CSS Writing Contest (1)

David Link and the meaning of vocation

Growing up, I thought my career choice – a singular choice, made only once – was a direct and public reflection of my relationship with God.  If my faith in God was strong enough, it meant I should probably be a missionary or a pastor.  One problem: I knew enough missionaries and pastors to know that I didn’t want to be either one.  I contemplated attending graduate school for theology rather than going to law school, as if that might be closer to a true “Christian” vocation.  When I moved from legal practice into the academy, I started writing about the intersection of law and religion.  Not quite ministry, but close enough to count in God’s eyes? 

Obviously, it’s taken a while for me to understand that vocation is more about becoming the person God has called me to be, less about my career choice.  Or as Thomas Merton put it, “discovering vocation does not mean scrambling toward some prize just beyond my reach but accepting the treasure of true self I already possess.”

Which brings me to David Link, who died on Thursday.  He was a tax attorney who left private practice to teach, eventually serving as Notre Dame Law School’s dean for nearly 25 years.  He left Notre Dame to become the founding dean of St. Thomas Law, helping launch the school.  Soon after Dave left St. Thomas, his wife Barbara passed away, and he went to seminary, becoming a Catholic priest at age 71.  Fr. Link devoted the rest of his days to prison ministry, working primarily at a maximum-security prison in which most of the inmates were convicted of murder.

I wonder, if we could ask David Link to describe his vocation while he was sitting in his office at Winston & Strawn parsing new tax regulations, then pose the same question to Dean Link as he welcomed the inaugural JD class to St. Thomas, and to Fr. Link as he counseled an inmate serving a life sentence, would his answers have changed?  Did his vocation shift at each new step of his career, or did his vocation actually remain constant?  His perception of the ways his gifts could best help meet the world’s needs evolved over fifty years, no doubt.  But his defining vocation was not tax attorney, law school dean, or even Catholic priest.  His defining vocation, I suspect, was his heeding of the prophet Micah’s call “to act justly and to love mercy and to walk humbly with your God.”

As we observe All Saints' Day, I encourage us to reflect on vocation, both in our own lives and in the lives of our students.  What difference might it make if we view vocation less as a one-time career choice and more as a commitment to being the person God has created us to be?

Rest in peace, David Link – may your memory be a blessing.

The Right to Religious Freedom: Extension or Erosion?

Interesting chapter by Rafael Domingo.

Abstract: 

In this chapter, I argue for religious freedom as a first-class right, and I criticize the views of some distinguished scholars who react against traditional conceptions of religious freedom and deny the right to any special protection of religion by legal systems. I focus primarily on Ronald Dworkin and Brian Leiter’s views and arguments. I conclude that Dworkin’s approach to religion belittles the idea of God. Yet conviction about the existence of God and the holding of profound ethical and moral convictions are not so independent as Dworkin argues. Leiter’s approach belittles the idea of religion, which cannot be reduced to a matter of commands, a lack of evidence, and consolation. I argue why religion is more than a matter of conscience and a personal decision about ultimate concerns and questions. Religion cannot be reduced to moral conscience, let alone ethical independence in foundational matters. An increasingly globalized and pluralistic society demands a more comprehensive approach that fully protects all religions and creeds.

Link:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3912926&dgcid=ejournal_htmlemail_law:religion:ejournal_abstractlink#

The Popes as Guardians of Human Dignity with Cardinal Gerhard Müller

Cardinal Gerhard Müller will speak at Notre Dame on Wednesday, October 27th. 

Carey Auditorium, Hesburgh Library
4-5:30 p.m. | Wednesday, October 27

Cardinal Gerhard Müller is the former Prefect of the Congregation of the Doctrine of the Faith. He has written more than 600 works on topics of theology and the Catholic Church and is the editor of the 16-volume The Complete Works of Joseph Ratzinger: Pope Benedict XVI.

He will speak on the Pope’s role in protecting human dignity as part of his tour promoting his new book, The Pope: His Mission and His Task, and copies of his book will be available for purchase at the event.

