Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, March 25, 2019

The Irrelevance of the “Rule of Law” after 9/11

Remarks delivered at a book talk organized by the Harvard Law School Library, in response to a talk by Prof. Claire Finkelstein based on “Sovereignty and the New Executive Authority” (Finkelstein and Skerker, eds. 2019).


The Irrelevance of the “Rule of Lawafter 9/11


In light of the many issues raised by the book and by Prof. Finkelstein’s talk, I can’t hope in ten or twelve minutes to do more than make one substantial point, a point that aims to kill as much fun as possible. I suggest that there has been no significant issue about the relationship between the executive and the rule of law at least since 9/11. Everything that has occurred, every controversy surrounding presidential or executive authority, has been entirely internal to the ordinary practice of legalism and has involved applications of ordinary legal standards and arguments that are theoretically banal, however great their practical importance — with one arguable exception I will mention at the end.

Overall, when people think they are raising issues about the rule of law, they are usually raising issues about the sweeping delegations of statutory authority to the executive, especially in matters of national security and immigration, that have occurred during and after World War II and after 9/11. Complaints about delegation can be circuitously phrased as complaints about some enhanced or “thick” version of the rule of law, which attempts to fold into itself human rights, liberty, and all other good things. But delegation remains the central issue, so very little is gained by talking this way, while confusion is introduced about the real sources of executive authority.

Let me begin with a legal analogy, based on a reasonably obscure Supreme Court case from 1994 called Dalton v. Specter, involving the Defense Base Closure and Realignment Act of 1990. The suit attempted to enjoin the Secretary of Defense from carrying out a presidential order, under the Act, to close the Philadelphia Naval Shipyard. The Court, through Chief Justice Rehnquist, held that the claims were not reviewable. The President’s order could not be reviewed under the Administrative Procedure Act for conformity to statute because, the Court had previously held in Franklin v. Massachusetts, the President did not count as an “agency” under that Act.

To circumvent this barrier, the litigants attempted, and the Court of Appeals endorsed, an ingenious theory: any claim that the President has exceeded his statutory authority is always, and necessarily, a constitutional claim, which was reviewable notwithstanding Franklin. After all, the theory ran, if the President lacks statutory authority to do X, and supposing there is no independent grant of constitutional authority to do X, then under the majority opinion in Youngstown Sheet & Tube v. Sawyer, the President would violate the Constitution by doing X.

The Court would have none of it; the Chief observed that such a gambit would eviscerate the ordinary distinction between executive action that is unconstitutional and executive action that, purportedly resting on statutory authority, merely turns out to be ultra vires, in excess of that authority — as in every ordinary administrative law case. And, the Court added, the rule of law is just as fully vindicated when the courts hold that executive action is committed to executive discretion by the law itself, as it is when courts review and overturn executive action.

Dalton v. Specter captures, by analogy, a crucial point about executive power and the rule of law: when the executive appeals to ordinary positive legal authority,  such as a statute, there is no threat to the rule of law and no interesting issue of grand theory, even if the executive’s appeal is mistaken, in our judgment or even in the judgment of a court, and even if the executive has acted arbitrarily or abused its legal discretion. After all, we don’t think that the “rule of law” is implicated in any unusual or illuminating sense whenever the DC Circuit decides that an administrative agency has transgressed the bounds of its statutory authority by offering an unreasonable reading of the law, or even acted “arbitrarily and capriciously,” as happens approximately once per week. That sort of high-level talk seems unnecessary; we can just do administrative law from within.

Let me now turn to the Presidency where the same points apply, mutatis mutandis, as I have argued (along lines somewhat similar to those that Jack Goldsmith argued independently). The beginning of wisdom here - I use my categories, not Goldsmith’s — is to distinguish between what Commonwealth lawyers call “extraordinary prerogative” and “ordinary prerogative.” Ordinary prerogative is internal to the legal order; it includes the prerogative powers of the Crown that are themselves granted — at least arguably — by ordinary legal sources and authorities, common law or statute or, in our system, granted to the President by the written Constitution itself. Extraordinary prerogative arises when the executive genuinely acts outside the legal order or contrary to it (usually in the name of saving the legal order in some higher sense). Note that ordinary prerogative includes both cases in the so-called Category 1 of Justice Jackson’s Youngstown concurrence, where the executive acts under expressly delegated statutory authority, and Category 3 cases, where the executive claims that positive constitutional powers trump contrary statutes.

