Thursday, April 25, 2019
Here at MOJ, we've often discussed the content and application of the core principles of the Catholic Social Thought tradition, including "solidarity." I'm pasting, below, a short reflection that my daughter Maggie (a student at Notre Dame) wrote on the idea:
. . . In his encyclical letter, Spe Salvi, Pope Benedict XVI writes: “the true measure of humanity is essentially determined in relationship to suffering and to the sufferer.” Humanity is measured by the ways in which we live in relationship when it is most difficult. Suffering challenges, breaks, and burdens us. It can quickly isolate us, or separate us from our relationships. When we love well in suffering, not despite of it, we are loving as we are called to. And, this relationship is more than just the acknowledgement of someone else’s suffering: “to accept the “other” who suffers, means that I take up his suffering in such a way that it becomes mine also.”
That, dear readers, is what I want to say that solidarity is. It is shared outrage, sure. It can be a recognition and resistance to injustice, absolutely. But it seems to me that solidarity exists most profoundly where it is hardest to find: in the taking up of another’s cross as my own. By sharing in suffering, being in solidarity with another in their pain, light and love enters in.
In this solidarity in suffering we encounter Christ in a powerful way. Jesus Christ became man so that he could suffer “for and with us”. “Man is worth so much to God that he himself became man in order to suffer with man in an utterly real way” (Spe Salvi). In our pain, underneath the weight of our crosses, we remember that he lived in that same pain, underneath the weight of his own cross. Solidarity is not found in a Facebook-organized leggings protest: it is found on a tree on Calvary.
That is, of course, a challenging example to live out. I do not handle suffering as well as I would like to. When I encounter hurt, it’s often with discomfort. I feel useless, unable to fix things, and eager to escape that feeling. It is easy to feel insufficient when others are suffering. But God is not calling me to be the perfect fix-it-girl. He is not asking me to have all the answers. When I am blessed enough to have a friend approach me in their suffering, they don’t want me to rattle off a solution. They are just asking me to be with them.
As much as I want to fix everything -- to end the hurt, heal the pain, calm the anxiety, shut out any and all darkness -- I cannot do that, for myself or for those I love. What I can do is be in solidarity, simply in presence. For me, that has been a friend sitting with me on a chapel floor, staring at the tabernacle with a friend. It’s been a cold walk around the lakes, or a meal that is longer than it “should” be, because of a conversation that needed to be had. It is, and ought to be, quiet prayer intentions, tight hugs, shared tears, vulnerable moments, and admittance of weakness that allows us to be more fully and completely human.
If we approach solidarity with compassion, if we “suffer with”, we might be able to set aside the instinct to fix, and settle instead for the presence and empathy that we can offer. And, if we enter into that compassion with consolation, if we are with those we love in their solitude, suffering ceases to exist in isolation. We then exist in solidarity, not because we offer solutions but because we are willing to be present.
Solidarity is difficult. Asking for the presence of others, even those you know love you, is hard -- I can be really bad at it. But by entering into real and intentional relationships, we find people than can, imperfectly and temporarily, help us to carry what we must. Those people, in turn, point us to the One that, perfectly and eternally, carries us. . . .
TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
In American Association of Political Consultants, Inc. v. FCC, the Fourth Circuit yesterday held unconstitutional an exemption from the federal ban on automated calls to cellphones. This exemption authorized automated calls that relate to the collection of debts owed to or guaranteed by the federal government. In an opinion joined by Judges Keenan and Quattlebaum, Judge King wrote that the exemption was content-based and failed strict scrutiny, but that it could be severed. The result is that the plaintiffs' political calls remain subject to the general ban.
The Fourth Circuit panel seems to have been tripped up in entanglements among standing, substantive constitutional law, and severability. As a matter of standing, the plaintiffs are injured by the ban, not the exemption for federal debt collections. As a matter of substantive constitutional law, the ban and its exemptions form a single unit for purposes of constitutional analysis. The challenge is to a content-based restriction on speech, not to the exemption itself. If this challenge succeeds, there is no work for severability to do in separating the ban from the exemption; the whole unit is unconstitutional. Severability would keep the rest of the TCPA intact, but the content-based ban should fall because of the exemption it contains.
The appropriate unit of analysis for unconstitutionality varies among various areas of substantive constitutional law. But for freedom of speech purposes, a speech prohibition and its exemptions are a single unit of analysis for purposes of determining whether the prohibition is content-based. Consider, for instance, the ordinance in Police Department of Chicago v. Moseley:
"A person commits disorderly conduct when he knowingly:
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute . . . ." Municipal Code, c. 193-1 (i)
The proviso protecting picketing of schools involved in a labor dispute renders the ban content-based. There is not a first-step consideration of the proviso on its own followed by a second-step severability inquiry.
Another way of thinking about the Fourth Circuit's ruling on the robocall ban is by analogy to R.A.V. v. City of St. Paul. The ordinance in that case provided:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
As authoritatively construed by state courts, this ordinance extended only to fighting words, which are constitutionally unprotected. The ordinance was nevertheless subject to strict scrutiny because of its content discrimination ("on the basis of race, color, creed, religion, or gender") within the otherwise unprotected class. Similarly, a blanket prohibition on robocalls may be perfectly fine on its own, unconstitutional if exemptions from the prohibition render it content-based.
In any event, I'm guessing this is not the last we'll see of this issue. In addition to the plaintiffs in the Fourth Circuit case who are smarting from their Pyrrhic victory, I expect that robocallers in the Fourth Circuit may also be alarmed. "Severance" of the statutory provision making their conduct legal means that their robocalls will be subject to the general ban. That's not how this should have gone. But now that it has, it's going to take some more lawyer and judge time to sort things out.
Saturday, April 20, 2019
Here. A bit:
In “Liberty in the Things of God: The Christian Origins of Religious Freedom,” Robert Louis Wilken provides a wealth of evidence drawn both from major events and seminal texts to show that the unfolding of Christian faith and the development in the West of the idea of individual freedom have been intimately intertwined.
This is not to deny the religious persecution across centuries perpetrated by Christianity. The enforcement of religious orthodoxy and the repression of dissent have been a default option throughout history. What distinguishes Christianity has been the steady and deepening appreciation that its core teachings require not merely toleration — in the sense of grudging or politically expedient acceptance of differences in religious belief and forms of worship — but rather robust freedom because by its very nature faith cannot be coerced. So powerful was this idea within Christianity and so profound has been Christianity’s influence in the West and around the world that it has furnished an “intellectual framework” that established freedom of religion as a basic assumption of liberal democracy and eventually as a fundamental human right. . . .
Thursday, April 11, 2019
On Thursday, May 2nd, the Lumen Christi Institute will host a panel discussion of Rev. Wilson D. Miscamble, C.S.C.’s recent book, American Priest: The Ambitious Life and Conflicted Legacy of Notre Dame’s Father Ted Hesburgh.
I am delighted to serve as the moderator for this panel discussion. The panelists include the book’s author, Father Bill, together with long-time religion writer Ken Woodward, William T. Cavanaugh, a professor of Catholic Studies at DePaul University, and Jennifer Mason McAward, a professor at Notre Dame Law School and the director of the Klau Center for Civil and Human Rights.
When I was an undergraduate at Notre Dame in the early 1980s the joke was: “What’s the difference between God and Father Ted? . . . God is everywhere, and Father Ted is everywhere except Notre Dame.” Father Bill’s book covers the peripatetic life of the Holy Cross priest who raised Notre Dame from a minor Catholic college on the Indiana prairie whose greatest claim to fame was football, to a world-class university. In doing so Father Ted changed not only Notre Dame but Catholic higher education as a whole. But how and at what price?
The panel will address these and other matters on May 2nd in the conference room at Skadden Arps’ Chicago office, 155 N. Wacker Drive. Friends of MOJ and others interested persons are welcome to attend. Registration and additional information are available here.
April 11, 2019 | Permalink
Thursday, April 4, 2019
Here, at Public Discourse, is an essay by Ryan Anderson called "Catholic Thought and the Challenges of Our Time." There's a lot going on in the essay, and I recommend reading the whole thing. Among other things, it engages a topic that has been a focus of the Mirror of Justice project from the beginning, i.e., the importance of a sound, Christian moral anthropology for, well, just about everything. A bit:
The capacity to know right and wrong, good and evil, is key to recovering today a sound understanding of freedom. For the liberty on offer in many post-Christian liberal societies today is not the liberty of the ancient Greeks, Romans, or Christians. For them, the most important freedom was freedom from slavery to sin, freedom for self-mastery. Today we face two competing conceptions of freedom, in what the Belgian-born Dominican theologian Servais Pinckaers has termed a freedom of indifference and a freedom for excellence.