Oral argument yesterday a glimpse of Supreme Court's post-Roe abortion-law docket

The Supreme Court heard oral argument yesterday in Cameron v. EMW Women's Surgical Center. The case involves the constitutionality of a Kentucky law regulating abortion. But abortion barely came up at all. That's because the question presented has nothing to do with the constitutionality of the Kentucky law at issue. The question, instead, is about the ability of Kentucky's Attorney General to intervene and defend the law further after a different state official declined to press the defense any further. 

One way to think about yesterday's argument is as providing a glimpse of what the Supreme Court's post-Roe abortion-law docket might look like.

If the Supreme Court reverses the Roe/Casey regime, the Court will still hear cases that involve abortion laws. But those cases will not be about first-order questions of personal autonomy. They will instead be about the scope of Congress's power to regulate commerce, choice of law questions, and so on. They will implicate trans-substantive bodies of doctrine rather than adding to the accumulation of abortion-specific caselaw.

 

Indigenous Peoples' Day

I don’t have family roots in Minnesota, with one exception: during the 1940s, my grandfather was the manager of the Firestone store at 1107 Harmon Place in Minneapolis – i.e., the future site of the law school where I serve as dean. That very modest historical connection to the land where I work today can be a source of encouragement during hard days. Whatever I’m dealing with, it’s helpful to imagine the perseverance of my grandfather, plucked from Ohio to a strange new city and tasked with selling tires in the face of wartime rubber rationing.

 

Of course, in the long history of human beings living and working here, my roots through that Firestone shop are very shallow. This land was not a significant part of my story, or of my family’s story. Our language, religious practices, and way of life stayed intact when my grandfather was transferred to another store in another state.

 

Tomorrow is Indigenous Peoples’ Day, when we celebrate and reflect on the many Indigenous communities and cultures that have shaped our nation. One way we do that is by caring about – and being honest about – our history, including the history of the land where we live and work today. St. Thomas Law is on what was Dakota land until that land was ceded to the United States through the treaty of 1851. That treaty called for the payment to the Dakota of what amounted to 12 cents per acre. Treaty negotiations were driven by the American Fur Company, which had been providing supplies to the Dakota in exchange for fur. As the lands were overhunted and European demand for fur dropped, the system collapsed and the Dakota were left owing huge debts to American Fur. Debt payments (inflated by the company) were taken out of the land proceeds before anything was given to the tribe. Essentially, the fur traders were bailed out by the U.S. government, the U.S. government got 24 million acres of land, and the Dakota got almost nothing. This was all made possible by the strategist behind the arrangements: Henry Sibley, who was a partner and agent of the American Fur Company, the future governor of Minnesota, and a lawyer. We need to know these stories.

 

Like just about everything else in our country today, the choice to celebrate Indigenous Peoples’ Day rather than Columbus Day is itself a political minefield. It’s worth pointing out, though, that even the older holiday’s creation emerges from injustice. As Italian immigration to the United States increased in the late 1800s, so did persecution of the new arrivals. In 1891, anti-Italian sentiment boiled over in New Orleans, and a mob broke into the jail, where they beat, shot, and hanged 11 Italian-American prisoners. The Italian government called for reparations and cut off diplomatic relations. In an attempt to appease Italy, in 1892 President Benjamin Harrison proclaimed a “Discovery Day,” recognizing Columbus as “the pioneer of progress and enlightenment.”

 

We are stewards of the rule of law, and that means we also have to be honest and unflinching students of our history.  Under the gaze of previous generations, what does it mean – what should it mean – to be called to help form the next generation of lawyers and leaders?  Are we being faithful to the witness of those who came before us?

Podcast on Religious Exemption From the New York COVID Vaccine Mandate

Mark Movsesian and I discuss a set of challenges on the basis of religious scruple to the recently imposed New York COVID vaccine mandate in this new podcast.