My thesis, then, is that approximately all assertions of presidential and executive authority since 9/11 have involved ordinary prerogative — usually on the basis of statute (Category 1), very rarely on the basis of constitutional authority said to override statute (Category 3, as in the bipartisan position of Presidents Bush and Obama that led to the second Jerusalem Passport case), but always within the enacted legal order, at whatever level.

To be sure, our history has seen genuine assertions of extraordinary prerogative on the part of Presidents, such as some but not all of Lincoln’s actions at the beginning of the Civil War, or FDR’s rather chilling warning to his Attorney General (intended to be passed on to the courts?) that he would ignore a judicial writ of habeas corpus in favor of Nazi saboteurs, in the events that lead up to Ex Parte Quirin. Since approximately World War II, however — and certainly since 9/11 — there has been little to no need for such things and precious few examples, in large part because Congress has delegated such sweeping powers to the executive, under statutes both broad and vague or ambiguous. And the courts have upheld those delegations even when the delegation itself has involved so-called “emergency” powers, as when the Court upheld the Emergency Price Control Act of 1942 in Yakus v. United States (1944). One might or might not find such delegation objectionable — I do not — but that is the main issue, and talk of the rule of law is largely otiose, at worst misleading.

I want to give one current example, one that has produced an outsized share of hysteria in recent months: the National Emergencies Act and President Trump’s associated proclamations. It seems counterintuitive to many people, but it is nonetheless true, that there is literally nothing interesting in this episode about the rule of law, at least in any sense that is not also implicated when EPA has to meet a claim that it has exceeded its authority or acted arbitrarily under, say, the Toxic Substances Control Act.

First of all, the administration points to one major source of statutory authority that has nothing to do with emergencies at all: a statute signed into law by President Obama on December 23, 2016, codified at 10 USC 284, that authorizes the Secretary of Defense to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Now, the administration might be right or might be wrong about whether this express statutory delegation does or does not cover what it proposes to do, but so might EPA in its toxic substance litigation. Talk of the rule of law is not an illuminating frame for the resulting legal discussion. There is no need to ascend, theoretically, to Hobbes, Locke or Hart. 

Secondly, the administration points to statutes such as 10 USC 2808, which contain authorities triggered by a declaration under the National Emergencies Act — in this case, the following authority: “in the event of ... the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military constructionprojects” by spending appropriated but unobligated funds. Now, insofar as we focus on the substantive delegation here, 10 USC 2808, the same logic I mentioned applies; it’s an ordinary administrative law question whether the statues do or do not authorize the presidential action. The National Emergencies Act, for its part, is an explicit delegation to trigger authorities in other laws by proclamation. That might or might not itself be objectionable on nondelegation grounds as open-ended — that conversation would have to start with the observation that “emergency” is a somewhat misleading term of art in our law, given the dozens of statutory “emergencies” declared and ongoing by every administration since 1976, which often persist for years — but presidential action under it raises no particular or special concerns about the rule of law.

Finally, I mentioned at the outset one caveat to the suggestion that there have been no interesting rule-of-law issues surrounding executive power since 9/11. The caveat involves some of the episodes in the so-called “Resistance” to the Trump Administration, such as the decision by Sally Yates to instruct DOJ personnel not to enforce a presidential order that OLC had determined was lawful, on the grounds that in her view it was not “wise or just” and that she was, herself, “not convinced” of its legality. Of all the colorful dramatis personae of the Trump administration, Yates came the closest to declaring herself a Schmittian decisionmaker who personally determines when to make an exception to legal rules out of necessity, in order to ensure that the state takes no harm, to use the old Roman formulation. It was a failed declaration, of course, but a clear attempt at least. It is something of a puzzle why theorists interested in discussing the rule of law do not focus on such cases, which at least supply genuine material. Let me recommend, as a useful citation for those interested in the Yates case, an article Professor Fried wrote in a somewhat different context, entitled simply “Impudence.” 


March 25, 2019 | Permalink

Fifth anniversary of Hobby Lobby oral argument at SCOTUS

Today is the fifth anniversary of the oral argument in Burwell v. Hobby Lobby Stores, Inc. The date is easy enough to remember for Catholic lawyers, for it is only necessary to associate the date of oral argument with the Feast of the Annunciation, which we celebrate on March 25 each year. This correspondence between the litigation calendar with the liturgical calendar is one of a handful of others that came up during the course of the religious freedom litigation surrounding the contraceptives mandate. 