On the modern conception of freedom, freedom is indifferent to what is chosen. What matters is simply that I chose it. Whether I chose to degrade myself or to respect my dignity is ultimately irrelevant, provided that I freely choose either way.
The more traditional understanding of freedom flowed out of a different conception of human nature. If freedom is grounded in man’s rational and animal nature, and in how such freedoms allow man to flourish given his nature, then freedom is directional—it has a purpose, an end, and thus has limits. It is not primarily a freedom from something, but a freedom for something. A freedom for excellence, a freedom for human flourishing.
I read recently a short essay/pamphlet on the nature and mission of Catholic education, published by Notre Dame's Alliance for Catholic Education and written by some friends and colleagues associated with that (wonderful) program. It's called "Education in a Catholic Key" and I recommend it. You can download it here: Download Education in a Catholic Key. Check it out. (And pray that many bishops, superintendents, principals, teachers, and parents do, too!)
Wednesday, April 3, 2019
April 2 was the 15th anniversary of the death of Pope (now Saint) John Paul II. Here is a post I wrote, back in 2005, reflecting on some aspects of his life and legacy that seemed relevant to the work of Mirror of Justice:
Here's a post I did, the day after Blessed Pope John Paul II's death, back in April of 2005:
I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example. It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory. A few thoughts:
First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth. His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life. We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural. And, he recognized, law both shapes and is shaped by culture.
Second, the Pope returned again and again to the theme of freedom. Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner. It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.
Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives. This proposal seems particularly powerful when it comes to the matter of religious freedom.
Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.
Monday, April 1, 2019
For readers in the Philadelphia area: the McCullen Center at Villanova will host its annual symposium on Catholic social thought and law on Tuesday, April 2 at 3:00pm. This year's symposium will focus on my colleague Mary Hirschfeld's exciting new book, Aquinas and the Market: Toward a Humane Economy (Harvard University Press, 2018). Respondents will be Jonathan Klick (Penn Law), Russ Roberts (Hoover Institution and host of "EconTalk"), and Thomas Smith (Villanova). Details here.
Thursday, March 28, 2019
I'm pleased to return, in the latest issue of First Things, to a subject that is dear to my heart, i.e., the statue of "Big Mountain Jesus" at Whitefish Ski Resort in northern Montana. My paper, "Equitable Establishments", is also available on SSRN for download. Here is the abstract:
This paper, which was prepared for discussion at the May 2018 Dulles Colloquium, convened by the Institute for Public Life, engages current discussions and debates regarding the nature of “liberalism” and the content of “religious freedom.” It considers, specifically, whether a “liberal" political community may and/or should recognize or establish a religion, drawing on the Second Vatican Council's “Declaration on Religious Freedom.” And, it addresses the controversy surrounding “Big Mountain Jesus.”
And, here's a quote:
First, it is not the case that political morality necessarily requires that societies—or political authorities or states—be liberal, or liberal in the same way. There have been, are, and will be some political communities that probably don’t count as liberal but still protect the well-being of persons, promote their flourishing, and observe the constraints that political morality imposes. To ask, then, whether a liberal society can favor one religion over the others is not simply to ask whether political morality permits (or requires) such favoring. I am inclined to think that at least some of the various features of liberal regimes and societies are morally required, but again, perhaps not all are.
Next, there is the related point that not every institution, association, or enterprise within a liberal society—or, that is governed by a liberal political authority—needs to be liberal. Quite the contrary: The political authority in a liberal society must not only tolerate, but also affirm and support natural and social elements that are themselves not liberal. The ontology of a liberal society need not be liberal “all the way down.” And so, whatever the answer is to the question whether a liberal order can prefer one religion over the others, it should be clear that such an order can, does, and should include societies that can, do, and should.
Third, it should be acknowledged that some ostensibly liberal societies and regimes do favor one religion over others: namely, a religion of liberalism. Indeed, to use the word “favor” might be to put things too delicately or to undersell the enterprise of muscular, evangelizing, “progressive” liberalism. While litigants have attempted and failed to convince American judges to label the secular humanism proposed (or imposed) in public schools as a religion, it does seem right to say that, at least in some of its manifestations, “liberalism has a sacramental character.”
Feedback is welcome! Thanks to the First Things team for including me in the magazine.
Tuesday, March 26, 2019
This event looks great!
Rémi Brague Sorbonne, Ludwig Maximilian University of Munich
Daniel Mahoney Assumption College
Gladden Pappin University of Dallas
Mary Keys University of Notre Dame
Looking at leading philosophers and political theologians—among them Joseph de Maistre, Alexis de Tocqueville, and Charles Péguy—Perreau-Saussine shows how the Church redefined its relationship to the state in the long wake of the French Revolution.
Disenfranchised by the fall of the monarchy, the church in France at first embraced that most conservative of ideologies, "ultramontanism" (an emphasis on the central role of the papacy). Catholics whose church had lost its national status henceforth looked to the papacy for spiritual authority. Perreau-Saussine argues that this move paradoxically combined a fundamental repudiation of the liberal political order with an implicit acknowledgment of one of its core principles, the autonomy of the church from the state. However, as Perreau-Saussine shows, in the context of twentieth-century totalitarianism, the Catholic Church retrieved elements of its Gallican heritage and came to embrace another liberal (and Gallican) principle, the autonomy of the state from the church, for the sake of its corollary, freedom of religion. Perreau-Saussine concludes that Catholics came to terms with liberal democracy, though not without abiding concerns about the potential of that system to compromise freedom of religion in the pursuit of other goals.
Monday, March 25, 2019
Remarks delivered at a book talk organized by the Harvard Law School Library, in response to a talk by Prof. Claire Finkelstein based on “Sovereignty and the New Executive Authority” (Finkelstein and Skerker, eds. 2019).
The Irrelevance of the “Rule of Law” after 9/11
In light of the many issues raised by the book and by Prof. Finkelstein’s talk, I can’t hope in ten or twelve minutes to do more than make one substantial point, a point that aims to kill as much fun as possible. I suggest that there has been no significant issue about the relationship between the executive and the rule of law at least since 9/11. Everything that has occurred, every controversy surrounding presidential or executive authority, has been entirely internal to the ordinary practice of legalism and has involved applications of ordinary legal standards and arguments that are theoretically banal, however great their practical importance — with one arguable exception I will mention at the end.
Overall, when people think they are raising issues about the rule of law, they are usually raising issues about the sweeping delegations of statutory authority to the executive, especially in matters of national security and immigration, that have occurred during and after World War II and after 9/11. Complaints about delegation can be circuitously phrased as complaints about some enhanced or “thick” version of the rule of law, which attempts to fold into itself human rights, liberty, and all other good things. But delegation remains the central issue, so very little is gained by talking this way, while confusion is introduced about the real sources of executive authority.
Let me begin with a legal analogy, based on a reasonably obscure Supreme Court case from 1994 called Dalton v. Specter, involving the Defense Base Closure and Realignment Act of 1990. The suit attempted to enjoin the Secretary of Defense from carrying out a presidential order, under the Act, to close the Philadelphia Naval Shipyard. The Court, through Chief Justice Rehnquist, held that the claims were not reviewable. The President’s order could not be reviewed under the Administrative Procedure Act for conformity to statute because, the Court had previously held in Franklin v. Massachusetts, the President did not count as an “agency” under that Act.
To circumvent this barrier, the litigants attempted, and the Court of Appeals endorsed, an ingenious theory: any claim that the President has exceeded his statutory authority is always, and necessarily, a constitutional claim, which was reviewable notwithstanding Franklin. After all, the theory ran, if the President lacks statutory authority to do X, and supposing there is no independent grant of constitutional authority to do X, then under the majority opinion in Youngstown Sheet & Tube v. Sawyer, the President would violate the Constitution by doing X.
The Court would have none of it; the Chief observed that such a gambit would eviscerate the ordinary distinction between executive action that is unconstitutional and executive action that, purportedly resting on statutory authority, merely turns out to be ultra vires, in excess of that authority — as in every ordinary administrative law case. And, the Court added, the rule of law is just as fully vindicated when the courts hold that executive action is committed to executive discretion by the law itself, as it is when courts review and overturn executive action.
