Mirror of Justice

Religious freedom and the Roberts court’s doctrinal clean-up

Those who think and write about the Supreme Court, including many of the justices themselves, tend to collect and deploy colorful adjectives and epithets to describe the state of its religion clauses doctrine and case law. It is not necessary to go full-thesaurus or to march out the entire parade of pejoratives here. A “hot mess” was the recent pronouncement of one federal court of appeals. And my own favorite is still Justice Antonin Scalia’s 1993 portrayal of the so-called “Lemon test” as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”

An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion. Chief Justice John Roberts, following in several ways the example and path of his predecessor, William Rehnquist (for whom he and – full disclosure – I clerked), has directed, not merely endorsed or observed, these changes. The standard, habitual denunciations no longer seem to apply. As Larry David might put it, the law of the religion clauses is actually “pretty, pretty good.”

Full article by Richard Garnett at SCOTUSblog.

Scenes From a Revolution? After Bostock

Many people worry that the Supreme Court’s decision last month in Bostock v. Clayton County heralds a social revolution. In three cases decided together on June 15, the Court held that the Title VII ban on “sex” discrimination in employment includes discrimination on account of homosexuality and “transgender” status. Because our legal culture already adjusted to same-sex relationships (including civil marriage, per the Court’s 2015 decision in Obergefell v. Hodges), the worry now is mainly about the “transgender” half of Bostock. Will it lead straightaway to coed restrooms? What does Bostock portend for girls’ and women’s athletic competitions? For doctors and hospitals who refuse to mutilate healthy tissue in alleged “sex-change” operations? For mandatory use of a worker’s preferred pronoun? 

Full essay by Gerard Bradley at the National Catholic Register.

Catholic Schools, Charters, and Choice

Nicole Stelle Garnett joins Brian Anderson to discuss the importance of Catholic schools, their struggle to compete with charter schools, and what the Supreme Court's recent Espinoza decision will mean for private-school choice—the subjects of her story, "Why We Still Need Catholic Schools," in City Journal's new summer issue.

https://www.city-journal.org/10-blocks

Mexico Supreme Court rejects state's bid to decriminalise abortion

Mexico's Supreme Court has rejected a landmark injunction on abortion rights across the country.

The case revolved around an injunction granted in the eastern state of Veracruz, which would have effectively decriminalised termination in the first 12 weeks of pregnancy.

Full story at BBC.

Barcelona cardinal holds Mass in defiance of government order

Ignoring a warning from the government of Catalonia, a Spanish cardinal on Sunday led a funeral Mass for the victims of the COVID-19 coronavirus, hours after threatening to take “legal action” against civil authorities for the “arbitrariness” with which the right of religious freedom and worship is being treated.

Full story at Crux.

Private schools and civil society

I appreciated this piece at City Journal, "Liberty, Government, and the Preservation of Civil Society."  In particular -- like this wonderful book by Profs. Nicole Stelle Garnett and Margaret Brinig -- the author emphasizes the structural, freedom-enhancing role of private schools, the survival of which is gravely threatened at present by policies relating to the re-opening of schools.  Here's a bit:

we need both legal and policy strategies for preserving the mediating bodies of civil society. One timely example is the need to shore up the K-12 private schools serving low-income kids—schools now in grave danger of closing en masse because of the Covid-related economic crisis. More than 100 private schools have already closed since the lockdowns. Today’s forced economic slowdown is an aberration, one that we’re unlikely—with any luck—to see again in our lifetimes. The federal government has helped individuals and businesses get through it with various initiatives. Non-public schools are an important part of civil society; they reflect the wide diversity of American history and culture, they are often longstanding institutions, and they provide valuable benefits to students and communities. Schools serving low-income students give families options other than assigned neighborhood public schools, which might be low-performing or unsafe. Short-term aid, in the form of scholarships, tax credits, or grants, could help these schools weather this storm.

Without support, potentially hundreds of these schools will close for good. Some analysts have focused attention on the price that students would pay (and the expenses public schools would have to absorb) should the nation’s private-school sector collapse. Those are important considerations, but my focus is different. Since our founding, Americans have believed that governments are formed to protect our natural liberties. Thanks to centuries of experience, we now know that civil society is an essential contributor to our freedom. We must recognize that the government has a duty to help preserve America’s mediating institutions.

