Mirror of Justice

Amicus Brief on Title IX Exemption

In Maxon v. Fuller Theological Seminary (9th Circuit), two plaintiffs who had been studying for the ministry at Fuller have sued the Seminary under Title IX for dismissing them for entering into same-sex marriages in violation of the institution's student covenant. Fuller has multiple defenses, including the ministerial exception, but one is the Title IX exemption for schools "controlled by a religious organization." The plaintiffs claim that phrase means the school must be controlled by a separate organization in order to qualify for the exemption. The district court said no, holding that the controlling religious organization can be the school's own governing board. That statutory interpretation can stand on its own. But it's also supported by the doctrine of constitutional avoidance, because reading the exception to exclude a seminary or other deeply religious institution merely because it's organizationally independent or nondenominational would create an impermissible denominational preference under decisions like Larson v. Valente--and at the very least would raise "serious, grave" constitutional questions.

That's the argument of the amicus brief that the St. Thomas religious liberty appellate clinic filed on behalf of a host of colleges, K-12 schools, associations of such institutions, and the Christian Legal Society. Becket's pages on the case are here. 

Berg and Laycock on Fulton on SCOTUS Blog

Doug Laycock and I have commentary up about Fulton. The lion's share is some initial thoughts on some of the questions raised in Justice Barrett's concurrence, which obviously lots of people will be aiming to answer.

(FWIW, I've been inactive on the blog because I've been preoccupied with finishing my manuscript, Religious Liberty in a Polarized Age, forthcoming from Eerdmans.)

 

 

 

"Political Obligations, Moral Conscience, and Human Life" (2006)

Remarks delivered in September of 2006 at the Vatican at a conference sponsored by the Pontifical Academy for Life.

The Catholic Church proclaims the principle that every human being — without regard to race, sex, or ethnicity, and equally without regard to age, size, stage of development, or condition of dependency — is entitled to the full protection of the law.

The Church teaches that human beings at every stage of development — including those at the embryonic and fetal stages — and those in every condition — including those who are [cognitively] or physically disabled, and those who are suffering from severe dementia or other memory and mind-impairing afflictions — possess fundamental human rights. Above all, each of us possesses the right to life.

Now this teaching is disputed by some. There are those, including some Catholics, who deny that human embryos are human beings. They assert that a human embryo is merely “potential” human life, not nascent human life.

The trouble with this position is not theological but scientific. It flies in the face of the established facts of human embryology and developmental biology. A human embryo is not something distinct in kind from a human being — like a rock or potato or alligator.

A human embryo is a human being at a particular, very early, stage of development. An embryo, even prior to implantation, is a whole, distinct, living member of the species Homo sapiens. The embryonic human being requires only what any human being at any stage of development requires for his or her survival, namely, adequate nutrition and an environment sufficiently hospitable to sustain life.

From the beginning, each human being possesses — actually and not merely potentially — the genetic constitution and epigenetic primordia for self-directed development from the embryonic into and through the fetal, infant, child, and adolescent stages and into adulthood with his or her unity, determinateness, and identity intact. In this crucial respect, the embryo is quite unlike the gametes — that is, the sperm and ovum — whose union brought a new human being into existence. You and I were never sperm or ova; those were genetically and functionally parts of other human beings.

But each of us was once an embryo, just as each of us was once an adolescent, and before that a child, an infant, a fetus. Of course, in the embryonic, fetal, and infant stages we were highly vulnerable and dependent creatures, but we were nevertheless complete, distinct human beings.

As the leading textbooks in human embryology and developmental biology unanimously attest, we were not mere “clumps of cells”, like moles or tumors. So the basic rights people possess simply by virtue of their humanity — including above all the right to life — we possessed even then.

Another school of thought concedes that human embryos are human beings; however, it denies that all human beings are persons. There are, according to this school of thought, pre-personal and post-personal human beings, as well as severely retarded or damaged human beings who are not, never will be, and never were, persons.

Proponents of this view insist that human beings in the embryonic and fetal stages are not yet persons. Indeed, logically consistent and unsentimental proponents say that even human infants are not yet persons, and therefore do not possess a right to life; hence, the willingness of Peter Singer, Michael Tooley, and others to countenance infanticide as well as abortion.

Permanently comatose or severely retarded or demented human beings are also denied the status of persons. So euthanasia is said to be justified for human beings in these conditions. Although some who think along these lines will allow that human individuals whom they regard as “not yet persons” deserve a certain limited respect by virtue of the purely biological fact that they are living members of the human species, they nevertheless insist that “pre-personal” humans do not possess a right to life that precludes them from being killed to benefit others or to advance the interests of society at large.

Only those human beings who have achieved and retain what are regarded as the defining attributes of personhood — whether those are considered to be detectable brain function, self-awareness, or immediately exercisable capacities for characteristically human mental functioning — possess a right to life.

The trouble with this position is that it makes nonsense of our political, philosophical, and, for many of us, theological commitment to the principle that all human beings are equal in fundamental worth and dignity.

It generates puzzles that simply cannot be resolved, such as the puzzle as to why this or that accidental quality which most human beings eventually acquire in the course of normal development but others do not, and which some retain and others lose, and which some have to a greater degree than others, should count as the criterion of “personhood”.

The superior position, surely, is that human beings possess equally an intrinsic dignity that is the moral ground of the equal right to life of all. This is a right possessed by every human being simply by virtue of his or her humanity. It does not depend on an individual’s age, or size, or stage of development; nor can it be erased by an individual’s physical or mental infirmity or condition of dependency.

It is what makes the life of even a severely [cognitively disabled] child equal in fundamental worth to the life of a Nobel prize-winning scientist. It explains why we may not licitly extract transplantable organs from such a child even to save the life of a brilliant physicist who is afflicted with a life-threatening heart, liver, or kidney ailment.

