Mirror of Justice

Religious freedom summit opens with stories of religious violence and resilience

The State Department’s second Ministerial to Advance Religious Freedom began on Tuesday with stories about religious violence and resilience.

All of the ministerial speeches and sessions can be viewed here.

Human Rights Depend on Natural Law

As this recent article by Dan Philpott in Public Discourse reminds us, human rights depend on natural law. Regarding the right to life, Philpott notes:

 

The right to life, though, is the most basic of natural, human rights. That preborn children are persons is disputed but not disputable. Science textbooks attest that the embryo, once formed, is a unified, distinct being that has begun to develop on its own impetus. In a recent article in The Atlantic, Emma Green describes abortion rights activists as being “on high alert for what they describe as efforts to ‘humanize fetuses,’” revealing that abortion rights rely on a denial of the humanity of the preborn person. This humanity is not absent from the human rights heritage, in which the 1959 United Nations Declaration on the Rights of the Child holds that every child “needs special safeguards and care, including legal protection, before as well as after birth.”

Thoughts on Hobbes, Kuyper, constitutionalism, and conservatism on "Bastille Day"

Here is a book chapter I did a few years ago, for a NOMOS volume on "American Conservatism", called "The Worms and the Octopus."  I admit, I like the title.  here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Remember the Vendee.

Plato's "Good Man" Theory of Judging

From Book III of the Republic (PUP Edition, pp. 653-54, Paul Shorey trans.), to be set against Holmes's "bad man" theory :

"But a judge, mark you, my friend, rules soul with soul and it is not allowable for a soul to have been bred from youth up among evil souls and to have grown familiar with them, and itself to have run the gauntlet of every kind of wrongdoing and injustice so as quickly to infer from itself the misdeeds of others as it might diseases in the body, but it must have been inexperienced in evil natures and uncontaminated by them while young, if it is to be truly fair and good and judge soundly of justice. For which cause the better sort seem to be simple-minded in youth and are easily deceived by the wicked, since they do not have within themselves patterns answering to the affections of the bad...

Therefore it is, said I, that the good judge must not be a youth but an old man [Ed.: cf. Federalist 78: "Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."], a late learner of the nature of injustice, one who has not become aware of it as a property of his own soul, but one who has through the long years trained himself to understand it as an alien thing in alien souls, and to discern how great an evil it is by the instrument of mere knowledge and not by experience of his own. [Ed.: cf. "The life of the law has not been logic; it has been experience"]...

For he who has a good soul is good. But that cunning fellow quick to suspect evil, and who has himself done many unjust acts and who thinks himself a smart trickster, when he associates with his like does appear to be clever, being on his guard and fixing his eyes on the patterns within himself. But when the time comes for him to mingle with the good and his elders, then on the contrary he appears stupid. He is unseasonably distrustful and he cannot recognize a sound character because he has not such pattern in himself. But since he more often meets with the bad than the good, he seems to himself and to others to be rather wise than foolish...

[S]uch a one must not be our ideal of the good and wise judge...For while badness could never come to know both virtue and itself, native virtue through education will at last acquire the science of both itself and badness. This one, then, as I think, is the man who proves to be wise and not the bad man."

A bad moral argument about the humanity of the unborn in support of a good law restricting abortion

One of the most well-argued books I've recently read on the topic of abortion is Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press 2007). Because of a project I'm working on this summer, my attention was drawn in particular to Beckwith's argument against resting the humanity of the unborn on human appearance after a certain point of development. (A version of Beckwith's arguments, which draw on John Jefferson Davis, Abortion and the Christian: What Every Believer Should Know, is available here.) 

Beckwith is right to observe that the human body takes on a variety of forms over the course of life. An elderly person does not have the body of a teenager, a teenager does not have the body of an infant, nor does an infant have the body of an embryo. A healthy, developing embryo at a particular time looks just like a healthy, developing embryo is supposed to look at that time. In Beckwith's words, "the unborn at any stage of her development looks perfectly human because that is what humans look like at that time." We risk confusing appearance with reality if we rest human moral worth on a certain type of human appearance. 

But let us not be too hasty in pushing aside the moral significance of a baby's obviously human appearance. In designing laws, it can be helpful to meet people where they're at. Consider the possible legal significance of the first three search results that popped up just now when I googled "pregnancy at twelve weeks":

A baby at twelve weeks gestational age has an obviously human body. If a baby has an obviously human body, isn't it reasonable for us as a people and for our government as a government to treat that baby as a human baby? And don't human babies deserve the equal protection of the laws?

I haven't mentioned anything yet about human personhood. For the moment, though, let's stick with the basic point that a baby with an obviously human body is obviously a human baby. Let's add in a couple other characteristics to the obviously human body, such as life and healthy normal development. Should the law truly be powerless to protect this human being? 