Nicole Garnett, "Why We (Still) Need Catholic Schools"

Here's a great City Journal essay by the Other Professor Garnett, "Why We Still Need Catholic Schools".   A bit:

Urban Catholic schools have a long and noble record of helping to lift students out of poverty. Decades of social-science research have demonstrated a “Catholic school effect” on the academic performance and life outcomes of disadvantaged minority students. Beginning with the groundbreaking work of James Coleman and Andrew Greeley decades ago, scholars have found that Catholic school students—especially poor minorities—outperform their public school counterparts. More recently, Derek Neal’s research demonstrated that Catholic school attendance increased the likelihood that a minority student would graduate from high school from 62 percent to 88 percent and more than doubled the likelihood that a similar student would graduate from college. Catholic school students, controlling for a range of predictive demographic factors, are more likely to finish high school, attend college and graduate, maintain steady employment, and earn higher wages than similar students attending other types of schools.

Catholic schools are also especially good at forming citizens. A common argument against private school choice is that public schools are necessary to inculcate democratic values. The empirical evidence, however, suggests that private schools in general, and private schools participating in school-choice programs in particular, perform as well as, or better than, public schools in this task.

Supreme Court Expands Religious Liberties

Richard Garnett discusses the expansion of religious liberties at the Supreme Court this term with June Grasso from Bloomberg.

https://www.bloomberg.com/news/audio/2020-07-18/supreme-court-expands-religious-liberties-podcast

"Big Mountain Jesus" statue vandalized

I have blogged a few times, over the years, about the "Big Mountain Jesus" statue at Whitefish ski resort (a great place, BTW) in Montana.  I'm very sorry to share the news that the statue was vandalized last weekend.  I hope this latest attack will be, in the long run, no more successful than the failed efforts to have it removed as an Establishment Clause violation.  Here's a little bit, from a First Things piece I did a while back, about the statue:

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier ­National Park. And, of course, for “Big Mountain Jesus.”

Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be ­reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”

The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of ­Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” and—because “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”—the statue does not “endorse” Christianity.

 

Why the Religion Cases Matter Most

Great read by John McGinnis today in Law & Liberty. Too often we fail to acknowledge the benefit of having competition in education, and this paragraph does so very well:

The constitutional religion cases decided this term are the most practically important of all of the term’s cases, precisely because they will improve the ecosystem of K-12 education both by boosting competition to public education and forcing the inclusion of more private schools with traditional values in that competition. They will allow more parents to do what we are trying to do for our daughter—get an education that provides both deep knowledge and sound values. Nothing is more essential to our nation than that we sustain schools that will compete against the monolithically left-liberal educational establishment for the minds of the next generation.

Defending the Freedom of the Church

It's freedom of the church month (or year!) here at Mirror of Justice. I have a piece today on the First Things web site, "Defending the Freedom of the Church," discussing the church autonomy principle in Our Lady of Guadalupe v. Morrissey-Berru, the institutional religious freedom argument in Little Sisters of the Poor v. Pennsylvania, and some thoughts about the implications of the cases all by way of St. Thomas Becket, Harold Berman, John Courtney Murray, Doug Laycock, and our own Rick Garnett.

"Religious Schools and the Freedom of the Church"

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

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

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

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

 

NO “WALL OF SEPARATION”

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

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

Forming Consciences for Faithful Citizenship and Voter Intent

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

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

Moreland and Pojanowski, "The Moral of Torts"

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

"Lift Every Voice!"

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

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

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

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

Lift every voice!

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

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

Espinoza and What Comes Next

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

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

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

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

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

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

Journal of Law and Religion, Volume 35

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

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

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

Komonchak on John Courtney Murray, SJ

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

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

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

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

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

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

Heine's prophecy and our mission

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

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

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

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

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

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

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

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

Espinoza and the Legacy of Chief Justice Rehnquist

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

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

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

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

My take on June Medical at SCOTUSBlog

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

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

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

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

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

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

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

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

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

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

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

Some instapunditry on today's June Medical decision

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

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

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

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

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