In any event, the position that all human beings equally possess fundamental human rights, including the right to life, is the definitively settled teaching of the Catholic Church. It is on this basis that the Church proclaims that the taking of human life in abortion, infanticide, embryo-destructive research, euthanasia, and terrorism are always and everywhere gravely wrong.

And there is more. For the Church also teaches that it is the solemn obligation of legislators and other public officials, as servants of the common good, to honor and protect the rights of all. The principle of equality demands as a matter of strict justice that protection against lethal violence be extended by every political community to all who are within its jurisdiction.

Those to whom the care of the community is entrusted — above all those who participate in making the community’s laws — have primary responsibility for ensuring that the right to life is embodied in the laws and effectively protected in practice. Notice, by the way, that the obligation of the public official is not to “enforce the teaching of the Catholic Church”, it is, rather, to fulfill the demands of justice and the common good in light of the principle of the inherent and equal dignity of every member of the human family.

Yet, today many Catholic politicians, including the Democratic leaders of both houses of the United States Congress and the Republican governor of New York and the former Republican governor of Pennsylvania, are staunch supporters of what they describe as a “woman's right to abortion”.

Most of these politicians also support the creation and government funding of an industry that would produce tens of thousands of human embryos by cloning for use in biomedical research in which these embryonic human beings would be destroyed.

Catholic politicians in the United States and in other nations who support abortion and embryo-destructive research typically claim to be “personally opposed” to these practices but respectful of the rights of others who disagree to act on their own judgments of conscience without legal interference.

Former New York Governor Mario Cuomo famously articulated and defended this view in a speech at the University of Notre Dame in 1984. Recently, Cuomo revisited the issue, speaking in Washington at a Forum on Politics and Faith in America. He offered an argument which, if successful, not only justifies Catholic politicians in supporting legal abortion and embryo-destructive research, but requires them to respect a right of people to engage in these practices despite their admitted moral wrongfulness.

Cuomo asserted that holders of public office — including Catholic office-holders — have a responsibility “to create conditions under which all citizens are reasonably free to act according to their own religious beliefs, even when those acts conflict with Roman Catholic dogma regarding divorce, birth control, abortion, stem cell research, and even the existence of God”.

According to Cuomo, Catholics should support legalized abortion and embryo-destructive research, as he himself does, because in guaranteeing these rights to others, they guarantee their own right “to reject abortions, and to refuse to participate in or contribute to removing stem cells from embryos”.

But Cuomo’s idea that the right “to reject” abortion and embryo-destructive experimentation entails a right of others, as a matter of religious liberty, to engage in these practices is simply, if spectacularly, fallacious. The fallacy comes into focus immediately if one considers whether the right of a Catholic (or Baptist, or Jew, or member of any other faith) to reject infanticide, slavery, and the exploitation of labor entails a right of others who happen not to share these “religious” convictions to kill, enslave, and exploit.

By the expedient of classifying pro-life convictions about abortion and embryo-destructive experimentation as “Roman Catholic dogmas,” Cuomo smuggles into the premises of his argument the controversial conclusion he is trying to prove. If pro-life principles were indeed merely dogmatic teachings —such as the teaching that Jesus of Nazareth is the only begotten Son of God — then according to the Church herself (not to mention American constitutional law and the law of many other republics) they could not legitimately be enforced by the coercive power of the state.

The trouble for Cuomo is that pro-life principles are not mere matters of “dogma”, nor are they understood as such by the Catholic Church, whose beliefs Cuomo claims to affirm, or by pro-life citizens, whether they happen to be Catholics, Protestants, Jews, Muslims, Hindus, Buddhists, agnostics or atheists. Rather, pro-life citizens understand these principles and propose them to their fellow citizens as fundamental norms of justice and human rights that can be understood and affirmed even apart from claims of revelation and religious authority.

It will not do to suggest, as Cuomo seems to suggest, that the sheer fact that the Catholic Church (or some other religious body) has a teaching against these practices, and that some or even many people reject this teaching, means that laws prohibiting the killing of human beings in the embryonic and fetal stages violate the right to freedom of religion of those who do not accept the teaching.

If that were anything other than a fallacy, then laws against killing infants, owning slaves, exploiting workers, and many other grave forms of injustice really would be violations of religious freedom. Surely Cuomo would not wish to endorse that conclusion.

Yet he provides no reason to distinguish those acts and practices putatively falling within the category of religious freedom from those falling outside it. So we must ask: If abortion is immunized against legal restriction on the ground that it is a matter of religious belief, how can it be that slavery is not similarly immunized?

If today abortion cannot be prohibited without violating the right to religious freedom of people whose religions do not object to abortion, how can Cuomo say that the prohibition of slavery by the Thirteenth Amendment to the United States Constitution in 1866 did not violate the right to religious freedom of those in the 19th century whose religions did not condemn slaveholding?

Cuomo says that the Catholic Church “understands that our public morality depends on a consensus view of right and wrong”, but it would be scandalous to argue that Catholics should have opposed a constitutional amendment abolishing slavery in the 19th century, or legislation protecting the civil rights of the oppressed descendants of slaves in the mid-20th century, on the ground that “prudence” or “realism” requires respect for “moral pluralism” where there is no “consensus” on questions of right and wrong.

At one point at the forum on Politics and Faith, Cuomo suggested that laws against abortion and embryo-destructive research would force people who do not object to such things to practice the religion of people who do. But this is another fallacy. No one imagines that the constitutional prohibition of slavery forced those who believed in slaveholding to practice the religion of those who did not.

Would Cuomo have us suppose that laws protecting workers against what he, in line with the solemn teaching of every pope from Leo XIII to Benedict XVI, considers to be exploitation and abuse have the effect of forcing non-Catholic factory owners to practice Catholicism?

At another point, in denying that there was any inconsistency between his willingness as governor to act on his anti-death penalty views but not on his anti-abortion views, Cuomo denied ever having spoken against the death penalty as “a moral issue.” He claimed, in fact, that he “seldom talk[s] in terms of moral issues” and that, when he speaks of the death penalty, he never suggests that he considers it a moral issue.