It's around this point that people interject considerations that tease apart the categories of human baby and human person. In unselfconscious reversal of the normal charge that pro-lifers are trying to impose their religious views about human personhood, those who seek to deny the human moral worth of babies with an obviously human body tend to rely on a controversial metaphysical claim. There is some property or quality, these people argue, that a human being with an obviously human body must _also_ possess in order to be a human person. But why should we let a controversial metaphysical position of this sort displace the idea that human bodiliness--whatever its relation to "full humanity" might be--is enough to bring a human being within the protective reach of positive law?

Cert Petition and Support in DC Bus-Advertisements Case

The Washington Metro Area Transit Authority (WMATA) accepts advertisements on the side of its buses but rejects religious ads along with political and "issue-advocacy" ads. Under that policy, WMATA  rejected an ad from the Catholic Archdiocese for its "Find the Perfect Gift" holiday campaign (directing viewers to information about worship services, charitable giving, and charitable-service opportunities), even though WMATA had accepted ads from retailers encouraging holiday shopping, from the Salvation Army exhorting charitable giving in the holiday red kettles, and from others (a yoga studio, a Christian radio station whose ad was supposedly not as overtly religious as the Archdiocese's, etc.).

The D.C. Circuit upheld the exclusion of the Archdiocese ad on the ground that it did not discriminate (impermissibly) against a religious viewpoint, but rather discriminated (permissibly) against religion as a "subject matter" in a nonpublic forum. The en banc court refused rehearing, over a strong dissent by Judge Griffith teeing up the case for cert (here is the SCOTUS Blog page). The cert petition, filed by Paul Clement et al. at Kirkland & Ellis, argues that the decision below is irreconcilable with Lamb's Chapel, Rosenberger, and Good New Club: the "equal access" decisions that hold, time after time, that exclusion of religious speech is viewpoint discrimination. (It also argues that excluding religious viewpoints as such violates the Religious Freedom Restoration Act.)

Our religious liberty clinic at St. Thomas filed a brief for multiple organizational amici supporting the petition. First, we zeroed in on a couple of the court of appeals' arguments for treating the religious exclusion as subject-based rather than viewpoint-based, including this argument:

the court of appeals reasoned that the Archdiocese would have been able to place an ad urging charitable donations if its ad, like that of the Salvation Army, “contained only non-religious imagery”—for example, an ad simply saying “Please Give to Catholic Charities.” App-25. This argument is irreconcilable with Lamb’s Chapel, Rosenberger, and Good News Club. In each of those cases the presentation of a religious perspective involved explicit religious language, not mere reference to a religious identity or the religious nature of a belief. A restriction on “religious imagery” cripples the ability of speakers to present religiously grounded, and only religiously grounded, perspectives.

Second, we argued that "the specific subject matter involved in this case—the meaning and essence of Christmas and the winter holidays—itself presents important and recurring questions":

There is an ongoing debate in society about the essence of the holiday, the priorities to observe in celebrating it, and the motivation for gift-giving. On these subjects, various religious and secular perspectives compete, and the government must not discriminate among expressions of these perspectives by private groups and individuals.

By allowing holiday-related ads exhorting commercial gift-giving and charitable giving, but not an ad exhorting the religious basis for the holiday and for gift-giving, the court upheld viewpoint discrimination within subject matters included in the forum. Our brief touched on some of the societal controversies over "keeping Christ in Christmas," etc. Those controversies, we argued,

show that there is a set of competing perspectives on the subjects of the holiday season and which elements of it are most important. Some of those controversies arise in contexts not applicable here, such as speech by employees of private businesses or displays sponsored by government. But this case involves a government restriction on private speakers expressing their religious perspective in a government forum. In that category of cases, the government’s proper course is clear: it must allow varying perspectives on a subject matter to be expressed, on equal terms. To accept ads emphasizing the commercial and charitable aspects of Christmas and gift-giving but refuse ads emphasizing religious perspectives on those subjects skews public debate—the fundamental harm to free expression from viewpoint discrimination.

Like the Montana tax-credit case (Espinoza) where cert was just granted, this case focuses on what Justice Kavanaugh recently called "the bedrock principle of religious equality"--a concept more simple than the sometimes complex questions over government-sponsored religious symbols and government accommodation of religious practice. Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 139 S. Ct. 909, 909-11 (2019) (statement of Kavanaugh, J., respecting denial of certiorari). I would put the principle as "freely chosen religious activity should not be discouraged through discriminatory government actions"--but so framed, the principle is just as clear and foundational.