Along the way, we chat about some of New York Governor Kathleen Hochul's recent remarks that "[t]here are not legitimate religious exemptions because the leaders of all the organized religions have said there's no legitimate reason." Also: "I'm not aware of a sanctioned religious exemption from any organized religion"; and, "In fact, they are encouraging the opposite. Everybody from the pope on down is encouraging people to get vaccinated." As it happens, Mark and I have expressed some sympathy, in different fora and for somewhat different reasons, for this general position as respects religion's legal definition. But on the existing doctrine, it may run into some problems.

Revisiting the “Separation of Church and State” in Our Time of Deep Division

Religious freedom does not matter because the Constitution protects it; instead, the Constitution (like modern human-rights law) protects it because religious freedom matters. It is not a gift from the government; it is a limit on the government. Every person, because he or she is a person, has the right to religious liberty—to embrace, or to reject, religious faith, traditions, practices, and communities. This freedom is enjoyed by, and is important to, religious believers and nonbelievers alike. Religious freedom, protected through law, helps both individuals and communities to flourish. It protects the “private” conscience and also promotes the “public,” common good. Religious or not, devout or not, we all have a stake in the religious-liberty project, and in the success of what Thomas Jefferson called our First Amendment’s “fair” and “novel” experiment.

This article is based on Constitution Day remarks Garnett delivered on September 23, 2021, at The Citadel in Charleston, South Carolina.

Full text: https://www.religiousfreedominstitute.org/cornerstone/revisiting-the-separation-of-church-and-state-in-our-time-of-deep-division

New issue of Journal of Law & Religion

A new issue of the Journal of Law & Religion has been published, and it's available for free (here) until November 15.  The issue features an article from Nate Oman and book review contributions from Frank Ravitch, Cathy Kaveny, Robin Fretwell Wilson, Perry Dane, and many others.  Definitely worth checking out. 

Eric Hageman responds to Hadley Arkes on constitutional interpretation

In recent months, in various forums, there have been interesting and important conversations and debates -- involving many Catholic legal scholars, including Gerard Bradley, Robert George, Sherif Girgis, John Finnis, Adrian Vermeule, and several other MOJ contributors -- about constitutional interpretation, "originalism" in its various stripes and also its rivals, the role of the common good and of natural law in judicial decisionmaking, the (in)adequacy of liberal proceduralism, and so on.  The upcoming Dobbs case, in particular, has been central to these conversations and debates.  Recently, Hadley Arkes (in the Wall Street Journal) and Ed Whelan (at the Bench Memos blog) had some back-and-forths on these topics.  (Go here for some links.) 

My friend and former student, Eric Hageman, wrote up a short response to Arkes's WSJ piece, and -- with his permission -- I'm posting it below:

My friend and mentor Hadley Arkes writes again to advance his vision for “a better originalism,” decrying the “truncated originalism” of yesteryear and arguing it is insufficient for conservative judges to reject Roe merely because the Constitution contains no right to abort one’s child.  Instead, we are told, judges must reach past written law and decide abortion cases based on the immorality of abortion.

Professor Arkes’s proposal ignores the importance of judicial fidelity to written law, and his attacks are effective only against a third-rate version of originalism.

Though Professor Arkes does not tell us how, precisely, the “better originalist” judge would behave, I assume he would decide cases by referring directly to moral reasoning, as a supplement to (if not outright replacement for) the written law.  Applied to, say, Dobbs, the opinion of Arkes, J., would uphold Mississippi’s abortion restriction on the ground that one has no moral right to take a life, setting aside the Constitution’s silence on abortion, the possibility that the due process clauses protect unborn people, and the historical and moral contexts of both.

I doubt I’d have any qualms with Justice Arkes’s moral reasoning, but it would have no business in the U.S. Reports.  We are a constitutional republic, which means we’ve delegated certain duties to certain offices and their holders.  We have given Congress power to make law.  (More accurately, we’ve transmitted some legislative power to Congress from the states.)  We’ve given federal judges power to resolve cases or controversies.  Sometimes, a case requires a judge to decide whether a statute violates the Constitution, which is the superior law.  Judges act within their authority by applying the Constitution over the inferior law (or by leaving the inferior law alone if it does not violate the Constitution).  When a judge decides this conflict by relying on anything but the Constitution and statutes (whose meanings are, of course, informed by moral and historical context), she places that consideration above one or the other, contrary to her constitutional power.

