Mirror of Justice

"Religious Schools and the Freedom of the Church"

Here is a short piece I did for the Law & Liberty site, on the Supreme Court's recent decision in two cases involving the so-called "ministerial exception" and Catholic schools.  A bit:

In a pair of cases involving the religious-freedom rights of parochial schools, the Supreme Court on Wednesday re-affirmed a core First Amendment rule and a crucial aspect of church-state separation, properly understood: Public officials, regulators, and courts lack the authority to decide who should, or should not, perform important religious functions. Questions about religious institutions’ religious teachings, and teachers, belong to the “church” and not to the “state.” . . . 

As the Court had in Hosanna-Tabor, Justice Alito’s opinion emphasized the deeply rooted concern in our law, history, and traditions of “the general principle of church autonomy” and of religious institutions’ “independence in matters of faith and governance and in closely linked matters of internal government.” Along with other scholars, I have explored the connections between the importance of this “general principle” in American constitutional law and some of the great church-state controversies of the past and the long-running (and still continuing) struggle for the “freedom of the church.” As the Court observed, and in keeping with this history, the First Amendment has long been understood as requiring secular authorities to avoid attempting or purporting to “resolv[e] underlying controversies over religious doctrines.” Whatever disagreements might persist about the content of the Constitution’s no-establishment rule (regarding prayers at town-hall meetings or war-memorial crosses, for example), it seems clear that the paradigmatic feature of the kind of religious “establishment” that the First Amendment was designed to rule out is political meddling in the selection of religious ministers, the formulation of religious doctrines, and the teaching of religious truths. . . . 

At the end of her dissent, Justice Sotomayor expressed concern about the implications of the decision “in a pluralistic society like ours.” However, it is precisely because ours is a “pluralistic society” that the Court’s 7-2 determination is so important. In a meaningfully pluralistic society, not every organization or institution will act the same way, or be structured in the same way, or have the same goals, or be governed by the same rules. A society without mission-oriented Catholic schools is a less pluralistic society than one with them. A political authority that imposes the same employment rules on every employer, regardless of sector or context or history or aims, is not diverse, but homogenous and monochrome. And, in any event, foundational commitments to limited government and religious liberty require that decisions about religious leaders and teachers be left to religious decisionmakers.  

 

NO “WALL OF SEPARATION”

I enjoyed this article today in First Things by Phillip Munoz, noting the difference in the interpretation of the Establishment Clause. From the article:

What Thomas understands—and what the Chief Justice seems to ignore—is that the Court’s protection of religious freedom under the Free Exercise Clause necessarily will be constrained by competing and contrary precedents already in place under the Establishment Clause. “Until we correct course on that [Establishment Clause] interpretation,” Thomas wrote, “individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.”

Forming Consciences for Faithful Citizenship and Voter Intent

Just out: a very short piece I published with Catholic News Service, "Forming Consciences for Faithful Citizenship Offers Guidance, Not Directives," - reflecting on the latest version of the US Conference of Catholic Bishops' voter's guide, and emphasizing the role of voter intent - and not simply the "non-negotiable" or "intrinsically evil" character of particular policy choices - when evaluating the moral character of decisions about voting.   

My more extensive critique of an oversimplified appeal to "non-negotiables" is available in this 2008 essay, "It's Hard Work": Reflections on Conscience and Citizenship in the Catholic Tradition.

Moreland and Pojanowski, "The Moral of Torts"

Michael Moreland and Jeffrey Pojanowski have this very interesting paper, "The Moral of Torts"--part of a forthcoming book on Christianity and Private Law--that offers a natural law account of tort law (focusing in part on some sections of Thomas Aquinas's Summa). Among other things that I greatly appreciated about the chapter were the central position it ascribed to intentional torts and its criticisms of the ways in which some "internalist" accounts of tort law are a little shy about setting out normative criteria for what constitutes wrongfulness in tort law. Have a look.

"Lift Every Voice!"

I hate to see a song I love, "Lift Every Voice and Sing," become a subject of political controversy. The song is often described as the "national anthem" of African-Americans. I have no problem with that. It does not mean that the song doesn't belong to all who wish to embrace its wonderful message; nor does recognizing its special historical significance for those of our fellow citizens whose ancestors were brought as slaves mean that it challenges or displaces "The Star Spangled Banner" as the American national anthem.

"Lift Every Voice" is a hymn--it honors God and recognizes His sovereignty and our dependency on His grace--and it patriotically honors our nation--calling on us to be "true to our native land." There is nothing anti-American about it! Indeed, I myself, as someone who loves our country and dedicates himself to defending its ideals and institutions, embrace its sentiments with all my heart. Consider these magnificent words:

God of our silent tears
Thou who has brought us thus far on the way
Thou who has by Thy might
Led us into the light
Keep us forever in the path, we pray
Lest our feet stray from the places, our God, where we met Thee
Lest, our hearts drunk with the wine of the world, we forget Thee
Shadowed beneath Thy hand
May we forever stand
True to our God
True to our native land

My beloved friends, there is nothing in these words not to affirm, embrace, and be inspired by--whether the color of one's skin is black or white, whether one's ancestors came from Africa, Europe, or Asia. We should enjoy listening to it when it is sung, and we should join--indeed heartily join--in the singing. But, gosh, let's not let it be politicized so that singing or not singing it is made a symbol of one's place on the ideological spectrum in our sadly and dangerously polarized society. Some things are sacred--beautiful hymns to God, for example--and should be beyond ideology and above the fray of politics.

