Monday, October 14, 2019
In a couple of posts last week, I began to introduce a three-ingredient recipe for overruling Roe v. Wade. The first post identified the three ingredients: Prenatal Equal Protection, Judicial Incapacity, and Catholic Guilt. The second post discussed Prenatal Equal Protection. This post continues by discussing the ingredient of Judicial Incapacity.
Consideration of this ingredient begins with what Peter Westen has labeled "The Empty Idea of Equality." By "equality," Westen means the basic principles that "people who are alike should be treated alike" and "people who are unalike should be treated unalike." When we ask how people should be treated, the question then becomes in what respects they are like and what respects they are unalike. Some of the ways in which people are unalike matter in considering how they are to be treated.
In his article, Westen sought to establish that statements of equality entail and collapse into simpler statements of rights, and that transforming the simpler statements of rights into statements of equality is unnecessarily complicated and engenders confusion. One need not accept all the particulars of Westen's use of rights to appreciate the force of his claim that equality is a formal concept, a way of stating moral and legal propositions whose substance derives from more fundamental judgments.
Once we recognize that "person" as used in the Fourteenth Amendment is not limited to postnatal human beings, we next have to determine what it means for a state to provide to unborn persons within its jurisdiction "the equal protection of the laws." At a minimum, this means not treating the unborn as non-persons. But it does not mean treating them identically to the born in all respects. Nor does it mean categorically prohibiting the intentional taking of their lives. As self-defense against lethal violence is a justification more generally in the law, a state does not run afoul of its equal protection duty through declining to criminalize or by providing an affirmative defense for abortions performed to save the life of the mother.
What about other types of limitations on the reach of criminal abortion laws? Right now, a two-drug combination can be used to induce medication abortions. This two-drug combination is approved by the FDA , with certain limitations, through ten weeks of pregnancy. Suppose a state decides not to criminalize medication abortion because of enforcement- and privacy-related concerns. Would this amount to a denial of the equal protection of the laws to unborn persons ten weeks and under? In one sense, yes, and in another sense, no. The answer depends on whether the reasons the state has for structuring its laws the way that it has are good enough reasons. And an appeal to the formal ideal of equality will not help in answering that question.
It could provide a baseline of sorts, a presumption that the difference in location between born and unborn persons is not itself a justification for differential treatment. But once we move beyond that baseline and allow for the potential relevance of factors such as enforcement-related concerns, maternal-safety concerns, and so on, any doctrinal implementation of the equal protection of the laws by judges should be informed by their very limited capacity for making judgments of this sort. That is why the default standard for judicial review of legislative classifications is rational basis review.
Both proponents and opponents of acknowledging the Fourteenth Amendment of personhood have often assumed that this acknowledgment would have obvious consequences for the substantive content of the law--either that all abortion must be criminalized with rules equivalent to those governing infanticide (because of personhood plus equal protection or personhood plus right to life) or that all questions about abortion are simply a matter of state policy judgment as modified by judicial overlay through substantive due process for mothers (because the Fourteenth Amendment does not protect the unborn as persons). But even if we stop treating the unborn as constitutional zeroes when it comes to personhood, there is ample room for a variety of reasonable legislative judgments about abortion regulation compatible with recognition of the personhood of the unborn.
This recognition would rule out some of the most radical state-law regimes that authorize the taking of unborn life all the way through pregnancy based on the unreviewed decision of one physician and one mother for any reason. And this recognition would also require a reorientation of the law that requires a justification for differential protection of the laws for the born and unborn. But this reorientation would not change the judicial incapacity for making value judgments on the relative weights of justifications that underlies rational basis as the doctrinal default in this area.