Both the Montana and D.C. cases show lower courts struggling mightily to validate discriminatory rules against voluntary religious speech and activity. A grant and reversal in the second case, joining the first, would clearly signal to judges and other officials that those efforts should cease.

Same Old Song

Have you ever had the experience of getting in your car, turning on the radio, and hearing some really lousy song?  It’s one you’ve heard many times before.  And it’s a terrible.  The tune is bad.  The lyrics don’t make any sense.  It’s not good music, yet it gets played over, and over, and over again.  And you wonder how did this song ever manage to get so much airplay?

On May 23^rd, the New York Times decided to spin an old song—that pro-life legal measures violate the Establishment Clause.  It’s a horrid tune in which two notes barely fit together, but it gets played again and again.  This time, the tune was covered by Linda Greenhouse, the Times’erstwhile Supreme Court reporter who has devoted some of her post-NYT career to writing in support of abortion rights (see here and here).

In the opening riff of her op-ed, Greenhouse praises the Republic of Ireland for having thrown off “the shackles of the Roman Catholic Church” by repealing the country’s constitutional ban on abortion.  And she bemoans “the impact of religion’s current grip on public policy” in the United States and what she describes as the country’s march toward “theocracy.”

She then intones the oft-repeated canard that abortion “was legal at the nation’s founding, and for much of a century afterward.”  No serious student of legal history believes this, and Greenhouse cites no authority for the proposition, though she likely has in mind Cyril Means, the general counsel for NARAL (then the National Association for the Repeal of Abortion Laws), who invented the idea of a “common law liberty” to abortion in a law review article he published in 1968.  As Joseph Dellapenna demonstrates in his comprehensive book, Dispelling the Myths of Abortion History, abortion was treated as a crime in English common law in colonial America, as reflected both in those judicial opinions that survive, and in the writings of English commentators Edward Coke, Matthew Hale, and William Blackstone, and American writer Francis Wharton.  Indeed,Dellapenna shows that, prior to Means’ invention, “[t]he unanimous sense of the legal and general community was that abortion was a crime because it involved the killing of a child—if one could prove that the child was alive at the time of the abortive act and died as a result” (p. 237). 

But this is only a side melody.  Greenhouse’s main chorus is that restrictions on abortion violate the Establishment Clause because “God’s will cannot be a constitutional justification for a law that erases an individual right.”  That might serve as a plausible interpretation of the Clause insofar as the law being challenged required some act of worship, prayer, or religious confession, but it is not plausible if the act regulated is explicable in thoroughly secular terms. 

Of course, pro-life legal measures do not order anyone to go to church.  They do uphold a foundational premise of civilization and the rule of law—defending the lives of innocent, vulnerable human beings.  This is not religious.  Or rather, it is religious but in much the same way that support for laws prohibiting discrimination against racial minorities and people with disabilities are religious.  It is religious in the same way that opposition to torture as a method of interrogation, and support for legal protection of the environment are religious.  Religious people support each of these things.  And they often do so in explicitly religious terms, by referring to the Bible, or the teachings of their religious community, or the will of God.  Indeed, Greenhouse is deeply troubled by the statement issued by Governor Kay Ivey in support of Alabama’s recent statute prohibiting most abortions, that the legislation stands as a powerful testament to the belief “that every life is precious and that every life is a sacred gift from God.”  Yet this same language could have been lifted word-for-word from statements made in support of the Americans With Disabilities Act.

Greenhouse acknowledges that when the Establishment Clause claim was put forth in the Hyde Amendment litigation, it “never got any traction,” but she never pauses to ask why.  So confident is she in the merits of “Establishment Clause arguments” that Greenhouse doesn’t recognize the fact that she hasn’t put forth any arguments, only assertions that the Establishment Clause precludes pro-life legal measures.

Greenhouse offers Justice Stevens’ opinion in Webster v. Reproductive Health Services as a model for asserting the Establishment Clause claim against abortion restrictions, but, as I explain at some length here, Stevens fails to set forth an argument demonstrating the religious character of pro-life laws.  Stevens’ merely assumes these laws are religious and then writes his opinion based on that assumption.  He makes no effort to establish the truth of what, in the end, is only a bare accusation.

Stevens would have invalidated the preamble to the Missouri statute at issue in Webster. The preamble declared that the “life of each human being begins at conception.”  For Stevens this was an “unequivocal endorsement of a religious tenet” that “serve[d] no secular purpose” and so violated the Establishment Clause.  He failed to account for laws that coincide with the religious beliefs of some religious adherents, such as laws against perjury and the Biblical injunction “You shall not bear false witness against your neighbor.”  Supreme Court cases such as McGowan v. Maryland and Harris v. McRae uphold this principle and Stevens is at pains to distinguish them.