Lift every voice!

Don't Miss This Grace-Filled Conversation Between Gloria Purvis and Louis Brown on Race

Kathryn Lopez of the National Review Institute brought Gloria Purvis and Louis Brown together for a virtual discussion on race in America. The beautifully grace-filled and deeply insightful discussion can be viewed here.

Espinoza and What Comes Next

Espinoza v. Montana Department of Revenue is an important win for the principle of choice in religious matters, as well as for choice-based programs in education. Its specific holding is somewhat limited, but its implications are broader. Doug Laycock and I have a piece on SCOTUS Blog analyzing the decision, drawing from our amicus brief in the case (for the Christian Legal Society, the USCCB, the Southern Baptists, the Orthodox Union, the Latter-Day Saints, and others) and from our work over the years. Our piece emphasizes a couple of points, with representative excerpts here:

First, although the decision specifically forbids only exclusions from benefits based on a school's status as religious, its reasoning points toward forbidding exclusions even when they allegedly rest on a school's religious use of the funds. Among other things,

the [status-use] distinction collapses in the context of religious K-12 education. Religious schools typically teach the same secular subjects as other schools — English, history, science, math — while also teaching a religion class or integrating relevant religious perspectives into the secular subjects. The religious elements could be characterized as religious “uses.” But if a state denies otherwise-available funds for classes on secular subjects because the school also offers these religious elements, then it goes beyond not funding religion. It imposes a penalty on the secular educational activity — potentially a large penalty, if all funds are denied — because of the religious teaching accompanying it. It penalizes the school, and those it serves, because of its religious identity, its religious functions, and some of the uses to which its money is put.

Second, we explain that equal access for religious providers to government educational benefits promotes both formally neutral treatment of religion (no religious classifications) and substantively neutral treatment (respecting voluntary choice in religious matters, minimizing incentives for or against it). Then we look to other upcoming cases where those goals may conflict; in such cases, we argue, "neutral incentives and voluntarism should be the fundamental goal." The religion clauses treat religion differently from other activities in order to promote freedom of private individuals and communities in religious matters. This is how we approach the subject of religious exemptions:

Critics have sometimes asked whether it is consistent to require equal provision of funds for religious and secular service providers while also allowing, or even requiring, exemptions for religious conduct in the face of generally applicable laws or regulations. Next term the court will take up the question of whether to overrule its decision in Employment Division v. Smith and once again require exemptions in some cases.

     If a law creates a conflict with a sincere religious practice, it prevents people from exercising voluntary religious choice and thus violates substantive neutrality. The threat of civil or criminal penalties or loss of government benefits profoundly discourages the prohibited religious practice. Exempting the religious practice from regulation eliminates that discouragement, and it rarely encourages the exempted practice.

Journal of Law and Religion, Volume 35

The Journal of Law & Religion, Volume 35 Issue 1 is free to read until July 31. 

https://www.cambridge.org/core/journals/journal-of-law-and-religion

The scholarship is, as always, excellent. As someone currently studying religious freedom in China, I found the three articles on that subject to be of great value.

Komonchak on John Courtney Murray, SJ

Longtime (now retired) Catholic University of America theologian Fr. Joseph Komonchak has worked extensively but quietly on the thought of American Jesuit Fr. John Courtney Murray, SJ over several years. Some of us with interests in Murray have known about Komonchak's work and his valuable efforts to locate Murray's thought amid other theological developments in the mid-twentieth century, and previously unknown writings by Murray were unearthed by Komonchak in various archives. See "The Crisis in Church-State Relationships in the U.S.A.," Review of Politics 61 (1999): 675-714; and "A Common Enemy, A Common Cause," First Things (October 1992) (criticizing the Supreme Court's Establishment Clause decisions in Everson v. Bd. of Education and McCollum v. Bd. of Education).

Fr. Komonchak has now posted to a blog site the fruits of his many years of research on Murray. I won't try to summarize the many interesting dimensions of Murray's thought Komonchak offers there, but one highlight for me is the manuscript of a series of lectures Murray delivered at Loyola College (Baltimore) in 1940 on "The Construction of a Christian Culture." At one point, Murray said:

For three centuries men have chipped away at Christian truth, doubting, denying, destroying, rebelling. But the hoped-for result has not come about: the liberation of man, his achievement of full humanity. Every thoughtful writer today is agreed that the age of "humanism" has dehumanized man, the age of individualism has depersonalized him, the age of liberalism has enslaved him. Hence my first premise is that we have definitely reached a time to stop denying and affirm, to stop destroying and construct, to stop murdering ourselves and others, and begin to live.