Thursday, October 10, 2019
Wednesday, October 9, 2019
I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine." Among other things, it discusses the striking developments in AI/machine learning and the ways that the PRC's dictatorship is using them for policing, surveillance, rewards, and punishment. Along the way, though, there was this, which reminded me of the crucial role that both the Catholic Social Tradition and the various instances of Tocqueville-inspired political theory have assigned to mediating institutions:
The point of the state apparatus is not to silence all debate, but to prevent organisation and co-ordination; the ultimate no-no is the formation of any kind of non-party group. The CCP’s goal is not silence but isolation: you can say things, but you can’t organise. That is why the party has cracked down with such ferocity on the apparently harmless organisation Falun Gong, whose emphasis on collective breathing exercises wouldn’t normally, you would think, represent much of a challenge to CCP control of China. But Falun Gong grew popular, too popular – seventy million by 1999, as many as the CCP itself – and had an unacceptable level of collective organisation. So the party set out to destroy it. Two thousand members of Falun Gong have died in custody since the crackdown began.
Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.
For my own take (now quite a few years old), check out this article:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.
In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties - that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.
Tuesday, October 8, 2019
The first ingredient in the recipe for overruling Roe v. Wade is Prenatal Equal Protection.
The most basic function of any government is the protection of persons within its jurisdiction. In the United States, the Fourteenth Amendment imposes on States a duty of supplying the equal, protection, of the laws, to all persons, within its jurisdiction.
This constitutional duty is worded negatively: "No state ... shall deny to any person within its jurisdiction the equal protection of the laws." But it imposes an affirmative duty. As Christopher Green explained in two articles ten years ago (here and here), the original legal meaning of this Equal Protection of the Laws Clause was precisely about the duty of equal protection: no separate laws or patterns of law enforcement for disfavored groups of people; no license for some—such as the Ku Klux Klan—to harm others with legal impunity.
If unborn human babies are persons within the meaning of the Fourteenth Amendment, then this duty of equal protection prohibits the state from licensing lethal private violence against them without some justification tied to their location in the womb to authorize differential treatment. There may be very good reasons for states to have legal rules that differ in some respects for the born and the unborn. After all, equality means treating like things alike, and the born and unborn are unlike in some respects. One way in which they are alike, though, is that they are persons.
The Supreme Court infamously held otherwise in Roe v. Wade, interpreting "person" to exclude unborn human babies. The Court's reasoning on this issue was pretty thin throughout and demonstrably flawed in part.
The demonstrable flaw came in Justice Blackmun's claim that, if unborn humans are persons, the case for a right to abortion "collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Justice Blackmun here had in mind the Due Process Clause, as context makes clear.
The belief that the Due Process Clause protects against private lethal violence is a common mistake, one which has ensnared many pro-lifers as well. When one private party kills another, something bad has happened. But not a violation of the Due Process Clause. Only state action violates the Due Process Clause.
While this state-action limitation had been established since well before Roe, post-Roe decisions have made even clearer that the state-action requirement for the Due Process Clause cannot be met by redescribing state failure to intervene against private violence as state action.
The leading case is DeShaney v. Winnebago County Department of Social Services. In Deshaney, the Court held that a “State’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.”
More recently, the Court stood by the general rule of Deshaney in Castle Rock v. Gonzales, holding that police failure to enforce a restraining order, which resulted in the death of children, did not violate the Due Process Clause; this grievous law enforcement lapse was state inaction rather than state action.
Taken together, Deshaney and Castle Rock refute Justice Blackmun’s operative assumption in Roe that a state’s failure to prohibit and to punish abortion would violate the Due Process Clause.
Monday, October 7, 2019
Testimony of Robert P. George
U.S. House of Representatives
Committee on Oversight and Government Reform
May 22, 2018
I wish to thank the chairman, ranking member, and members of this committee for holding this important hearing and for inviting me to give testimony. It is a particular honor to appear alongside Professor Stanger and Dr. Weinstein, whose courage, integrity, and commitment to freedom of thought and expression and robust civil discourse are inspiring.