Dalton v. Specter captures, by analogy, a crucial point about executive power and the rule of law: when the executive appeals to ordinary positive legal authority, such as a statute, there is no threat to the rule of law and no interesting issue of grand theory, even if the executive’s appeal is mistaken, in our judgment or even in the judgment of a court, and even if the executive has acted arbitrarily or abused its legal discretion. After all, we don’t think that the “rule of law” is implicated in any unusual or illuminating sense whenever the DC Circuit decides that an administrative agency has transgressed the bounds of its statutory authority by offering an unreasonable reading of the law, or even acted “arbitrarily and capriciously,” as happens approximately once per week. That sort of high-level talk seems unnecessary; we can just do administrative law from within.
Let me now turn to the Presidency where the same points apply, mutatis mutandis, as I have argued (along lines somewhat similar to those that Jack Goldsmith argued independently). The beginning of wisdom here - I use my categories, not Goldsmith’s — is to distinguish between what Commonwealth lawyers call “extraordinary prerogative” and “ordinary prerogative.” Ordinary prerogative is internal to the legal order; it includes the prerogative powers of the Crown that are themselves granted — at least arguably — by ordinary legal sources and authorities, common law or statute or, in our system, granted to the President by the written Constitution itself. Extraordinary prerogative arises when the executive genuinely acts outside the legal order or contrary to it (usually in the name of saving the legal order in some higher sense). Note that ordinary prerogative includes both cases in the so-called Category 1 of Justice Jackson’s Youngstown concurrence, where the executive acts under expressly delegated statutory authority, and Category 3 cases, where the executive claims that positive constitutional powers trump contrary statutes.
My thesis, then, is that approximately all assertions of presidential and executive authority since 9/11 have involved ordinary prerogative — usually on the basis of statute (Category 1), very rarely on the basis of constitutional authority said to override statute (Category 3, as in the bipartisan position of Presidents Bush and Obama that led to the second Jerusalem Passport case), but always within the enacted legal order, at whatever level.
To be sure, our history has seen genuine assertions of extraordinary prerogative on the part of Presidents, such as some but not all of Lincoln’s actions at the beginning of the Civil War, or FDR’s rather chilling warning to his Attorney General (intended to be passed on to the courts?) that he would ignore a judicial writ of habeas corpus in favor of Nazi saboteurs, in the events that lead up to Ex Parte Quirin. Since approximately World War II, however — and certainly since 9/11 — there has been little to no need for such things and precious few examples, in large part because Congress has delegated such sweeping powers to the executive, under statutes both broad and vague or ambiguous. And the courts have upheld those delegations even when the delegation itself has involved so-called “emergency” powers, as when the Court upheld the Emergency Price Control Act of 1942 in Yakus v. United States (1944). One might or might not find such delegation objectionable — I do not — but that is the main issue, and talk of the rule of law is largely otiose, at worst misleading.
I want to give one current example, one that has produced an outsized share of hysteria in recent months: the National Emergencies Act and President Trump’s associated proclamations. It seems counterintuitive to many people, but it is nonetheless true, that there is literally nothing interesting in this episode about the rule of law, at least in any sense that is not also implicated when EPA has to meet a claim that it has exceeded its authority or acted arbitrarily under, say, the Toxic Substances Control Act.
First of all, the administration points to one major source of statutory authority that has nothing to do with emergencies at all: a statute signed into law by President Obama on December 23, 2016, codified at 10 USC 284, that authorizes the Secretary of Defense to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Now, the administration might be right or might be wrong about whether this express statutory delegation does or does not cover what it proposes to do, but so might EPA in its toxic substance litigation. Talk of the rule of law is not an illuminating frame for the resulting legal discussion. There is no need to ascend, theoretically, to Hobbes, Locke or Hart.
Secondly, the administration points to statutes such as 10 USC 2808, which contain authorities triggered by a declaration under the National Emergencies Act — in this case, the following authority: “in the event of ... the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military constructionprojects” by spending appropriated but unobligated funds. Now, insofar as we focus on the substantive delegation here, 10 USC 2808, the same logic I mentioned applies; it’s an ordinary administrative law question whether the statues do or do not authorize the presidential action. The National Emergencies Act, for its part, is an explicit delegation to trigger authorities in other laws by proclamation. That might or might not itself be objectionable on nondelegation grounds as open-ended — that conversation would have to start with the observation that “emergency” is a somewhat misleading term of art in our law, given the dozens of statutory “emergencies” declared and ongoing by every administration since 1976, which often persist for years — but presidential action under it raises no particular or special concerns about the rule of law.
Finally, I mentioned at the outset one caveat to the suggestion that there have been no interesting rule-of-law issues surrounding executive power since 9/11. The caveat involves some of the episodes in the so-called “Resistance” to the Trump Administration, such as the decision by Sally Yates to instruct DOJ personnel not to enforce a presidential order that OLC had determined was lawful, on the grounds that in her view it was not “wise or just” and that she was, herself, “not convinced” of its legality. Of all the colorful dramatis personae of the Trump administration, Yates came the closest to declaring herself a Schmittian decisionmaker who personally determines when to make an exception to legal rules out of necessity, in order to ensure that the state takes no harm, to use the old Roman formulation. It was a failed declaration, of course, but a clear attempt at least. It is something of a puzzle why theorists interested in discussing the rule of law do not focus on such cases, which at least supply genuine material. Let me recommend, as a useful citation for those interested in the Yates case, an article Professor Fried wrote in a somewhat different context, entitled simply “Impudence.”
March 25, 2019 | Permalink
Today is the fifth anniversary of the oral argument in Burwell v. Hobby Lobby Stores, Inc. The date is easy enough to remember for Catholic lawyers, for it is only necessary to associate the date of oral argument with the Feast of the Annunciation, which we celebrate on March 25 each year. This correspondence between the litigation calendar with the liturgical calendar is one of a handful of others that came up during the course of the religious freedom litigation surrounding the contraceptives mandate.
March 25, 2019 | Permalink
Saturday, March 23, 2019
A worth-reading paper by Dr. Joel Harrison (Sydney). Here's the abstract:
This article examines Pope Francis's understanding of the relationship between church and state, the ends of civil authority, and the importance of religious liberty. It argues that Francis challenges claims made by legal and religious scholars that civil authority must be neutral as to religious ends. Francis, the article contends, uses the categories of idolatry and solidarity as opposing ends that are cultivated by civil authorities caring for, most notably, the economy and the environment. Both are religious. Idolatry is the solipsistic pursuit of created things as an ultimate end and solidarity entails living in communion with God and others. The article further considers how these arguments have shaped Francis's views on religious liberty. Francis points to the importance of civil authorities respecting conscientious objection, the desirability of cultivating healthy pluralism, and religious liberty as securing the end of solidarity. This presents two challenges: first, to recent legal scholarship questioning the special importance of religious liberty; and second, to the exercise of religious liberty itself. If religious liberty is protected for the end of solidarity, can it be exercised wrongly? The article concludes by considering the Supreme Court's 2014 Hobby Lobby decision.
I note that Harrison has a book forthcoming from Cambridge University Press, Post-Liberal Religious Liberty, for which I'll be keeping my eyes open. (I note that Harrison generously engages with a number of my own papers. Thanks!)
As I discussed in this post, from 13 years ago (!), I have constrained enthusiasm for restrictions on the death penalty that are the result of either unsound constitutional interpretation or executive overreaches. Gov. Gavin Newsom's defense of his recent announcement of a "moratorium" on capital punishment in California is, I believe, an example of the latter. Let's put aside questions we might have about whether his stated reasons are his actual reasons. Let's put aside also questions we might have about the plausibility of his statement that "[o]ur nation . . . looks to California for solutions that work and reflect our highest moral values." In my view, his claim that he speaks for California and that he is acting "under [his] authority as governor" are very difficult to square with the fact that "California" just three years ago (a) rejected a ballot initiative that would have ended capital punishment and (b) adopted an initiative to speed up appeals and executions in capital cases.
Most of what Gov. Newsom says about capital punishment is, in my view, true and if I were a voter or a legislator in California I would vote to repeal the death penalty. But, if the rule of law matters, then process matters as well as policy.
A good read, and a good reminder. Plus ça change . . .
It’s not surprising that Buck v. Bell was decided in the Roaring Twenties, a decade even more culturally charged than the one we live in today. The Ku Klux Klan was riding a wave of anti-Catholic, anti-Semitic fervor, creationists were battling Darwinists over the teaching of evolution, and Prohibition was pitting rural Protestant values and prejudices against a looser, more diverse urban culture. In Washington, Congress was busily writing the most restrictive immigration law in our history, the National Origins Act, to protect the country from foreign contamination. In the words of The Saturday Evening Post: “If America doesn’t keep out the queer, alien, mongrelized people of Southern and Eastern Europe, her crop of citizens will eventually be dwarfed and mongrelized in turn.”
