Mirror of Justice

Religious Tests for Public Office

We can all well recall the infamous moment when Senator Dianne Feinstein scolded Amy Coney Barrett, then a nominee for a judgeship on the U.S. Court of Appeals, that "the dogma lives loudly within you."

Many of us took the opportunity to applaud a person's faithful commitment, and, indeed, I still have my own t-shirt that reads: "The Dogma Lives Loudly Within Me."

But we also more soberly recognized this as an expression of anti-Catholic bias and an improper attempt to invoke religiosity as a disqualification for judicial office.

It is just a wrong when it comes from another direction, trying to evaluate whether a person is religious enough for judicial office.

Judge Ketanji Brown Jackson has proven herself to be a person of strong character and patient generosity, illustrating and saying that her faith has been a source of strength for her.

But that apparently was not enough for Senator Lindsey Graham who had the temerity to ask her: "On a scale of 1 to 10, how faithful would you say you are in terms of religion?" (Whether Graham meant the question or instead was posing a negative parallel to the Justice Barrett incident, the question remained way, way out of bounds.)

Judge Jackson answered appropriately in this way: "I am reluctant to talk about my faith in this way... I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views."

I was thinking of the answer of Saint Joan of Arc to a similar hostile question and how apt it would have been here: "If I be not in a state of grace, I pray God place me in it; if I be in it, I pray God keep me so."

Purposive interpretation *as* judicial restraint: The Legal Process School as the end of a long era

Most people today tend to associate purposive interpretation--of statutes, say, but it could be of anything--with "judicial activism" and therefore an absence of judicial restraint. The alignments seem to be: textualist interpretation--->restrained interpretation; purposive interpretation--->activist interpretation.

But I'm learning that it was the view of some legal process theorists (Bickel, Wellington, Jaffe, maybe Fuller) that purposive interpretation promoted and was in the service of judicial restraint. As Neil Duxbury puts it in his article on the Legal Process school (Faith in Reason: The Process Tradition in American Jurisprudence): "As with the articulation of reasons, they [legal process theorists] argued, the purposive interpretation of statutes fosters judicial restraint. For such interpretation allows not the imposition of any old purpose onto a statute, but only 'a purpose which may reasonably be imputed to those who uttered the words.' [citation here to a 1957 piece by Bickel and Wellington]....Judicial discretion in the interpretation of statutes, [Jaffe] argued, should be exercised...where the Court is uncertain of the clear purpose of the statute."

In fact, one can see the view that purposive interpretation is an appropriate judicial function in constitutional adjudication of the 18th and 19th century quite regularly. But I was surprised to see it as still so fully embraced by the Process theorists. As sifting out, through reasoned elaboration, the principles the lawmaker intended for the law. And yet, this way of thinking is so different from the way many think about judicial restraint today. Something like the opposite way.

Agreement on the moral authority of original meaning

Adrian Vermeule and Conor Casey have written an uncharacteristically pugnacious recommendation for a forthcoming article by Joel Alicea, The Moral Authority of Original Meaning. The primary thrust of Alicea's article is to provide "a natural-law justification for originalism grounded in the legitimate authority of the people-as-sovereign, authority that is necessary for achieving the common good." Alicea frames the paper as a response to Vermeule's argument, advanced emphatically here at MOJ, that originalism is "an essentially positivist approach." Judging from Vermeule's and Casey's response, Alicea's arguments have carried the day to the contrary. 

In making his earlier claim about the essentially positivist nature of originalism, Vermuele acknowledged that some had previously defended the compatibility of classical natural law jurisprudence and original-law originalism. But he argued that combining originalism and common-good constitutionalism results in an approach that is "intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water ...."

My initial assessment of this claim about the incompatibility of originalism and common good constitutionalism was that it was wrong. After all, (1) common good constitutionalism just seemed to be another adaptation of the classical natural law tradition that, in comparison with other adaptations' emphasis on law's efficient and material causes (i.e., lawful authority and promulgation), placed greater emphasis on the final cause of law (i.e., for the common good of the community for which it is promulgated); and (2) Jeff Pojanowski and I had already established the compatibility of the classical natural law tradition with what we called original-law-ism, or original-law originalism. Our arguments complemented argumentation in a similar vein by Lee Strang, who had been expounding the compatibility of the classical natural law tradition and constitutional originalism before we published our contribution to this literature. 

It seems my initial assessment was correct and that Vermeule has backed off the claim that originalism is "an essentially positivist approach." This latest blog post about Alicea's paper is the most recent indicator of this salutary development. (I'm not aware of co-author Conor Casey having previously advanced the same "essentially positivist" claim as Vermeule.)

Rather than press the claim that originalism is essentially positivist, Vermeule and Casey dispute neither that Alicea's approach is originalist nor that it is non-positivist. They argue not that Alicea is wrong, but rather that he has justified "uncontroversial generalities." They contend that what they call Alicea's "generic, lowest-common-denominator version of originalism" amounts to "thin gruel." More particularly, they say Alicea establishes only that:

[F]irst, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.

Vermeule and Casey assert that these two propositions of generic originalism are "what we take the classical legal tradition to entail." If the classical legal tradition is not essentially positivist, then neither is this generic originalism. 

As for whether this generic originalism amounts to "thin gruel," that may be more a matter of taste than anything else. If Alicea's arguments are correct—and Vermeule and Casey do not dispute them—they exclude many non-interpretivist theories of the sort that proliferated through the 1970s, 1980s, and 1990s. (Believe it or not, young 'uns, that's how these arguments were once framed: "interpretivist" versus "non-interpretivist" theories.) Originalism's success in this regard may be why some theorists jumped off the non-interpretivist track and relabeled the previously non-interpretive aspects of their approaches as interpretive. If one believes that there's nothing that interpretation just is, then this amounts to little more than marketing the same old non-interpretivism under a different label. But whether interpretation is a distinctive activity with a distinctive object is a question for another day.