I have provided to the committee’s excellent staff my formal written testimony. This afternoon I wish to share some thoughts drawn largely from a statement I issued some months back along with my dear friend and teaching partner Professor Cornel West. Professor West and I, though representing different political perspectives, share concerns about the state of American higher education and the condition of American democracy. We worry that too narrow a range of perspectives is represented in a great many colleges and universities, especially among faculty, and that this tends to create an echo chamber in which education degenerates into indoctrination and dissent is stigmatized, marginalized, and even punished or driven off campus. We also worry that the American people are becoming polarized in ways that foment a level of distrust and hostility to each other, and an unwillingness to listen to and engage each other, that undermines the foundations of democratic civic life.
By hard experience, mankind has learned that the pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of certain virtues, including intellectual humility, openness of mind, and, above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs and who represent causes one disagrees with and points of view one does not share.
That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree—especially on college and university campuses. As the great 19th century English liberal philosopher John Stuart Mill taught, a recognition of the possibility that we may be in error is a good reason to listen to and honestly consider—and not merely to tolerate grudgingly—points of view that we do not share, and even perspectives that we find shocking or scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it.
None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.
All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.
It is all-too-common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular communities. Sometimes this is done by questioning the motives and thus stigmatizing those who dissent from prevailing opinions; or by disrupting their presentations; or by demanding that they be excluded from campus or, if they have already been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like or simply walk out and refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. But before exercising that right, each of us should ask: Might it not be better to listen respectfully and try to learn from a speaker with whom I disagree? Might it better serve the cause of truth-seeking to engage the speaker in frank civil discussion?
Our willingness to listen to and respectfully engage those with whom we disagree (especially about matters of profound importance) contributes vitally to the maintenance of a milieu in which people feel free to speak their minds, consider unpopular positions, and explore lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and groupthink, both of which are toxic to the health of academic communities and to the functioning of democracies.
When universities are permitted to degenerate into ideological echo chambers, which is what tends to happen when a campus lacks viewpoint diversity, especially among its faculty, freedom of thought and expression quickly come under attack and are sooner or later (usually sooner rather than later) lost. Dissent from campus orthodoxies comes to be perceived and even experienced as attacks on "our community's values" and even as personal "assaults." People begin defining “hate speech” way too broadly and saying things like “free speech is violence.” Some may even begin defending actual violence—violence against dissenters from campus orthodoxies—as a form of “free speech.”
Following in the wake of these developments are censorship, language policing, and disciplinary proceedings and “re-education” for people who offend against “our community’s values.” Education, which requires the careful and critical exploration of competing perspectives on disputed questions, degenerates into indoctrination. Universities cease being truth-seeking institutions and courses become catechism classes for whatever ideology happens to be dominant on campus. That’s fatal for the cause of learning. And it’s very bad for the cause of democracy.
October 7, 2019 | Permalink
Uighurs are Muslims who trace their roots back thousands of years in Central Asia, most currently living in the Chinese province Xinjiang. The group represents less than 1 percent of China's population, but they have endured what the U.S. calls one of the worst human rights crises of modern times. Nick Schifrin at PBS News Hour reports on how Communist China has persecuted this religious and cultural minority: https://www.pbs.org/newshour/show/china-calls-it-re-education-but-uyghur-muslims-say-its-unbearable-brutality
October 7, 2019 | Permalink
This past Saturday morning, I had the privilege to address the 2019 General Assembly of the Catholic Bar Association. This year's Assembly was held in St. Louis, and the title of my talk was "What Kind of Law Will It Take to Overturn Roe v. Wade in the Short Term?"
The location and setting brought to mind Webster v. Reproductive Health Services, 492 U.S. 490 (1989). This case out of Missouri placed the constitutional law of abortion in the United States on the trajectory on which it has proceeded for the past thirty years. Doctrinally, one might attribute that significance instead to Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). But the plurality decision in Casey was the product of momentum from Webster. It was in Webster that Justice O'Connor's undue burden standard broke away from the rational basis fold that Chief Justice Rehnquist was trying to nudge the Court toward, and it was in Webster that the rift between Justice O'Connor and Justice Scalia on the constitutional law of abortion became permanent.