What emerges from Komonchak's labors is a more complete and complex account of Murray. Those who have flipped through Murray's We Hold These Truths (1960) might come away thinking "the Murray Project" was merely baptizing American constitutionalism in the waters of Catholic political thought. There is some of that in Murray, to be sure, but Murray was also a more trenchant (and pessimistic) cultural critic and sophisticated theologian than that caricature gives us. Those interested not just in Murray himself but more generally in the last century of Catholic social thought owe a debt of gratitude to Fr. Komonchak, who concludes with this introduction to the material on his site:

The first batch of essays tells of the early writings of John Courtney Murray soon after he returned from Europe after having completed his doctoral studies in Rome. He was already intensely interested in what he would come to call “the spiritual crisis in the temporal order.” This is evident in two sets of lectures he gave in the early 1940s in which he lay out the doctrinal and theological grounds for the Church’s mission and activity in society and culture. The crisis was rendered more acute by the outbreak of the Second World War, and Murray was among those who thought it possible, indeed necessary, for Catholics to engage in inter-religious cooperation for believers to meet the crisis and to be able to take part in the restoration of order once the War was over. This proposal was not welcomed by many Catholic churchmen and theologians, and Murray had to engage in lengthy conversations, in published articles and in private conversations, to defend his position against the charge that it would lead to religious indifferentism. Many Protestants also were reluctant to cooperate with Roman Catholics who were, as they believed, ready, should they become a majority, to deprive them of their religious freedom.

From both sides, then, Catholic and Protestant, the issue of religious freedom became critical, and this explains why, beginning in the mid-1940’s, Murray turned his attention to that subject and began the series of publications that would lead him again into controversy, make him subject to high Roman censure, and end with his vindication at the Second Vatican Council. Whereupon, as he put it right after the Council, Catholics could “get on to the deeper issue of the effective presence of the Church in the world today”–which was, of course, the passion that first inspired him.

Heine's prophecy and our mission

Below are remarks I recently gave to Directors of academic programs and institutes on human flourishing and civic life in the U.S. and U.K. -- Robert George

People sometimes ask why I—and my colleagues at the James Madison Program at Princeton and the Witherspoon Institute and at other programs and institutes with which we are involved around the country—are so committed to our work and so feverish in carrying it out. The question is heightened, and in a way made poignant, by what is happening in our country now. The riots in the streets. The cultural changes, which seem to be coming at us so extraordinarily rapidly. The “cancel culture.” The attacks on basic civil liberties. The incivility. The tribalism. The extreme polarization. The contempt people seem to have for others. The doubting and denying that our nation and civilization are worth preserving. Many people are wondering what to do—including the young men and women we serve at our institutes and in our programs.

All of this has gotten me thinking about the 19th century German Jewish Christian poet Heinrich Heine. Now you may be wondering, why does all this make the professor think of a 19^th century German poet? I'll explain. Heine predicted in 1834 what came to pass in the 1930's and 40s in Germany. How could a man in 1834 have foreseen the rise of violent totalitarians and the plunging of Europe into vicious tyranny and the world into war a hundred years later? Well, let me quote Heine's prophecy. Then I’ll say a word about why I think this is so relevant to us, and state the lesson that's in it for the work to which we have dedicated ourselves. Here is what Heine wrote in 1834:

Christianity, and this is its greatest merit, has somewhat mitigated the brutal German love of war, but it could not destroy it. Should that subduing talisman, the cross, be shattered, the frenzied madness of the ancient warriors, that insane Berserk rage of which the Nordic bards have spoken and sung so often, will once more burst into flame. This talisman [the cross, Christianity] is fragile. And the day will come when it will collapse miserably. Then the ancient stony gods will rise from the forgotten debris and rub the dust of a thousand years from their eyes. And then Thor, with his giant hammer will jump up and smash the gothic cathedrals.

Do not smile at the advice, the advice of a dreamer who warns you against Kantians, Fichteans, and philosophers of nature. Do not smile at the visionary who anticipates the same revolution in the realm of the visible that has already taken place in the realm of the spirit. Thought precedes action, as lightning precedes thunder. German thunder is of true Teutonic character. It is not nimble, but rumbles ponderously. Yet it will come. And when you hear a crashing such as never before has been heard in the history of the world, then you will know that the German thunderbolt has fallen. At that uproar, the eagles of the air will drop dead. The lions in the remotest deserts of Africa will hide in their royal dens. A play will be performed in Germany which will make the French Revolution look like an innocent idyll.

Try to imagine in 1834 foreseeing something worse than the French Revolution with all the bloodshed of the guillotine. The mass madness and mass murder. The mind-numbing inhumanity. Yet Heine said that the day would come when the abolition of the Christian worldview—the destruction of the Christian understanding of humanity, of human nature, of the human good, of human dignity, of human destiny—would result in something that would make the French Revolution look like an “innocent idyll.” Which is exactly, of course, what Hitler and the Nazis did in Germany and across Europe--revalorizing Teutonic pagan "virtues" and even expressly reviving ancient pagan symbols, practices, and rituals. They "shattered that subduing talisman, the cross" and Thor "smashed the cathedrals." Of course, Heine didn’t identify somebody named “Hitler" or a party called “the Nazis,” but he knew that something like them would arise. His key insight was this: He saw that what happens in the domain of the invisible—in the minds, the hearts, the souls of people—eventually plays itself out in the realm of the visible. “Thought precedes action as lightning precedes thunder.”