Vermeule has previously acknowledged the existence of nonpositivist originalism by sometimes more carefully limiting his criticisms to "originalist positivism." [109] It would be helpful to the cause of argumentative clarity if he would do this more consistently. In the light edits that he did for the book version of the MOJ post in which he made his "essentially positivist" claim, for example, Vermeule left that claim in. As a result, Vermeule was still insisting as of the book's publication that "views that attempt to fuse the common good with originalism ... are intrinsically unstable, because they attempt to combine an essentially positivist approach with the classical approach." [136] 

It is a welcome development that the "essentially positivist" claim no longer appears to be the considered position of Vermeule or Casey. Their claim now is that the stability of any combination on originalism and common good constitutionalism depends on the substantive insignificance of any version of originalism that is compatible with common good constitutionalism. Evaluating that claim depends, of course, on the relative insignificance of posited law in the comparator version of common good constitutionalism.

In any event, Vermeule's and Casey's recognition of the incorrectness of treating generic originalism as "essentially positivist" is why I began by describing Vermeule's and Casey's post as an uncharacteristically pugnacious recommendation of Alicea's paper. They are in heated agreement with Alicea's titular claim about The Moral Authority of Original Meaning. 

The reality of the Annunciation, the angel Gabriel, and the injustice of the Ukraine invasion

Today's Feast of the Annunciation is both somber and hopeful. Pope Francis will lead an Act of Consecration of Russia and Ukraine to the Immaculate Heart of Mary. We should accept the invitation he has extended to all the faithful to join him in praying this prayer:

O Mary, Mother of God and our mother, in this time of trial we turn to you. As our mother, you love us and know us: No concern of our hearts is hidden from you. Mother of mercy, how often we have experienced your watchful care and your peaceful presence! You never cease to guide us to Jesus, the prince of peace.

Yet we have strayed from that path of peace. We have forgotten the lesson learned from the tragedies of the last century, the sacrifice of the millions who fell in two world wars. We have disregarded the commitments we made as a community of nations. We have betrayed peoples’ dreams of peace and the hopes of the young. We grew sick with greed, we thought only of our own nations and their interests, we grew indifferent and caught up in our selfish needs and concerns.

We chose to ignore God, to be satisfied with our illusions, to grow arrogant and aggressive, to suppress innocent lives and to stockpile weapons. We stopped being our neighbor’s keepers and stewards of our common home. We have ravaged the garden of the earth with war, and by our sins we have broken the heart of our heavenly Father, who desires us to be brothers and sisters. We grew indifferent to everyone and everything except ourselves. Now with shame we cry out: Forgive us, Lord!

Holy Mother, amid the misery of our sinfulness, amid our struggles and weaknesses, amid the mystery of iniquity that is evil and war, you remind us that God never abandons us, but continues to look upon us with love, ever ready to forgive us and raise us up to new life. He has given you to us and made your Immaculate Heart a refuge for the church and for all humanity. By God’s gracious will, you are ever with us; even in the most troubled moments of our history, you are there to guide us with tender love.

We now turn to you and knock at the door of your heart. We are your beloved children. In every age you make yourself known to us, calling us to conversion. At this dark hour, help us and grant us your comfort. Say to us once more: “Am I not here, I who am your Mother?” You are able to untie the knots of our hearts and of our times. In you we place our trust. We are confident that, especially in moments of trial, you will not be deaf to our supplication and will come to our aid.

That is what you did at Cana in Galilee, when you interceded with Jesus and he worked the first of his signs. To preserve the joy of the wedding feast, you said to him: “They have no wine” (Jn 2:3). Now, O Mother, repeat those words and that prayer, for in our own day we have run out of the wine of hope, joy has fled, fraternity has faded. We have forgotten our humanity and squandered the gift of peace. We opened our hearts to violence and destructiveness. How greatly we need your maternal help!

Therefore, O Mother, hear our prayer.

Star of the Sea, do not let us be shipwrecked in the tempest of war.

Ark of the New Covenant, inspire projects and paths of reconciliation.

Queen of Heaven, restore God’s peace to the world.

Eliminate hatred and the thirst for revenge, and teach us forgiveness.

Free us from war, protect our world from the menace of nuclear weapons.

Queen of the Rosary, make us realize our need to pray and to love.

Queen of the Human Family, show people the path of fraternity.

Queen of Peace, obtain peace for our world.

O Mother, may your sorrowful plea stir our hardened hearts. May the tears you shed for us make this valley parched by our hatred blossom anew. Amid the thunder of weapons, may your prayer turn our thoughts to peace. May your maternal touch soothe those who suffer and flee from the rain of bombs. May your motherly embrace comfort those forced to leave their homes and their native land. May your sorrowful heart move us to compassion and inspire us to open our doors and to care for our brothers and sisters who are injured and cast aside.

Holy Mother of God, as you stood beneath the cross, Jesus, seeing the disciple at your side, said: “Behold your son” (Jn 19:26). In this way, he entrusted each of us to you. To the disciple, and to each of us, he said: “Behold, your Mother” (Jn 19:27). Mother Mary, we now desire to welcome you into our lives and our history.

At this hour, a weary and distraught humanity stands with you beneath the cross, needing to entrust itself to you and, through you, to consecrate itself to Christ. The people of Ukraine and Russia, who venerate you with great love, now turn to you, even as your heart beats with compassion for them and for all those peoples decimated by war, hunger, injustice and poverty.