Webster came about a couple years after two new Justices had recently been added to a Supreme Court with a Chief Justice publicly committed to judicial restraint. If that sounds familiar, it should. We are talking now, thirty years later, about the very kinds of variables that Court-watchers were talking about thirty years ago: when to distinguish versus to overrule; when to overrule sub silentio versus explicitly; when to construe statutes to avoid constitutional difficulties versus confronting the constitutional difficulties head on; what is "judicial statesmanship" and is it good or bad? And so on.
Tactically speaking, one desideratum for moving toward a stable, more pro-life equilibrium in the constitutional law of abortion in the United States would seem to be avoiding another Webster. By that I mean a narrow tactical "win" that presages a broader strategic defeat rooted in divisions over the pace and explicitness of displacing bad precedents with good ones.
In days to come, I hope to lay out in more detail some of the elements of my Catholic Bar Association approach. Just by way of preview, the recipe for overruling Roe v. Wade that I am working up has three main ingredients: (1) prenatal equal protection; (2) judicial incapacity for line-drawing with respect to relative values of prenatal and maternal life and health; and (3) Catholic guilt.
Thursday, October 3, 2019
A very public story of tragedy and violence set on a stage of racial injustice that ends with expressions of mercy and faith.
If you have not taken the time to watch the two videos following the sentencing of Amber Guyger and the response of Brandt Jean, the brother of the homicide victim Boothan Jean, and that of Judge Tammy Kemp, you should do so. As one of the reporters described it, this was a scene of "extraordinary grace." No person of faith can fail to be inspired and brought to tears.
In a troubling period of our history in which people of Christian faith too often are seen by the public as apparently advocates for cruel policies and agents of division rather than as witnesses for the Gospel, this episode reminds us that Christ still walks among us through his disciples.
As Alexandra DeSanctis and others have reported, there was at Notre Dame recently an unfortunate series of connected incidents -- involving an outdoor poster display, then a poem of sorts in the student newspaper, and also a performance-art video posted online -- of what I think can fairly be called anti-Catholic hate speech. You can read DeSanctis's article for the details, but -- in a nutshell -- in addition to contending that various writers, publications, and organizations have "blood on their hands" by virtue of writings and activities that support and defend Catholic theology, morality, and anthropology, the performers/authors of the attacks engaged in what can reasonably be regarded as a kind of fantasy about inflicting violence (using a crowbar) against the offending writers, some of whom are their fellow students.
These incidents are particularly upsetting, not only because the attacks aim at the University's animating and foundational Catholic mission and commitments, but also because Notre Dame has been (thankfully) relatively untouched by the fever-swamp excesses of our overly politicized and excessively polarized academic culture.
Although Notre Dame is a private institution, and not subject to the First Amendment's constraints, it's my view that, as a general matter, "Chicago statement"-type rules and norms should be observed by students, faculty, and administrators. As important as civility and charity are, I am inclined to agree with the Chicago Statement that "[a]lthough the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community." At the same time -- and while I reject the tendency to equate "discourse" with "violence" and the claim that criticism and disagreement make one "unsafe" -- it seems clear that actual threats of or incitements to violence are not only legally unprotected (while "hate speech" is), they are also morally excludable, and punishable, even in a university setting.
It's too bad (or, perhaps, it is fitting?) that this week is also Respect Life Week at Notre Dame (and at many other places). Even as the spirit of community and care -- the Week's theme is "authentic love, authentic freedom" -- was attacked by the series of hate-speech incidents, this beautiful student-led week of prayer, speakers, celebration, and conversation reminds us of the radical Christian call to solidarity and of the radical Christian claims regarding human dignity and equality. Here's hoping hearts and minds -- including those of the people who engaged in the expressive attacks -- will be touched and healed.
