Mirror of Justice

Political Catholicism Reborn? A symposium on Kevin Vallier's new book

Law and Liberty is hosting a collection of reviews of Prof. Kevin Vallier's new book, All the Kingdoms of the World.  Although I think -- and have, I confess, imposed this view on Prof. Vallier more times than is polite -- that the "Catholic Integralism" phenomenon is being treated, in some quarters of the legal academy, as more of a "thing" than, I think, it actually is, I think Vallier's book is excellent and also appreciated the collected reviews.  As the man says, "highly recommended"!

A Conference on Robert George's "Making Men Moral at 30"

I'm delighted to announce a conference on Robert George's groundbreaking book, Making Men Moral: Civil Liberties and Public Morality, on the 30th anniversary of its publication. The conference will be held November 30-December 1, and is being jointly organized by AEI, the Ethics & Public Policy Center, Pepperdine University, and the Project on Constitutional Originalism and the Catholic Intellectual Tradition at Catholic University. You can see the terrific program at the link.

I'm particularly pleased to contribute something to this conference, as Robby's book was a major influence on me as I thought about an academic career many years ago, shaping the way I thought about so-called "legal moralism" and many other questions in constitutional law and theory that came to occupy me in later years. And I continue to use the book to this day in my own classes as a model to introduce some of the foundational questions of governance that it discusses.

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 book, Law's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

Approaching Equilibrium in Free Exercise of Religion Decisions in the Federal Courts

This is the second of three postings about the empirical studies that Michael Heise and I have conducted on religious liberty decisions in the lower federal courts. Today, I am sharing our findings about our most recent study of Free Exercise of Religion decisions. We have good news to share here, which is that equilibrium or equality is within reach for Free Exercise claimants from different religious backgrounds.

This article is titled Approaching Equilibrium in Free Exercise of Religion Cases? Empirical Evidence from the Federal Courts, was published in the Arizona Law Review, and is available in full (link here).

Our dataset for 2006-2015 religious liberty decisions consisted of 2,847 judicial participations (773 by district court judges and 2,074 by court of appeals judges). This dataset of these religious liberty decisions is unprecedented in its size and its inclusive­ness of judicial actors from multiple Article III courts. In addition to including multiple decisions from every one of the 13 federal courts of appeals, our dataset includes decisions from district judges in 90 of the 94 federal districts.

Before multivariate regression analysis, the religious liberty claim was favorably received by the ruling judge 37.7% of the time. In the 30 years of decisions in our studies, this success rate has remained remarkably stable, consistently falling within a two percen­tage point band. For the 1986–1995 period, that positive ruling rate was 35.6%; for 1996–2005, it was 35.5%.

The chart accompanying this post sets out the religious identities represented in this study, by percentage of observations.

Unfortunately, as scholars and observers have long noted, America’s history of religious tolerance has been blemished by inequality and intolerance, with certain religions favored by political and judicial recognition, while other religions have been disadvantaged and left unprotected by the courts against majoritarian demands. Indeed, in our prior study for 1996–2005—during the period leading up to and following 9/11—we found that Muslims were experiencing a dramatic deficit of success in free exercise claims, succeeding at only about half the rate of other religious claimants.

But the past need not predict the future. For the most recent period we studied, 2006–2015, things appear to be moving toward that aspirational point where claimants from most religious backgrounds across the spectrum of religious experience in American life suffer no systematic disadvantage in seeking accommodations for religious exercise. With shrinking exceptions, judges of the federal courts of appeals and district courts appear to be adjudicating constitutional and statutory religious exercise claims with even-handed impartiality. Claims by Catholics, Mainline Protestants, Baptists, Seventh-day Adven­tists, Mormons, Muslims, and others did not achieve success or experience failure at a significantly different rate than for claims of the same type made by others.

The Brittanica Dictionary defines “equilibrium” as “a state in which opposing forces or actions are balanced so that one is not stronger or greater than the other.” The followers of one religion should neither enjoy a greater probability to prevail nor suffer a disadvantage in seeking state recognition of religious practices, when such unequal results are based on religious identity of the follower or the cultural dominance of that religious tradition. If religious liberty in America is to be genuinely available in practice, as well as in theory, it must mean that every person of every faith may expect equal consideration when presenting a demand for accommodation of religious exercise against governmental restrictions.

What prompted religious liberty adjudication to move in this encouraging direction? As with last week’s posting on Establishment Clause decisions, we find that Supreme Court clarification of the law appears to have made a substantial difference.

For example, the Supreme Court’s 2006 decision in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), provided the tools for loosening the grip of stereotypes. This decision held that the government could not preclude a religious sect from sacramental use of a hallucinogenic substance by the “mere invocation” of a general prohibition on nonmedical use of narcotics. By requiring an individualized case-specific scrutiny that focuses on the religious claimant’s particular attributes, the O Centro decision encourages the judge to abandon stereotypical generalizations and engage in a differentiated and individualized treatment of each claim.”

In this way, a court instead may better appreciate the character of the claimant’s religious practice and the nature of the requested accommodation. To undertake that examination, the judge should learn about each claimant’s faith perspective objectively and rigorously, but also sympathetically, thereby substituting new information and understanding for implicit beliefs. See also Holt v. Hobbs, 574 U.S. 352, 361–62 (2015) (directing courts to evaluate on whether the government has substantially burdened a particular religious exercise rather than other forms of religious exercise in which the claimant might engage, thus requiring courts to focus on the specific nature of a particular religious exercise).