What we are seeing in the streets now and more broadly in the culture—and what we're going to see in the universities in the fall (if or when students return)—didn't and doesn’t just happen. There is an ideology, a set of beliefs, a worldview—a way of looking at and interpreting the world—there is an anthropology, a moral philosophy, that have long been in place in the minds and hearts of opinion shaping elites and influencers that now plays out in the realm of the visible. The time to have fought was a long time ago in the realm of the intellect, the invisible domain of the spirit.

But we mustn't despair. Quite the opposite. Because two can play at this game. Transformations in intellect—in the mind, in the heart, in the spirit—can have good as well as bad consequences. Good thinking, good education, good formation can produce good results every bit as much as bad thinking, bad ideas, bad formation will produce evil results. Yes, our task is difficult. I get that. It is, nevertheless, our task. It is our calling, our vocation, our mission in our institutes and programs to provide that true education, that good, deep, critical, independent thinking, that excellent formation, that will overcome what is wrong, what is inhuman and degrading, what undermines the fulfillment and flourishing of our precious fellow human beings. Our work now, if we do it well, will produce down the line in the domain of the visible, the fruit of transformations in the realm of the invisible.

Espinoza and the Legacy of Chief Justice Rehnquist

I echo Rick's praise for the Supreme Court's decision this morning in Espinoza with congratulations to him and others who have toiled for many years on school choice and religious freedom issues. One thought that occurs to me is to note briefly the important legacy of the late Chief Justice Rehnquist in today's decision (in a majority opinion appropriately written by a former Rehnquist clerk).

One aspect of that legacy is that then-Justice Rehnquist's dissents early in his time on the Court in cases such as Nyquist (1973) and Meek v. Pittenger (1975) criticizing overbearing separationism in First Amendment school funding doctrine have been vindicated, though much of that vindication had already occurred when he was Chief Justice in Agostini v. Felton (1997) and Zelman v. Simmons-Harris (2002). But it was only because the disco-era Establishment Clause separationism of the 1970s and early 1980s has now (rightly) been discarded to permit funding for religious schools in certain types of programs that the issue in Espinoza about no-aid discrimination in state constitutions could be teed up. As Justice Rehnquist wrote in Meek:

The Court apparently believes that the Establishment Clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and '(a)ny interpretation of (the Establishment Clause) and the constitutional values it serves must also take account of the free exercise clause and the values it serves.'" 421 U.S. 349, 395 (1975) (citation omitted).

A second aspect of Chief Justice Rehnquist's legacy in Espinoza is his opinion in Locke v. Davey (2004). In assigning the opinion in Locke to himself, Chief Justice Rehnquist wrote a narrow, almost case-specific holding (a characteristic Rehnquistian move) limited to funding for clergy training or "devotional theology" studies. An opinion in Locke by Justice Stevens (the senior associate justice in the majority) would presumably have given a constitutional imprimatur to no-aid state constitutional provisions (but then perhaps jeopardizing the majority by losing the votes of Rehnquist, O'Connor, and Kennedy). Indeed, Justice Breyer's dissent  in Espinoza gestures toward just such a broad reading of Locke v. Davey, though not (in my view) persuasively so...thanks to William Rehnquist.

My take on June Medical at SCOTUSBlog

Here's my article on the June Medical case up at SCOTUSBlog today. After a technical discussion of Roberts' concurrence -- and its restoration of the "undue burden" standard in Casey -- I write:

As much as Roberts is right to correct the missteps of Whole Woman’s Health, he makes a few rather obvious missteps of his own. In rather passively joining the plurality on the standing issue, he misses the opportunity to reckon with the deep contradiction at the heart of this case and really at the heart of abortion jurisprudence as we know it. Not only is Thomas correct that the Supreme Court has had it wrong constitutionally from the start, but allowing abortion providers to sue on behalf of women puts women’s interests in the hands of abortion providers with adverse economic interests. A jurisprudence that treated women’s interests as distinct from those of abortion providers might come rather to see abortion for what it really is: a quick, easy, and relatively cheap way to keep women from demanding more, more of men, more of employers, more of medicine, more of the community at large. From this perspective, it’s no surprise that Katrina Jackson, the chief sponsor of the bill June Medical struck down yesterday, is an African-American “whole life” Democrat who sees abortion, touted by Casey as a means for economic and social progress, as actually a “tool of racial and economic oppression.”

As in Whole Woman’s Health and in Roe itself, doctors’ interests take center stage here again, with the five justices in the majority – including three women! — maintaining that a regulation meant to protect women’s health and safety is unduly burdensome to women simply because it places significant requirements upon doctors who would serve them. And yet, as Justice Samuel Alito’s questioning loudly hinted at oral argument and as he now argues in dissent, “the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning.” In any other case involving business regulation – say, tobacco, or better yet, gun regulations — we would readily see the clear conflict of interest. If gun manufacturers attempted to stand on gun owners’ Second Amendment rights (rights that are actually in the text of the Constitution) to argue against a burdensome safety regulation of the manufacturers, we would not think courts should so readily strike down the law; indeed, requiring the manufacturers “be limited to [their] own rights,” in Alito’s words, would mean that the law would need to pass only very deferential rational basis scrutiny, and that’s it.