Then, in the very next sentence, he condemned the death penalty in the most explicitly, indeed flamboyantly, moralistic terms: “I am against the death penalty because I think it is bad and unfair. It is debasing. It is degenerate. It kills innocent people.” He did not pause to consider that these are precisely the claims made by pro-life citizens against the policy of legal abortion and its public funding — a policy that Cuomo defends in the name of religious liberty.

The fact is that Catholics and others who oppose abortion and embryo-destructive research oppose these practices for the same reason we oppose postnatal homicide. Pro-life citizens of every faith oppose these practices because they involve the deliberate killing of innocent human beings.

Our ground for supporting the legal prohibition of abortion and embryo-destructive research is the same ground on which we support the legal prohibition of infanticide, for example, or the principle of noncombatant immunity even in justified wars. We subscribe to the proposition that all human beings are equal in worth and dignity and cannot be denied the right to protection against killing on the basis of age, size, stage of development, or condition of dependency.

One cannot with moral integrity be “personally opposed” to abortion or embryo-destructive research yet support the legal permission of these practices and even, their public funding as so many Catholic politicians do, including most Catholic Democrats and some Catholic Republicans in the United States. For by supporting abortion and embryo-destructive research they unavoidably implicate themselves in the grave injustice of these practices.

Of course, it is possible for a person wielding public power to use that power to establish or preserve a legal right to abortion, for example, while at the same time hoping that no one will exercise the right. But this does not get such a person off the moral hook. For someone who acts to protect legal abortion necessarily wills that abortion’s unborn victims be denied the elementary legal protections against deliberate homicide that one favors for oneself and those whom one considers to be worthy of the law’s protection.

Thus one violates the most basic precept of normative social and political theory, the Golden Rule. One divides humanity into two classes: those whom one is willing to admit to the community of the commonly protected and those whom one wills to be excluded from it.

By exposing members of the disfavored class to lethal violence, one deeply implicates oneself in the injustice of killing them — even if one sincerely hopes that no woman will act on her right to choose abortion. The goodness of what one hopes for does not redeem the evil — the grave injustice — of what one wills. To suppose otherwise is to commit yet another fallacy.

If my analysis so far is correct, the question arises: What should the leaders of the Church do about people like Cuomo and his successor as New York’s governor, Republican George Pataki, who evidently takes the same position? What should they do about those who claim to be in full communion with the Church yet promote gravely unjust and scandalous policies that expose the unborn to the violence and injustice of abortion?

In the run up to the last election, St. Louis Archbishop Raymond Burke offered an answer. He declared that public officials who support abortion and other unjust attacks against innocent human life may not be admitted to Holy Communion, the preeminent sacrament of unity.

Pro-life citizens of every religious persuasion applauded the archbishop’s stand. Critics, however, were quick to condemn Archbishop Burke. They denounced him for “crossing the line” separating church and state.

But this is silly. In acting on his authority as a bishop to discipline members of his flock, who commit what the Church teaches are grave injustices against innocent human beings, Archbishop Burke is exercising his own constitutional right to the free exercise of religion; he is not depriving others of their rights.

Freedom is a two way street. No one is compelled by law to accept ecclesiastical authority. But Archbishop Burke — and anyone else in the United States of America or other freedom-respecting nations — has every right to exercise spiritual authority over anyone who chooses to accept it. There is a name for people who do accept the authority of Catholic bishops. They are called “Catholics”.

In many cases, the charge that Archbishop Burke and other bishops who adopt the policy of excluding pro-abortion politicians from Communion “are crossing the line separating church and state” is also hypocritical. A good example of this hypocrisy comes from the Bergen Record, a prominent newspaper in my home state of New Jersey.

Bishop John Smith of Trenton did not go as far as Raymond Burke had gone in forbidding pro-abortion Catholic politicians from receiving Communion. Bishop Smith did, however, in the words of the Bergen Record, “publicly lash” Governor James McGreevey, a pro-abortion Catholic, for his support of abortion and embryo-destructive research.

For criticizing the governor on these grounds, the Record lashed the bishop in an April 25 editorial. The paper accused him of jeopardizing the delicate “balance” of our constitutional structure, contrasting Bishop Smith’s position unfavorably with President John F. Kennedy’s assurance to a group of Protestant ministers in Houston in 1960 that he, as a Catholic, would not govern the nation by appeal to his Catholic religious beliefs.

Since the Record had seen fit to take us back to 1960 for guidance, I thought I would invite its editors to consider a case that had arisen [in the same era]. In a letter to the editor, I proposed a question that would enable readers to determine immediately whether the editors of the Bergen Record were persons of strict principle or mere hypocrites.

I reminded readers that [] in the midst of the political conflict over segregation, Archbishop Joseph Rummel of New Orleans publicly informed Catholics that support for racial segregation was incompatible with Catholic teaching on the inherent dignity and equal rights of all human beings.

Archbishop Rummel said that “racial segregation is morally wrong and sinful because it is a denial of the unity and solidarity of the human race as conceived by God in the creation of Adam and Eve.” He warned Catholic public officials that support for segregation placed their souls in peril. Indeed, Rummel took the step of publicly excommunicating Leander Perez, one of the most powerful political bosses in Louisiana, and two others who promoted legislation designed to impede desegregation of diocesan schools.

So I asked the editors of the Bergen Record: Was Archbishop Rummel wrong? Or do Catholic bishops “cross the line” and jeopardize the delicate constitutional balance, only when their rebukes to politicians contradict the views of the editors of the Record? To their credit, the editors published my letter — but I am still waiting for them to reply to my question.

Now, some good and sincere people have expressed concern that Archbishop Burke and bishops of similar mind are guilty of a double standard when it comes to demanding of politicians fidelity to Catholic teaching on justice and the common good.