According to Thomas C. Leonard, who teaches at Princeton, the driving force behind this and other such laws came from progressives in the halls of academia — people who combined “extravagant faith in science and the state with an outsized confidence in their own expertise.” “Illiberal Reformers” is the perfect title for this slim but vital account of the perils of intellectual arrogance in dealing with explosive social issues. Put simply, Leonard says, elite progressives gave respectable cover to the worst prejudices of the era — not to rabble-rouse, but because they believed them to be true.
Friday, March 22, 2019
Remarks I delivered today at the Center for the Study of the Administrative State’s excellent conference on “Religion and the Administrative State.” The panel began with a paper by Mark Rienzi of Catholic University. This was my response.
Bureaucracy and Mystery
(Conference on “Religion and the Administrative State,” March 22 2019)
Thanks to Andrew Kloster and Adam White for having me here. Despite several kind invites from Adam over the years, this is my first time at both the Scalia School of Law and at the Center for the Study of the Administrative State, so it’s a great pleasure.
I’m here as a scholar of administrative law who has relatively little expertise in law and religion and doesn’t work in that field directly. In that regard I both greatly enjoyed and profited from Mark Rienzi’s excellent paper. It seems to me the core descriptive observation of the paper must be correct: that SCOTUS law has seen, over recent decades, an increase in the number of cases in which a conflict over religion was caused by an administrative action, rather than an act of legislation. It rings true immediately; it fits our experience and fits the data.
In formulating this observation we have to be a bit careful, legally, because there is a tricky argument that there can be no such thing as an exercise of administrative authority in its own right. The antinomy would run as follows: either the administrative act has, or does not have, legislative authorization. If it does not, then it fails independently of any religion-related issues. If it does, then legally speaking the real cause is the legislative decision to authorize the agency to take that act. On this view, there would be no such thing as an act of administrative power that should be classed as an alternative to an act of legislative power, as Rienzi does. Still, we know what Rienzi means and what he is referring to: there has plausibly been an increase in discretionary agency actions that impinge upon religious values, actions that, while authorized by statute, are not required by it and that seem to rest on the agency’s pursuit of a mission that is either heedless of or affirmatively hostile to religious perspectives.
So the main observation of the paper seems true and important. When we come to discuss the causes of the phenomenon, however, I began to be inclined to dissent in part. It seems to me that the paper might be read to assume that there is some intrinsic tension or conflict between the growth of administrative bureaucracy and religious commitments, such that the administrative state is mainly to be understood as a threat to religious values. Rienzi, for example, suggests that specialization is a structural cause of administrative conflict with religious values: “In the exercise of their specialized mandates, agencies will be more likely to have a single-minded focus on a particular goal, and therefore more likely to undervalue, ignore, or simply be unaware of competing interests that are outside of their specialty field.”
I don’t quite see why this makes agencies structurally prone to ignore or discount religious values in particular. Everything depends on what is defined as inside or outside any given agency’s area of specialization and substantive mission. Consider what is by many measures the largest and oldest continuous bureaucracy in human history: the Catholic Church. Here we have institutional specialization raised to an art form; consider the Roman Curia, with its literally Baroque divisions and subdivisions. One might say that the genius of Catholicism is precisely the marriage of bureaucracy with mystery. Indeed Carl Schmitt once joked that Catholicism triggers special horror in the Anglo-Saxon mind because it combines two things that the Anglo-Saxon cannot abide: bureaucracy and celibacy.
What matters, then, is not specialization in itself, because specialization is an intrinsically neutral institutional technology. What matters, rather, is the substantive content of the mission that bureaucracy is entrusted with. Now, it is undeniable that policy making by our American bureaucracy has, for complicated historical reasons, come to be largely defined as a “secular” liberal-technocratic enterprise. (I have put “secular” in scare quotes because I think the American liberal-technocratic enterprise itself flows from a very particular set of recognizably religious commitments, whether or not its holders describe themselves as such. That set of commitments is an odd and distinctive mix of Pelagianism and immanentized historical providentialism, and that when the bureaucracy carries out policies justified with reference to cost-benefit analysis it is often demonstrably engaged in a kind of faith-based initiative. But all that is a conversation for another time). In recent decades, as one and arguably both of the major political parties has come to be dominated by an increasingly “secular” urban liberal bourgeoise, it should be no surprise that we have seen agencies pursuing missions that are hostile to, or at least heedless of, religious values. The most striking examples of administrative hostility to religion, in my view, have not arisen from autonomous mission-oriented administrative action gone off the rails, without political direction, but instead have arisen precisely in areas where the incumbent White House has had a clear ideological and political worldview that was explicitly or implicitly communicated to, and pursued by, the bureaucracy. I would suggest that the policy choices related to the contraceptive mandate that led up to the Zubik episode in the Supreme Court, as well as the Solicitor General’s notorious warning or threat during the oral argument in Obergefell that the administration would consider denying tax exemptions to faith-based universities, both fit this description.
So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication. As a kind of complement or counterpoint to Rienzi, then, I want to very briefly envision a different relationship between administrative bureaucracy and religion, one in which bureaucracy could be seen as a useful positive instrument for the promotion of religion, rather than only as a threat. Again, I by no means deny it can be a threat, just as the kitchen knife that serves the family can accidentally cut people, and can even be deliberately turned to bad ends. But we still keep knives in the kitchen.
Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.
Under the heading of “clearing away obstacles,” we might find the work of bodies like the new religious liberty office in HHS, or similar bodies in, say, the Department of Education that could monitor universities, schools and local school boards. All the quasi-coercive apparatus of administration that libertarians love to hate — Dear Colleague letters, interpretive rules, Auer deference, implied threats to cut funding, vague but ominous warnings — can be brought to bear on recalcitrant universities and other institutions that threaten the religious exercise of students, faculty, or other constituents. An inspirational model here is the Executive Order signed on March 21 requiring universities to respect free speech principles, on pain of losing funding. With respect to the for-profit sector, consider cases like Patterson v. Walgreen, just granted by SCOTUS, in which the question is whether a firm may require an employee to appear for training on a Saturday, in violation of the employee’s Sabbath devotion. There is no reason why relevant federal agencies cannot use their array of instruments to nudge employers to grant generous accommodations in such situations.
Under the heading of “affirmative promotion,” one can imagine a variety of initiatives that might bring faith-based perspectives to regulation. Apart from program-specific offices, one might think more ambitiously about a general executive order, perhaps folded into the existing executive orders governing OMB and OIRA, that would require all agencies to consider religious values when regulating, just as they were instructed by President Obama’s Executive Order 13,563 to consider vaguely defined values favored by the Religion of Humanity, namely “equity, human dignity, fairness, and distributive impacts.” This sort of procedural requirement— call it a “religious impact statement” — would amount to something like an expansion, clarification, specification and more direct application to OIRA of President Trump’s Executive Order on religious liberty and free speech from May 2017, and the subsequent implementing guidance from the Attorney General.
In a kind of maximum programme - at least, the maximum that can be imagined within the confines of our liberal institutions, for now - one might even imagine a day when the law of judicial review of agency action will itself build in scope for administrative promotion of religious values, above and beyond statutes like RFRA. The possibilities are manifold; I’ll mention only a few. We might imagine a general substantive canon of construction, for example, under which statutes would be construed, where fairly possible, not to encroach on religious values. This would be no more or less justifiable than any number of other substantive, value-laden interpretive canons in our law. Under arbitrary and capricious review, likewise, we might imagine a world in which agencies would have discretion to appeal to religious values as justifications for agency action, where statutes are otherwise silent or ambiguous. If, as a number of administrative law scholars now believe, it is legitimate for agencies to appeal to the “political philosophy” of the incumbent administration, it is hard to see why religious values should be on a different footing. Such values are in my view part and parcel of every political philosophy, in one form or another. As Cardinal Henry Edward Manning argued, all political conflict is ultimately theological.
I merely throw out these speculative possibilities as discussion fodder, but I do think they are within the range of the thinkable, however remote from current law they may or may not be. Many stranger metamorphoses have occurred in our law over the decades and centuries. In any event, however plausible or implausible such a possible future may be, the existence of the possibility itself demonstrates my point, that the administrative state and its accompanying law are orthogonal to, rather than intrinsically opposed, to religious values, and — in the right hands — can be put into service in order to promote them.