Additional evidence in our study supports this analysis. The independent variables in our study that do achieve statistical significance strongly and comprehensively—Case-Type variables—are precisely those that should correlate with the outcome of religious liberty disputes. Not every free exercise or related claim is positioned to be positively affirmed in every context. And we find that the likelihood of success does vary by case category. Indeed, of our 12 Case-Type variables, 8 are significant, namely Public Secondary and Higher Education, Private Education, Religious Meetings, Religious Expression, Zoning, Prisoner, Exemption from Anti-Discrimination Laws, and Criminal Defense.

The remarkably comprehensive and robust signifi­cance of our Case-Type variables dovetails with doctrine to advance the equilibrium of religious liberty for diverse religions. Rather than the case turning on noncontextual and perhaps implicitly biased views of a particular religious claim, the contextual approach demands a deeper dive into the nature of the religious claim and a fine-tuned assessment of the government’s claim of an overriding public interest. We would expect, then, that some contexts are more likely to pose particularly troubling invasions of the government into private religious behavior, while others are more likely to implicate a compelling public interest in preventing harmful behavior.

Although the promised land may be in sight, we are not yet there. Significant advantages (for Native Americans and Budd­hists) and disadvantages (for Orthodox Jews and Rasta_­farians) for a small number of claimants demonstrate that work remains to be done. And the troubling indication that judges may look more favorably on claims by coreligionists belies any pretense that impartial adjudication has been fully achieved.

Through the rise of cultural tolerance, a deepening understanding of the sincere beliefs of others, and conscientious judicial attention to religious claims and countering implicit bias, the courts may be moving us closer to that ideal of robust and widely enjoyed religious liberty.

Empirical study of religious liberty decision in the federal courts: The Establishment Clause cases

One of the scholarly hats that I wear is that of an empirical researcher on religious liberty decisions in the lower federal courts. I have been greatly blessed over the past couple of decades to collaborate with Michael Heise of Cornell on this work. We have now published our most recent findings through three successive decades of religious liberty decisions, in three journal articles that have been published within the past several months.

I’ve been encouraged to share some of what we’ve found here on Mirror of Justice. I’m planning to post separately on each of our three works in the coming week or so.

I begin today with our study of Establishment clause decisions in the federal district courts and courts of appeals from 2006 through 2015. This article is titled Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, was published in the Arizona State Law Journal, and is available in full (link here).

What has been most distinctive – and not in a good way – about our observations of Establishment Clause cases over multiple decades has been the sometimes dramatic and still persistent partisan divide among the judges, based on the party of the appointing president.

Now in our other empirical work and based on my study of the literature, let me emphasize that I do not share the view that the evidence supports a general critique of the federal courts on partisan grounds. To the contrary, only a few types of cases have shown both a statistically significant and a substantial size discrepancy in how judges appointed by presidents of different parties resolve disputes.

Indeed, we begin our most recent article by noting that the last wall of the judiciary held during the partisan political storm following the 2020 presidential election. In the federal courts, Donald Trump faced defeat after defeat, dozens of times. An impartial and non-partisan federal judiciary was having none of his unsupported claims of election fraud or his extreme requests to disenfranchise millions of voters. Judges appointed by the presidents of his own party, including judges appointed by President Trump himself, rejected in scathing terms the claims that he and his supporters raised.

As we say in the article, however, now having been reminded that a non-partisan judiciary is essential to preserve the rule of law, we should be all the more distressed when we observe federal judges returning to partisan corners on another matter.

In our most recent iteration of our empirical examination of religious liberty decisions in the lower federal courts, we found persisting evidence of a partisan divide. Holding all other variables constant, Democratic-appointed judges were predicted to uphold claims challenging government conduct on Establishment Clause grounds at a 45.1 percent rate, while the predicted probability of success fell to 33.0 percent before Republican-appointed judges.

Importantly, however, this was a substantial narrowing of the partisan gap from our study of the preceding period of 1996-2005, in which we had found that a Republican-appointed judge would accept an Establishment Clause claim only 25.4 percent of the time, while a Democratic-appointed judge would accept the claim at the significantly higher rate of 57.3 percent. Thus, for the earlier period of study, an Establishment Clause claimant’s chances for success were approximately 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. By the next ten-year period, the Establishment Clause claimant advantage before a Democratic-appointed judge had fallen to about one-third higher than before a Republican-appointed judge.

So what accounts for this? We have suggested that the source of a partisan divide may be found in the absence of constraining legal doctrine that leaves judges without clear guideposts in resolving Establishment Clause disputes. But the Supreme Court has been modifying that doctrine in recent decades. And those stronger legal controls are making a difference. When the Supreme Court sets forth clearer rules for Establishment Clause disputes with less ambiguous standards, greater stability in decisions with less subjectivity followed.

For our most recent study of the 2006-2015 period, we explored the influence of the Supreme Court’s decision in Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2012). In Winn, the Supreme Court employed a narrowed test for judicial standing to deflect Establishment Clause challenges by a group of taxpayers against a state program allowing tax credits for contributions to qualifying non-profit organizations including religiously-affiliated schools. Observing that any funds received by the religious schools was because of the decisions of a taxpayer to contribute to the organization, the Court majority ruled that the case involved private action rather than state activity

The Supreme Court’s 2011 decision in Winn decision narrowed standing and thus reduced the occasions for a judicial finding of an Establishment Clause violation. Winn is a landmark decision that meaningfully redirects Establishment Clause juris­prudence.