My gratitude to Steve Gilles for an article he wrote for a symposium in which I participated in his honor a few years back. Though the Chief did not entirely follow Gilles' suggestions in "Restoring Casey's Undue-Burden Standard After Whole Women's Health v. Hellerstedt," he came darn close. See also Gilles' excellent 2016 ND Law Review article where he argues how to take the next steps. The title kind of gives it away: Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology—and Why It Matters. 

Wonderful news from the Court -- for religious freedom and school choice -- in Espinoza

The Court's opinion is here.  I am, I confess, a bit overwhelmed by the news.  I have been working on the Blaine Amendment / school choice / religious freedom cluster of questions, as a litigator and as a scholar, for more than 20 years.  I have been hoping for this day for a long time.  Among other things, it was wonderful that Justice Alito told the story (ignored by or unknown to too many people) about the rank anti-Catholicism that so pervasively shaped school-funding debates for so long.

Here's a short essay of mine, from the early 2000s, on these matters.  (Obviously, I would have liked a citation, but one cannot have everything!)  The abstract:

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism.

Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person.

Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.

Some instapunditry on today's June Medical decision

I have a short comment up at Our Sunday Visitor on today's abortion decision from the Supreme Court.  Here's a bit:

There are, of course, bigger and deeper problems with Monday’s ruling. First, as Justice Samuel Alito reminded readers, the June Medical Services decision is the latest in a depressingly long string of cases in which “the abortion rights recognized in this court’s decisions is used like a bulldozer to flatten legal rules that stand in our way.” The late Justice Scalia referred regularly to this dynamic as “the abortion distortion.”

The decision is also wrong, as Justice Clarence Thomas eloquently stated, “for a far simpler reason: The Constitution does not constrain the states’ ability to regulate or even to prohibit abortion.” Forty-seven years and tens of millions of abortions later, the sweeping and historically ungrounded abortion right invented in Roe v. Wade is, and has always been, he said, “a creation that should be undone.” Although the court was not asked by the state in June Medical Services to reconsider and reject Roe, other parties will, and should. Thomas’ opinion shows how the justices should respond.

Disingenuous questions, and slippery answers, about Roe and abortion have become a familiar feature of judicial confirmation hearings in the Senate Judiciary Committee. For many years, federal judges have been nominated, supported and opposed because of predictions about how they would rule in abortion-related cases. This is unfortunate, but it is also unavoidable. Once the court announced a constitutional right to procure and perform a procedure that most Americans view — at least sometimes — as morally troubling and that many regard as a gravely wrong assault on the dignity and equality of the most vulnerable among us, we could hardly be surprised that people care very much, and politicians purport to, about the views of the court’s members.

The Supreme Court, once again, and notwithstanding the addition of several judicial conservatives, has failed to correct its serious mistake. However, legislators and citizens alike will, and should, embrace the words of the late Father Richard John Neuhaus: “We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life.”

 

On Critics and Bullies

There is an astonishing amount of bullying going on right now—in academia and elsewhere—and it is imperative that people stand up to those who seek to intimidate them into either silence or, more appallingly still, the affirmation of beliefs they actually do not hold.

At the same time, we need to remember that the spirit of truth-seeking is a self-critical spirit, so we must avoid the temptation to insulate our beliefs from criticism by portraying and dismissing our legitimate critics as “bullies.”

To me, the distinction between a critic and a bully is not hard to draw, and actually I’m not personally familiar with many “gray” or “borderline” cases (though I can manufacture them as thought experiments of the sort I present to my students on exams).

A critic—even a forceful one—does business in the proper currency of intellectual discourse: presenting evidence, providing reasons, making arguments; a bully questions people’s motives and calls them names.

A critic wants to discuss an issue—to try to persuade you to change your mind or see things in a different light; a bully wants to shut down discussion.

A critic appeals to reason—your mind and conscience; a bully tries to induce fear--resorting to threats and shaming to frighten you into submission.

A critic permits you to make your case in the terms you believe appropriate, and doesn't try to win arguments by dictating the language of the discussion in ways that beg the question; a bully does precisely the opposite.  

A critic wants to disabuse you of an error; a bully wants to deprive you of your livelihood—both as a punishment for wrongthink and pour encourager les autres.

A critic is willing to be challenged as well as to challenge; a bully regards any questioning of his or her beliefs as a personal assault—for example, a “bigoted” attack on his or her “identity.”

A critic recognizes that you are entitled to your opinion, even if, in his or her judgment, it is erroneous; a bully insists that “error has no rights” and that those in error must be “re-educated” (via such things as ideologically inflected “training” in “cultural competency,” or “diversity,” or “unconscious bias awareness") or cancelled.

A bully believes that dissent from his or her opinions is evidence of either stupidity (perhaps even mental illness) or malice (“bigotry”).