These principles are simple and easy to understand, only a step removed from Schoolhouse Rock’s three-ring circus.  But, as I’ve written elsewhere, it’s hard to overstate the scandal that takes place when a judge violates these principles, relying on extralegal considerations to “interpret” law.  It disserves litigants, actual and potential, who rely on written law to situate their affairs.  It tells other judges—including those whose relationship with moral principles and the natural law is more tenuous than Professor Arkes’s—that they, too, may supplement imperfect statutes with their own moral reasoning, which they will not recognize as inferior to Professor Arkes’s.  Most importantly, it strips us, the American people, of our right to constitutional republicanism.  Justice Scalia’s dissent in Obergefell is right:  This isn’t merely about results.  It’s not even about the words on the page.  It’s about sovereignty, about who governs you.

That’s why originalism and textualism are so important: they preserve our constitutional order and our right to govern ourselves.  And really, they are no more complicated than the order they protect. Textualism is the simple proposition that statutes mean what their words were understood to mean at the time they were enacted.  Originalism is what we call the same proposition applied to the Constitution.  Both principles reflect the facts that (1) our laws are written words and (2) words have objective, ascertainable meaning.  Viewed like this, theories of textualism are so obvious they hardly deserve a name.

As far as I know, Professor Arkes has yet to cope with this humble account of originalism and textualism.  As Ed Whelan argues in his own response, the version of originalism Professor Arkes attacks instead is unrecognizable to most conservative judges.  He aims his fire first at Bostock, claiming that Justice Gorsuch’s opinion for the Court would be corrected “most decisively” by the moral truth that sex is unchangeable.  But in the same breath, Professor Arkes seems to acknowledge that no single educated reader in 1964 would’ve thought “discrimination on the basis of sex” meant “discrimination on the basis of sexual orientation” or “discrimination on the basis of sex identity.”  Textualism asks precisely that question, and, applied properly, would solve Bostock to Professor Arkes’s satisfaction.  Later, Professor Arkes claims that Loving v. Virginia, which struck down interracial-marriage bans, has no textual basis in the Constitution, which says nothing of marriage.  This simply ignores the Equal Protection Clause, which no textualist would do.

I’m deeply disturbed by this theory of “better originalism,” in part because it echoes some of the ugliest features of other recent postliberal arguments.  For one, it tends to judge originalism (and itself) only for the results it achieves, ignoring the way it achieves them.  But then, despite this consequentialism, the theory cannot account for the results it will yield in the hands of its enemies.  Moreover, its proponents hardly ever tell us what affirmative behavior they’d like to see; they simply reject the status quo, optimizing rhetorical leeway.  Most concerning, it reflects and appeals to a disturbing cynicism (which I am sincerely, absolutely certain Professor Arkes does not himself share): that neutral principles are fairytales, that we should emulate progressives’ success in setting fire to antiquated notions of pluralism and liberalism.  Applied here, that “their” judges have had their fun, and now it’s time for “our” judges to have theirs.

The bitter irony is that the neutral principles Professor Arkes decries would have saved us from the cases he decried.  Those principles, intelligently and faithfully applied, would have yielded the results Professor Arkes wants, perhaps indicating that our written law is enough to protect us from progressivism.  Herein lies yet another feature of contemporary postliberalism (again, one I’m certain Professor Arkes does not himself suffer): extraordinary ingratitude, a desire to kill the goose that laid the golden egg.  Much like centuries of liberal democracy and American capitalism have produced extraordinary prosperity and personal liberty, forty years of textualism and originalism have produced a federal judiciary that reliably rejects progressive excesses and focuses instead on fidelity to the law and the rights of those it exists to serve.  Where our liberal democratic principles have failed, it has been because those in power reject, undervalue, and undermine these principles, ignorant of the miraculous conditions in which we find ourselves.  But the answer to those failures is more capitalism, more republicanism, more pluralism, and more liberalism.

So too here.

* * *

Eric Hageman is an attorney in Washington, D.C.