They point out that the bishops who would deny Communion to those who publicly support abortion and embryo-destructive research do not take the same stand against politicians who support the death penalty, which Pope John Paul II condemned in all but the rarest of circumstances, and the US invasions of Iraq, of which the pope and many other Vatican officials were sharply critical.

The Catechism of the Catholic Church indeed teaches that the death penalty should not be used, except in circumstances so rare these days as to be, in words of the late pope, “practically non-existent”. However, two points must be borne in mind in considering the obligations of Catholics and the question whether Catholic politicians who support the death penalty have in fact broken faith and communion with the Church.

First, neither the pope nor the Catechism places the death penalty on a par with abortion and other forms of direct killing of the innocent. (Indeed, the Church will probably never equate the death penalty with these forms of homicide, even if it eventually issues a definitive condemnation of the practice.)

Second, the status of the teaching differs from the status of the teaching on abortion. As John Paul II made clear in the great encyclical Evangelium Vitae, the teaching on abortion (as well as on euthanasia and all forms of direct killing of the innocent) is infallibly proposed by the ordinary and universal magisterium of the Church pursuant to the criteria of Lumen Gentium, No. 25.

The same is plainly not true of the developing teaching on the death penalty. Moreover, Cardinal Avery Dulles and others have interpreted the teaching against the death penalty as essentially a prudential judgment about its advisability, not a moral prohibition following from the application of a strict principle.

As it happens, I don’t agree with their analysis, but no one will be able to say with confidence from a Catholic point of view which side in this debate is right until the Magisterium clarifies the teaching. So, it cannot be said that supporters of the death penalty are “obstinately persisting in manifest grave sin”, and may or should be denied Holy Communion pursuant to Canon 915 of the Code of Canon Law.

No one can legitimately claim for opposition to the death penalty the status of a definitively settled moral teaching of the Church. (Nor can one claim that the Church teaches or will ever teach that the death penalty — except in cases where it is applied unjustly — involves the grave intrinsic injustice attaching to any act involving the direct killing of the innocent.)

Regarding the question of the United States invasions of Iraq, it is important to understand the precise terms of Catholic teaching on just and unjust warfare. These terms are set forth with clarity and precision in the Catechism.

In line with the Church’s historic teaching on the subject, neither Pope John Paul II nor Pope Benedict XVI has asserted that opposition to the war is binding on the consciences of Catholics. John Paul II’s statements opposing the use of force in the run up to both invasions plainly questioned the prudential judgments of political leaders who, in the end, had and have the right and responsibility (according to the Catechism and the entire tradition of Catholic teaching on war and peace) to make judgments as to whether force is in fact necessary.

That is why the pope and the bishops have not said, and will not say, that Catholic soldiers may not participate in the war. This contrasts with their clear teaching that Catholics may not participate in abortions or other forms of embryo-killing or support the use of taxpayer monies for activities involving the deliberate killing of innocent human beings.

I wish to close with a word to those in politics and the media — Catholics and non-Catholics alike — who have expressed anger, even outrage, at the world’s Catholic bishops for teaching that the faithful must never implicate themselves in unjust killing by supporting legal abortion and embryo-destructive research.

In scolding the bishops, the editors of the New York Times, for example, have insisted that “separation of church and state” means that no religious leader may presume to tell public officials what their positions may and may not be on matters of public policy.

But if we shift the focus from abortion to, say, genocide, slavery, the exploitation of labor, or racial segregation we see how implausible such a view is. When Archbishop Rummel excommunicated the segregationist politicians [Leander Perez, Jackson Ricau, and Una Gaillot], far from condemning the archbishop, the editors of the New York Times praised him.

They were right then; they are wrong now.

 

On so-called "weaponization"

Few words in contemporary discourse are as hokey and tedious as "weaponization"; it simply means "making an argument that makes me uncomfortable because it forces me to consider the possibility that I'm failing to act as I should."  And so, the "statement of principles", issued by some politicians who support abortion rights, which objects to the alleged "weaponization" of the Eucharist (note that no such "weaponization" has really occured), is pretty thin stuff.

As it happens, my own view is that it would difficult to administer -- i.e., to expect parish priests to administer -- a live-action, case-by-case rule that officials who fail to support legal protections for unborn children should be denied the Eucharist (just as it would be difficult to administer such a rule that focused on officials' -- or my own -- many other failures).  But, this letter -- like much of the astroturfed outrage being expressed on social media about a "weaponization" that, again, has not actually happened -- is making a different point:  The letter's claim is that the letter writers are entitled (a) to support, fund, and indeed coerce people to provide a wrong action and (b) to declare themselves immune from the Church's determinations regarding the sacramental implications of such support (etc.)    

The letter writers claim that they "agree with the Church about the value of human life."  Not that "agreement" is really the issue but . . . they don't (agree).  As for the invocation of the "primacy of conscience" in this context, John Henry Newman is rolling over in  . . . I mean, he's enjoying the Beatific Vision and is utterly unmoved by the writers' mistake.

It seems unremarkable to me for Catholic bishops to remind Catholics that (i) legal regimes that do not protect unborn children are unjust; (b) it is wrong to support knowingly injustice; and (c) one should avoid receiving the Eucharist if one is aware that one is engaged in wrong actions.  It seems urgently needed for our bishops to teach and lead better with respect to love and reverence for the Eucharist.  Again:  I'm inclined to think it's a mistake to focus on politicians with such reminders and I'm inclined to think that priests should not adjudicate questions about mental states, etc., at the front of the Communion line.  Still, the letter is exquisitely individualistic, even Promethean; it does not seem particularly Catholic.

The abortion question is about justice, not "branding"

This piece, in America, tells a story about Catholicism in the United States, and about President Biden, that is very difficult to square with the facts.  In its narrative, there was a hopeful, Council-inspired Catholicism in America, of which Mr. Biden's "authentic[] and beaut[iful]" faith was a part, but then abortion politics came along and caused people to (unfairly) question the "sincerity" of that faith.  Nowhere in the piece is it mentioned that Mr. Biden previously opposed abortion, and its public funding, but then (like many other political figures) changed his stance in order to conform to perceived political-advancement necessities.  The culture warriors to whom he (and others) surrendered were not pro-life Catholic bishops.