Moreover, in the post-Casey era, lower federal courts have upheld legislation that makes the same factual claims as set forth in the preamble to the statute in Webster.  Courts such as the Eighth Circuit in Planned Parenthood v. Rounds have acknowledged the foundation of these statements as empirical observation and scientific fact, not religious belief.

In the end, Greenhouse’s op-ed (like Stevens’ opinions in Thornburgh andWebster) is founded on the mere accusation of religious establishment.  She points to a policy position with which she disagrees (a position supported by some overtly religious people) and then cries “Establishment Clause!”  This is not the music of constitutional argument, but the shrill voice of someone desperate to hold on to power.

Archibald Cox once said of brief writing that “a good brief marches, and a great brief marches and sings.”  The claim that pro-life legal measures violate the Establishment Clause stumbles and wails because those who employ it never demonstrate the religiosity of the laws they would strike down.  This tired, old song should come to an end.

Supreme Court grants review in Montana "Blaine Amendment" case

This could be very big news.  For more -- an older, but still worth-reading essay, by me -- on the Blaine Amendment(s), go here.  This case gives the Court to embrace what seem to me to be the obvious implications of its recent decision in Trinity Lutheran, e.g., the Constitution neither requires nor permits discrimination in the context of secular-purpose-serving social-welfare programs against religious beneficiaries and institutions.

2018 Report on International Religious Freedom

The Department of State recently released the annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country.

"Eloquent ambiguity?" Or a loaded gun?

In case you missed it, the Catholic bishops of the United State recently voted 194-8, with three bishops abstaining, to revise the U.S. Catechism for Adults to state that capital punishment is  always "inadmissible."  "Inadmissible," of course, is what Pope Francis says that the Catholic Church now says that capital punishment is (and, for that matter, always was).   The bishops' stated purpose was to conform the U.S. Catechism for Adults to the change Francis made in the Catechism of the Catholic Church last August.  By their own proud and dutiful admission, the bishops are simply falling into line.  Meanwhile, one can be excused for finding it hard to keep up with all of the changes.  For those who can keep up with at least the headlines, there's the further question of the changes actually mean.  The question of the meaning of Church teaching can by no means be an afterthought, even or especially in this world of infotopia (to borrow Cass Sunstein's term from another context).  

Not everyone is convinced that Pope Francis or the Church herself has the authority to declare capital punishment always and everywhere immoral, and it is important that Pope Francis has not exactly declared capital punishment to be always and everywhere immoral.  He has declared it to be "inadmissible."  But what's the difference between "inadmissible" and "always and everywhere immoral?"  It's hard to the point of impossible to say, and the bishops themselves were content, 194-8-3, simply to fall into line. 

Any meaningful ambiguity about what the bishops were intentionally doing was eliminated by Bishop Robert Barron's speech in favor of "eloquent ambiguity"in Catholic teaching.  You got that right, "ambiguity" is now being praised as a predicate of what comes from the mouth and pen of the Successor of Peter and Vicar of Christ.

Allow me to demonstrate with the help of what Life Site News reported:

 

Asked in the Q&A session of his presentation on revision to elaborate on the term “inadmissible,” Barron steered clear of explaining what the pope meant by it, in favor of a curious admission of the pope’s ambiguity, and diverted to the emphasis of his committee having been on imitating the pope’s decree.

“To my mind, the pope maintains and our version imitates a certain, if you want, eloquent ambiguity on that point.  Here it doesn’t use the language of intrinsic evil for example,” he continued. “But it uses language like that, inadmissible, morally unacceptable, etc.” 

“So we’re just trying to imitate as much as we can what’s found in the way the pope revised this teaching,” said Barron. “But I wouldn’t dare speak to what the mind on the pope on that is, but that’s just my assessment of why that language is used. We just tried for the most part to imitate it.”

The new language on the death penalty does not explicitly state that the death penalty is intrinsically contrary to the Gospel.

Bishop Barron wouldn't dare to speak the mind of the Pope on the actual moral status of the death penalty, and it was enough for all but eleven of two hundred and five bishops to parrot something that was, according to the their spokesman, deliberately and "eloquently ambiguous."  

Taking a step back, I am Catholic enough in my sensibilities to expect doctrinal unity on all matters that are de Fide, and for that reason I would expect , as a normative matter, the U.S. bishops faithfully to follow Catholic teaching on capital punishment.  But now we have reached a state of affairs in which it is a point of pride for the bishops to do that which, by the Pope's own admission, contradicts what the Church has always authoritatively taught on the question of the morality of capital punishment.  I should add that Bishop Barron, a point-man for "the new evangelization" and the estimable Cardinal George's protege, is about as serious as the U.S. bishops get when they are doing their best to teach the Catholic faith.