And, looking at the lower federal courts in deciding Establishment Clause challenges, our variable for Winn was significant at the 99 percent confidence level and substantial in effect. For the 2006-2015 period, holding all other independent variables constant in our Party-of-Appointing-President model, our best estimate was that the success rate for Establishment Clause claimants fell from 59.7 percent to 15.8 percent after the Supreme Court decided Winn. The impact was quite dramatic, a decline of more than 40 points or nearly three-quarters.

In sum, the Supreme Court’s change of doctrinal course in Winn appears likewise to have changed the outcome course of Establishment Clause decisions in the lower federal courts. No other factor that we have explored has produced such a marked change in predicted like­lihood. This single precedent may have been a game-changer for Establishment Clause decisions in the lower federal courts.

In other words, yes, the law does matter.

Next post will be on the Free Exercise cases, where the news is good, although that must be tempered with fears of changes on the horizon.

"Aquinas at 800": Call for Papers

The University of Notre Dame is hosting what is shaping up to be an amazing academic conference:  "Aquinas at 800:  Ad multos annos."  Check it out!

Advice for Students Entering College

As the new academic year begins, I have some advice for conservative and religiously observant students who are entering colleges and universities in which their beliefs will place them in the minority, and perhaps make them feel like "outsiders."

You will encounter double standards. Don't be quiet about them. Ask for them to be removed. If necessary, be assertive and persistent, though always respectful, relying on the force of argument and the power of reason. At Princeton, students and sympathethic faculty working together have had a fair amount of success over the years in getting rid of double standards, but we won't stop until they are all gone.

You may experience prejudice, perhaps in grading, perhaps in other areas of your academic or social life on campus. If you do, try to find a friendly faculty member who can guide you and perhaps even advocate for you in addressing the injustice. Ask around to identify faculty members who have spoken out for freedom of speech and viewpoint diversity. (Go to the website of the Academic Freedom Alliance--www.academicfreedom.org--to see if any members of the alliance are on the faculty of your institution.) It's easier for those of us on the faculty to make an issue of it than it is for you to try to do so alone. In any case, we can and--believe it or not--there are some of us who will support you and insist that you be treated fairly and that your right to equal, non-discriminatory treatment be honored.

Do not, however, confuse being challenged or criticized with being discriminated against or victimized. Insist, as we, your friends on the faculty, will insist, on your right to free speech, but remember that other people have that right too. They can use it to challenge and criticize your beliefs--even your deepest, most cherished, identify-forming beliefs. They do you no harm in doing that, just as you do them no harm in challenging their progressive or secularist beliefs. In fact, we do each other a service in challenging each other's convictions.

Remember, as a college or university student you are one of the luckiest--most privileged--people on planet earth. Do not think of yourself as a victim. Do not build an identity for yourself around grievances, despite the double standards, and even if you experience some injustices. You can and should work to set things right without descending into grievance identitarianism.

Thinking is not something that can be outsourced. You have to do it for yourself. Don't let your professors tell you what to think. Don't let popular opinion on campus dictate your convictions. If a professor tries to indoctrinate you, resist. His or her job is to educate you. Indoctrination is the antithesis of education. If there is groupthink on campus, the response it should trigger in you is a desire to probe and question. "What is to be said on the other side? Are there thinkers and writers who doubt or deny the 'consensus'?" If so, read and carefully consider what they have to say. Make up your own mind. Think for yourself.

Don't be a bully and don't let anyone bully you. If you reach a conclusion that defies the groupthink, don't be afraid to speak your mind about it. (In other words, don't censor yourself on a topic that you would otherwise speak about--that is, you would speak about if your opinion weren't out of line with the groupthink.) And defend anyone and everyone else's right to think for themselves and express their views, whether or not you share them. When someone comes under attack or is at risk of "cancellation" by the "outrage mob" for expressing an opinion, stand up in support of that person--again, whether you yourself happen to agree or not. By defending robust free speech for all, you are helping to uphold core values without which the university cannot pursue its mission as a truth-seeking institution. Be the kid on the playground who rushes to the defense of the kid who is being bullied.

Do business in the proper currency of intellectual discourse--a currency consisting of reasons, evidence, and arguments. Challenge your interlocutors to do business in the same currency. Indeed, demand it. If they don't--if they resort to forms of manipulation or to tactics of intimidation--defy them and call them out. Don't hesitate to be blunt in saying, "The name-calling and bullying doesn't work with me. If you've got an argument, I'll be delighted to hear and reply to it. Those are the terms of discussion, as far as I'm concerned. So, do you have an argument, or do you not? I'm waiting."

Welcome Message for my Princeton course on Constitutional Interpretation

Dear Enrollees in Politics 315: Constitutional Interpretation:

Welcome to our course. My teaching team and I look forward to exploring with you the broad range of principles, issues, and arguments that are its substance.