The piece goes on to suggest that the ongoing debates about politicians, abortion, and the Eucharist is about "ownership" of the "brand" of Catholicism.  This seems a strange way to frame the question; the Church's pro-life and sacramental teachings are not about "branding" but about truths.  Nor, contrary to the piece, do these teachings have anything to do with an asserted "hesitation about democracy" (except, I suppose, insofar as they reflect a view that truths about sacraments and human dignity are not determined by majority vote).  It is asserted that the Church "cannot control public policy outcomes" (true enough) and that "[w]e must accompany democracy in order to build up the people who would choose the common good through democracy" (indeed) but it is never conceded that those who "choose" (and, indeed, would expand dramatically) the American abortion regime are opposing, not choosing, the "common good." 

Why Shutdowns and Masks Suit the Elite

A marvelous review in these pages last November inspired me to read a new book by O. Carter Snead, “What It Means to Be Human: The Case for the Body in Human Bioethics.” It was published by Harvard University Press on Oct. 13. Covid-19 had begun its transformation of American life a few months before, and of course the book made no mention of it.

Yet Mr. Snead’s volume helped explain the bizarre and at times perverse response of prosperous Western nations to the pandemic: the long discontinuation of economic life, the belief that pixelated screens can facilitate human relationships, the prohibitions on ordinary social interactions, the fetishization of masks. These policies and practices weren’t handed down from the ether by Reason and Science but bore the weight of contemporary assumptions about—to borrow Mr. Snead’s title—what it means to be human.

Full article by Barton Swaim at WSJ: https://www.wsj.com/articles/why-shutdowns-and-masks-suit-the-elite-11624038950

Fulton v. City of Philadelphia: the rule of law persists in an age of political tribalism

As the world waited for the Supreme Court’s ruling in Fulton v. City of Philadelphia, the stage was set for another headline-grabbing battle in our never-ending culture wars: the religious liberty of a Catholic foster care agency versus a municipal government committed to ending discrimination against same-sex couples. This morning, as advocates on both sides were ready to crank up the outrage-fueled fundraising machines, the Court issued its ruling in favor of the Catholic agency. And remarkably, it was unanimous, demonstrating once again that the rule of law does not stick to our increasingly polarized political scripts. Throughout this era of tumult and tribalism, our judiciary reminds us that the law is not just a set of political preferences dressed up with fancy words. Principles and precedent continue to matter.

 

So how did this case end up as a unanimous ruling? The dispute arose from Philadelphia’s decision not to renew its contract with Catholic Social Services (CSS) to place children with foster parents unless CSS agreed to include same-sex couples. The City argued that the refusal to include same-sex couples violated a non-discrimination provision in the agency’s contract with the City, as well as the non-discrimination requirements of a city ordinance.

In an opinion joined by all eight of his colleagues, Chief Justice Roberts observed that CSS “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and “[n]o same-sex couple has ever sought certification from CSS.” If a same-sex couple did seek to be certified, “CSS would direct the couple to one of more than 20 other agencies in the City, all of which currently certify same-sex couples.” (In other words, there is no shortage of opportunities in Philadelphia for same-sex couples to serve as foster parents.)

 

The Court held that the City’s refusal to renew CSS’s foster care contract violated the First Amendment’s Free Exercise Clause, recognizing at the outset that “the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”

 

That wasn’t the end of the analysis, though, because of a 1990 Supreme Court ruling that loomed over this case: Employment Division v. Smith. In Smith, the Court held that neutral and generally applicable laws do not violate the Free Exercise Clause even if they negatively impact religious practices. In Fulton, the City argued that its prohibition on sexual orientation discrimination was both neutral and generally applicable, and as such, CSS’s Free Exercise claim must fail.

 

The Court disagreed because the City’s non-discrimination requirement permitted a party to seek an exemption, and “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”

 

Once a law that burdens religious exercise is deemed not generally applicable, it falls outside the scope of Smith and is thus subject to strict scrutiny. This means that the law can only survive if it advances government interests of the highest order and is narrowly tailored to achieve those interests. Put more simply, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”

 

The Court acknowledged that important interests are at stake in the non-discrimination requirement, but found that the City failed to show how granting CSS an exemption would jeopardize those interests: “If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”

 

So every Justice agreed that CSS should prevail. But three Justices – Alito, Thomas, and Gorsuch – were ready to go further and overturn Smith, pointing out in a concurring opinion that the rule permitting “neutral and generally applicable” laws to withstand constitutional scrutiny, no matter their impact on religious exercise, is deeply problematic. For example, under Smith, the Volstead Act implementing Prohibition would have been constitutional even if it contained no exception for the sacramental wine necessary for Catholic masses. Or a ban on infant circumcision would be permissible, even if it applied to prohibit important Jewish and Muslim practices.

 

Because the Court avoided Smith by focusing on the possibility of an exemption in Philadelphia’s non-discrimination requirement, the concurrence warned that today’s decision “might as well be written on the dissolving papers sold in magic shops” because, “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”

 

So even in a unanimous ruling, important disagreements lurk. But even those disagreements don’t align easily with our political tribalism. The author of Smith against whom conservative stalwarts Alito, Thomas, and Gorsuch were railing? Conservative judicial hero Antonin Scalia. The rule of law does not lend itself to simplistic predictions based on which President appointed which judge. (In today’s other noteworthy ruling, Trump appointees Barrett and Kavanaugh joined five of their colleagues in upholding Obamacare against a challenge brought by Republican-led states.)