March 25, 2019 | Permalink

Saturday, March 23, 2019

"Pope Francis, True Religion, and Religious Liberty"

A worth-reading paper by Dr. Joel Harrison (Sydney).  Here's the abstract:

This article examines Pope Francis's understanding of the relationship between church and state, the ends of civil authority, and the importance of religious liberty. It argues that Francis challenges claims made by legal and religious scholars that civil authority must be neutral as to religious ends. Francis, the article contends, uses the categories of idolatry and solidarity as opposing ends that are cultivated by civil authorities caring for, most notably, the economy and the environment. Both are religious. Idolatry is the solipsistic pursuit of created things as an ultimate end and solidarity entails living in communion with God and others. The article further considers how these arguments have shaped Francis's views on religious liberty. Francis points to the importance of civil authorities respecting conscientious objection, the desirability of cultivating healthy pluralism, and religious liberty as securing the end of solidarity. This presents two challenges: first, to recent legal scholarship questioning the special importance of religious liberty; and second, to the exercise of religious liberty itself. If religious liberty is protected for the end of solidarity, can it be exercised wrongly? The article concludes by considering the Supreme Court's 2014 Hobby Lobby decision.

I note that Harrison has a book forthcoming from Cambridge University Press, Post-Liberal Religious Liberty, for which I'll be keeping my eyes open.  (I note that Harrison generously engages with a number of my own papers.  Thanks!)

March 23, 2019 in Garnett, Rick | Permalink

A cheer (but not three) for Gov. Newsom's capital-punishment move

As I discussed in this post, from 13 years ago (!), I have constrained enthusiasm for restrictions on the death penalty that are the result of either unsound constitutional interpretation or executive overreaches.  Gov. Gavin Newsom's defense of his recent announcement of a "moratorium" on capital punishment in California is, I believe, an example of the latter.  Let's put aside questions we might have about whether his stated reasons are his actual reasons.  Let's put aside also questions we might have about the plausibility of his statement that "[o]ur nation . . . looks to California for solutions that work and reflect our highest moral values."  In my view, his claim that he speaks for California and that he is acting "under [his] authority as governor" are very difficult to square with the fact that "California" just three years ago (a) rejected a ballot initiative that would have ended capital punishment and (b) adopted an initiative to speed up appeals and executions in capital cases.

Most of what Gov. Newsom says about capital punishment is, in my view, true and if I were a voter or a legislator in California I would vote to repeal the death penalty.  But, if the rule of law matters, then process matters as well as policy.  


March 23, 2019 in Garnett, Rick | Permalink

"Imbeciles" and "Illiberal Reformers"

A good read, and a good reminder. Plus ça change . . . 

It’s not surprising that Buck v. Bell was decided in the Roaring Twenties, a decade even more culturally charged than the one we live in today. The Ku Klux Klan was riding a wave of anti-Catholic, anti-Semitic fervor, creationists were battling Darwinists over the teaching of evolution, and Prohibition was pitting rural Protestant values and prejudices against a looser, more diverse urban culture. In Washington, Congress was busily writing the most restrictive immigration law in our history, the National Origins Act, to protect the country from foreign contamination. In the words of The Saturday Evening Post: “If America doesn’t keep out the queer, alien, mongrelized people of Southern and Eastern Europe, her crop of citizens will eventually be dwarfed and mongrelized in turn.”

According to Thomas C. Leonard, who teaches at Princeton, the driving force behind this and other such laws came from progressives in the halls of academia — people who combined “extravagant faith in science and the state with an outsized confidence in their own expertise.” “Illiberal Reformers” is the perfect title for this slim but vital account of the perils of intellectual arrogance in dealing with explosive social issues. Put simply, Leonard says, elite progressives gave respectable cover to the worst prejudices of the era — not to rabble-rouse, but because they believed them to be true.

March 23, 2019 in Garnett, Rick | Permalink

Friday, March 22, 2019

Bureaucracy and Mystery

Remarks I delivered today at the Center for the Study of the Administrative State’s excellent conference on “Religion and the Administrative State.” The panel began with a paper by Mark Rienzi of Catholic University. This was my response.

Bureaucracy and Mystery 

(Conference on “Religion and the Administrative State,” March 22 2019)

Thanks to Andrew Kloster and Adam White for having me here. Despite several kind invites from Adam over the years, this is my first time at both the Scalia School of Law and at the Center for the Study of the Administrative State, so it’s a great pleasure.