March 22, 2019 | Permalink
The headline to the story in the Washington Post, linked above, may seem innocuous to the everyday consumer of news, but such a reaction only testifies to how successful the media have been in framing the issue. Indeed, the headline to the story tells you all that you need to know about the media and its never ending quest to portray the pro-life movement as ineluctably religious—a cabal of fanatics bent on imposing a particular tenet of Christian belief on an unwilling, secular and pluralistic society.
This headline is only the latest example of a long-running phenomenon.
In the 1960s, well before the Supreme Court’s decision in Roe v. Wadecreating a constitutional right to abortion, the media propagated and honed this narrative. For example, on April 5, 1965, CBS News broadcast a documentary “Abortion and the Law” hosted by Walter Cronkite. (The video was available on YouTube and the CBS News site, but has since been taken down). As Clarke Forsythe notes in his book Abuse of Discretion: The Inside Story of Roe v. Wade (2013)(p. 67), “the program framed the Roman Catholic Church as the only opponent of ‘reform,’ and the only argument against abortion as an ‘ethical or religious’ one.” Framing the pro-life movement in this manner, the documentary served as “a powerful advertisement for the repeal of abortion laws” (p. 68). Indeed, according to Germain Grisez in his book Abortion: The Myths, the Realities, and the Arguments (1970), the ostensibly neutral press was “so effective in promoting the pro-abortion cause” in the program that it was “subsequently widely used on film by groups favoring relaxation of the laws” (p. 214).
Likewise, when the television networks announced the Court’s decision in Roe, they immediately framed it in terms of liberty and privacy on the one hand and a sectarian religious viewpoint on the other. On January 22, 1973, the day Roe was decided, CBS News on its evening broadcast chose to depict opposition to the Court’s ruling in religious terms, featuring a Catholic priest as the spokesman for the pro-life movement (see video here). The network did not analyze the arguments against abortion exposing their supposedly religious premises. It believed more strongly in the power of suggestion. CBS could have turned to any number of prominent women leaders in the pro-life movement, but the network chose to show the nation a man—a Catholic priest in a Roman collar.
In the years immediately following Roe the media demonstrated an unwavering commitment to this narrative. On April 23, 1978, CBS News broadcast a television program entitled “The Politics of Abortion” hosted by Bill Moyers. As John Noonan notes in his book A Private Choice (1979) (p. 78), “The program opened with a shot of a priest selling rosaries; the camera then panned to a statue of the Virgin Mary.” This is how the network chose to characterize the participants in the March for Life. “Without words the camera let the hawker of religious goods and the image of the Virgin declare that whoever was there was guilty of mariolatry and a probable bigot.” The show also featured “[a] priest in clerical dress . . . preaching against abortion in a pulpit. The bishops’ spokesman on abortion, Monsignor James McHugh, was interviewed presenting the Catholic opposition to abortion.” As Noonan observes, the program did not mention the deep scholarly criticism of Roe or the widespread opposition to abortion in various religions. Instead, “[t]he message of the program was that Catholic theology, conveyed by priests at the beck of bishops to a fanatical laity, was the basis for the opposition to the funding of abortion and the reason for discontent with [Roe and Doe].”
This practice of portraying the pro-life cause as a peculiarly Christian and specifically Catholic crusade has continued up to the present day, of which the Washington Post piece is but the latest example. More certain in practice than Godwin’s Law is the likelihood that, in a newspaper article or television report on abortion, the pro-life cause will be attributed to religious sentiments, suggesting—sometimes overtly, but more often indirectly—that the pro-life cause is religious at its foundation and that this precludes its legitimate inclusion in the formation of public policy.
As an example of this indirect approach, the Washington Post story linked above does not analyze any of the arguments behind the Trump administration’s policies concerning abortion for signs that these policies constitute an establishment of religion. It merely identifies those seeking to advance these policies as conservative “Christians,” and it refers to a group aligned with the administration’s efforts as “a think tank with Catholic ties.” Written as a smear, this identification does all the work that needs to be done. It clearly communicates the only idea that needs to be conveyed: The policies that these individuals and groups seek to advance are wrong not simply because they restrict access to abortion. They are wrong because they are religious, promoted by religious actors.
As such, the headline to the Post story alone succinctly captures the narrative that the mainstream media and those on the political Left use to frame the abortion issue: Free and open access to abortion is an unqualified good—one that should be enjoyed by women around the world. A tiny minority of determined Christian theocrats in government, together with a network of religiously affiliated misogynist NGO’s, conspire behind the scenes to undermine a cherished human right.
If asked to explain it, members of the media would no doubt aver that the act of reporting the religious identity of “anti-abortion” political actors is straight news reporting. But such an assertion is hardly credible. The tell-tale sign that the reporting of abortion opponents’ religious affiliation is not news is that the media does not report the religious identity of those who defend and promote the abortion license as a matter of course. This fact is deemed irrelevant to the meaning of the policy itself. But on their face, the substance of pro-life measures are not religious, but secular—the preservation of innocent human life. The alleged religious quality is only an accusation. This religious quality is derived from the presumed motivation of its sponsors. But why isn’t the motivation of abortion supporters subject to similar suspicion and scrutiny? Yet the media never report the religious affiliation of abortion supporters unless doing so will support the narrative, as when a clinic worker or abortion activist is identified as Catholic or Evangelical. Their support of abortion is meant to signify that people can resist the theocratic impulse that their co-religionists fail to overcome.
Why do authors in the media continue to frame the story in this way? No doubt because they judge it effective in achieving the ends sought. They continue to trade on the libel that Catholics are untrustworthy as citizens – that they are conspiring to undermine the religious neutrality of our pluralist society. While they do not call pro-lifers “papists” they want the public to smell the gunpowder that Guy Fawkes plans to set alight. And so they regularly employ a casual slur that enjoys the plausible deniability of mere description.
No matter the cost to our republic, no matter the harm caused in rending the social fabric, the proponents of abortion in the media and elsewhere seem determined to perpetuate a lie, all in order to preserve the abortion license. Just to let the killing go on.
This is a shameful and despicable tactic that should be called out at every turn.
March 22, 2019 | Permalink
Thursday, March 21, 2019
I’ve published a new article, Religious Freedom and Nondiscrimination, based on an address at Loyola University-Chicago’s symposium on “The Question of Religious Freedom: From John Courtney Murray and Vatican II to the Present.” The symposium papers (vol. 50, issue 1) are from an excellent list of people, including MOJ-friend Kathleen Brady, the leading theological ethicist Robin Lovin, Loyola’s Miguel Diaz (who chaired the event), Leslie Griffin, and others.
My piece can be downloaded at SSRN; here is the abstract:
This essay explores two theses about the relationship between religious freedom and nondiscrimination. First, nondiscrimination is a crucial component of religious freedom: such freedom must be equal for all religious positions. Religious freedom for some faiths more than others is not truly religious freedom: rather, it is a policy for advancing the favored faiths or their sociopolitical goals. We see this tendency operating today, for example, in that some conservatives speak strongly of religious freedom but oppose equal freedom for Muslims. The essay discusses (examining the Trump travel ban and other disputes) why that attitude is wrong in principle and misguided, as a matter of prudence, for social conservatives' own religious-freedom claims. The essay also discusses the prevalence of hostility toward conservative Christians.
Second, religious freedom is a value independent of nondiscrimination. Equality for various faiths is little comfort without a baseline guarantee of actual freedom, including room to exercise religion aspects of life beyond worship: charitable work and daily life. Moreover, sometimes the values of religious freedom and nondiscrimination come in conflict: when they do, we must give weight to both of these important values, and in particular, not simply subordinate the value of religious freedom to the value of nondiscrimination. The essay gives reasons for protecting religious freedom as well as nondiscrimination, outlining parallels between the constitutional claims of LGBT persons and those of religious objectors to same-sex relationships. Finally, the essay suggests means for giving substantial protection to both rights.
I’ve published a chapter in the excellent new book edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and The Prospects for Common Ground (Cambridge University Press 2018). The chapter is titled “Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good.” The chapter can now be downloaded at SSRN; here is the abstract:
Recently, religious organizations seeking protection from government restrictions have emphasized that they seek “freedom to serve” others in their anti-poverty, social-service, healthcare, or educational work. The U.S. Catholic bishops have made that phrase central to their campaign for religious liberty in disputes over organizations’ objections to same-sex marriage, the Obama administration’s contraception mandate, and other rules. This argument, defending religious freedom based on its contribution to social good, is worth examining in detail. Although the “common good” argument raises complications, this Chapter asserts that when properly defined, the argument reflects a legitimate, indeed important strain in America's tradition of religious-freedom rights. In a roughly analogous way, the chapter asserts, constitutional rights to same-sex-marriage found support in considerations of the common good as well as individual autonomy. Recognizing this parallel, and others, between marriage rights and religious-freedom rights might encourage us to give weight to both. The chapter then catalogs the contributions of religion and religious organizations, responds to objections that may be raised, and suggests principles for the proper scope of religious freedom in light of other interests.