One thing, it seems to me, that cannot be relied on to distinguish bullying from legitimate advocacy (collective or otherwise) is the virtue of the cause. There are certainly good and bad causes. Good causes—even the best of causes—can be, and have been, advanced by people deploying bad means, including bullying.

The fight against communism—including Soviet tyranny and expansionism—was waged in a very good cause, namely, the cause of democracy and liberty. Some, however, sought to advance that cause by bullying. Senator Joseph McCarthy is, of course, the most notorious example, but not the only one. They brought shame upon, and in some circles discredited, a noble cause. Then, as now, the bullies sought to get—and too often succeeded in getting—people (including many academics) dismissed or disciplined for dissenting from beliefs that, in the passions of the moment, many people felt every decent person just had to affirm.

Listen to critics and engage them in civil, genuinely truth-seeking discussion; defy bullies and call them out.

Losing Faith in the Legal Academy

Mark Movsesian’s recent essay in Law & Liberty is quite interesting. Of note, the religious demographics within the legal academy:

Northwestern Law Professor James Lindgren has published a survey revealing that religious commitments are comparatively rare on American law faculties. “Even compared to other professors,” he writes, “law professors are much less religious.” About 40 percent of law professors, according to Lindgren’s survey, are atheists or agnostics. (The percentage of atheists and agnostics may be even higher among elite law professors). Among Americans with graduate or professional degrees, by contrast, the percentage of atheists and agnostics is substantially lower, only 15 percent. Law professors are also “less likely to attend religious services than their non-professorial counterparts,” Lindgren writes.

Lindgren writes that Christians, specifically, are “underrepresented” on law faculties, compared to the general population. About 75 percent of Americans are Christians of some kind; less than 40 percent of law professors are. By contrast, Nones are highly “overrepresented.” About 20% of Americans say they have no religious identity; among law professors, the percentage is almost double that, about 37 percent. Non-Christian religions—Buddhism, Hinduism, Islam, Judaism, etc.—are also “overrepresented” in the legal academy, he says, compared to their numbers in the general population.

New Cert Petitions in Title VII Religious-Accommodation Cases

As many readers know, Title VII's provision requiring employers to make "reasonable accommodation" of their employees' religious practices, when they conflict with the employer's workplace rules, suffered a major blow early on from the Supreme Court's 1977 decision in TWA v. Hardison. There the Court indicated that an employer can show "undue hardship," the statutory phrase that allows denial of accommodation, merely by showing that the accommodation would cause it something more than a "de minimis" burden. Although the statement in Hardison was dicta strictly speaking on the statute's interpretation, lower courts have followed it for more than 40 years.  As a matter of ordinary language, "anything more than de minimis" is an indefensible reading of the phrase "undue hardship." And Hardison, as so interpreted, has undermined protection for employees' religious practices, at the very least in cases involving conflicts between work rules and Sabbath observance--the precise conflict that prompted enactment of the accommodation language in 1972. Attempts to correct Hardison by new legislation have failed.

Recently, however, several justices have shown interest in revisiting Hardison. Earlier this year, when the Court denied certiorari in Patterson v. Walgreen Co., Justice Alito, joined by Thomas and Gorsuch, wrote in support of reconsidering  the "de minimis" rule in a case cleanly presenting the issue. The Solicitor General had also supported reconsidering the de minimis rule in Patterson itself. Finally, the simple textualist point against Hardison--that "undue hardship" is quite different in meaning from  "anything more than de minimis"--has taken on new force because the Court resolved the Title VII issues in the LGBT-rights cases, Bostock etc., on simple textualist grounds.  

So the issue is teed up for two new petitions filed in recent days, which present solely the "de minimis" rule uncomplicated by any other interpretive matters. Small v. Memphis Light, Gas & Water involves a Jehovah's Witness elder whose employer's rigid mandatory-overtime rule prevented him from attending both Sunday services and Wednesday meetings. Dalberiste v. GLE Associates involves a Seventh-Day Adventist employee whose offer of employment was rescinded when the company found he could not work throughout the weekends; the petition recounts that the employer gave no consideration to any of several alternatives for staffing. 

Among their arguments, both petitions emphasize how minority religious faiths raise accommodation claims far out of the proportion to their share of the population and thus suffer the most from an anemic standard. Both petitions cite a statistical analysis that my St. Thomas Religious Liberty Clinic students and I presented in our amicus brief in Patterson (filed for  the Christian Legal Society and other Christian and Muslim groups). From that brief (pp. 23-25):

These disproportionate effects appear, for example, in the cases listed in the appendix to the petition: reported religious accommodation cases decided on summary judgment motions concerning “undue hardship” from 2000 to the present....

       Muslims, a classic religious minority, constitute 18.6 percent of this large set of accommodation decisions (19 of 102), even though, according to a comprehensive 2014 study, they constitute only 0.9 percent of the population. [Citing Pew Research Center, America’s Changing Religious Landscape (2015).] Overall, claims by members of non-Christian faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians, Sikhs, and African religions) make up 34.3 percent of the accommodation cases (35 of 102), even though non-Christian faiths made up only 5.9 percent of the population in 2014 (and significantly less than that in earlier years). The percentage of cases in the appendix involving religious minorities climbs to 62 percent when one combines the various non-Christians (34.3 percent of the cases) with sects that follow the minority practice of Saturday Sabbath observance: Seventh-day Adventists (22 of 102, or 21.6 percent of 25 the cases) and other small Saturday-observing sects (6 of 102, or 5.9 percent of the cases).