Please don't be reluctant to speak your mind in our discussions! Even if you hold an unpopular view, please be willing to share and defend it. Also, please be willing to be "devil's advocate" on behalf of views that you do not hold or aren't sure whether you should hold. By robustly defending a controversial position to see whether, in the end, it can be successfully defended, or how far it can be defended, you will be doing all of us in the course a service.

On freedom of speech in our discussions, please see the statement on the syllabus, referencing the University's free speech policies set forth in Rights, Rules, Responsibilities. Princeton students and faculty enjoy the broadest possible free speech protections in all courses and other university activities, but surely free speech should be especially sacrosanct in a course on the Constitution and the rights and liberties it enshrines. At the same time, we value civility--but that does not mean or require that anyone hold or decline to hold any particular view, or that one submit to anyone else's ideas about the language in which issues are to be framed, the terms in which they are to be discussed, or the assumptions on which the discussion will proceed. What it does mean and require is that we all do business in the proper currency of intellectual discourse--a currency consisting of evidence, reasons, and arguments.

Some of the issues we will be discussing are not only controversial, but also sensitive and, to some people, personal. We nevertheless need to discuss them frankly. As our Dean, Jill Dolan, says, we need to be "resilient and brave" in discussing matters that engage our emotions. One thing I can guarantee is this:  Whatever your political, moral, religious, and other opinions happen to be, you will encounter in our readings and discussions challenges to them. You may even be offended or scandalized by what some authors or some participants in the course believe and say. Please bear in mind that, as Cornel West has stated, "the very point of a liberal arts education is to disturb and unsettle us." I have deliberately chosen readings representing radically opposed positions on the issues we explore. There is not an official position in the course about who is right and who is wrong about anything. All positions and points of view, no matter how radical or even unjust or immoral they may seem to people who oppose them, are on the table for discussion, scrutiny, and assessment on equal terms. There is no orthodoxy in the course; there are no dogmas. There is no censorship or policing of thought. I hope there will be no self-censorship.

My philosophy of teaching is straightforward and rather simple: My job is not to tell students what to think or induce or encourage them to think as I do; it is, rather, to help students to think more deeply, more critically, and for themselves. What I ask of students is open-mindedness, tolerance of those whose opinions differ from yours, a willingness not only to challenge others but to be challenged in turn, and a genuine and deep desire to learn--and to learn by seriously engaging authors and fellow students whose ideas differ, even radically differ, from your own.

There is never a bad time to study and think hard about the meaning of the Constitution and its guarantees; but this is an especially good time--indeed, an exciting time. We are in the midst of massive national disagreements about issues having to do with the separation of powers, federalism, freedom of speech, the free exercise of religion, due process of law, the equal protection of the law, and more. In my opinion, though it need not be yours, some of these disagreements do not admit of obvious or straightforward answers, no matter how deeply certain partisans on the competing sides are of the righteousness of their causes. In any case, I hope that our deliberations together will enable us all to be better, more constructive participants in the debates, no matter where we come down in them.

Best wishes,

Professor George

Re Religion and Political Progressivism, "2023 is Not 1968"

A very interesting read from The Washington Post about the "Justins," the two Tennessee Democratic legislators who have been expelled, returned to office, etc., based on their vocal protests in the legislative chamber. They've been compared to the vocal religious leaders of the civil rights movement.

       Since their GOP colleagues voted them out of office this spring, state Reps. Justin J. Pearson (D-Memphis) and Justin Jones (D-Nashville) have quickly become 20-something icons whose style, faith and values ring some very familiar bells. They wear crisp suits, intone Jesus, see public protests as essential and define “biblical justice” as care for the poor and oppressed. ...

       But 2023 isn’t 1968, including when it comes to the relationship between religion and politics. The Justins are facing a much less religious country, including segments that are cynical and even repelled by candidates who thunder from pulpits about God being on their side. Experts say the Justins’ unusual campaigns, and the strong reaction to them, could both benefit and threaten the progressive movement of which the men are a part.

In our polarized circumstances, the sharp percentage decline in Americans' active religious identification is seen by many as a boon to movements for progressive understandings of social justice. (Religion, that conservative thing, is losing ground.) But that remains a very uncertain matter, as this article indicates, among other things because the decline of active religion has been accompanied by an intensification of the position that religion should be a private pursuit.

"Life After Dobbs"

My colleague, Prof. Gerard Bradley, has a must-read essay in the latest issue of First Things, called "Life After Dobbs."  Bradley gives the Dobbs opinions very close reads, and identifies carefully what, on his reading, the case does, and does not, mean.  After canvassing the current state of play with respect to abortion regulation, he reports that "post-Dobbs developments are worse than pro-lifers expected, and far worse than most hoped. They cannot but be sobering to pro-life Americans. . . .  What, then, is to be done?," he asks.

In Bradley's view, Dobbs turns out to be not only a "neutral", "return the issue to politics", ruling but actually, in "five ways", a pro-life one, that establishes the basis of a legal strategy for protecting the unborn[.]"  Check it out!

Some advice for young scholars and aspiring public intellectuals

As I'm preparing to embark on my thirty-ninth year as a scholar and university teacher, I'd like to share with a broader audience some advice I give to my students--especially those of my students who aspire to academic careers. I hope it's helpful. Here goes: 

Although it is natural and, in itself, good to desire and even seek affirmation, do not fall in love with applause. It is a drug. When you get some of it, you crave more. It can easily deflect you from your mission and vocation. In the end, what matters is not winning approval or gaining celebrity. Your mission and vocation is to seek the truth and to speak the truth as God gives you to grasp the truth.