 

The sorting that has occurred between American conservatives and liberals maintains an ideological core, but it has morphed into something broader and deeper than ideology. In his book "Why We’re Polarized," Ezra Klein points out that the two major political parties today “are sharply split across racial, religious, geographic, cultural, and psychological lines,” and that these identities “are fusing together, stacking atop one another.” Further, since “these mega-identities stretch across so many aspects of our society, they are constantly being activated, and that means they are constantly being reinforced.” In other words, a conflict between religious liberty and LGBT rights aligns with the more fundamental conflict between our stacked social identities. We don’t need to choose a side; we already know which side we’re on based on where we live, what cable news we watch, what car or truck we drive, where (and if) we go to church, even where we shop.

 

The rule of law reminds us that it should not and need not be that simple. I’m confident that Justice Sotomayor and Justice Thomas, for example, do not run in the same political circles or derive their identities or sense of belonging from the same sources. And yet they can step back from the noise, examine the facts of a situation, apply sound principles not of their own creation, and agree on an outcome. Not every case will be unanimous, and a 5-4 ruling may emerge later this month. But members of the Supreme Court have not given up hope that they can still reason together to resolve deeply contested issues. And if they can do that under the white-hot national spotlight, so can the rest of us.

Supreme Court sides with Catholic foster care agency

A unanimous Supreme Court ruled Thursday that a Catholic foster care agency in Philadelphia may turn away gay and lesbian couples as clients, a victory for conservatives with the potential to shift the balance between LGBTQ rights and the First Amendment's protection of religious exercise.  

In one of the most significant cases before a Supreme Court that has become more conservative in recent years, the justices handed down the most high profile defeat to LGBTQ rights advocates since a 2018 decision absolved a Colorado baker of discrimination for refusing to create a custom wedding cake for a same-sex couple.

Catholic Social Services said its religious views keep it from screening same-sex couples as foster parents. The agency, with a long history of placing foster children, said it shouldn’t be blocked from its work because of those views. Philadelphia countered that all of itsfoster care agencies are required to not discriminate on the basis of sexual orientation.

"It is striking, and telling, that the court's more liberal justices joined the court's decision," said Richard Garnett, director of the University of Notre Dame law school program on church, state and society. "Today's ruling illustrates that respect for religious freedom should not be a partisan, or left-right issue."

Full article at USA TODAY: https://www.usatoday.com/story/news/politics/2021/06/17/supreme-court-catholic-foster-care-agency-may-turn-away-gay-couples/4155263001/

 

2021 Religious Freedom Annual Review (RFAR), to take place online June 15–16, 2021

The theme of this year’s Review is “Religion’s Role in Overcoming Divides and Strengthening American Democracy.”

BYU’s RFAR will address questions such as "Is it possible for religion to help overcome divides and strengthen democracy in the U.S? Partisan and social divides have rocked the country over the last year; to what extent can or does religion play a role in healing conflict and creating a stable, just democratic society?"

Register today for updates and information. Registration is free.

https://religiousfreedom.byu.edu/home

Gillman and Chemerinsky’s Masonic Religion Clauses

In 1948, Justice Stanley Reed pithily proposed that a “[r]ule of law should not be drawn from a figure of speech.” Justice Reed was referring to President Thomas Jefferson’s reference, in an 1802 piece of constituent-service correspondence, to the “wall of separation between church and State” supposedly built by “the whole American people” when the First Amendment to the Constitution was ratified.

Chancellor Howard Gillman and Dean Erwin Chemerinsky insist, in The Religion Clauses, that “Thomas Jefferson got it right” and that “the First Amendment was meant to create a wall that separates church and state.” The better view, though, was expressed in 1985, by then-Justice William Rehnquist, who warned that “[i]t is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Full book review by Rick Garnett at Law & Liberty: https://lawliberty.org/book-review/gillman-and-chemerinskys-masonic-religion-clauses/

Notre Dame Religious Liberty Summit

Notre Dame Law School’s Religious Liberty Initiative will bring together some of the world’s foremost thought leaders on religious freedom at the end of June for the inaugural Notre Dame Religious Liberty Summit.

The summit, to be held on Notre Dame’s campus, will stimulate conversations between scholars, advocates, and religious leaders about the future of religious liberty in the United States and around the world.

His Eminence Timothy Cardinal Dolan, the Archbishop of New York, will deliver a keynote address, followed by a panel on interfaith cooperation with Elder Quentin L. Cook of the Quorum of the Twelve Apostles, Rabbi Dr. Meir Y. Soloveichik of the Congregation Shearith Israel, and Dr. Jacqueline Rivers of the Seymour Institute.

Full article: https://law.nd.edu/news-events/news/2021-religious-liberty-summit/

President Biden's budget proposal drops the Hyde Amendment

I suppose we knew this was coming, but it's still striking to see:

U.S. President Joe Biden’s proposed 2022 budget omits a ban on federal funding for most abortions that has been part of government spending bills for decades.

The budget, released Friday, makes no mention of the "Hyde Amendment," first passed in 1976, which has been included in federal spending bills since.

When X is publicly funded, a common result is more X.

Program on Church, State & Society announces 2021 summer fellows

The Notre Dame Law School Program on Church, State & Society has awarded three fellowships to Notre Dame law students for the summer of 2021. The fellowships are designed to give law students legal experience with religiously affiliated organizations. This year’s fellows are Lizzie Walter, Alec Afarian, and Mary Coleman.

Full article here: https://churchstate.nd.edu/news-events/news/program-on-church-state-society-announces-2021-summer-fellows/

FDR's 1933 address to the National Conference of Catholic Charities

A friend sent me a link to this speech, by President Roosevelt, to the National Conference of Catholic Charities in 1933.  Here's a bit:

[T]he people of the United States still recognize, and, I believe, recognize with a firmer faith than ever before, that spiritual values count in the long run more than material values. Those people in other lands, and I say this advisedly, those in other lands who have sought by edict or by law to eliminate the right of mankind to believe in God and to practice that belief, have, in every known case, discovered sooner or later that they are tilting in vain against an inherent, essential, undying quality, indeed necessity, of the human race —a quality and a necessity which in every century have proved an essential to permanent progress—and I speak of religion.