Therefore, Mother of God and our mother, to your Immaculate Heart we solemnly entrust and consecrate ourselves, the church and all humanity, especially Russia and Ukraine. Accept this act that we carry out with confidence and love. Grant that war may end and peace spread throughout the world. The “fiat” that arose from your heart opened the doors of history to the Prince of Peace. We trust that, through your heart, peace will dawn once more. To you we consecrate the future of the whole human family, the needs and expectations of every people, the anxieties and hopes of the world.

Through your intercession, may God’s mercy be poured out on the earth and the gentle rhythm of peace return to mark our days. Our Lady of the “fiat,” on whom the Holy Spirit descended, restore among us the harmony that comes from God. May you, our “living fountain of hope,” water the dryness of our hearts. In your womb Jesus took flesh; help us to foster the growth of communion. You once trod the streets of our world; lead us now on the paths of peace. Amen.

None of this makes any sense, of course, if the only reality in this world is material reality. But materialism is so ingrained, primarily as a practical rather than speculative stance, because our spiritual senses have been deadened and dulled. Perhaps this Feast of the Annunciation can be an occasion for a renewed commitment to prayer for the grace of enlivened and sharpened spiritual senses.

As a matter of "intellectual engagement," a good place to begin is with the reality of spiritual reality. This is where Frank Sheed begins in Theology for Beginners. He relates an exchange that a Catholic Evidence Guild member had with "a materialist, who asserted the the idea of justice was the result of a purely bodily activity, produced by man's material brain":

Speaker: How many inches long is it?

Questioner: Don't be silly, ideas have no length.

Speaker: O.K. How much does it weigh?

Questioner: What are you doing? Trying to make a fool of me?

Speaker: No. I'm taking you at your word. What color is it? What shape?

[Sheed continues:] The discussion at this point broke down, the materialist saying the Catholic was talking nonsense. It is nonsense, of course, to speak of a thought having length or weight or color or shape. But the materialist had said that thought is material, and the speaker was simply asking what material attributes it had. In fact, it has none, and the materialist knew this perfectly well. Only he had not drawn the obvious conclusion. If we are continuously producing things which have no attribute of matter, it seems reasonable to conclude that there is in us some element which is not matter to produce them. This element we call spirit.

Oddly enough, the materialist thinks of us as superstitious people who believe in a fantasy called spirit, of himself as the plain blunt man who asserts that ideas are produced by a bodily organ, the brain. What he is asserting is that matter produces offspring which have not one single attribute in common with it, and what could be more fantastic than that? We are the plain blunt men, and we should insist on it.

Occasionally a materialist will argue that there are changes in the brain when we think, grooves or electrical discharges or what not. But these only accompany the thought; they are not the thought. When we think of justice, for instance, we are not thinking of the grooves in the brain; most of us are not even aware of them. When I say that mercy is kinder than justice, I am not comparing mercy's grooves with the stricter grooves of justice.

Our ideas are not material. They have no resemblance to our body. Their resemblance is to our spirit. They have no shape, no size, no color, no weight, no space. Neither has spirit, whose offspring they are. But no one can call it nothing, for it produces thought, and thought is the most powerful thing in the world—unless love is, which spirit also produces.

Let us consider this passage in light of today's Act of Consecration. The category of spiritual reality is necessary to make sense of it. Without this category, we would have no adequate way to conceive of the reality of the Annunciation itself, of the angel Gabriel, or of the injustice of the Ukraine invasion. Each of these events, persons, or states of affairs is real. Each only makes sense as real in light of spiritual reality. As an event in the material world, the Annunciation was manifest through the appearance of the angel Gabriel to Mary. But what is an angel? What does it mean for a purely spiritual creature to "appear"? What was announced in the Annunciation? None of this makes any sense, and there is no possibility of salvation through the Incarnation, Life, Death, and Resurrection of Jesus Christ, unless spiritual reality is real reality.

And now we return to this day, March 25, 2022. Spiritual reality grounds the claim that the injustice of Russia's invasion of Ukraine is real injustice. The act of invasion was the act of a real vice, of objectively disordered human will. Again, something important is missing if we think of justice and injustice as simply subjective opinions lacking any basis in reality. Yet if the only reality is material reality, then that's where we are.  

Mary, Queen of Angels, pray for us.

Christian nationalism and the rule of law

I've posted on SSRN my chapter on Christian nationalism from a new book on the January 6 insurrection.  You can read the whole thing here.  The abstract:

Current threats to the rule of law in the United States emerge, at least in part, from a nationalism shaped by a distinctly American vision of Christianity. Defenders of the rule of law must therefore respond in terms that confront the religious dimension of the threat directly. Religiously affiliated law schools should be key contributors to this conversation, modeling a faith-shaped discourse that avoids invoking Christianity as a conversation-stopper, as a signal of self-righteousness, or as a means to stir up hatred of “the other.” How might the public witness of our faith support, rather than impede, the rule of law?

Academic Freedom (?) and Catholic character at Dayton

The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021.  The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”

The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought."  The letter also states:

We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.

I have written before about the issue of Catholic universities, honorees, and outside speakers before.  Among other things, I said:

[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.

That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university.  It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate.  As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research. 

Again:  This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights.  And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one.  But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university.  And again:  I say a bit more about why this suggestion is incorrect, here. 

Announcing the Sixth Biennial Colloquium in Law & Religion at St. John's Law School

The Center for Law and Religion, which Mark Movsesian and I co-direct, is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. 

This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

Mirror of Justice's 18th (!) anniversary . . . and the Velveteen Rabbit

Our first post here at Mirror of Justice went live just over 18 years ago.  ("Wait, grandpa . . . they had the Internet 18 years ago?"  "Yes, m'boy, and there was content besides homemade dance videos, too!")  Here's the opening graf:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

It is not clear, of course, what the future is for blogs and mid-2000's-style, blog-based conversations.  There's no denying that other platforms and media (especially Twitter) have distracted some of us (me!) and made for a more crowded field of things-to-read.  And yet:  Nearly two decades later, we are a group of friends and colleagues who continue to be interested in "discovering how our Catholic perspective can inform our understanding of the law", and in sharing this path of discovery with our students, our fellow lawyers, and, well, anyone who is interested!