Tuesday, March 19, 2019
I appreciated and enjoined this essay by John Schwenkler, at Commonweal, on Elizabeth Anscombe. A bit:
One of the things that will likely strike the reader who turns to these essays is the unflinching confidence and literalness with which Anscombe articulates and defends traditional Christian doctrine. Her teacher Wittgenstein is a likely influence here: he insisted that in doing philosophy we should avoid falling back on abstractions and technical jargon, and should put things instead in words that could be at home in everyday life. Anscombe’s brilliant essay “On Transubstantiation,” published by the Catholic Truth Society in 1974, showed what it would be to take this approach in the way we speak about the Eucharist:
It is easiest to tell what transubstantiation is by saying this: little children should be taught about it as early as possible. Not of course using the word “transubstantiation,” because it is not a little child's word. But the thing can be taught, and it is best taught at Mass at the consecration, the one part where a small child should be got to fix its attention on what is going on. I mean a child that is beginning to speak, one that understands enough language to be told and to tell you things that have happened and to follow a simple story. Such a child can be taught then by whispering to it such things as: “Look! Look what the priest is doing…. He is saying Jesus’ words that change the bread into Jesus’ body. Now he’s lifting it up. Look! Now bow your head and say ‘My Lord and my God,’” and then “Look, now he’s taken hold of the cup. He’s saying the words that change the wine into Jesus’ blood. Look up at the cup. Now bow your head and say “We believe, we adore your precious blood, O Christ of God.” This need not be disturbing to the surrounding people. If the person who takes a young child to Mass always does this (not otherwise troubling it), the child thereby learns a great deal.
Thursday, March 14, 2019
I have an essay in the latest issue of First Things ("Mild and Equitable Establishments") in which I get to reflect on, among other things, the constitutional status of "Big Mountain Jesus" -- a memorial put up by the Knights of Columbus in the 1950s to commemorate the Tenth Mountain Division. Among other things, I consider whether and in what ways a "liberal" political community may recognize, acknowledge, and even in some senses prefer or establish a religion. Check it out.
Wednesday, March 13, 2019
Indeed, it is. (If you have not read Jack Coons's 1992 First Things essay, "School Choice as Simple Justice", you should.) And, there's also this article, that I wrote with Prof. Nicole Stelle Garnett, School Choice, the First Amendment, and Social Justice.
Here is the interview with Purdue's president, Mitch Daniels. Among other things:
The starting point for me has always been that [the debate over school choice] needs to be defined by a term which has been, I think, improperly appropriated by others: This is a social justice issue. Social justice, first of all, cannot be allowed to [only] mean taking money from A and handing it to B. That can occasionally be just. But what is just is one of the fundamental questions always. And everybody should be able to approach it and lay claim to it if they have a good argument. So whatever social justice is, enabling poor people to have the same choice about one of the most fundamental of life's decisions—the education of their child—qualifies, and so I always talked about it that way.
I think there's very good evidence that competition improves education both in the voucher schools and in the surrounding public schools. And we've seen it here. But I think you start the argument with simple fairness and equity for those less fortunate, and that gets you a certain distance. Now, there is no special interest in our society as strong, as stubborn, as well-funded, and as permanent as the public education establishment. And there is no argument one can make—certainly not one based on welfare of children or better results—that is persuasive to folks who believe that the system itself and the adults in it are the primary priority. So to answer your question: You have to get to a political equation where you can pass these things over their efforts, which are always very sophisticated, well-funded, and untiring.
Sunday, March 10, 2019
Prof. Carl Esbeck (Missouri) sent along this comment on the Memorial Cross case that was argued recently at the Supreme Court. I am re-posting it here with his permission:
The Bladensburg WW I Memorial Cross:
Government Expression of Religious Content and the Establishment Clause
On February 27, 2019, the Supreme Court of the United States heard oral argument in consolidated appeals Nos. 17-1717 and 18-18, involving the Town of Bladensburg World War I Memorial in the shape of a Celtic-style Latin cross said to be in violation of the Establishment Clause of the First Amendment. The American Humanist Association had sued the Maryland-National Capital Park and Planning Commission, a bi-county agency and current holder of the title and overseer of the land on which the memorial is situated. The American Legion, a national veterans association, was permitted to intervene on the side of the bi-county Commission. The American Legion, along with a committee of mothers who had lost sons in the war, were involved in the project in Maryland’s Prince George’s County from 1919 to 1925 in designing, raising money, and dedicating the memorial to men from the county who had perished in the Great War. The U.S. Office of Solicitor General, as amicus curiae, was granted permission to argue on behalf of the memorial’s constitutionality.
The federal district court in Maryland found the memorial did not violate the First Amendment, but a panel of the U.S. Fourth Circuit Court of Appeals concluded that the Latin cross composing the Bladensburg WW I Memorial, the foremost symbol of Christianity, was government sponsorship of a religion and thus in violation of the Establishment Clause. In lieu of taking down the memorial or altering the monument so it was no longer a cross, the circuit court suggested the bi-county Commission explore whether the memorial could be moved to private land or that the Commission transfer the land into private hands.
When the U.S. Supreme Court granted these appeals there was little doubt by anyone that the Justices have in mind reversal. It is just too much to suppose that a memorial to our nation’s war dead, one that has stood for almost a century without objection to its religious content, is going to be torn down or privatized by the Judicial Branch. The remaining suspense, rather, is the rationale to be employed by the High Court majority in explaining why the Memorial Cross is not a transgression of church-state relations. Will the holding be heavily fact-bound and thus so narrow as to be of limited precedential value? That was the path urged by counsel for the bi-county Commission. That approach drew little enthusiasm during the “hot bench” oral argument. SCOTUS does not exist to right individual wrongs, but to lay down general principles of law to guide the lower courts.
Lawyers for The American Legion and the Solicitor General were more ambitious. They asked that the Court’s new conservative majority seize the opportunity for a more sweeping change in the law. Specifically, they urged that the Court abandon the much-reviled test of Lemon v. Kurtzman (1971), as well as Lemon’s “no-endorsement” spin-off and its “reasonable observer” excretion. Lemon lead to erratic results because it invited judges to substitute their own values under a pretense of objectivity. It had not been used by the High Court for years, yet never overruled by name. The lower courts have persisted in following Lemon because no comprehensive verbal map has been substituted in its place. Besides, Lemon is tempting because it allows trial judges to satisfy their personal preferences while looking like they were following the law. On the other hand, while there is agreement among conservatives that they do not like Lemon and all its children, there is less consensus about what ought to be the new no-establishment test. Indeed, the Court’s past struggles with how to articulate a general principle for the task of policing the boundary between government and religion means that the Justices here may well generate multiple opinions but no majority. Still, that is the sort of mishmash that the Chief Justice hates. So look to C.J. Roberts to step up and labor to get five Justices on a single opinion. Justices Breyer and Kagan are expected to uphold the memorial but write more narrowly.
Government expression of religious content has long been the subject of lawsuits by secular-oriented plaintiffs in cases of religious symbols on government property, as well as memorials, Christmas holiday displays, and God-referencing pledges, mottos, and anthems. These are not instances of asking government to “accommodate” the religion of one of its citizens. Rather, the government itself is the speaker and government has no rights under the Free Speech Clause. The First Amendment is not there to protect the government from the people, but to protect the people from the government. Further, the Free Exercise Clause is inapplicable because the act of the government speaking through a passive symbol or motto does not entail religious dissenters having to do anything contrary to their faith or to refrain from doing anything that their faith demands. If nothing is required of a claimant that countermands his or her religious tenets, then the exercise of religion is not burdened.
That leaves the Establishment Clause and the scope of its operation. The Establishment Clause states that government has no authority to “make … law” about “an establishment of religion.” So how does the Establishment Clause work concerning government expression of religious content unwanted by the plaintiffs? Despite the frequently heard whining about the Establishment Clause being in hopeless disarray, the High Court has laid out steps for breaking down that question:
First, the expression by the government or by someone in the private sector? The Establishment Clause restrains only the government, not private speakers. On the other hand, if expression in the private sector is adopted by the government as its own, then the government must answer for the speech. Pleasant Grove City, Utah v. Summum (2009). If the offending message is from both the government and private speakers, that does not change the analysis. The Establishment Clause requires a focus on the government’s message, even if the messaging is shared with others.