Steffen Johnson and Michael McConnell at Wilson Sonsini and Jim Sonne at the Stanford Religious Liberty Clinic represent Mr. Small; Gene Schaerr and Schaerr Jaffe, Mark Rienzi and the Becket Fund, and Todd McFarland of the Seventh-Day Adventists represent Mr. Dalberiste.

"A Different Kind of Prisoner’s Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons"

For any interested MOJ readers, my Note entitled “A Different Kind of Prisoner’s Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons” was recently published in the Notre Dame Law Review and can be found here.  An abbreviated abstract is pasted below.

How should one understand the right to the free exercise of religion for incarcerated persons?  Scholars typically analyze the right to freedom of religion in two distinct ways—either as a constitutional right or as a fundamental human right.  And yet, the former should be understood as a positivized protection of the latter.  This Note analyzes a prisoner’s right to the free exercise of religion in the context of a prisoner’s right to a preacher and a place to worship.  In doing so, it separately analyzes the constitutionally protected right in the United States and the internationally protected human right in the context of the European Court of Human Rights.  However, in concluding, it demonstrates that the constitutional right and the international human right are fundamentally one and the same.  And, of even greater importance, it shows that the underlying protections owed to incarcerated persons are the same, regardless of the analytical framework. 

In sum, this Note argues that international courts, U.S. courts, and well-positioned political and legislative bodies should continue to advance the proper understanding of the right to the free exercise of religion and faithfully apply it to one of the world’s most vulnerable populations—prisoners.

Saint Anselm to lose key trustees in the fall

For those still following the story at Saint Anselm College, there are some recent developments noted in the New Hampshire Union Leader:

A weakened board of trustees will be squaring of with Saint Anselm College monks starting in the fall, after a judge ruled this week that veteran trustees -- including all four board officers -- will have to depart the board when their terms expire in October.

The ruling comes in the high profile case brought by the Benedictine monks of Saint Anselm College, who last year sued trustees over control of the 2,000-student Catholic liberal arts college in Goffstown.

 

In a 10-page ruling issued Monday, Hillsborough County Superior Court Judge William Delker blocked a bid by trustees to extend the terms of nine trustees. They faced removal in October because they had served the maximum of three 3-year terms.

 

Monks, who relinquished most of the day-to-day operation of the 131-year-old college in 2009, have said they need control of the bylaws to ensure the college adheres to its Catholic and Benedictine roots.

 

Carmella on "Progressive Religion and Free Exercise Exemptions"

Angela Carmella (Seton Hall Law School), known to many here at MOJ, has posted the above-titled article on SSRN (forthcoming in the Kansas Law Review). Angela is always thoughtful, and I appreciate her subject matter here for its challenge to the assumption that religious-exemption claims are a thing for conservatives to assert and progressives to oppose. Part of the abstract:

       This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives.

       The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.

Costa Rica’s bishops defend Catholic Church’s role as state religion

Catholic bishops in Costa Rica, with the backing of the Evangelical Alliance, are against a proposed reform of the constitution removing Catholicism as the official state religion.

Christian leaders in the Central American country argue that the move is fueled by anti-Catholic bias and would actually erode the religious freedom currently enjoyed nationwide.

According to the latest census, over 70 percent of the population of five million describe themselves as Christian, with Catholics representing just over 50 percent of the country’s total population.

Full article at Crux.

Notre Dame Law School establishes Religious Liberty Clinic

Religious liberty is the first freedom articulated in the U.S. Bill of Rights, and Pope Francis has said it “remains one of America’s most precious possessions,” adding that “all are called to be vigilant … to preserve and defend that freedom from everything that would threaten or compromise it.”

With the receipt of a transformational gift from Matt and Lindsay Moroun and family, Notre Dame Law School will put its rich tradition of religious liberty scholarship into practice by creating the Notre Dame Religious Liberty Clinic.

The Law School also has appointed Stephanie Barclay as an associate professor to teach and generate scholarship related to the initiative as well as help launch the groundbreaking clinic that will train future Notre Dame lawyers to defend religious freedom by pursuing claims in trial courts as well as appeals up to and including the U.S. Supreme Court.

Training Notre Dame lawyers how to protect religious liberty is central to the missions of both the law school and broader University.

“The freedom of people of faith and religious institutions from government intervention is one of the founding pillars of our nation, and that freedom has helped create a more compassionate society and a vibrant democracy,” said Rev. John I. Jenkins, C.S.C., Notre Dame’s president. “Notre Dame, a leading university that proudly maintains its founding mission as a Catholic university, must be the leader in the national dialogue to reaffirm our country’s historic respect for and commitment to freedom of conscience and the defense of religious liberty.”