There is a particular danger for those who dissent, as I do, and as many of my graduate students and top undergaduate students do, from the reigning orthodoxies of the prevailing intellectual culture. You may be tempted to suppose that your willingness to defy the career-making (and potential career-breaking) mandarins of elite opinion immunizes you from addiction to affirmation and applause and guarantees your personal authenticity and intellectual integrity.

 

It doesn't.

 

We are all vulnerable to the drug. The vulnerability never completely disappears. And the drug is toxic to the activity of thinking (and thus to the cause of truth-seeking).

 

To me, the reality of this temptation, no less than any other temptation, should keep one mindful of the need constantly to tend the garden of one's interior life. If anything can immunize us against the temptation to love applause above truth, it is prayer. We all need that immune system strengthener. Even those of us who think we are strong, who flatter ourselves with the thought that we are invulnerable to the lure of approval, are weak. In fact, in our self-flattery we are, perhaps, among the most vulnerable.

 

It is so easy to think of oneself as Socrates ... until the hemlock is served.

Thomas Kohler on "Graduate Student Unions and Catholic Social Thought"

Prof. Thomas Kohler (Boston College) has an essay at Public Discourse called "Graduate Student Unions and Catholic Social Thought." Kohler is, of course, prolific and expert with respect to these topics.  

Longtime readers of Mirror of Justice are, I suppose, way-past-familiar with my skepticism regarding efforts to enlist the Church's social teaching -- including its embrace of workers' associational rights and its affirmation of the dignity of labor -- in support of contemporary public-employee unionism. This is not the matter, though, that Kohler is focused on (although, I suppose, his discussion of graduate-students' unions applies to students at public universities). Check it out.   

Penalver and Greenfield on the First Amendment right of (some) religious universities to use racial preferences

Profs. Kent Greenfield and (MOJ-alum) Eduardo Penalver have an op-ed, at The Hill, called "How the First Amendment Can Save Affirmative Action."  They contend that "the robust deference the court extended to the business owner in [303 Creative] may offer a pathway for certain private religious universities to continue considering race in their admissions decisions. "  (It's not quite right that the Court extended "deference" to the business owner; it took as given the facts stipulated to during the litigation below.)  In my view, the piece is not persuasive, and fails to account for the facts in both 303 Creative and the Harvard/UNC racial-preferences case. 

First, it is not the case that "the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination[.]"  The Court's decision does not outlaw "affirmative action", nor does it mandate strict "color-blindness."  Instead, it reviewed carefully the extensive evidence that the two institutions in question engaged in clear -- indeed, obvious and in some cases quite vulgar -- racial discrimination.  Nothing in the Court's decision prevents universities from taking "affirmative action" steps to engage in outreach to disadvantaged and marginalized students.  But, they cannot do what Harvard and UNC were doing, which was, quite obviously, not diversity-seeking holistic-review, but percentage-pursuing racial discrimination.

Second, it is misleading to write that "[t]he 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives[.]"  The Court has not granted First Amendment (RFRA is different) exemptions from "generally applicable laws" (outside the ministerial-exception context), or from non-discriminatory government action and the "string" of exemptions cases have certainly not been limited to "Christian conservatives[.]"  (See, e.g., O Centro, Lukumi, Holt v. Hobbs, etc.)    

Third, the authors state that "[t]he creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments."  But again, these institutions remain free to create "diverse communities"; but, so long as they accept public funds, they need to find methods -- and, surely, other methods are available -- other than crude racial stereotyping and race-based discrimination.  (It seems unlikely that these institutions and authors want to claim a religious justification for racial discrimination in hiring and admissions.)  The Court did not disapprove of "diversity" as a goal; it said, instead, that clear racial discrimination is not justified by a diversity-seeking goal.  What's more, it is not plausible to contend that most elite institutions' admissions programs (let's put aside, for present purposes, the two authors' institutions') are designed or implemented in ways that aim at "diversity", richly understood.   

Finally, the authors write that "the Department of Education should announce that it will not enforce any colorblindness requirement against mission-driven schools where doing so would violate their foundational values, particularly when those values are rooted in religious faith.  This carve-out would not cover all (or even most) colleges and universities, but it would protect the expressive and religious freedoms of an important and vibrant segment of American higher education."  But again, the Court did not impose a "colorblindness requirement".  Also, outside the ministerial-exception context, there is no doctrinal basis for limiting this call to "religious" institutions.  And, the authors suggest no reason for the assurance that the proposed "carve-out" would not "cover all (or even most) colleges and universities[.]"

I am, of course, deeply committed to (a) the importance of Catholic educational institutions identifying, embracing, and attending carefully to their meaningfully distinctive Catholic characters and missions and to (b) enhancing educational opportunities and freedom for disadvantaged people.  Catholic universities need to do (much) better on both of these fronts.  But the particular practices invalidated in the FAIR case are not necessary to pursue schools' Catholic mission and, in my view, should not be embraced or justified as expresions of that mission.  