One of my first sort-of-substantive posts was about the importance and relevance of "moral anthropology" to the legal enterprise.  I continue to think this is a linch-pin issue.  That is, it matters -- a lot -- for law what human persons are and what they are for.  Are we (in C.S. Lewis's words) "everlasting splendours" or . . . meat puppets?  If we have "dignity", what makes it so that we do?

Conference: "Beyond 'Defensive Crouch' Religious Freedom"

I'm happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I'll present a paper called "Traditionalist Disestablishments," a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:

In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society.

 

The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.

 

Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email [email protected]. We hope you'll join us!

True Again Today: There's a Bear in the Woods

 

 

Lincoln's Humility

This week I read a report about the trend of Americans choosing to relocate in order to live in places that are more closely aligned with their political beliefs. This adds to the “big sort” that has been occurring for years. (From 1992 to 2016, the number of extreme landslide counties — i.e., those decided by margins exceeding 50 percentage points — increased from 93 to 1,196.) A new poll shows that Americans’ trust in the scientific and medical communities varies dramatically based on one’s political affiliation, adding to the partisan gaps we already knew about regarding trust in other social institutions. We’ve always disagreed about particular issues, but those disagreements have intensified, widened, and coalesced around shared identities that shape the ways in which we view the world.

 

The clash in worldviews can be seen in our reactions to the world around us. How do we feel about recent protests that shut down streets and highways in Minneapolis to bring attention to police practices deemed unjust? How do we feel about recent protests that shut down streets and highways in Ottawa to bring attention to COVID mandates deemed unjust? I’m guessing most of us feel differently about one versus the other, and that’s understandable – we will disagree about injustice, just as we disagree about appropriate tactics employed in pursuing justice. The problem is when that disagreement spirals into dehumanization – i.e., that those who hold different worldviews are not just wrong, but “other.”

 

There is a better way, and it was modeled 158 years ago by Abraham Lincoln, whom we celebrate tomorrow on Presidents’ Day. His second inaugural address, delivered near the end of a brutal and bloody war, showed a degree of humility that may not even count as a political virtue in today’s climate. Lincoln observed that both sides in the Civil War “read the same Bible and pray to the same God and each invokes His aid against the other.” This was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the war. Instead, he recognized that those on the other side were just as sincere in their faith as he was.

 

Did Lincoln’s humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict. I encourage us to reflect on ways we can model Lincoln’s humility: not pulling back from our commitment to justice, but not permitting our commitment to justice to obscure the humanity of those on the other side of the struggle.

Syllabus for my course on Civil Liberties at Princeton

Princeton University

Politics 316

CIVIL LIBERTIES

Professor Robert P. George

Spring 2022

This course explores the moral premises of controversial claims of civil rights and liberties in light of moral, religious, and cultural pluralism. We shall consider real and hypothetical cases in which claims to rights and liberties come into conflict, or are alleged to come into conflict, with the rights and liberties of others, or with other important values. We shall consult philosophical, historical, and sociological writings as well as opinions of courts that have adjudicated disputed claims of civil rights and liberties as matters of constitutional law.

Readings. All course readings are available on E-Reserves.

Attendance. Students are required to attend lectures and precepts and to participate in class discussions. Any student who will miss a precept or a lecture must inform his or her preceptor in advance.

Grading. The grading breakdown for the course is as follows: mid-term paper 30%; final paper 50%; class participation 20%.

Assignments. There are two written assignments. A mid-term assignment and a final paper.

Late Penalty. Due dates are strictly enforced. Papers received with a time stamp after 4 p.m. but before midnight on the date on which they are due will be penalized one half letter grade. Papers will be penalized another half letter grade if they received by 4 p.m. on the subsequent day and another half letter grade for each day after that.

General Education Requirement:  The Civil Liberties course has been designated to fulfill the General Education Requirement for both Ethical Thought and Moral Values (EM) and Culture and Difference (CD). The course explores the moral premises of controversial claims of civil rights and liberties in light of moral, religious, and cultural pluralism. The focus is on American cultural pluralism and the issues it generates in the areas of constitutional law and political theory—issues often implicating questions of race, religion, sex, socio-economic class, and alienage. Readings are drawn from key judicial opinions in landmark cases (e.g., Brown v. Board of Education, Roe v. Wade, Citizens United v. FEC, Kelo v. City of New London, Obergefell v. Hodges) as well as from scholarship in the fields of constitutional law, moral and political philosophy, political science, history, sociology, and cultural studies. Many different approaches and perspectives are presented, and students are encouraged to examine problems by sympathetically considering the points of view of people who are quite different from themselves.

The course explores questions on which there is profound division in American culture, reflecting the differences in worldview that shape contemporary American cultural pluralism. Students are asked to consider these issues on the merits, of course, in light of the arguments on the competing sides set forth in the readings; but they are also asked to reflect on the question of how and by whom, in a constitutional democracy marked by cultural pluralism, such issues ought to be decided. When is a national resolution required? Under what circumstances are regional or local resolutions to be preferred? What is the proper scope of legislative authority? What is the role of courts? What, if anything, provides institutions of various sorts with legitimacy? If democracy is a legitimating value, what constitutes authentic democracy, especially in circumstances of cultural pluralism? What sort of representation is necessary? What is the place of minority rights in democratic decision-making?