The silliness that is afoot, in praise of "eloquent ambiguity" in Catholic teaching on matters of morals, should not allow us to lose sight of what is at stake: the salvation of souls.  If capital punishment is a grave moral evil, then those who culpably  participate in it -- as judges or jurors or legislators or policy advocates -- risk divine punishment unless they repent.  It is one thing to judge capital punishment to be bad policy; it is toto caelo different to sort-of-declare it to be a grave moral evil. 

Pope John XXIII is, to my mind, an historically ambiguous figure, but Roncalli was emphatically not in favor of theological ambiguity.  The Council that Roncalli loosed on the Church had the effect of depriving the Church of many of her treasures, notably the treasure of language for clear and constant teaching.  Roncalli would not have favored Bergoglio's "eloquent ambiguity," as his words on the eve of the Second Vatican Council and his untimely death establish:

Furthermore, the Church’s language must be not only universal but also immutable. Modern languages are liable to change, and no single one of them is superior to the others in authority. Thus if the truths of the Catholic Church were entrusted to an unspecified number of them, the meaning of these truths, varied as they are, would not be manifested to everyone with sufficient clarity and precision. There would, moreover, be no language which could serve as a common and constant norm by which to gauge the exact meaning of other renderings.

But Latin is indeed such a language. It is set and unchanging. it has long since ceased to be affected by those alterations in the meaning of words which are the normal result of daily, popular use. . . .

Finally, the Catholic Church has a dignity far surpassing that of every merely human society, for it was founded by Christ the Lord. It is altogether fitting, therefore, that the language it uses should be noble, majestic, and non-vernacular.

In addition, the Latin language “can be called truly catholic.” It has been consecrated through constant use by the Apostolic See, the mother and teacher of all Churches, and must be esteemed “a treasure … of incomparable worth.” It is a general passport to the proper understanding of the Christian writers of antiquity and the documents of the Church’s teaching. It is also a most effective bond, binding the Church of today with that of the past and of the future in wonderful continuity. . . .

It will be quite clear from these considerations why the Roman Pontiffs have so often extolled the excellence and importance of Latin, and why they have prescribed its study and use by the secular and regular clergy, forecasting the dangers that would result from its neglect.   (Pope John XXIII, encyclical letter Veterum Sapientia (1962) (citations omitted)).

 

Let me say without ambiguity that, in my humble opinion, we are living the dangers that result from teachers' using (deliberately) ambiguous language while exercising authority that is in fact limited to handing on, explicating, and, to some extent, applying what has been handed down.  What is allowed to pass as the meaning of the ambiguous terms may be, some of it, ultra vires and even false.

Yes, to be sure, insight can grow into what has been handed down (cf. Dei Verbum No. 8 (1965)), but the job and authority of the teachers is to manifest the intelligibility of Revelation, not to trade in shadows and ambiguities.  If this generation's bishops knew some Latin and felt constrained to use it to limit and guide their work, the Church would have something valuable from their teachers, not the loaded gun that is "eloquent ambiguity."

Cross Purposes

That's my essay on The American Legion v. American Humanist Association over at Public Discourse this morning. A bit:

The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam[] the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.

Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.

There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.

Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.

At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.

"The Perception Gap"

As reported by Yascha Mounck of Johns Hopkins in The Atlantic,  a group called More in Common has released a study called "The Perception Gap," showing the divergence between what people of one political party think the other party's members believe, and what they actually do believe. For example,

      Democrats ... estimated that four in 10 Republicans believe that “many Muslims are good Americans,” and that only half recognize that “racism still exists in America.” In reality, those figures were two-thirds and four in five.

      Unsurprisingly, Republicans are also prone to caricature Democrats. For example, Republicans approximated that only about half of Democrats are “proud to be American” despite the country’s problems. Actually, more than four in five Democrats said they are. Similarly, Republicans guessed that fewer than four in 10 Democrats reject the idea of open borders. Actually, seven in 10 said they do.

And education doesn't help--the study "found that the best educated and most politically interested Americans are more likely to vilify their political adversaries than their less educated, less tuned-in peers":

      Americans who rarely or never follow the news are surprisingly good at estimating the views of people with whom they disagree. On average, they misjudge the preferences of political adversaries by less than 10 percent. Those who follow the news most of the time, by contrast, are terrible at understanding their adversaries. On average, they believe that the share of their political adversaries who endorse extreme views is about 30 percent higher than it is in reality.

Finally, the intensifying effect of higher education is skewed--it makes Democrats caricature their opponents more than it makes Republicans do so:

      Perhaps because institutions of higher learning tend to be dominated by liberals, Republicans who have gone to college are not more likely to caricature their ideological adversaries than those who dropped out of high school. But among Democrats, education seems to make the problem much worse. Democrats who have a high-school degree suffer from a greater perception gap than those who don’t. Democrats who went to college harbor greater misunderstandings than those who didn’t. And those with a postgrad degree have a way more skewed view of Republicans than anybody else.