I’m here as a scholar of administrative law who has relatively little expertise in law and religion and doesn’t work in that field directly. In that regard I both greatly enjoyed and profited from Mark Rienzi’s excellent paper. It seems to me the core descriptive observation of the paper must be correct: that SCOTUS law has seen, over recent decades, an increase in the number of cases in which a conflict over religion was caused by an administrative action, rather than an act of legislation. It rings true immediately; it fits our experience and fits the data.

In formulating this observation we have to be a bit careful, legally, because there is a tricky argument that there can be no such thing as an exercise of administrative authority in its own right. The antinomy would run as follows: either the administrative act has, or does not have, legislative authorization. If it does not, then it fails independently of any religion-related issues. If it does, then legally speaking the real cause is the legislative decision to authorize the agency to take that act. On this view, there would be no such thing as an act of administrative power that should be classed as an alternative to an act of legislative power, as Rienzi does. Still, we know what Rienzi means and what he is referring to: there has plausibly been an increase in discretionary agency actions that impinge upon religious values, actions that, while authorized by statute, are not required by it and that seem to rest on the agency’s pursuit of a mission that is either heedless of or affirmatively hostile to religious perspectives.

So the main observation of the paper seems true and important. When we come to discuss the causes of the phenomenon, however, I began to be inclined to dissent in part. It seems to me that the paper might be read to assume that there is some intrinsic tension or conflict between the growth of administrative bureaucracy and religious commitments, such that the administrative state is mainly to be understood as a threat to religious values. Rienzi, for example, suggests that specialization is a structural cause of administrative conflict with religious values: “In the exercise of their specialized mandates, agencies will be more likely to have a single-minded focus on a particular goal, and therefore more likely to undervalue, ignore, or simply be unaware of competing interests that are outside of their specialty field.”

I don’t quite see why this makes agencies structurally prone to ignore or discount religious values in particular. Everything depends on what is defined as inside or outside any given agency’s area of specialization and substantive mission. Consider what is by many measures the largest and oldest continuous bureaucracy in human history: the Catholic Church. Here we have institutional specialization raised to an art form; consider the Roman Curia, with its literally Baroque divisions and subdivisions. One might say that the genius of Catholicism is precisely the marriage of bureaucracy with mystery. Indeed Carl Schmitt once joked that Catholicism triggers special horror in the Anglo-Saxon mind because it combines two things that the Anglo-Saxon cannot abide: bureaucracy and celibacy.

What matters, then, is not specialization in itself, because specialization is an intrinsically neutral institutional technology. What matters, rather, is the substantive content of the mission that bureaucracy is entrusted with. Now, it is undeniable that policy making by our American bureaucracy has, for complicated historical reasons, come to be largely defined as a “secular” liberal-technocratic enterprise. (I have put “secular” in scare quotes because I think the American liberal-technocratic enterprise itself flows from a very particular set of recognizably religious commitments, whether or not its holders describe themselves as such. That set of commitments is an odd and distinctive mix of Pelagianism and immanentized historical providentialism, and that when the bureaucracy carries out policies justified with reference to cost-benefit analysis it is often demonstrably engaged in a kind of faith-based initiative. But all that is a conversation for another time). In recent decades, as one and arguably both of the major political parties has come to be dominated by an increasingly “secular” urban liberal bourgeoise, it should be no surprise that we have seen agencies pursuing missions that are hostile to, or at least heedless of, religious values. The most striking examples of administrative hostility to religion, in my view, have not arisen from autonomous mission-oriented administrative action gone off the rails, without political direction, but instead have arisen precisely in areas where the incumbent White House has had a clear ideological and political worldview that was explicitly or implicitly communicated to, and pursued by, the bureaucracy. I would suggest that the policy choices related to the contraceptive mandate that led up to the Zubik episode in the Supreme Court, as well as the Solicitor General’s notorious warning or threat during the oral argument in Obergefell that the administration would consider denying tax exemptions to faith-based universities, both fit this description.

So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication. As a kind of complement or counterpoint to Rienzi, then, I want to very briefly envision a different relationship between administrative bureaucracy and religion, one in which bureaucracy could be seen as a useful positive instrument for the promotion of religion, rather than only as a threat. Again, I by no means deny it can be a threat, just as the kitchen knife that serves the family can accidentally cut people, and can even be deliberately turned to bad ends. But we still keep knives in the kitchen.

Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.