Wednesday, October 2, 2019
Tuesday, October 1, 2019
Monday, September 30, 2019
Three cert petitions have been filed in the Supreme Court recently on the issue whether teachers with religious teaching functions in religiously grounded schools are "ministers" for purposes of the First Amendment's "ministerial exception," affirmed unanimously in the Hosanna-Tabor decision. Two are from the Ninth Circuit (Our Lady of Guadalupe School v. Morrissey-Berru, St. James Parish School v. Biel); one is from the California appellate courts (Stephen Wise Temple v. Su). In all three cases, the lower courts held that the teachers' religious functions were outweighed by the fact that they lacked a minister-like "credential, training," or title and/or were not "held out" as ministers by themselves or the school.
In the first-filed of these cert cases, Our Lady, the Ninth Circuit found the teacher to be a non-minister even though it admitted that she had "significant religious responsibilities": she “committed to incorporate Catholic values and teachings into her curriculum,” including a religion/Catholicism class she taught, and also “led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year.” The court objected to her lack of "credential, training, or ministerial background." The petitions in Our Lady and the other cases argue--to simplify a bit--that one who performs significant religious functions (leadership, teaching, liturgy/worship, etc.) in a religious organization should be considered a "minister" and should not be excluded because of "credentials" like title or training.
With the students in my religious liberty clinic and with the Christian Legal Society, I've filed an amicus brief arguing that a focus on "minister-like" title, training, or credential will discriminate against unfamiliar religions and will invite courts to second-guess an organization's understanding of how people qualify to be its leaders.
We've also presented what I think is a valuable originalist argument: that "narrow definitions of 'Minister,' especially through requirements of ministerial education or credentials, were a chief evil that helped spur adoption of the First Amendment," and that the founding generation would have regarded as violations of free exercise and incidents of establishment. Here's a bit:
The Constitution’s religious freedom guarantees arose in significant part from disputes between established colonial churches and Pietist dissenters, including “New Light” Congregationalists in Connecticut and Baptists in Massachusetts and Virginia....
The New Lights opposed the formally trained “legal preacher,” preferring a “layman who had experienced conversion” personally.... They believed that “the learned ['Old Light' establishment] clergy had lost touch with the spiritual needs of the common man and no longer really served as ministers of God to them.”
New England colonial legislatures, which reflected the views of the “Old Lights,” responded by taking steps to restrict or disfavor informally trained ministers. [McLoughlin, 1 New England Disssent] at 363. In 1742, Connecticut passed a law prohibiting “itinerants” from preaching without approval of an established parish. That same year, it also passed legislation “preventing any church or parish from choosing a minister who lacked a college degree.”
Likewise, Massachusetts passed a law in 1760 preventing legal recognition of parish ministers unless they had “academy or college training, or had obtained testimonials from the majority of the ministers already settled in the county.” Jacob C. Meyer, Church and State in Massachusetts 51 (1930). The law disqualified uncredentialed ministers, primarily Baptists, from receiving funds that were collected by each town’s authorities for support of worship.
... Like the[se] founding-era laws, the Ninth Circuit requires that a minister must have some sort of “credential, training, or ministerial background” [in this case, to fall within the ministerial exception]/
St. Thomas students Erik Money contributed excellent research and drafting to the brief.
A very helpful essay, by Paul Marshall (Baylor), at the Religious Freedom Institute's Cornerstone Forum:
One reason that institutional religious freedom has become so controversial in the United States in recent years relates to the American people’s historical understanding of rights as applying only to individuals. Contentious U.S. Supreme Court decisions such as Citizens United and Hobby Lobby have also contributed to widespread suspicion about the general idea of institutional rights, especially in the form of recognizing the legal personhood of corporations.
To begin to grasp the meaning and scope of institutional religious freedom requires outlining its main aspects and considering how they fit together. Growing uncertainty over the very nature of rights presents a key challenge in this regard so we will address that first. . . .