Sargeant, "Let the Body Testify"

I've been enjoying a newish journal called Plough Quarterly.  The latest edition has (among other things) a really nice essay by Leah Libresco Sargeant called "Let the Body Testify:  Whose Body Counts?"  Sargeant makes good use of the new book by my colleague, Carter Snead, What It Means to Be Human.  Here is Sargeant:

The vulnerability of our bodies is part of what binds us together into a community. In Jesus’ parable of the Good Samaritan, the story begins with the traveler’s suffering when he is beaten and robbed. His need is what calls neighborliness out of the Good Samaritan, who binds the traveler’s wounds, takes him to a refuge, and ensures his continued care.

This story is Christ’s answer to an expert in the law, who asks Jesus to clarify the limits of the Great Commandment. God calls me to love my neighbor as myself, but who, exactly, counts as my neighbor? And, left as the subtext, who doesn’t count? Whom am I allowed to not love?

Cavadini on "The Secular University"

Here, in the (indispensable) Church Life Journal, is an essay by (the indispensable) John Cavadini, called "Is the Secular University a Contradiction in Terms?".  A bit:

Ex Corde does conceive of the university as having utility, but its main usefulness is precisely in its institutional witness to the pursuit of truth as good in itself, and to the vision of the human being whose dignity is reflected in his or her capacity for joy in the truth. It is only useful secondarily, in the practical utility of knowledge acquired or imparted along the way. 

That this could be a viable, intellectually coherent enterprise, as noted, implies an institutional commitment to a view of reality where reality is characterized by an intelligibility that is not simply imposed and thus a mere construction and therefore not truth. This means a commitment not simply to truths in the plural, but to truth as transcending all individual truths, namely, to quote Ex Corde again, “the supreme Truth, who is God.” Although Ex Corde is here speaking specifically of Catholic universities, the claim is that this is how the Catholic university fulfills its identity not so much as Catholic, but as a university.

It is a claim about what is essential for a university to provide the cultural service which most makes it useful. It is the precisely institutional dedication to truth as transcendent of particular truths and of their utility, and its concomitant explicit commitment to the idea of God as the Supreme Truth, that permits a Catholic university—or any university—to fulfill and preserve the broadly based humanistic vision that is properly at the heart of a school dedicated to educating in the tradition of the liberal arts. It is this commitment that permits a Catholic university to resist a purely utilitarian view of education and its tag-along reductionist view of human being. In other words, the pursuit of truth for its own sake is in itself a witness to human dignity. One cannot “improve the world” and at the same time violate human dignity, or, as Notre Dame’s mission statement puts it, “a sense of human solidarity and . . . the common good,” explicitly employing language drawn from Catholic Social Teaching and Ex Corde both.

Ending the Shame of Blaine

The Catholic Bishop of Charleston, along with the South Carolina Independent Colleges and Universities, filed a federal lawsuit challenging the South Carolina constitution’s “Blaine Amendment.” This provision, which prohibits the state from “directly” funding any religious or private school, is responsible for blocking the schools operated by the litigants from receiving the federal COVID-19 relief funds to which they are entitled. Although Governor McMaster planned to distribute these funds equitably to all schools, the Blaine Amendment has caused private schools in South Carolina, including many that educate the state’s most vulnerable children and young adults, to miss out on millions of dollars of federal coronavirus funding during the pandemic. 

Full article by Nicole Stelle Garnett & Daniel T. Judge at Real Clear Policy:https://www.realclearpolicy.com/articles/2021/05/20/ending_the_shame_of_blaine_777880.html

Garnett on the Dobbs case

Here is a short piece I did for Our Sunday Visitor on the recently granted Dobbs case.  A bit:

It is often asserted by abortion-rights advocates that regulations of abortion involve the inappropriate imposition of a sectarian (which usually means “Catholic”) morality. In fact, until Roe, Anglo-American law had always permitted governments to proscribe abortions, and there is nothing specifically “Catholic” about recognizing the fact that unborn children are human persons, entitled to the same legal protections enjoyed by other (bigger, perhaps) persons. . . .

 

Deadline approaching for FFRF's third annual essay competition for law school students

Law students are invited to submit a no more than 1,500 word essay on the dangers of adopting a broad “history test” to justify violations of the separation between state and church. The contest will award $10,000 in prize money, with $4,000 for first place, $3,000 for second and $2,000 for third place, plus $500 discretionary awards for honorable mentions. The deadline is midnight on June 15, 2021.

https://ffrf.org/news/news-releases/item/38843-deadline-approaching-for-ffrf-s-third-annual-essay-competition-for-law-school-students

Spirit of the Corporation

I've very excited to be presenting my paper, Spirit of the Corporation, at the 12th Annual Berle Symposium tomorrow. The theme this year is Corporate Capitalism and the City of God, the first time it has considered the role of religion in corporate law and theory. It is a great group of corporate scholars, religion scholars, business scholars, and historians. Details of the conference can be found here, and my paper can be found here.

 

 

Latest issue of the Journal of Law & Religion

Latest issue of the Journal of Law & Religion is free through June 15: https://www.cambridge.org/core/journals/journal-of-law-and-religion/latest-issue

Our Common Human Nature at the Common Good Project

I spoke with the conveners of the Common Good Project at Oxford Law this past week on the priority of duties, virtue and the common good in Mary Wollstonecraft's theory of rights. Here's the basic claim I work through in the talk (and also one I take up in my new book):

I think that Wollstonecraft can specially help us to understand the common good today because the case she made for women’s rights in 1792 was based not upon liberal conceptions of pre-political, autonomous man (and I do mean man), as today’s claims for rights tend to be. Rather, her case was grounded in the common human nature women and men share, a nature she understood to be ordered to wisdom and virtue, human excellences that took their bearing, in her thought, from the singular wisdom and goodness of God.