Under the heading of “clearing away obstacles,” we might find the work of bodies like the new religious liberty office in HHS, or similar bodies in, say, the Department of Education that could monitor universities, schools and local school boards. All the quasi-coercive apparatus of administration that libertarians love to hate — Dear Colleague letters, interpretive rules, Auer deference, implied threats to cut funding, vague but ominous warnings — can be brought to bear on recalcitrant universities and other institutions that threaten the religious exercise of students, faculty, or other constituents. An inspirational model here is the Executive Order signed on March 21 requiring universities to respect free speech principles, on pain of losing funding. With respect to the for-profit sector, consider cases like Patterson v. Walgreen, just granted by SCOTUS, in which the question is whether a firm may require an employee to appear for training on a Saturday, in violation of the employee’s Sabbath devotion. There is no reason why relevant federal agencies cannot use their array of instruments to nudge employers to grant generous accommodations in such situations.

Under the heading of “affirmative promotion,” one can imagine a variety of initiatives that might bring faith-based perspectives to regulation. Apart from program-specific offices, one might think more ambitiously about a general executive order, perhaps folded into the existing executive orders governing OMB and OIRA, that would require all agencies to consider religious values when regulating, just as they were instructed by President Obama’s Executive Order 13,563 to consider vaguely defined values favored by the Religion of Humanity, namely “equity, human dignity, fairness, and distributive impacts.” This sort of procedural requirement— call it a “religious impact statement” — would amount to something like an expansion, clarification, specification and more direct application to OIRA of President Trump’s Executive Order on religious liberty and free speech from May 2017, and the subsequent implementing guidance from the Attorney General.

In a kind of maximum programme - at least, the maximum that can be imagined within the confines of our liberal institutions, for now - one might even imagine a day when the law of judicial review of agency action will itself build in scope for administrative promotion of religious values, above and beyond statutes like RFRA. The possibilities are manifold; I’ll mention only a few. We might imagine a general substantive canon of construction, for example, under which statutes would be construed, where fairly possible, not to encroach on religious values. This would be no more or less justifiable than any number of other substantive, value-laden interpretive canons in our law. Under arbitrary and capricious review,  likewise, we might imagine a world in which agencies would have discretion to appeal to religious values as justifications for agency action, where statutes are otherwise silent or ambiguous. If, as a number of administrative law scholars now believe, it is legitimate for agencies to appeal to the “political philosophy” of the incumbent administration, it is hard to see why religious values should be on a different footing. Such values are in my view part and parcel of every political philosophy, in one form or another. As Cardinal Henry Edward Manning argued, all political conflict is ultimately theological.

I merely throw out these speculative possibilities as discussion fodder, but I do think they are within the range of the thinkable, however remote from current law they may or may not be. Many stranger metamorphoses have occurred in our law over the decades and centuries. In any event, however plausible or implausible such a possible future may be, the existence of the possibility itself demonstrates my point, that the administrative state and its accompanying law are orthogonal to, rather than intrinsically opposed, to religious values, and — in the right hands — can be put into service in order to promote them.

Adrian Vermeule



March 22, 2019 | Permalink

The Persistent Narrative: The Media, Religion, and Abortion

Image result for washington post

“Christian conservatives in Trump administration build global antiabortion coalition”

The headline to the story in the Washington Post, linked above, may seem innocuous to the everyday consumer of news, but such a reaction only testifies to how successful the media have been in framing the issue. Indeed, the headline to the story tells you all that you need to know about the media and its never ending quest to portray the pro-life movement as ineluctably religious—a cabal of fanatics bent on imposing a particular tenet of Christian belief on an unwilling, secular and pluralistic society.

This headline is only the latest example of a long-running phenomenon.

In the 1960s, well before the Supreme Court’s decision in Roe v. Wadecreating a constitutional right to abortion, the media propagated and honed this narrative.  For example, on April 5, 1965, CBS News broadcast a documentary “Abortion and the Law” hosted by Walter Cronkite.  (The video was available on YouTube and the CBS News site, but has since been taken down). As Clarke Forsythe notes in his book Abuse of Discretion: The Inside Story of Roe v. Wade (2013)(p. 67), “the program framed the Roman Catholic Church as the only opponent of ‘reform,’ and the only argument against abortion as an ‘ethical or religious’ one.”   Framing the pro-life movement in this manner, the documentary served as “a powerful advertisement for the repeal of abortion laws” (p. 68). Indeed, according to Germain Grisez in his book Abortion: The Myths, the Realities, and the Arguments (1970), the ostensibly neutral press was “so effective in promoting the pro-abortion cause” in the program that it was “subsequently widely used on film by groups favoring relaxation of the laws” (p. 214).