Read the whole thing!
And then -- why not? -- read this.
David Cloutier (CUA, Theology) has a helpful piece in a recent issue of Commonweal called "The Paid Family Leave Impasse: How Catholic Social Teaching Can Help." Among other things, he explores the issue, and some policy proposals, using the principles of Subsidiarity and Solidarity. Here's a bit:
Catholic social teaching can help us understand, and perhaps correct, the failure of both parties to address this issue. The problem is not that each party fails to balance solidarity and subsidiarity—as if some fifty-fifty compromise could be worked out. Rather, neither party understands the way solidarity and subsidiarity ought to be related to each other. That relation is one of means to ends. Solidarity is meant to govern the end of social action, while subsidiarity is the principle that determines the best means to that end. As John Paul II puts it in Centesimus annus, subsidiarity means that “a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it…always with a view to the common good.” Understood in this way, subsidiarity is not just another name for libertarian individualism; rather, it is about the importance of genuine participatory structures for achieving solidarity.
It's entirely true, of course, that "subsidiarity is not just another name for libertarian individualism" or, as Cloutier says later, "atomistic individualism." (It's also not simply about devolution or federalism, as others have pointed out.) That said, I'm not sure that it's quite right to say that the subsidiarity principle is (only?) about identifying the "best means to [the] end" (i.e., "Solidarity"). I take the subsidiarity principle to (also?) be about pluralism, social ontology, the reality of group personhood, and the moral and legal rights and duties of non-state societies.
I found this essay by Russell Hittinger, "The Coherence of the Four Basic Principles of Catholic Social Doctrine," really helpful on this (and many other!) point(s).
Friday, September 27, 2019
The 2018 Sino-Vatican Provisional Agreement on nominating and ordaining bishops must be assessed in the harsh light of Xi’s policy. Bishops are critical to the well-being of Catholics and the Church. They are simultaneously shepherds and public witnesses to the truths taught by the Church. If they are deceivers, history and contemporary events make abundantly clear that everyone suffers except opponents of the Church. If they are holy and courageous men, willing to witness the truth as taught by the Church, Catholics and non-Catholics benefit. This is as true in China as it is in any other country.
Full article by Thomas Farr here.
September 27, 2019 | Permalink
Thursday, September 26, 2019
Recalling that David Skeel's The Unbearable Lightness of Christian Legal Scholarship was written just over ten years ago, MOJ friend Kevin Lee reflects here on the current status of Christian legal scholarship (which he thinks is not good) and the work that remains to be done.
September 26, 2019 | Permalink
Wednesday, September 25, 2019
With Doug Laycock and counsel at the Christian Legal Society (Kim Colby, Reed Smith), I've co-drafted this amicus brief for 17 religious and educational groups, including the Catholic bishops, the Orthodox (Jewish) Union, the LDS Church, the Seventh-Day Adventists, the Southern Baptists, the National Association of Evangelicals, the Missouri-Synod Lutherans, World Vision, and several others. The brief covers several issues.
First, it explains why the Montana Supreme Court violated the Free Exercise Clause by using a discriminatory state constitutional provision, one that singles out religious schools for exclusion, to strike down a neutral school-choice program under which scholarships encouraged by tax credits support religious-school students only because their families choose to use religious schools.
We also explain how cases like this one, involving programs of benefits that include religious schools equally with other schools, relate to other categories of cases under the Religion Clauses. Those others include the issue, now returning to the Court in a couple of certiorari petitions, whether the Free Exercise Clause requires more than just equal protection for religion from government regulation but requires special protection, in the sense that even a generally applicable law must have a strong justification for imposing significant burdens on free exercise. Our key point is that the right to equal inclusion of religious schools in benefit programs ultimately rests on the principle not that religion should be treated the same as everything else, but that the government should respect and protect private choice in religious matters (what Doug has long called "substantive neutrality," Michael McConnell has called "incentive neutrality," and I have called "voluntarism"; we use all the terms in the brief). A key passage:
Applying a general law to a religiously motivated practice may be formally neutral, if the law treats religious and secular violations alike. But if the law significantly burdens religious practice, it prevents people from exercising voluntary religious choice and thus lacks substantive neutrality. The threat of civil or criminal penalties or loss of government benefits profoundly discourages the prohibited religious practice.