You can watch it here.

Bess on "The Architecture of an Urbanist Natural Law Principle"

Longtime MOJ readers might remember that I am a fan of my colleague (and others') work connecting urbanism/architecture with Christian anthropological claims.  Here is a new essay by Bess, in the (great) Church Life Journal, called "The Architecture of an Urbanist Natural Law Principle."  Among other things, Bess engages Pope Francis's encyclical Laudato Si'.  Bess notes:

The fundamental anthropological assumption of Laudato Si’ is that the human being is most truly understood as an intermediate being, both part of and transcending the natural order. This mediating status affords human beings both objective privileges and objective obligations of stewardship, but a strong and pervasive obstacle hampers our stewardship.

Bess then works from this assumption to some "thoughts about an integral human ecology at a scale less-than-global, less-than-national, but greater-than-a-building: viz., the scale of an integral local human ecology, the scale of cities and their adjacent landscapes."  Check it out.

 

Friedlander's illumination of the shades of Brennanism & a gesture toward Brennan's Rooneyism

A recent exchange on Twitter provides another fitting occasion to re-up this illuminating exposition of Justice William Brennan's "shadow theology" from a few decades ago: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Pa. L. Rev. 1049 (1992).

Friedlander situates Brennan as rejecting classical natural law jurisprudence even while invoking its "spirit":

Justice Brennan offers a distinctive approach to modern constitutional problems. To confront the necessities of the present he dispenses with the positivist tradition and looks further back into history. Rather than resuscitating the classical natural law tradition, he invokes its spirit. This approach creates its own difficult questions. Is any aspect of the law fixed or must all laws bend to conform to the given world? Can the "new jurisprudence" find answers in the social sciences as the old natural law jurisprudence found them in theology and philosophy? There is the new danger that Justice Brennan's jurisprudence masks itself in a tradition that is not its own, and that its principles are merely empty abstractions that hide a deep skepticism about the binding character of law.

Friedlander's exposition is an extended exploration of  "a vacuum in [Brennan's] sociology." In particular, Friedlander studies Brennan's "precept of progress in the service of unity." Departing from the classical natural law tradition, Brennan's outlook was shaped by his perception of "the constitutional ideal of libertarian dignity protected through law." This dignity, to be sure, is the dignity of the individual, not one that reflects a classical natural law conception of the common good. 

Friedlander notes Brennan's regular reliance on a 1964 ABA committee report: Miriam T. Rooney, Report of Committee on Comparative Jurisprudence and Legal Philosophy, 1964 A.B.A. Sec. Int'l & Comp. L. 195. In describing his own judicial outlook, Brennan ambiguously situates the "new jurisprudence" discussed in this 1964 report vis-a-vis "the philosophy of St. Thomas Aquinas." Here's Friedlander:

Justice Brennan confronts three distinct jurisprudential problems: a changing society, the legacy of positivism, and the inadequacy of positivist jurisprudence when confronted by social change. He is both attracted to and repelled by the model of law prior to the nineteenth century, when natural law theory was dominant. At that time "law was merged, perhaps too thoroughly, with the other disciplines and sources of human value." "Custom," says Justice Brennan, "was the cherished source of the common law." 

Justice Brennan does not specify why custom is an inadequate grounding for law today. Is it because discontinuities in legal theorizing have left us with a legal inheritance in which precedent is uninformed by the value of custom, or because a changing society cannot rely upon custom even if it were contained in our constitutional law? Justice Brennan suggests the latter: "Just as we have learned that what our constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time; similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time." 

Seeking wisdom and dismissing custom, Justice Brennan is not without other "sources of human value" upon which to draw. In both speeches, he quotes approvingly from a bar association report that traces the historical development of legal thought from positivism to sociological jurisprudence to the "New Realism" school and, finally, to a "new jurisprudence," which "[i]n a scientific age... asks, in effect, what is the nature of man, and what is the nature of the universe with which he is confronted .... Why is a human being important; what gives him dignity; what limits his freedom to do whatever he likes; what are his essential needs; whence comes his sense of injustice?"

Most interesting about this interrogative mode of jurisprudence is Justice Brennan's reaction to it. In two sentences remarkable in their tentativeness, he notes, "[p]erhaps some of you may detect, as I think I do, a return to the philosophy of St. Thomas Aquinas in the new jurisprudence. Call it a resurgence, if you will, of concepts of natural law-but no matter." This "new jurisprudence," like that of St. Thomas, is also in agreement with the Aristotelian and Platonic traditions.' In its concern for "seeing things whole ... [it] draws its validity from its position in the entire scheme of things." The answers to the posited questions are not discussed by Justice Brennan. The bar report from which Justice Brennan quotes does continue, however. It discusses two books based on a "Document... of the Holy Office ... , which underlines 'among the possible areas of harmonious cooperation with non-Catholic Christians, the joint vindication of ideas based on the natural law and the heritage common to all Christians.' "

Brennan's continued use of this report evidences one way in which important strands in American constitutional law—those represented by Brennan and Scalia, respectively—emerge out of the American Catholic experience of two New Jersey natives as filtered through post-WWII Catholicism and various camps surrounding Vatican II, Humanae Vitae, and so on. through the 60s, 70s, and 80s. 

Another New Jersey Catholic perspective at work in the report came from the report's author, Miriam Theresa Rooney. Born in Charlestown and educated at Girls' Latin High School in Boston, Rooney was one of the first women law professors in the United States and the founding Dean of Seton Hall Law School. "An American Catholic original," as a Seton Hall biographical sketch describes Rooney, calls to mind now the first words of the title of Joan Biskupic's biography of Scalia, "American Original." At the time of Rooney's 1964 committee report, Brennan was captaining important Warren Court decisions and Scalia was practicing law in Ohio; Brennan was putting together a coalition for Griswold v. Connecticut while Scalia was starting a family.