"We Mean What We Do: The New Constitutional Traditionalism"

I'm pleased to report that my book project on traditionalism in constitutional law is now under contract with Cambridge University Press, with the tentative title "We Mean What We Do: The New Constitutional Traditionalism." The book will bring together many of the themes and arguments from a number of papers that I've been working on over the last several years, as well as some new papers I'll post soon. But most of it will be new material, and I hope to have a few posts in the coming months trying out some ideas at Mirror of Justice. More soon!

St. Thomas Law Dean Search

Since our former dean, MOJ-er Rob Vischer has ascended to the university presidency at St. Thomas (a belated blog hurrah to Rob!), we are now officially in a dean search at the law school. MOJ-er Lisa Schiltz co-chairs the committee; I'm a member.

Here is the position announcement on the search firm's (WittKieffer's) site. It also provides a full position profile. (I'll link to both files below as well.) The lede for the announcement:

The University of St. Thomas School of Law is seeking a Dean eager to capitalize on a pivotal moment in the Law School’s short but extraordinary history, and ready to guide it through the next stage of its emergence as a national leader in values-driven, whole-person-centered legal education and in scholarly and societal impact. In the two decades since its opening in 2001, the School of Law has outpaced all expectations, validating the hopes embedded in its mission: “The University of St. Thomas School of Law, as a Catholic law school, is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice.”

As the announcement concludes: "Review of applicant materials has begun; for fullest consideration, candidate materials should be received by September 30, 2023 and submitted through WittKieffer’s candidate portal" (buttons at the bottom of the linked site above).

If readers (interested in the position themselves, or not) have suggestions for highly qualified candidates (JD required), deeply committed to and knowledgeable about legal education and enthusiastic about the mission above, let me know by email.

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Full Position/Leadership Profile

Garnett on 2023 SCOTUS

It's become a tradition (HT: Marc DeGirolami!) to join my friend, Prof. Lenny DeLorenzo, of Notre Dame's McGrath Institute for Church Life, for an end-of-SCOTUS-term podcast.  Here, if you are interested, in this year's.  We discuss (inter alia) the Groff and 303 Creative cases.

Religious Liberty in a Polarized Age (from Eerdmans)

My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher,  at Amazon, and elsewhere  It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:

Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]

       Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.

From a blog summary I did on the book:

[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....

       A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.

Get your copy for vacation reading!

 

Comments on Groff v. DeJoy

I have a short piece up at Law and Liberty today (Happy Fourth!), "Refreshing Unity on Religious Liberty", about the Court's recent religious-accommodations case.  Here's a bit:

The high-profile Supreme Court decisions announced each year in late June tend to reinforce a narrative—one that, to be clear, is false—that the Court’s justices are merely partisan actors and that all significant cases divide them into strictly political camps. The term-closing rulings on racial preferences in college admissions, the president’s move to cancel many student-loan obligations, and the free-speech rights of a Colorado website designer fit the press’s favored “liberals versus conservatives” narrative, but most of the Court’s decisions do not. And, significantly, neither did this year’s most important religious-freedom case, which was decided unanimously. . . . 

To be sure, there have been plenty of religious-freedom cases that have divided the justices and, certainly, there will be more. (Should there be exemptions for religious objectors from vaccine requirements? From public-health-related restrictions on gatherings? From abortion regulations? Stay tuned.) Still, it is important for commentators and citizens alike to remember that religious freedom is, and has long been, notwithstanding our divisions and disagreements, at the heart of the American experiment. We disagree today, as we did at the Founding and as we have ever since, over what, precisely, our Constitution’s promise of religious liberty under and through law means, but we know that the promise matters. . . . 

Is the Supreme Court's decision to reverse Roe v. Wade unpopular with the voting public?

The rightness or wrongness of judicial decisions depends not in the slightest on public opinion, and it is wrong--and indeed would be scandalous--for judges to consider polling data in deciding a case. Still, polling about such decisions can be interesting. Here's an example. My understanding had been that Roe v. Wade, though widely misunderstood, was popular with the American people and that Dobbs v. Jackson Women's Health Organization, the 2022 case that overruled Roe, was extremely unpopular. According to the most recent Rasmussen survey of likely voters, however, that's not true. A majority actually support what the Supreme Court did in Dobbs. Of course, the Rasmussen poll could be an outlier. I don't follow this area closely and don't know what other survey firms are finding.

https://www.rasmussenreports.com/public_content/politics/biden_administration/majority_now_approve_scotus_abortion_ruling

 

The New York Times' Distortion of Two Major Supreme Court Rulings

Saturday's New York Times headlines include:

1) "Justices Say No to Student Debt Relief"

and

2) "Web Designer Wins Right to Turn Away Gay People"

Both headlines are grotesque distortions if not outright falsehoods. My question is what accounts for them? Are the Times' reporters (or headline writers) ignorant/incompetent? Or are they dishonest? (It's noteworthy that the mistakes, like bank errors, always go in a certain--in the case of the Times, a certain ideological--direction.)

As for 1) the Supreme Court did not "say no to student loan relief." What the justices said "no" to was plenary unilateral executive (i.e. presidential) action to forgive student loans. This is actually made clear to anybody who makes it to the sixth paragraph of the story, where the reporter (Adam Liptak) correctly characterizes the decision as "the latest in a series of rulings curbing presidential power in the absence of clear congressional authorization."