I can't vouch for the study's methodology. But the results are worth looking at: they are striking, even if not especially surprising.

U.S. State Dept. Honors Italian Nun

This story from Crux about an Italian nun who has spent most of her ministry working to rescue people from human trafficking is truly inspiring.

Sister Gabriella Bottani was honored on Thursday, during a ceremony introducing the 2019 Trafficking in Persons (TIP) Report, presented by U.S. Secretary of State Mike Pompeo.

Bottani was one of nine individuals who were named “Heroes” in recognition of their tireless efforts to fight modern-day slavery, which affects an estimated 25 million people and has been labeled by Pope Francis as a “crime against humanity.” The nun was tasked with speaking for the group of honorees.

Happy Feast of St. Thomas More

The Death of a Martyr (here), from The Tudors.

Happy Feast of St. Thomas More

The Death of a Martyr (here), from The Tudors.

"Religious Freedom and the Common Good" Symposium Papers

I've been away from blogging recently, for a variety of reasons: a heavy teaching semester, including an enjoyable two weeks teaching Hungarian and other law students in Budapest; a book manuscript in the editing and proofing stages; and acting in another Gilbert & Sullivan production (a thing I do).

The papers from the St. Thomas Law symposium on "Religious Freedom and the Common Good" are now published and online (here). They include contributions by sociologists of religion, political scientists, legal scholars, folks with government experience on religious-freedom matters, etc. 

We think the collection of papers will be important to future discussions about the common good both as one important justification for religious freedom and as a framework for its proper scope and boundaries. As challenges to religious freedom mount (around the world and here), it will be increasingly important (as I've previously argued here and here) to how religious freedom is not just a selfish assertion but a key contributor to a healthy, thriving community.

Justice Alito’s Second-Best Problem

One additional note on Gundy: Justice Alito’s concurrence is obviously struggling with the constitutional problem of second-best, one that I analyze here with respect to nondelegation and here, at book length, with respect to constitutional law and theory generally.

Peace Cross Puzzlement

The Maryland Bladensburg Cross was allowed to stand. That's the easy part. The hard part is what precisely prevented the Court--for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)--from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got

• a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
• one concurrence that would have overruled Lemon/endorsement;
• one concurrence that preserves Lemon/endorsement;
• 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
• two opinions concurring in the judgment that would have overruled Lemon/endorsement;
• a dissent by Justice Ginsburg joined by Justice Sotomayor.

The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I'm afraid. Still, I'll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.

Never Jam Today

 

Ever since I started law school in 1990, almost thirty years ago, I’ve been hearing that the Court’s libertarian-legalist conservatives would definitely invalidate some statute or other on nondelegation grounds, any day now, without question. This eschatological hope isn’t some recent development. It’s the ordinary state of conservative jurisprudence, the perpetual “Soon! But not yet” of conservative constitutional parousia. At a certain point, one saw a sign in the East — Justice Rehnquist’s concurrence in the Benzene case, combined with certain dicta in the majority opinion! At another point, one saw a portent in the West — Justice Scalia’s powerful dissent in Mistretta! And at every one of these points, people insisted that this time it’s all different, the ground is shifting, it’s really happening!

And yet somehow, when push came to shove, when it was a question of actually assembling five votes to declare a federal statute unconstitutional on grounds not invoked for decades, grounds that would threaten to destabilize much of the modern administrative state — when it came time to act, as opposed to venting one’s constitutional frustrations in concurrence and dissents — well, it never did quite happen. Justice Scalia’s Mistretta dissent became his brusque opinion in Whitman v. American Trucking, sweeping aside a serious nondelegation challenge to the Clean Air Act. Jam yesterday (yesterday being 1935), and jam tomorrow, but never jam today.

Given this base rate, which is subject to the usual base-rate neglect on the part of  overexcited commentators, I’m somewhat less in a tizzy about the Court’s decision today in Gundy v. United States than many others seem to be, whether the particular tizzy carries a happy affect or an appalled one. Gundy, of course, upheld the federal sex offender registration statute against nondelegation challenge, by a fractured vote; everything else is extrapolation.

The case for excitement is that if one adds Justice Alito, in concurrence, to the three dissenters (the Chief Justice, Justice Thomas, and Justice Gorsuch, who wrote); and if all of those four adhere to their views in the future; and if Justice Kavanaugh, who didn’t participate in the decision, joins them on some unspecified occasion; then there would be five votes to reject the prevailing “intelligible principle” test and therefore (?) start invalidating important federal statutes.