 

Freedom of Thought, Expression, and Discussion. As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

 

SCHEDULE OF ASSIGNMENTS 

January 25, 2022, Week 1: E PLURIBUS UNUM?  WHOSE IDEA OF LIBERTY?

WHICH CONCEPTION OF JUSTICE?

Precepts will not meet the first week. But do not, for that reason, neglect the readings. They are required and aim to frame the issues presented by this course.

Declaration of Independence

U.S. Constitution (all)

Federalist Papers ## 10, 51, 78

John Rawls, “The Idea of Public Reason Revisited”

Michael Sandel, “Rawls’ Political Liberalism”

February 1, 2022, Week 2: CIVIL LIBERTIES AND THE CONSTITUTIONAL ORDER

Lochner v. New York (1905)

Griswold v. Connecticut (1965)

Lincoln’s First Inaugural Address (1861)

Frederick Douglass, “What to the Slave is the Fourth of July?” (1852)

Hadley Arkes, Beyond the Constitution, ch. 4

Antonin Scalia, “Originalism: The Lesser Evil”

Sonia Sotomayor, “Originalism vs. the Living Constitution”

February 8, 2022, Week 3: POLITICAL EXPRESSION

United States v. O’Brien (1968)

Brandenburg v. Ohio (1969)

Cohen v. California (1971)

Texas v. Johnson (1989)

Snyder v. Phelps (2011)

Citizens United v. Federal Election Commission (2010)

John Stuart Mill, “On Liberty” (chapters 1 and 2)

Herbert Marcuse, “Repressive Tolerance”

David Lowenthal, “The Constitutional Revolution of Holmes and Brandeis”

February 15, 2022, Week 4: OBSCENITY AND PORNOGRAPHY

Miller v. California (1973)

Barnes v. Glen Theatre (1991)

Ashcroft v. Free Speech Coalition (2002)

Ronald Dworkin, “Is There a Right to Pornography?”

Robert P. George, “Private Acts, Public Interests”

Lynn & Goldsmith, “Is Antipornography Legislation …?”

Catherine Mackinnon, “Sexuality, Pornography, and Method: Pleasure Under Patriarchy”

February 22, 2022, Week 5: FREE EXERCISE OF RELIGION

Reynolds v. United States (1878)

West Virginia v. Barnette (1943)

Wisconsin v. Yoder (1972)

Employment Division v. Smith (1990)

Masterpiece Cakeshop, Ltd. v. CO Civil Rights Commission (2018)

Asma Uddin, “The First Amendment: Religious Freedom for All—Including Muslims”

Eisgruber & Sager, “Equal Liberty,” in Religious Freedom and the Constitution

John Finnis, “Does Free Exercise of Religion Deserve Constitutional Protection?”

 

Note: Mid-term exercise posted on Blackboard.

March 1, 2022, Week 6: RELIGION AND PUBLIC LIFE

Everson v. Board of Ed. (1947)

Lee v. Weisman (1992)

Good News Club v. Milford Central School (2001)

American Legion v. American Humanist Assoc. (2019)

“Clergyman John Witherspoon Couples Religion with Politics”

“Abolitionist William Lloyd Garrison Admits of No Compromise…”

“Bishop Fulton Sheen Makes a Wartime Plea”

Martin Luther King, Jr., “Letter from a Birmingham Jail”

Leo Pfeffer, Church, State and Freedom, ch. 5

Stephen Carter, “Reflections on the Separation of Church and State”

Note: Mid-term exercise due at end of this week on Friday March 4, 2022, at 4 p.m

 

SPRING BREAK

 

March 15, 2022, Week 7: EQUAL PROTECTION AND AFFIRMATIVE ACTION

Brown v. Board of Education (1954)

Bolling v. Sharpe (1954)

Regents of the Univ. of CA v. Bakke (1978)

Adarand Constructors v. Pena (1995)

Grutter v. Bollinger (2003)

Gratz v. Bollinger (2003)

“The Compelling Need for Diversity in Higher Education: Introduction,” Reports Prepared for

the [Gratz & Grutter] Lawsuits, University of Michigan

Patricia Williams, “We Need Race-Based Affirmative Action”

Cornel West, “Beyond Affirmative Action: Equality and Identity”

Robert George, “Some Questions about Affirmative Action”

March 22, 2022, Week 8: “… OF LIFE LIBERTY OR PROPERTY ...”

John Locke, “On Property,” 2nd Treatise of Government (1690)

Simmons, “The Lockean Theory of Rights”

Friedrich Engels, “The Principles of Communism” (1847)

John Finnis, "Justice," in Natural Law and Natural Rights (2d ed.)

Penn Central Transportation, Co. v. City of New York (1978)

Hawaii Housing Authority v. Midkiff (1984)

Kelo v. New London (2005)

March 29, 2022, Week 9:  EMBRYONIC RESEARCH, ABORTION AND INFANTICIDE

Roe v. Wade (1973)

Doe v. Bolton (1973)

Planned Parenthood v. Casey (1992)

Gonzales v. Carhart (2007)

Naomi Wolf, “Our Bodies, Our Souls”

Michael Paulsen, “Unbearable Wrongness of Roe”

Peter Singer, “Killing Babies Isn’t Always Wrong”

Michael Sandel, “Epilogue: Embryo Ethics: The Stem Cell Debate,” The Case Against

Perfection

Robert George, “Embryo Ethics”

NB: Find on e-reserve optional reading for students interested in the debate over embryo- destructive research, viz., George & Tollefsen, “The Exchange with Saletan,” in Embryo: A Defense of Human Life

April 5, 2022, Week 10: EUTHANASIA, ASSISTED SUICIDE AND PUBLIC POLICY

Cruzan v. Missouri Dept. of Health (1990)

Washington v. Glucksberg (1997)

Vacco v. Quill (1997)

Ronald Dworkin, “Do We Have a Right to Die?”