Likewise, when the television networks announced the Court’s decision in Roe, they immediately framed it in terms of liberty and privacy on the one hand and a sectarian religious viewpoint on the other.  On January 22, 1973, the day Roe was decided, CBS News on its evening broadcast chose to depict opposition to the Court’s ruling in religious terms, featuring a Catholic priest as the spokesman for the pro-life movement (see video here).  The network did not analyze the arguments against abortion exposing their supposedly religious premises.  It believed more strongly in the power of suggestion.  CBS could have turned to any number of prominent women leaders in the pro-life movement, but the network chose to show the nation a man—a  Catholic priest in a Roman collar.

In the years immediately following Roe the media demonstrated an unwavering commitment to this narrative.  On April 23, 1978, CBS News broadcast a television program entitled “The Politics of Abortion” hosted by Bill Moyers.  As John Noonan notes in his book A Private Choice (1979) (p. 78), “The program opened with a shot of a priest selling rosaries; the camera then panned to a statue of the Virgin Mary.” This is how the network chose to characterize the participants in the March for Life.  “Without words the camera let the hawker of religious goods and the image of the Virgin declare that whoever was there was guilty of mariolatry and a probable bigot.”  The show also featured  “[a] priest in clerical dress . . . preaching against abortion in a pulpit.  The bishops’ spokesman on abortion, Monsignor James McHugh, was interviewed presenting the Catholic opposition to abortion.”  As Noonan observes, the program did not mention the deep scholarly criticism of Roe or the widespread opposition to abortion in various religions.  Instead, “[t]he message of the program was that Catholic theology, conveyed by priests at the beck of bishops to a fanatical laity, was the basis for the opposition to the funding of abortion and the reason for discontent with [Roe and Doe].”

This practice of portraying the pro-life cause as a peculiarly Christian and specifically Catholic crusade has continued up to the present day, of which the Washington Post piece is but the latest example.  More certain in practice than Godwin’s Law is the likelihood that, in a newspaper article or television report on abortion, the pro-life cause will be attributed to religious sentiments, suggesting—sometimes overtly, but more often indirectly—that the pro-life cause is religious at its foundation and that this precludes its legitimate inclusion in the formation of public policy.

As an example of this indirect approach, the Washington Post story linked above does not analyze any of the arguments behind the Trump administration’s policies concerning abortion for signs that these policies constitute an establishment of religion.  It merely identifies those seeking to advance these policies as conservative “Christians,” and it refers to a group aligned with the administration’s efforts as “a think tank with Catholic ties.”  Written as a smear, this identification does all the work that needs to be done.  It clearly communicates the only idea that needs to be conveyed:  The policies that these individuals and groups seek to advance are wrong not simply because they restrict access to abortion.  They are wrong because they are religious, promoted by religious actors.

As such, the headline to the Post story alone succinctly captures the narrative that the mainstream media and those on the political Left use to frame the abortion issue: Free and open access to abortion is an unqualified good—one that should be enjoyed by women around the world.  A tiny minority of determined Christian theocrats in government, together with a network of religiously affiliated misogynist NGO’s, conspire behind the scenes to undermine a cherished human right.

If asked to explain it, members of the media would no doubt aver that the act of reporting the religious identity of “anti-abortion” political actors is straight news reporting. But such an assertion is hardly credible.  The tell-tale sign that the reporting of abortion opponents’ religious affiliation is not news is that the media does not report the religious identity of those who defend and promote the abortion license as a matter of course.  This fact is deemed irrelevant to the meaning of the policy itself.  But on their face, the substance of pro-life measures are not religious, but secular—the preservation of innocent human life.  The alleged religious quality is only an accusation.  This religious quality is derived from the presumed motivation of its sponsors.  But why isn’t the motivation of abortion supporters subject to similar suspicion and scrutiny?  Yet the media never report the religious affiliation of abortion supporters unless doing so will support the narrative, as when a clinic worker or abortion activist is identified as Catholic or Evangelical.  Their support of abortion is meant to signify that people can resist the theocratic impulse that their co-religionists fail to overcome.

Why do authors in the media continue to frame the story in this way?  No doubt because they judge it effective in achieving the ends sought.  They continue to trade on the libel that Catholics are untrustworthy as citizens – that they are conspiring to undermine the religious neutrality of our pluralist society.  While they do not call pro-lifers “papists” they want the public to smell the gunpowder that Guy Fawkes plans to set alight.  And so they regularly employ a casual slur that enjoys the plausible deniability of mere description. 