Exempting the religious practice from regulation eliminates that discouragement, and it rarely encourages the exempted practice. Nonbelievers will not suddenly start observing the Sabbath, or traveling by horse-and-buggy, or holding their children out of high school just because observant Jews or Adventists or Amish are permitted to do so.
Formal and substantive neutrality both suggest equal treatment of religious and secular schools with respect to financial aid, because money has the same value for everyone. But most exemptions of religious practices have value only for believers in some particular faith. So even though an exemption is a form of religious category, religious exemptions create neutral religious incentives.
The Vatican’s Congregation for Catholic Education has temporarily suspended a decree from the Archbishop of Indianapolis that revoked the Catholic identity of a Jesuit high school. The suspension will have effect while the congregation considers an appeal of the decree.
Full article at Catholic News Agency
September 25, 2019 | Permalink
Monday, September 23, 2019
Here is news about an (I think) striking proposal in the United Kingdom:
"[T]he motion passed by Labour . . . said the next Labour manifesto should include a 'commitment to integrate all private schools into the state sector'. That would see the 'withdrawal of charitable status and all other public subsidies and tax privileges, including business rate exemption', the motion said. It also demanded that universities only admit 7% of students from private schools, to reflect the proportion of all pupils who attend them. The motion also called for 'endowments, investments and properties held by private schools to be redistributed democratically and fairly across the country’s educational institutions'.
The primary target of this proposal seems not so much to be religious and parochial schools (in the U.K., the state sector includes a variety of "faith schools"), but rather elite institutions like Eton, etc. That said, calls to "abolish Catholic schools" are regular and recurring.
Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.
Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.
In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.
Friday, September 20, 2019
California politicians are telling people of many religions that their faith is unacceptable to the state. These legislators are pushing anti-religious, LGBTQ-affirming practices in education (AB-493), and in pastoral counseling and psychotherapy (ACR-99).
What is their justification? A declaration in California’s Assembly Concurrent Resolution 99 (ACR-99) claims that “groups in society, including therapists and religious groups,” create stigma and have “caused disproportionately high rates of suicide, attempted suicide, depression, rejection, and isolation” in sexual and gender minorities. These politicians claim that LGBTQ-affirming beliefs will lead to better mental health outcomes.
The presumption of blame on religious groups and therapists stigmatizes people of many faiths. More importantly, the research does not support this claim.
September 20, 2019 | Permalink
Thursday, September 19, 2019
Principles or Improvisations? Why (and how) the Justices Should Reject Anti-religious Discrimination
A little over two years ago, concurring in Trinity Lutheran Church of Columbia, Inc. v. Comer, Justice Neil Gorsuch insisted – quoting the late Chief Justice William Rehnquist – that “our cases are ‘governed by general principles, rather than ad hoc improvisations.’” A case on the Supreme Court’s docket this term, Espinoza v. Montana Department of Revenue, will – among other things – put this claim to the test.
September 19, 2019 | Permalink
Tuesday, September 17, 2019
A proposal to reduce the number of refugee admissions to the United States to fewer than 30,000 “would be wholly counter to our values as a nation of immigrants,” said the president of the U.S. Conference of Catholic Bishops and the chair of the bishops’ Committee on Migration.
Since Congress passed the Refugee Act in 1980, the U.S. had admitted on average 95,000 refugees annually. In recent years, the U.S. has accepted between 50,000 to 75,000 refugees per year. The number was capped at 45,000 after Trump became president in 2017 and was scaled back to 30,000 refugees for fiscal year 2019.
September 17, 2019 | Permalink