John Finnis, “Euthanasia, Morality, and Law”

“Assisted Suicide: The Philosophers’ Brief”

Luke Gormally, et al., Euthanasia, Clinical Practice, and the Law

April 12, 2022, Week 11: SEXUALITY, MARRIAGE AND PULIC POLICY

Griswold v. Conn. (1965) (again)

Loving v. Virginia (1967)

Lawrence v. Texas (2003)

Obergefell v. Hodges (2015)

Andrew Koppelman, “Homosexual Conduct”

Girgis, George & Anderson, What Is Marriage, chs. 3-5

Elizabeth Brake, “Minimal Marriage: What Political Liberalism Implies for Marriage Law”

Sherif Girgis & John Corvino, “Same-sex Marriage,” in Contemporary Debates in Applied

Ethics (2d ed.)

April 19, 2022, Week 12: CRIME AND PUNISHMENT

Furman v. Georgia (1972)

Gregg v. Georgia (1976)

Coker v. Georgia (1977)

Roper v. Simmons (2005)

Jeremy Bentham, “An Introduction to the Principles of Morals and Legislation”

Immanuel Kant, “On the Right to Punish”

Becky Pettit and Carmen Gutierrez, “Mass Incarceration and Racial Inequality”

Gerard Bradley, “Retribution: The Central Aim of Punishment”

 

NB: Final Paper will be posted after the final lecture. It must be submitted on Dean’s Date, by 4 p.m.

###

Conference on Catholic Perspectives on Criminal Justice Reform at U. Wisconsin, Sponsored by Lumen Christi and the Center for the Study of Liberal Democracy

I'm just back from an excellent conference organized by Professor Cecelia Klingele at the University of Wisconsin on Catholicism and Criminal Law and Justice. The conference was sponsored jointly by the Lumen Christi Institute and Wisconsin's Center for the Study of Liberal Democracy.

Together with fellow MOJ-er Patrick Brennan, we had a day of reflection and presentation of work concerning the theme. John Stinneford and I are having fun co-authoring a paper on "The Common Law, the Catholic Tradition, and the Criminal Law." We discuss the idea of tradition in Catholicism and the common law, the important concept of "culpa" or blameworthiness within both traditions, and its evolution across time. More soon on this paper.

Adrian Vermeule's "Common Good Constitutionalism"

Adrian Vermeule's much anticipated book, Common Good Constitutionalism, is coming out soon, and is available for purchase on Amazon, etc.  MOJ readers are likely familiar with the project, not only from Adrian's MOJ contributions in the past, but also from writings at, e.g., Ius et Iustitium (also here) and The Atlantic and, recently, The New York Times.  

I expect that Adrian's book and argument will be of interest to MOJ writers and contributors, and I hope that many of my co-bloggers will read the book, and share their thoughts about it.  Given (inter alia) St. Thomas's well known definition of law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated", there can be no doubt that the idea/aim/end of "the common good" -- which is, of course, not understood in the Catholic tradition as "the greatest good for the greatest number" or in merely utilitarian terms but instead as the network/sum of social conditions which enable human persons and societies to flourish -- is crucial to any Catholic legal theory and, it would seem, to any Catholic account of the enterprise of constitutionalism.

The questions that I have about Adrian's proposal, and about others to which "common good constitutionalism" is attached, have to do not so much with the question whether those who are authorized to make laws should do so with an eye toward promoting and protecting -- to the extent possible and feasible, this side of Heaven -- the common good of the relevant political community.  Instead, my questions have to do more with these proposals' implications for constitutional interpretation by federal judges who, in our context, are authorized to decide cases and controversies only by virtue of the positive-law-fact that the federal judicial power has been vested as it has.  To have such questions is not, of course, to be a "positivist" or "relativist."  But it is not clear to me why (as I gather Adrian argues) that an appropriate appreciation for the fact that a political community's positive laws should promote and protect the common good, correctly understood, means that "originalism" is not the appropriate methodology for identifying the judicially enforceable content of the positive laws that we have.

In any event . . . I look forward to reading and learning more.   

Christian nationalism and American evangelicalism

Christian nationalism – i.e., the merging of Christian identity and American identity – concerns me, and I hope it concerns you too.  When we treat our preferred political positions as matters of divine revelation that are not subject to rational debate with our fellow Americans, that’s a dangerous place for a democracy to be.  However, I am also concerned by folks who portray Christian nationalism as a problem that belongs to white American evangelicals.  It’s not that simple.  Here’s why.

First, we have to be precise when we talk about “evangelicals.”  Do we mean people who identify culturally as evangelicals or people who actually participate in evangelical Christianity?  One of the unfortunate consequences of the great tribal sorting that has occurred between red and blue America over the past twenty years is that our political invocations of religion may have only a tenuous connection with actual religious practice.  For example, last week Ryan Burge posted survey data showing that, in 2008, 18% of white self-identified evangelicals never attended church.  In 2020, that had increased to 28%.  And among self-identified evangelicals who never attended church, while 36% were Republicans in 2008, that had increased to 65% by 2020.  For Republicans – who make up the majority of Christian nationalists – there are political and cultural reasons to identify as “evangelical” that have nothing to do with one’s religious beliefs or practices.

Second, a person who engages in Christian religious practices is less likely to embrace beliefs that correspond to Christian nationalism.  Andrew Whitehead and Samuel Perry show that, while Christian nationalists are more likely to report negative attitudes toward racial and religious minorities, those attitudes have an inverse relationship with religious practice.  For example, the more one adheres to Christian nationalist views, the less willing one is to acknowledge the existence of police discrimination against Black Americans.  However, “as people more frequently attend church, pray, or read their sacred scriptures, they become more likely to recognize racial discrimination in policing.”  The same pattern holds regarding attitudes toward immigration, the environment, refugees, and Muslims.  In light of the data, Perry and Whitehead conclude that “the association between Christian nationalism and . . . attitudes toward racial and religious minorities tends to work in the opposite direction than the association between private religious practice and these same things.”