Quite a few ifs in this chain, however. Note that because of the logic of compound probabilities, even if each one of the links, taken separately, is more likely to hold than to break, the necessary conjunction of all of them may be quite unlikely.

So which link in the chain might fail? Several seem weak. The role morality of Chief Justices, in this case Chief Justice Roberts, is that they tend on average to be concerned above all with preserving the Court’s institutional position and the larger stability of constitutional arrangements. What they will say in a safe dissent or concurrence may be very different than what they will actually do. It by no means entails they will provide the fifth vote to do something very dramatic. Furthermore, it is by no means certain that even a change in the prevailing doctrinal test will translate to a change in adjudicated outcomes. Consider Heller’s seemingly revolutionary reinvigoration of the Second Amendment, which to date has not translated into major invalidations. Sometimes, the test changes but the results do not, or at least not to any important degree.

In many ways, Gundy represented the easiest possible case for constitutional invalidation: a low-stakes statute involving a “tail issue” of registration for past offenses, and a criminal-ish statute to boot. Both of those factors supported invalidation, the former because the low stakes would have avoided any immediate, serious destabilization effect, the latter because criminal law is plausibly an area where legislatures have special responsibility to articulate statutory standards. And yet, even here, the Court’s uniform practice of rejecting nondelegation challenges held. One suspects that as the stakes increase in future cases, as the consequences of casting the fifth vote to destabilize the administrative state focus the judicial mind (especially the mind of the Chief Justice), the likelihood of invalidation will fall correspondingly. Or so the safe bet seems to me. Put not your faith in the Second Coming of the Original Constitution.

Religious Freedom Annual Review

BYU’s International Center for Law and Religion Studies will start its 2019 Religious Freedom Annual Review today.  

You can view the list of speakers and watch the live stream here.

Podcast on the New Abortion Laws and Two Pieces

Two little notes from the Center for Law and Religion at St. John's. First, my colleague, Mark Movsesian, and I have a new Legal Spirits podcast concerning what we call the "new abortion laws"--laws in several states taking a comparatively strong position on abortion regulation, whether restrictive or permissive. Along the way, we discuss the Supreme Court's recent per curiam summary reversal in Box v. Planned Parenthood, as well as what these new laws might suggest sociologically and culturally.

Second, I'm pleased to note the St. John's Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark's articles and one of mine were published in the same issue.)

Mark's piece is Masterpiece Cakeshop and the Future of Religious Freedom.

Mine is The Sickness Unto Death of the First Amendment.

Law’s Abnegation — SCOTUS 2019 Edition

 

I’m moved, perhaps unwisely, to lay down a marker about the opinions SCOTUS will soon release on administrative law and executive power - to lay my bets before the wheel has stopped spinning. The main pending cases are Gundy v. U.S., the nondelegation case; Department of Commerce v. New York, the census case; and Kisor v. Wilkie, the case asking the Court to overturn Auer deference (aka Seminole Rock deference) to agency interpretations of their own regulations. My suggestion is that if the administration does well across the triptych, broadly speaking, it will mark a distinct failure for the recent wave of critiques of the administrative state, and a salient confirmation of the long-run unfolding of law’s abnegation to the administrative state.

It is entirely possible that the administration will prevail, in some sense, in all three cases, or at least prevail in some and fight to a draw in others. To be sure, the conditions of “victory” are not well-defined in all the cases. In Kisor v. Wilkie, for example, should the Court limit or curtail Auer deference without eliminating it altogether, whether the government will have “won” is a complicated question. The answer depends on what one thinks the administration’s real objectives were and what one’s baseline expectations were. Nonetheless, given the wild-eyed excitement in certain libertarian-legalist quarters about the prospect of overruling first Auer and then Chevron itself, anything less than a clean overruling in Kisor will certainly count as a defeat for the libertarian campaign against the administrative state. If Auer can’t be cleanly eliminated, it seems exceedingly unlikely that Chevron can be. Likewise, in the census case, it is possible, although not likely, that the Court will in effect deny victory to both sides for the time being, by sending the case back to the lower courts to examine recent claims of newly-discovered crucial evidence.

So suppose that the government wins in Gundy, over nondelegation dissents from Justice Thomas and one or two others; that Kisor does not squarely overrule Auer; and that the census case ends either in the government’s favor or in a procedural postponement. (In a variant, one could imagine a plurality opinion in Gundy upholding the delegation, joined on narrower grounds by, perhaps, the Chief Justice and Justice Kavanaugh, with dissents from their other conservatives). If anything like this scenario comes to pass — a scenario in which the decisions are, by and large and taken as a set, weighted in favor of administrative power — it will extend and confirm a trend going back to the end of the Obama administration and before: excited talk about reining in executive and administrative power usually turns out to be no more than talk.