So, you see, this was not a ruling about whether the federal government could provide student loan relief; it was a ruling about whether congressional authorization was required for the President to act. The Court ruled, in effect, that something Nancy Pelosi (of all people) said some time back is correct (which, in truth, it is): student loan relief is a legislative matter on which the executive cannot act unilaterally (i.e., without legislative authorization). The President is not supposed to be legislating. He is supposed to be faithfully executing the laws enacted by the Congress. The very first word of the first sentence of the first Article in the Constitution is the word "all": "ALL legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Let me let you in on a little secret: By the word "all" the framers and ratifiers of the Constitution meant ... all. Not some. Not most. Not almost all. The legislative power is not shared between Congress and the President. The President doesn't get to legislate. If he wants a piece of legislation (or a whole legislative program) to be enacted, he's got to go to Congress and persuade the people's representatives to enact it.

How about 2)?

Here the misrepresentation is even more egregious (and difficult to explain without reference to ideological partisanship).

The Court in 303 Creative did not confer on the web designer whose First Amendment freedom of speech rights were upheld the right to refuse to do business with ... anyone. The justices in the 6-3 majority did not give her "the right to turn away gay people." What they upheld was her right--and everyone's right--not to be compelled to participate in the crafting or construction of messages that run contrary to one's conscientious beliefs.

Under the ruling (which concerned a devout Christian website designer), an orthodox Jewish calligrapher, doing business with the general public, could not, for example, refuse to do business with a "Jews for Jesus" messianic Jewish person who asked for a card for his friend that simply said "Happy Birthday Shmuley!" He couldn't say, in other words, "I don't agree with your religion, or your interpretation of Judaism, and therefore will not do business with you. Get out of my shop! I'm turning you away." What he could do, however, despite civil rights prohibitions of discrimination based on religion, is refuse the customer's request that he make a poster that says, "Jesus Christ is the messiah long promised to the Jewish people. He is the Son of the living God; the one and only way to salvation. Embrace him, Jewish brethren, or damnation awaits you!" Similarly, he could refuse to make a ketubah (written marriage contract) for a Jews for Jesus Christian-Jewish wedding purporting to be licit under Jewish religious law.

To repeat, the ruling forbids governments from forcing people to participate in the crafting of messages that contradict their conscientious convictions (like the calligrapher's orthodox Jewish religious beliefs). It is an anti-compelled speech case. Its roots are in the Supreme Court's 1943 decision in West Virginia v. Barnette striking down a law compelling Jehovah's Witnesses school children to salute the flag and say the Pledge of Allegiance in violation of their religious convictions. (The Witnesses felt that the ceremony amounted to bowing down before a graven image in defiance of the biblical prohibition of idol worship.)

I believe 303 Creative is an impeccably correct decision. But even if I'm wrong about that--even if the case should have come out the other way--it's not because it created "a right to turn away gay people" or to turn away anybody. It didn't. And, in truth, the website designer hadn't turned away, and doesn't turn, away anybody. In fact, her willingness to serve people irrespective of, among other things, sexual orientation was stipulated to by the parties.

 

As my friend Richard Doerflinger observes:

"Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is 'willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender' and 'will gladly create custom graphics and websites' for clients of any sexual orientation; she will not produce content that 'contradicts biblical truth' regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are 'expressive' and her 'original, customized' creations 'contribut[e] to the overall message' her business conveys “'through the websites' it creates; the wedding websites she plans to create 'will be expressive in nature', will be 'customized and tailored' through close collaboration with individual couples, and will 'express Ms. Smith’s and 303 Creative’s message celebrating and promoting' her view of marriage; viewers of Ms. Smith’s websites 'will know that the websites are her original artwork'; and '[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services'.”

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fourteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2023.  The prize will be awarded at the 2024 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2023.

Smith on "Christians and/as Liberals?"

Friend of the Show Prof. Steve Smith (San Diego) has posted the article-version of a talk he gave at a Notre Dame conference last fall on "Liberalism, Christianity, and Constitutionalism." (Here is an op-ed version of the remarks I delivered at the same event.)  Here is Steve's abstract:

Recently, as part of a more general examination and criticism of liberalism, the relation between Christianity and liberalism has been much discussed. Some critics, sometimes associated with the label “integralism,” argue that Christianity and liberalism are fundamentally incompatible. Examining both consistencies and inconsistencies, this article argues to the contrary that liberalism may be, for now, for us, in our historical circumstances, the alternative that prudent Christians should prefer.

In the paper, Smith engages, inter alia, the versions of liberalism-criticism offered in recent years by Adrian Vermeule, Patrick Deneen, etc.  Here's something from the concluding pages (which, FWIW, seems right to me):

From this point of view, a properly governed and genuinely liberal regime might indeed be the best that a Christian should hope for, short of the end time when (Christians believe) the true King and Prince of Peace will rule. Liberalism might be, to borrow from Winston Churchill, the worst form of government except for all the others. In a genuinely liberal regime, people would be governed by ideals that at least derive from basic Christian beliefs, and by a regime that adopts as its central purpose protecting and promoting the ability of people (including Christians) to live and even to proselytize in accordance with their beliefs. At the same time, such a regime would not adopt the un-Christian and self-defeating tactics of using force and violence to enforce Christian beliefs that are efficacious only if sincerely and voluntarily embraced. The novelist Walker Percy, when asked why he was a Catholic, used to answer “What else is there?” Asked why he or she is a liberal, a Christian today might respond with the same question.