Is American evangelicalism blameless for the rise of Christian nationalism?  Hardly.  But we need to be precise in talking about the challenges our nation faces.  Christian nationalism is a threat that is associated with white American evangelicals but is, in reality, mitigated by the actual practice of evangelical faith.

Cancel Culture Targets Charity

A very important opinion piece is in the WSJ today by Jeremy Tedesco, senior counsel and senior vice president of corporate engagement for Alliance Defending Freedom.

Tedesco details the work by Unmasking Fidelity, a loose coalition of fringe groups that recently delivered a list of demands to Fidelity Charitable, which manages a donor-advised fund through which account holders can direct contributions to their favorite nonprofits. Such proposals are a threat to freedom of speech, freedom of association, and the rights of donors to practice philanthropy.

As Tedesco writes:

Those who care about philanthropic freedom aren’t about to sit idly by and watch Unmasking Fidelity strip Americans of their rights to free speech, free association and privacy. That’s why more than 1,800 financial advisers, investment professionals and nonprofit leaders have signed a letter urging Fidelity Charitable’s leadership to reject Unmasking Fidelity’s demand that it serve as a roadblock to charitable giving.

 

Christian nationalism and January 6

As we observe the 1-year anniversary of the deadly attack on the U.S. Capitol, I encourage American Christians to remember that pushing back against Christian nationalism does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.

 

But first we have to be clear that Christian nationalism is a perversion of our faith and a threat to the rule of law. Among the heartbreaking images that linger from Jan. 6, 2021: the "Jesus Saves" banners being held by rioters entering the Capitol, right alongside the Confederate flags, nooses and Holocaust sweatshirts. The attack followed weeks of "Jericho marches," prayer meetings and rallies premised on the idea that God ordained Donald Trump to serve eight years as president, and that those who stood in the way were attempting to thwart God's will for America.

 

If we don't want the lessons from that day to be obscured by partisan talking points, we need to be clear about why Christian nationalism is dangerous and what healthy Christian political engagement looks like.

 

Andrew Whitehead and Samuel Perry provide the most comprehensive account of Christian nationalism, which they describe in Taking America Back for God as "a cultural framework that blurs distinctions between Christian identity and American identity, viewing the two as closely related and seeking to enhance and preserve their union." When we merge our identity as Christians with our identity as Americans, we invest political positions with a level of certainty and fervor traditionally reserved for matters of religious faith. Christian nationalists are no longer debating ideas about which reasonable people can disagree; they are defending Christianity against its enemies. That's a dangerous place for a democracy to be.

 

If American Christians are not happy with the voices that loudly proclaim direct knowledge of God's will for American politics (often arising on the right), and we're not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what's the path forward?

 

Christian nationalism has exemplified three characteristics that healthy Christian political engagement must avoid.

 

First, Christian faith should not be a conversation-stopper. Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so, provided the religious language is an entry point, not the entirety of the argument. "The Bible says it, I believe it, that settles it," may be a pithy and popular bumper sticker, but it's not fertile ground for the dialogues on which our democracy depends. The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.

 

Second, Christian faith should not be a rationale for self-righteousness. When Christians refuse to recognize the possibility that our political tribe is capable of evil, we are denying the reality of sin. The Christian nationalist narrative does not portray political opponents as fellow citizens with different ideological commitments; rather, they are enemies engaged in spiritual warfare. When outraged Christian nationalists attacked the Capitol, they may not have seriously considered the possibility that then-President Trump and his media champions were exaggerating and fabricating reasons to doubt the election's outcome. Their example is a cautionary lesson for citizens across the political spectrum. Self-righteousness distorts our perception of reality and precludes the mutual recognition of fallibility on which the give-and-take of democracy depend.

 

Third, Christian faith should not stoke fear of "the other." In contrast to the radical "love thy neighbor" teachings of Jesus, the rhetoric of Christian nationalism engenders loyalty by stoking fear. Christian nationalism is about power — to be won and wielded against external threats. Relying on fear and finger-pointing as a political weapon creates an us-vs.-them mindset. This threatens the rule of law, which aims to guarantee that all are treated fairly, that laws operate prospectively as guides to conduct, and that the application of laws does not depend on a group's popularity. By building a political movement on the scapegoating of particular groups, Christian nationalists' rhetoric creates tension with these guarantees.

 

Christian nationalists are espousing a version of the faith that has profound and dangerous consequences for the rule of law. We cannot defend the rule of law by relying solely on arguments that fail to address the foundational claims from which threats emerge. Christian nationalism is one such threat, and we need to respond — as Americans and, perhaps more importantly, as Christians.

 

(A version of this appears in the Minneapolis Star-Tribune and is based on the chapter I contributed to "Beyond Imagination?: The January 6 Insurrection," a new book published by West Academic.)

Model Free Speech Language For Your Syllabus

Fellow academics:

With the new academic term about to begin, please consider adapting this language concerning free speech for use on your course syllabi.

As set forth in Princeton University's Rights, Rules, Responsibilities section 1.1.3, this institution strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Happy Feast of St. Thomas Becket!

2022 Church, State & Society Writing Competition

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

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

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

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

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

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

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

https://churchstate.nd.edu/news-events/news/2022-church-state-society-writing-competition/

Remembering the Most Important Thing

From the first time that my University of St. Thomas offered a special Christmas Eve Mass at the Chapel of St. Thomas Aquinas, my wife, Mindy, and I have faithfully attended — other than last year during the depths of the pandemic. We were blessed to return last evening. Above is a photo I took last night of the wonderful Nativity Scene at the front of the chapel. Having seen hundreds of Nativity Scenes through the years, this is my favorite.