If this is private religious speech in a public forum of the government’s dedication, then the Establishment Clause does not apply. By allowing into the forum speech without regard to its content, including religious content, the government is the sponsor of none. Indeed, the Free Speech and Free Exercise Clauses protect religious speech from discrimination. Widmar v. Vincent (1981); Rosenberger v. Rector and Visitors of UVA (1995).
Second, government speech is not forbidden merely because it happens to coincide or harmonize with a religious tenet. Commonplace is the overlap of law with morality where the codified moral postulate is consistent with a widespread religious teaching. Laws against murder or theft are not unconstitutional because their prohibitions are also prominent teachings by major religions. See McGowan v. Maryland (1961) (Sunday as required day of rest free of labor and retail); Harris v. McRae (1980) (a law encouraging a woman to carry her unwanted pregnancy to live birth).
Third, given that government has no authority to “make … law” about “an establishment of religion,” this surely calls for an inquiry into the law’s purpose. The judiciary is to probe into the government’s purpose or object in maintaining this symbol with its religious content. The purpose must not be to aid or otherwise advance or support religion as religion.
The government can speak about history, art, architecture, archaeology, ethics, etc., where the topic has religious content. A history class can teach the Protestant Reformation. A class on the Bible in English Literature is common in the course catalogue at state universities. Public law schools have electives in the First Amendment and church-state relations. A city gallery displaying religious art is quite ordinary. You cannot study art, music, or architecture without studying the role of religion in profoundly shaping all of those forms. These are not establishments. As Justice Clark wrote for the Court in Abington Township Sch. Dist. v. Schempp (1963), “[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. … Nothing we say here today indicates that such study … may not be effected consistently with the First Amendment.”
However, the boundary between church and state is crossed when the government’s expression is no longer about religion but is religion. Justice Kennedy, concurring in part and dissenting in part in County of Allegheny v. ACLU (1989), gave the illustration of a municipality mounting a permanent Latin cross on the roof of city hall. The purpose of the city’s placement of the cross is nearly impossible to explain apart from having the object of elevating the merits of Christianity.
The purpose test offers a quick and easy resolution to the Bladensburg WW I Memorial Cross. WW I cemeteries in Europe, with their poppy fields and row upon row of white crosses, apparently formed a picture in the minds of Americans in the early 1920s as a fitting symbol for memorials to those who fought in the Great War. There is evidence in the record that such a vision was behind the design of the Bladensburg Cross. If so, then the Town of Bladensburg’s purpose was secular. That is not to say that the Latin cross is not the foremost symbol of Christianity. It is. However, there are two meanings. If the government’s meaning was the nonreligious one, then there is no violation of the Establishment Clause. Of course, any purpose test does not unilaterally “take the government’s word for it.” Rather, the test looks at the context to consider if the asserted purpose is believable or a pretext.
There are problems with the quick and easy resolution. If the American vision in the early 1920s was a nonreligious use of the cross, then why did Jewish members of the armed forces insist on a Star of David to mark their graves? Still, it might be that in designing the Bladensburg Cross officials at the time had a tin ear to Jewish sensitivities. As with any symbol there might be two or more meanings depending on the intent of the “speaker,” and here government has produced some evidence that its purpose was the secular vision.
Does upholding the constitutionality of the Bladensburg Cross mean that a memorial cross newly placed today is also constitutional? No. At oral argument the Justices asked the lawyers to assume a twenty-first century memorial in memory of a mass shooting of students and teachers at a public school. Contemporary American society is more religiously plural and more attentive to minority sentiments, including those of our increasingly nonreligious neighbors. It is near impossible, even in America’s more rural communities, that today public officials could erect a stand-alone Latin cross and believably maintain that their purpose was a nonreligious remembrance of the victims.
What if the government’s purpose is mixed? The law has faced this problem before. If, in the absence of the religious purpose, the government still would have proceeded with its course of expression for other reasons, then we do not have an establishment. See Mt. Healthy City Sch. Dist. v. Doyle (1977).
Fourth, is the symbol under review just the cross, pedestal, inscriptions, and plaque with names? Or is the symbol under scrutiny the entire Veterans’ Memorial Park with its additional war memorials added at later times? Presently the Bladensburg Cross is somewhat isolated in a traffic circle, separate by a two-lane street from the larger Veterans’ Park.
As an initial matter this question is framed by the Plaintiff’s pleading. The complaint challenges only the Bladensburg Cross, not the many other memorials in the Veterans’ Park. On the other hand, the bi-county Commission contends that to the extent context is relevant to the government’s purpose, the entire Park should be considered. This is an expected part of most defenses of a government symbol. That the balance of the Veteran’s Park is secular works in favor of the Commission.
Fifth, a different but related question is whether the lawsuit requires an examination of the cross, pedestal, inscriptions, and plaque with names as the symbol in question, but nothing more. That is, should the focus here be on the Bladensburg Cross as a stand-alone memorial? Or does the lawsuit require an examination of the Bladensburg Cross in light of how the memorial and its grounds are actually used. The record built by Plaintiff shows that the government held events at the cross for Memorial Day and Veteran’s’ Day ceremonies, as well as other government-sponsored events. Some of these events had religious content, such as prayer and hymns. This evidence favors the Plaintiff. Again, this brings the question back to what is meant by considering the government’s purpose for the symbol. Is the memorial’s actual use relevant? From their briefs we know the parties are very aware of the evidence concerning ceremonial activities at the cross, but neither party was clear as to how this should be factored into the purpose test.
Sixth, what if the government’s purpose has changed over time? The WW I Memorial Cross was rededicated in 1985 as a memorial to all veterans. Is the issue the government’s purpose when the message was first expressed back in the early 1920s? If the government’s purpose has evolved, it does not make sense to say what is controlling is the past. In this legal challenge, the Humanist Association seeks prospective injunctive relief. It does not seek damages for past harms. With the sought-after relief focused on the present and prevention of ongoing injury, it would seem that the government’s present purpose in maintaining the symbol is what ultimately matters in Establishment Clause litigation. Past purposes add materially to the contextual background, but the ultimate issue is the government’s purpose in the present.
Seventh, which government are we talking about when it comes to purpose? The Town of Bladensburg controlled the site of the cross in the 1920s. Later traffic needs saw the Maryland State Roads Commission assume control of the land on which the cross is situated. Still later, in 1961 the cross and the larger Veteran’s Memorial Park were placed under the control of the Maryland-National Capital Park and Planning Commission. Since then the bi-county Commission has provided grounds keeping and Illumination, as well as paid for repairs. The Commission was certainly the proper party to have been sued, for only the Commission is in a position to grant the relief Plaintiff now seeks. Yet, it would seem that the inquiry into governmental purpose at any one point in time is necessarily addressed to the government entity in control of the site at the time in question. It is certainly awkward to insist that the bi-county Commission, as successor in title, be responsible for any unconstitutional purposes of the Town of Bladensburg or the state roads commission. Perhaps this is just another way of observing that in administering the purpose test what ought to ultimately matter is the present purpose of the bi-county Commission in maintaining the Memorial Cross.
Eighth, where the Lemon test interjected chaos into Establishment Clause analysis was by insisting that the judiciary also inquire into the effects of a symbol on exposed members of the public. As with art, the effects of a symbol are going to vary with the audience. The “eye of the beholder” is a subjective standard. And as Americans have become more diverse, the “messages received” by a given audience has necessarily multiplied. Just to illustrate, a 2012 observer of the Bladensburg Cross, a local pastor, thought it blasphemous because it was a utilization of his Savior’s cross to extol war. In that view, the memorial is not religious imagery but a co-optation of religion to promote militarism. In the past, the Justices tried to account for the subjectivity of the effect test by constructing an “objective observer” as an audience of one. But this was soon seen for what it was: the construction of an observer that held values remarkably like those of the judge sitting on the case. After all, what federal trial judge does not think that she is objective, detached, and able to put herself in the shoes of her most cosmopolitan fellow citizens.