The clinic will be the cornerstone of the broader Religious Liberty Initiative advanced by G. Marcus Cole, the Joseph A. Matson Dean of the Law School.

“Without freedom of conscience — to believe, and then to live our lives as our beliefs require us — nothing else matters,” Cole said. “This is why the Religious Liberty Clinic is so vital to me. I am deeply grateful to the incredibly generous donors who have enabled Notre Dame Law School to be — as it should be — at the forefront of defending religious freedom for all.”

Barclay joins the law school from the faculty of Brigham Young University’s J. Reuben Clark Law School. She is also of counsel for the Becket Fund for Religious Liberty. A First Amendment scholar, she researches and writes about the role different democratic institutions play in protecting minority rights, particularly at the intersection of free speech and religious exercise.

“I am absolutely thrilled for Stephanie Barclay to join our faculty and launch our Religious Liberty Initiative,” Cole said. “She is an exceptional scholar and teacher, and one of the nation’s leading advocates for religious freedom, and as such, ideal to lead this effort.”

Prior to joining BYU’s law faculty, Barclay clerked for Judge N. Randy Smith on the U.S. Court of Appeals for the 9th Circuit, was an associate in the Washington, D.C., firm Covington & Burling and was legal counsel for Becket. She twice has been named a Rising Star by the Super Lawyers ratings service.  

“Joining Notre Dame Law School’s remarkable community of scholars is a tremendous honor,” Barclay said. “I am also profoundly grateful for the opportunity to participate in an initiative focused on equipping the next generation of lawyers to defend the vital right that is religious liberty.”

Following the 2020-21 academic year, Barclay will take a one-year leave to clerk for U.S. Supreme Court Justice Neil Gorsuch.

Story by Dennis Brown at Notre Dame News.

Hoipkemier on the Common Good

Mark Hoipkemier -- whom I had the privilege of teaching when he was doing doctoral work at Notre Dame -- has an essay at Public Discourse called "Where (Not) to Begin with the Common Good."  Here's the summary:

The common good is the flourishing of a community qua community. Every community is built around a common end, which is simply that it excel, in justice, as whatever kind of emergently real community it is. The common good is primarily a practical idea, but if our starting point is too practical we are apt to miss the challenge that the common good poses to the modern political imaginary. On the other hand, a starting point that is too metaphysical will fail to engage the real questions of common life.

The piece is a bit challenging/chastening for me, because I have often cited and find appealing a formulation of "the common good" that Hoipkemier says is, well, wrong, i.e., the one from Gaudium et Spes:   “[T]he sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment.”  (On the other hand, here is a different Public Discourse essay, by our own Robby George, which embraces this formulation.) 

I'd welcome others' thoughts . . .

Senator Hawley’s Speech in Response to Bostock

https://www.c-span.org/video/?c4887229/user-clip-hawley

Senator Hawley’s speech is worth listening to. One quote MOJ readers might find interesting: “It represents the end of the conservative legal movement, or the conservative legal project, as we know it.”

Further thoughts on the Title VII cases and Textualism

The majority and dissenting opinions in the Title VII cases (Bostock and its companion cases) handed down yesterday provide a dizzying slew of dueling hypotheticals, but in fact the mistake inherent in Neil Gorsuch’s majority opinion is quite fundamental and can be captured in general terms. And the mistake dooms his reasoning precisely as a matter of textualism, not purposivism or policy.

To describe the error as succinctly as possible:  Justice Gorsuch supposes that discriminating based on orientation or gender identity always entails discrimination based on sex, because orientation and gender identity vary with sex.  But discrimination in the sense relevant to this part of Title VII concerns intent.  And as a moment’s reflection shows, one’s intent—as well as any underlying beliefs and attitudes—can fix on feature X of a situation and not feature Y, even when X always comes with Y.  (To put this firmly established point in technical terms: intentions, beliefs, and attitudes create what philosophers call "opaque" contexts.) 

So an employer can be motivated by an intent—and associated beliefs or attitudes—concerning people of a certain orientation (or self-identification, or pattern of conduct), without relying on any intent, belief, or attitude concerning people of a particular sex (even though orientation turns on sex).  And again, it’s these motivations—intentions, beliefs, and attitudes—that are essential to “discrimination against” individuals “because of” sex, as confirmed by Justice Bret Kavanaugh’s analysis of the ordinary meaning of that phrase taken as a whole, and Professor James Phillips' recent study relying on linguistic principles and systematic data. As Phillips summarizes the point, the operative language of Title VII, read in light of established linguistic principles and enactment-era data, requires differential treatment based on “unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular—whether the beliefs be outright misconceptions or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy." 

Again, Kavanaugh's and Phillips' analyses show that this reading is superior precisely as a faithful reading of the text. And as Professor Phillips’ replies to critics confirm (here and here), this reading also fits the reasoning of all the Court’s Title VII precedents—until yesterday. Yesterday's decisions contradict this faithful textualist reading of Title VII for a simple reason: an employer motivated by an intent, belief, or attitude about people engaging in certain forms of sexual conduct, for example, needn’t have any motivation (intent, belief, or attitude) at all that is specifically about, say, women (individually or as a group).