Our deepening polarization

On Thursday, the University of Virginia released the results of a survey that offers important but jarring insights. Among the findings:

 

• 41% of Biden voters and 52% of Trump voters at least somewhat agree that red states / blue states should secede from the union to form their own separate country.
• 46% of Biden voters and 44% of Trump voters at least somewhat agree that it would be better for America if whoever is President could take needed actions without being constrained by Congress or the courts.
• 62% of Biden voters and 82% of Trump voters at least somewhat agree that “our country needs a powerful leader in order to destroy the radical and immoral currents prevailing in society today.”
• 56% of Biden voters at least somewhat agree that there’s no real difference between Republicans and Fascists, and 76% of Trump voters at least somewhat agree that there’s no real difference between Democrats and Socialists.
• 75% of Biden voters and 78% of Trump voters at least somewhat agree that Americans who strongly support the opposing party have become “a clear and present danger to the American way of life.”
• 80% of Biden voters and 84% of Trump voters at least somewhat agree that elected officials from the opposing party are a “clear and present danger to American democracy.”

These numbers should be deeply concerning. The past two years have underscored an unpleasant reality: civilization is thin. The rule of law is a project that each generation must choose to embrace, and that project is dependent on trust. If those who disagree with me politically are a clear and present danger to my way of life, an ongoing commitment to build relationships across difference seems quaintly out of touch at best. And if my opponents are not just wrong, but evil, then the emerging bipartisan trend of protesting at the homes of judges and elected officials is not a cause for worry, but a necessary example of our obligation to oppose existential threats to our democracy by any means necessary.

 

If we prioritize debating contested issues in ways that reflect mutual respect, we stand accused of dangerously elevating form over substance. After all, we’re not dealing with the Democrats / Republicans of past eras – we’re dealing with Socialists / Fascists! We learned our lesson about dealing with these people in The Cold War / World War II: brute force is the only path forward. Once we’ve eliminated the existential threat, we can get back to building relationships across difference.

 

For those of us who are law professors, with this level of mutual antipathy so prevalent in American society, how are we supposed to go about preparing our students to flourish? It’s not that all of our students fall neatly into these warring camps – many do not. But they’re all being formed against the backdrop of these warring camps. Many of our students have no interest signing up for an all-out red-versus-blue battle, but they know they might easily be drawn into the daily skirmishes if they say something that can signal membership in the opposing camp, whether they intend to or not. Their understandable response is to disengage, pull back, and remain silent about issues that matter greatly to our shared future. This withdrawal precludes the opportunity for deeper relationships and new perspectives.

 

I spend a lot of time talking about these issues in my role as a dean, not only because I want my law school to be a strong, welcoming, and diverse community in which our students can flourish, but because our willingness or unwillingness to build relationships with those whose ideas we oppose is a powerful harbinger of what is to come for our world.

 

The new poll results should not be a discouragement, but a reminder: we are not audience members, passively observing the state of our country. We are all active participants, and we need to listen, learn, and lean in. We must model what it means to disagree vigorously within relationship, not as a precondition to relationship. Will these individual efforts, standing alone, heal the fracturing that has accelerated dramatically in our nation in recent years? Of course not, so let’s call it what it is: a good place to start.

Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic

Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic

Richard Garnett
Paul J. Schierl/Fort Howard Corporation Professor of Law
Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School

Mitchell Koppinger
Notre Dame Law School

This chapter examines a series of opinions and orders, issued by the Court during its 2020-21 Term, in connection with religious-freedom challenges to various regulations and restrictions issued by governments in response to the Coronavirus pandemic.

Read at SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3933052

Justice Samuel Alito: "The Emergency Docket"

A public address by US Supreme Court Associate Justice Samuel Anthony Alito, Jr. on "The Emergency Docket." Presented by the Constitutionalism and Rule of Law Lab at the Kellogg Institute for International Studies, with co-sponsorship by the Notre Dame Law School.

Livestream will begin at 12:30 pm - Thursday, September 30, 2021

 

https://kellogg.nd.edu/alito2021