Quite aside from the unworkability of the effects test, there is a deeper flaw. The Establishment Clause (indeed, the entire Bill of Rights) protects people from their government. So the purpose test makes sense. But the effects test seeks to hold the government accountable not for its own actions, but for the multifarious and conflicting responses of the many people who are exposed to the symbol. The Establishment Clause does not hold the government accountable for the actions and worldviews of its citizens. There is no accounting for an audience’s tastes, including bad tastes, extreme tastes, hypersensitive tastes, and so on. All the more so when it comes to a foundational belief and topic like religion. The test is an invitation to get different constitutional rulings from region to region and—let’s be honest—judge to judge. We do not need an Establishment Clause jurisprudence that further Balkanizes our nation. Preventing that very thing was one of the blessings hoped for upon the clause’s adoption.
Plaintiffs here want to talk about the size and height of the Memorial Cross relative to other war memorials, including those in the Veterans’ Park. They want to talk about the memorial’s placement near a busy highway as opposed to a quiet out-of-the-way area. They want to talk about how big it is. As Justice Kagan said at oral argument in exacerbation with Plaintiff’s counsel, “[W]hy does it even matter .… I have been struck, some of these questions about how people process these symbols and what messages they convey, that you’ve sort of accepted this idea that that’s what we should be thinking about.” The bi-county Commission, in turn, counters with the Memorial Cross being in place for almost a hundred years, being prominently adorned with the secular seal of the American Legion, and that it is only 32 feet high rather than Plaintiff’s claim that it stands four stories high. The effects test is to turn SCOTUS into an interior decorator complete with tape measure and color chart. Chucking the effects test relieves the Supreme Court of having to consider all sorts of sticky evidence.
Ninth, the American Legion and Office of Solicitor General, as well as several amici for Petitioners, argue for replacing the Lemon test with one of two options. One option is a coercion test. The obvious problem with a coercion test is that religious coercion is already prohibited by the Free Exercise Clause. At oral argument, Justice Ginsburg pointed out this weakness to counsel for the American Legion. The Legion’s lawyer responded by giving an illustration where there was no redundancy. He describe a tax assessment to support the ministers of the state church as not covered by free exercise. But it is coercive of a person’s religion to be compelled to pay a tax earmarked for the salary of ministers when the taxpayer believes they teach a false religion. Now if the person has no religion and yet is forced to pay the tax, then counsel for the Legion has a point. Nonetheless, for more than half a century the Court has been saying that coercion is not a required element of a claim under the Establishment Clause. In its school prayer cases in the early 1960s, students were permitted to opt out of the teacher-led prayer. Still the Court held that the prayer was in violation of the Establishment Clause. There is no prospect that the current Court has any taste for going back on long-accepted cases like Engle (1962) and Schempp (1963).
The second alternative to Lemon is a test based on the original public meaning of the Establishment Clause. That requires a careful look at what is generally termed “a history of the founding.” This was the test followed in Town of Greece v. Galloway (2014), upholding meetings of the town board that were opened with prayer by a local volunteer cleric. If the Court takes the path of being guided by historical practices at the founding, there are two such relevant histories. One is the drafting history of the First Amendment in the First Federal Congress. Congress composed and debated the First Amendment from May to September 1789, and that amendment (along with the entire Bill of Rights) was debated and eventually ratified in the states during the balance of 1789 on through 1790. Also to consider is the early-on regard for the Establishment Clause by federal officials when doing federal business. The other relevant history is the process of disestablishment in the several states that took place from 1776 on through the last disestablishment in Massachusetts in 1833. Both histories would have to be searched to determine what was regarded by the founding generation as an establishment, both for examples and general principles.
Even for those not tied to “originalism,” it certainly makes sense for the Court to take seriously what was regarded as an establishment in the founding period and what was not. This approach gives the American public more confidence that the Court is not “just making it up,” that there is a rule of law that the Court is doing its best to follow.
Tenth, neglected so far is the question of the harm to the Plaintiff. A showing of Plaintiff’s harm or injury is relevant to standing. But the nature of the injury also goes to the claim on the merits. What injury or damage is the Establishment Clause designed to safeguard people and organizations from suffering? It turns out that there are two possible claimants when the Establishment Clause is implicated by an unwanted government expression of religious content.
(a) There are plaintiffs, like the American Humanists, who disagree with the religious message and oppose the government expressing it. These plaintiffs view the government’s message as a preference for a religion or religion in general. They may be of a different religion or of no religion. In either event, there is no authority in government to prefer religion as religion, or to take sides in explicitly religious matters. In the natural course of events, presumably these plaintiffs have unwanted exposure to the government’s message. Under the Court’s precedents, that is all that is required to have standing. McCollum v. Bd. of Educ. (1948); Marsh v. Chambers (1983). A proper policing of the boundary between church and state does not require a showing of coercion; the task is to keep in right relationship the institutions of religion and government. Again, it is a test of the government’s purpose; was the purpose nonreligious or was it to preference religion.
(b) There are potential plaintiffs who do not disagree with the religious message, but nevertheless they oppose the government expressing it. What drove disestablishment in the new American states, 1776 – 1833, was the principle that religion is a matter for the voluntary sector. Rather than support a state church, the government best leave churches and other religious organizations to their own devices, as voluntary works in the private sector, to wax or wane in accord with the appeal of their message, the zeal of their followers, and the effectiveness of their ministries. That churches and other religious organizations remain voluntaristic is essential to their health, for too close an embrace by the government will detract from, and even co-opt or corrupt, the churches and similar houses of worship. The American experience is that the enforcement of a boundary between church and state is good for both. This structure, in turn, furthers the freedom of both the religiously devout and those of no faith.
In this case, the Humanists spoke for those of no faith. No party spoke up for the potential harms to religion. This is an inherent flaw in making law by litigation; only the arguments of the parties are fully heard. From historical experience, detailed below are the sorts of harms incurred by the religiously devout:
(i) The religious symbol gets diffused or watered down by the government’s alternative message. That makes clear communication more difficult for churches.
(ii) Government co-opts a religious symbol and bends it to the needs of the government. Government thereby uses religion as a tool to advance state policies. Those who oppose the government may then also oppose the religion.
(iii) The government may appropriate a religious symbol because it is unifying. The government needs unity. But it is not the role of the church to help unify, stabilize, and sustain the state. The latter is a harmful using of the church.
(iv) The message confusion dulls the prophetic voice of the church. The voice of the church is looked on with skepticism because of a perceived closeness of church and government.
(v) There are times when the church is called to boldly criticize and thereby check the government. This is one layer of the checks and balances built into our democratic system. But the ability of the church to check the government is compromised by message confusion. Church officials may even refrain from such criticism because they do not want the government to get upset and then withhold sponsorship of the church’s symbol.
(vi) Government-favored religion can become the religion of the culture. Cultural religion is never the real thing. It not only does not restore, but it dulls one to the need for a genuine decision and commitment.
(vii) The religion of culture can become a Civil Religion. This is a mixing of God and country, a blend of patriotism with belief. Civil Religion competes with genuine religion. As Justice Kennedy stated for the Court in Town of Greece v. Galloway (2014), it is no more acceptable to establish Civil Religion than to establish Christianity.
(viii) Putting the power of government behind the symbol of Christ’s sacrifice and death on a cross in vicarious payment for humanity’s sin is heresy to Christians. Christ’s kingdom is not of this world. Christ did not come in civil power and seek a kingship in Palestine, albeit many of his followers wanted just that.
There are a lot of moving parts to the case of the Bladensburg WW I Memorial Cross. Reversal is a near certainty, but the rationale for that result is up for grabs. As Jeffrey Wall, Acting Solicitor General, said at oral argument, “The problem with the current law is that all of the current cases are hard.” Let us hope that SCOTUS leaves us with something better than we now have.
Friday, March 8, 2019
Here’s a new draft of an article I just posted: The Traditions of American Constitutional Law (forthcoming Notre Dame Law Review). Comments most welcome on what is still very much a work in progress. Here is the abstract.
This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.
The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”
The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.
Monday, March 4, 2019
As longtime MOJ readers know, I've been interested in (ed.: try "obsessed with") the implications for law and the legal enterprise of the Christian account of what it means to be human, i.e., with Christian moral anthropology. Here are some reflections on the topic by my daughter, a Theology student at Notre Dame. A bit:
What does it mean to be a human being? To be both of and for? It is to be the image and likeness of the God who created us, and who Himself exists as relationship: to be human is to allow others to carry our burdens, to carry theirs in return, and to constantly strive to be related, now and forever, in love.
Check it out.
- Another Garnett on solidarity and suffering
- TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
- Berkowitz reviews Wilken on the Christian Foundations of Human Rights
- A Panel Discussion on the Life and Legacy of Rev. Theodore M. Hesburgh, C.S.C.
- "Catholic Thought and the Challenges of Our Time"