2009 Letter to Ugandan Christian Leaders

The following letter from Charles Colson, Robert George, and Timothy George was sent to Christian leaders in Uganda in 2009 in response to the introduction in parliament of legislation harshly punishing homosexual conduct. Such legislation has now, according to news reports, been enacted. It is being criticized by some American Christian leaders and defended by others. I continue to think that what the late Mr. Colson, Dr. Timothy George, and I said nearly a decade-and-a-half ago is correct.

 

Letter to Uganda Christian Leaders (December 5, 2009)

Beloved Christian Brothers and Sisters of Uganda,

We greet you in the name of our Lord Jesus Christ, and embrace you in the spirit of his love.  As we seek to follow his path, we are inspired by your fidelity to the Gospel and by the example you provide the world of courageous discipleship.

We especially commend your witness to the timeless moral truths that are of the essence of man’s dignity as a creature fashioned by God in his own image and likeness. In the West, many of these truths are under severe attack from those who believe them to be unwarranted impositions on the freedom of the individual to seek his own satisfactions and fulfillment in his own way.  Nowhere is this clearer than in the domain of sexual morality, where actions condemned by divine authority and natural law as contrary to the dignity of the human person are celebrated as expressions of individual autonomy and even personal identity.

We know that it is with dismay that you have observed these attacks and with them a cultural erosion of moral understanding, and we are grateful to you for standing in solidarity with us as we have sought to bear witness to the truths of the Gospel and the dignity of man.  We especially appreciate your support for our work to protect and defend marriage as the life-long, exclusive, and faithful covenant uniting husband and wife.

Brothers and Sisters, we approach you today about a development in your country that is a source of grave concern for us.   We have learned that a bill has been introduced in your parliament that would penalize even a single act of homosexual conduct with life in prison.   Repeated homosexual acts and certain other specified behaviors would be punishable by death.  The harshness of these proposals is, we believe, inconsistent with a Christian spirit of love and mercy.  We urge our brothers and sisters in Uganda to follow the example of Jesus when he was presented with the woman caught in the very act of adultery.   He did not hesitate to call the woman’s offense what it was, namely, a sin; but by his powerful words our Lord prevented her life from being taken by the men who were preparing to stone her to death.  “Go,” he said to her “and sin no more.”

In a spirit of Christ-like love, let us recall that many men and women who experience same-sex attraction struggle to live chaste and holy lives.  Many succeed; yet many sometimes falter.  Is the same not true of all of us?  We are all tempted by the lure of sin, be it in the domain of sexuality or in other areas of our lives.  And none of us is perfect in resisting temptation.  All of us from time to time fall short of fulfilling God’s intention for us, and we therefore stand in need of the Lord’s mercy and forgiveness.  Surely, no one guilty of a single act of homosexual conduct (or fornication, adultery, or other sexual offense) should spend the remainder of his life in prison as a consequence of his sin.  Such harshness, such lack of mercy, is manifestly contrary to the example of our Lord and cannot be given the support of those who seek to follow Christ.  In response to a proposal to punish consensual sexual crimes with such extreme penalties the Christian must surely echo the words of Jesus:  “Let the one who is without sin cast the first stone.”

We recognize that the scourge of AIDS has been devastating to the people of Uganda.   Measures must be taken to encourage faithful marital love and to discourage sexual immorality of every type.   It is critical, however, that these measures be shaped in a just and Christian manner, and not in a punitive spirit.  Harshness and excess must be avoided.  Those who experience homosexual desire and yield to it should not be singled out for extreme measures or for revulsion.  Persons who experience same-sex attraction, whether they struggle to live chastely or, alas, do not, are human beings.  They are children of God made in His very image and likeness.  They are our brothers and sisters.   Christ loves them as he loves all of us.  We must love them, too, even as we encourage them and all men and women—precisely because of our love for them and concern for their well-being—to avoid sexual sins and lead lives of virtue and dignity.

Brothers and sisters, we do not reproach you or hold ourselves out as your teachers.  In so many ways today, you are our teachers.  We recognize that in view of the moral crisis of the West, we are scarcely in a position to lecture to people in Africa and other parts of the world.  We are ashamed of the pornography, promiscuity, and other manifestations of licentiousness that you (and we) find shocking and appalling.  We applaud your desire to prevent such unrighteousness from gaining a foothold in your culture.  You are right to care about the protection of public morals.  You are right to call sin by its name, just as Jesus did.  Our message is simply that the Lord’s example of gentleness and love, of mercy and forgiveness, must be followed, too.  Let all of us, as his disciples strive to be Christ-like in all things.

Yours faithfully,

Charles Colson

Robert P. George

Timothy George 

Higher Education and Institutional Pluralism

Here are some thoughts of mine ("True Campus Diversity") on higher education and institutional pluralism, which might have some relevance to conversations about Catholic higher education in particular.  A bit:

Arguments about diversity in higher education are, of course, both unavoidable and highly charged. Generally, these debates have to do with the use of race in the admissions practices of elite institutions or with the dramatically one-sided make-up of these institutions’ faculty, administration, and leadership. A crucial dimension of the diversity problem, however, is less noticed: In a nutshell, we should be concerned about not only intellectual diversity within institutions, but also meaningful diversity among institutions, that is, what John Garvey, the President Emeritus of the Catholic University of America, called “institutional pluralism.”