What major victories have the forces of retrenchment won, exactly, in recent memory? King v. Burwell? Let us recall that the decision, in the end, rejected a serious challenge to the Affordable Care Act. Perhaps the best candidates are the decisions in Michigan v. EPA and Encino Motorcars v. Navarro. The former, however, is limited and ambiguous, while the latter is banal. Relative to the breathless expectations created (sometimes artfully) on social media and in law reviews about imminent decisions curtailing the administrative state, all this amounts to thin gruel. The great retrenchment, much discussed and anticipated, always seems to recede into a vividly imagined future.

Indeed, one might go farther to argue that the main effect of the recent wave of libertarian litigation aiming to restrict executive and administrative power has actually been to further clarify, strengthen and entrench such power — a perverse result from the standpoint of the administrative state’s critics. In the case of presidential power, recent landmarks here are Trump v. Hawaii, the travel ban case, and Zivotofsky II, the Jerusalem passport case. Both are among the most expansive statements of presidential power in the Court’s recent history. Both were essentially own-goals on the part of forces who hoped to create a precedent going in the other direction, and whose second choice would certainly have been no precedent at all, rather than a clear precedent in the wrong direction. If the opinions soon to be delivered, taken overall, have even roughly the same character as to agency authority, then the perversity of forcing the Court to clarify and confirm the scope of executive and administrative power will be all the more obvious.

(Postscript: This post isn’t quite as rash as it seems. The betting here is, I believe, rigged in my favor. As an unscrupulous rhetorician, I would of course refuse to acknowledge that even clear losses for the administration in all the forthcoming cases would amount to a serious blow against law’s abnegation. Take Gundy, for example: should the Court dramatically invalidate (part of) a statute on nondelegation grounds, for the first time since 1935, I will immediately claim that the statutory provision at issue was of relatively little consequence, and that Gundy is best seen as a nondelegation version of Lopez, the case that invalidated the Gun-Free School Zones Act as beyond Congress’ commerce power — a relatively low-stakes case that proved to be largely symbolic, and that hardly lead to a sweeping retrenchment of the Commerce Clause. This unscrupulous argument will be all the easier in that I believe it to be true).

Notre Dame Program on Church, State & Society Newsletter

The Program on Church, State & Society just published our summer newsletter.  You can read it here:

https://mailchi.mp/44c57fefee98/fall-2018-news-from-the-program-on-church-state-society-2698321

To be added to our email list and receive future newsletters, one can subscribe here:

http://eepurl.com/gtZ841

 

Good News/Bad News on Legalization of Assisted Suicide

Bad news: 

Maine's Governor Janet Mills signed the bill that  had passed in both chambers by narrow margins that legalizes assisted suicide in that state,  joining California, Colorado, DC, Hawaii, Oregon, Vermont and Washington. This law was opposed by, among others, a coalition of disability advocacy groups  in an open letter to Governor Mills that ends with the argument:

There are ways to address the reasons people have for requesting assisted suicide, but it starts with a societal commitment to treat all suicides as a tragedy, to respond to anyone’s expression of suicidal feelings with an equal level of support, affirmation of the value of their life and effort to address their concerns. A two-tiered system where most people get suicide prevention but certain people get suicide assistance is a deadly form of discrimination that should not be accepted. Assisted suicide laws exacerbate the disability stigma that prevails in our culture and undermine people’s genuine autonomy by establishing a medically administered program of suicide approval and assistance in a health care environment already riddled with pressures to cut costs of care.

The letter was signed by the following groups:

• ADAPT
• American Association of People with Disabilities
• Assn of Programs for Rural Independent Living
• Autistic Self Advocacy Network
• Disability Rights Education and Defense Fund
• National Council on Disability
• National Council on Independent Living
• National Organization of Nurses with Disabilities
• National Spinal Cord Injury Association
• Not Dead Yet
• TASH
• The Arc of the United States
• United Spinal Association

Good news: The American Medical Association (AMA) upheld its long-standing opposition to assisted suicide by a vote of 392-162, holding that:

“Physician-assisted suicide and euthanasia are fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”

DoJ Files Statement of Interest in Maine First Amendment Case

The Department of Justice filed a Statement of Interest in the U.S. District Court for the District of Maine supporting students who claim that the State discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution when it barred them from a program paying the public or private school tuition of students who do not have public schools in their school districts, because the students wish to use the tuition to attend private religious schools that otherwise satisfy State education requirements. 

The full press release can be found here.

For background on the Blaine Amendments, Rick Garnett’s article The Theology of the Blaine Amendments can be found here.