 

Last night, in looking at that depiction of the birth of Jesus, I was reminded of a story that the late Justice Antonin Scalia shared with a group of my faculty at the University of St. Thomas shortly before his death. As Justice Scalia had told this story to many others, including those on this list, I’m sure they could point out minor errors or omissions in my telling. But I’ll do my best and be true to my own recollection. And, as imperfect as it may be, I think it will serve the main point.

 

Justice Scalia was talking with us about how the University of St. Thomas School of Law took its Catholic identity seriously, as integrating the profession of law into the whole person of the faithful lawyer. He said the same had been true of Georgetown University, when he was an undergraduate student there.

 

As he approached graduation from Georgetown, the young Scalia had to pass an oral examination before a panel of professors in the history department. They peppered him with questions about historical events. And, as Scalia recalled it to us, “I was hitting the questions out of the park. I knew I was doing a great job.”

 

Finally, the chair of the department, a senior faculty member and Catholic priest, said, “we have one last question for you, Mr. Scalia. What was the most important event in human history?”

 

Scalia told us his thinking was, “I’ve got this. There is simply no wrong answer to this question. Any answer I give will be fine, as long as I provide a good argument for why the event I choose had a major impact on history.” He then proceeded to discuss the Battle of Waterloo and the dramatic effect that the defeat of Napoleon had on European history.

 

When he was finished, the chair of the department said, “No, Mr. Scalia, that is the wrong answer.”

 

The reverend chair continued: ”The most important event in human history was the birth of our Lord and Savior Jesus Christ in Bethlehem.”

 

And Scalia knew of course that he had been wrong. So wrapped had he been in showing his intellectual prowess on history that he had forgotten the most important thing of all. And, of course, we in the legal profession are particularly likely to mistakenly begin to think that what we are doing and saying about the law is the most important thing. It may well be an important thing. And it may be what God is calling us to do as professionals.  But it is not the most important thing.

 

So my prayer for all of us today on Christmas is that we not only remember but truly feel the love of God in this season that should be joyful. Know that God cared so deeply for us that he sent his only Son to be incarnated into a human body, born of a poor family in a stable of animals and laid in a feeding trough. God bless us all today! Merry Christmas!

Democrats for Life Brief in PA Hyde-Amendment Case

The PA Supreme Court is hearing a challenge to the state's version of the Hyde Amendment (Allegheny Reproductive Services v. PA. Dept. of Human Services, appeal from 249 A.3d 598 (Pa. Commw. Ct. 2021)). Abortion providers are petitioning the court to reverse its 1985 Fischer decision (509 Pa. 293, 502 A.2d 114) that upheld the ban on state funding of abortions (except for rape, incest, or threats to the mother's life), on grounds similar to  SCOTUS's upholding of the federal Hyde Amendment in Maher v. Roe and Harris v. McRae.

Democrats for Life of America has filled an amicus brief in support of the PA funding restriction. From the summary of argument:

DFLA files this brief to emphasize three interests that the ban on funding of elective abortion serves. These interests are important, and at the very least, are clearly valid and legitimate under rational-basis scrutiny.

     A. First, the funding ban serves the interest in protecting fetal life, which has been held to be “important” by this Court in Fischer IV and, as this Court noted, by the U.S. Supreme Court as well. Since Fischer IV, scientific advances, including ultrasound technology, have made it even clearer that the unborn child is a distinct human life during its development in the mother. These developments reinforce Fischer IV, both as a matter of stare decisis and because it is correct.

     B. Second, the funding ban serves the important, and unquestionably valid, interest in respecting the conscience of many taxpayers who believe that abortion takes an innocent human life, and that the government revenue to which they contribute should not support that practice. Although the government is not required to accommodate taxpayers’ objections by declining funding, it has discretion to do so. From the nation’s founding, our governments have accommodated taxpayers’ conscience by denying funding to various practices that violate their deeply held beliefs. Abortion-funding restrictions stand within this tradition of respecting taxpayer conscience on deeply divisive issues; indeed, the tradition is especially strong in protecting people against being forced to facilitate abortions.

     C. Finally, because abortion-funding restrictions avoid forcing taxpayers to facilitate abortion when they deeply oppose it, such restrictions make it possible to secure broad support for health and welfare-related funding in general. The government has a strong interest in maintaining the flexibility that helps build such consensus for social-welfare assistance programs. Since 1980, Pennsylvania’s ban on funding elective abortions has bolstered support for the Medical Assistance Program. Similarly, since 1976 the federal Hyde Amendment has bolstered support for federal health and welfare spending. And adoption of abortion-funding restrictions in the Affordable Care Act—restrictions with bipartisan support—were crucial to the passage of that major healthcare-reform legislation.

In section C, the brief details the crucial role that abortion-funding restrictions, and the pro-life Democrats who pushed and hard for them, played in the passage of the Affordable Care Act. (Citing former Rep. Bart Stupak's account of the events, For All Americans.) Since the ACA's passage, of course, pro-life Democrats have been decimated in Congress and state offices across the country by the combined efforts of Republicans, major pro-life groups, and anti-abortion rights groups. It's a feature of, and a contributor to, our accelerated polarization. But the arguments in section C--that a consensus in support of strong social-welfare benefits can much more easily form if taxpayers do not thereby have to fund elective abortions--are still important in a number of purplish states, like Pennsylvania.

Sotomayor, Abortion, and Religion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Commentary on the Dobbs arguments

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

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

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

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

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

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

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

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

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