No matter the cost to our republic, no matter the harm caused in rending the social fabric, the proponents of abortion in the media and elsewhere seem determined to perpetuate a lie, all in order to preserve the abortion license.  Just to let the killing go on.

This is a shameful and despicable tactic that should be called out at every turn.


March 22, 2019 | Permalink

Thursday, March 21, 2019

"Religious Freedom and Nondiscrimination" Article

I’ve published a new article, Religious Freedom and Nondiscrimination, based on an address at Loyola University-Chicago’s symposium on “The Question of Religious Freedom: From John Courtney Murray and Vatican II to the Present.” The symposium papers (vol. 50, issue 1) are from an excellent list of people, including MOJ-friend Kathleen Brady, the leading theological ethicist Robin Lovin, Loyola’s Miguel Diaz (who chaired the event), Leslie Griffin, and others.

My piece can be downloaded at SSRN; here is the abstract:

      This essay explores two theses about the relationship between religious freedom and nondiscrimination. First, nondiscrimination is a crucial component of religious freedom: such freedom must be equal for all religious positions. Religious freedom for some faiths more than others is not truly religious freedom: rather, it is a policy for advancing the favored faiths or their sociopolitical goals. We see this tendency operating today, for example, in that some conservatives speak strongly of religious freedom but oppose equal freedom for Muslims. The essay discusses (examining the Trump travel ban and other disputes) why that attitude is wrong in principle and misguided, as a matter of prudence, for social conservatives' own religious-freedom claims. The essay also discusses the prevalence of hostility toward conservative Christians.

       Second, religious freedom is a value independent of nondiscrimination. Equality for various faiths is little comfort without a baseline guarantee of actual freedom, including room to exercise religion aspects of life beyond worship: charitable work and daily life. Moreover, sometimes the values of religious freedom and nondiscrimination come in conflict: when they do, we must give weight to both of these important values, and in particular, not simply subordinate the value of religious freedom to the value of nondiscrimination. The essay gives reasons for protecting religious freedom as well as nondiscrimination, outlining parallels between the constitutional claims of LGBT persons and those of religious objectors to same-sex relationships. Finally, the essay suggests means for giving substantial protection to both rights.

March 21, 2019 in Berg, Thomas, Current Affairs | Permalink

"Freedom to Serve" Book Chapter

I’ve published a chapter in the excellent new book edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and The Prospects for Common Ground (Cambridge University Press 2018). The chapter is titled “Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good.” The chapter can now be downloaded at SSRN; here is the abstract:

Recently, religious organizations seeking protection from government restrictions have emphasized that they seek “freedom to serve” others in their anti-poverty, social-service, healthcare, or educational work. The U.S. Catholic bishops have made that phrase central to their campaign for religious liberty in disputes over organizations’ objections to same-sex marriage, the Obama administration’s contraception mandate, and other rules. This argument, defending religious freedom based on its contribution to social good, is worth examining in detail. Although the “common good” argument raises complications, this Chapter asserts that when properly defined, the argument reflects a legitimate, indeed important strain in America's tradition of religious-freedom rights. In a roughly analogous way, the chapter asserts, constitutional rights to same-sex-marriage found support in considerations of the common good as well as individual autonomy. Recognizing this parallel, and others, between marriage rights and religious-freedom rights might encourage us to give weight to both. The chapter then catalogs the contributions of religion and religious organizations, responds to objections that may be raised, and suggests principles for the proper scope of religious freedom in light of other interests.

March 21, 2019 in Berg, Thomas, Current Affairs | Permalink

Tuesday, March 19, 2019

Anscombe at 100

I appreciated and enjoined this essay by John Schwenkler, at Commonweal, on Elizabeth Anscombe.  A bit:

One of the things that will likely strike the reader who turns to these essays is the unflinching confidence and literalness with which Anscombe articulates and defends traditional Christian doctrine. Her teacher Wittgenstein is a likely influence here: he insisted that in doing philosophy we should avoid falling back on abstractions and technical jargon, and should put things instead in words that could be at home in everyday life. Anscombe’s brilliant essay “On Transubstantiation,” published by the Catholic Truth Society in 1974, showed what it would be to take this approach in the way we speak about the Eucharist:

It is easiest to tell what transubstantiation is by saying this: little children should be taught about it as early as possible. Not of course using the word “transubstantiation,” because it is not a little child's word. But the thing can be taught, and it is best taught at Mass at the consecration, the one part where a small child should be got to fix its attention on what is going on. I mean a child that is beginning to speak, one that understands enough language to be told and to tell you things that have happened and to follow a simple story. Such a child can be taught then by whispering to it such things as: “Look! Look what the priest is doing…. He is saying Jesus’ words that change the bread into Jesus’ body. Now he’s lifting it up. Look! Now bow your head and say ‘My Lord and my God,’” and then “Look, now he’s taken hold of the cup. He’s saying the words that change the wine into Jesus’ blood. Look up at the cup. Now bow your head and say “We believe, we adore your precious blood, O Christ of God.” This need not be disturbing to the surrounding people. If the person who takes a young child to Mass always does this (not otherwise troubling it), the child thereby learns a great deal.

March 19, 2019 in Garnett, Rick | Permalink

Thursday, March 14, 2019

Garnett on "Big Mountain Jesus," Dignitatis Humanae, and other things . . .

I have an essay in the latest issue of First Things ("Mild and Equitable Establishments") in which I get to reflect on, among other things, the constitutional status of "Big Mountain Jesus" -- a memorial put up by the Knights of Columbus in the 1950s to commemorate the Tenth Mountain Division.  Among other things, I consider whether and in what ways a "liberal" political community may recognize, acknowledge, and even in some senses prefer or establish a religion.  Check it out. 

March 14, 2019 in Garnett, Rick | Permalink

Wednesday, March 13, 2019

Mitch Daniels: School Choice "is a social justice issue"

Indeed, it is.  (If you have not read Jack Coons's 1992 First Things essay, "School Choice as Simple Justice", you should.)  And, there's also this article, that I wrote with Prof. Nicole Stelle Garnett, School Choice, the First Amendment, and Social Justice.  

Here is the interview with Purdue's president, Mitch Daniels.  Among other things:

The starting point for me has always been that [the debate over school choice] needs to be defined by a term which has been, I think, improperly appropriated by others: This is a social justice issue. Social justice, first of all, cannot be allowed to [only] mean taking money from A and handing it to B. That can occasionally be just. But what is just is one of the fundamental questions always. And everybody should be able to approach it and lay claim to it if they have a good argument. So whatever social justice is, enabling poor people to have the same choice about one of the most fundamental of life's decisions—the education of their child—qualifies, and so I always talked about it that way.

I think there's very good evidence that competition improves education both in the voucher schools and in the surrounding public schools. And we've seen it here. But I think you start the argument with simple fairness and equity for those less fortunate, and that gets you a certain distance. Now, there is no special interest in our society as strong, as stubborn, as well-funded, and as permanent as the public education establishment. And there is no argument one can make—certainly not one based on welfare of children or better results—that is persuasive to folks who believe that the system itself and the adults in it are the primary priority. So to answer your question: You have to get to a political equation where you can pass these things over their efforts, which are always very sophisticated, well-funded, and untiring.

March 13, 2019 in Garnett, Rick | Permalink

Sunday, March 10, 2019

Carl Esbeck on the Memorial Cross case

Prof. Carl Esbeck (Missouri) sent along this comment on the Memorial Cross case that was argued recently at the Supreme Court.  I am re-posting it here with his permission:

The Bladensburg WW I Memorial Cross:

Government Expression of Religious Content and the Establishment Clause

    On February 27, 2019, the Supreme Court of the United States heard oral argument in consolidated appeals Nos. 17-1717 and 18-18, involving the Town of Bladensburg World War I Memorial in the shape of a Celtic-style Latin cross said to be in violation of the Establishment Clause of the First Amendment. The American Humanist Association had sued the Maryland-National Capital Park and Planning Commission, a bi-county agency and current holder of the title and overseer of the land on which the memorial is situated. The American Legion, a national veterans association, was permitted to intervene on the side of the bi-county Commission. The American Legion, along with a committee of mothers who had lost sons in the war, were involved in the project in Maryland’s Prince George’s County from 1919 to 1925 in designing, raising money, and dedicating the memorial to men from the county who had perished in the Great War. The U.S. Office of Solicitor General, as amicus curiae, was granted permission to argue on behalf of the memorial’s constitutionality.

    The federal district court in Maryland found the memorial did not violate the First Amendment, but a panel of the U.S. Fourth Circuit Court of Appeals concluded that the Latin cross composing the Bladensburg WW I Memorial, the foremost symbol of Christianity, was government sponsorship of a religion and thus in violation of the Establishment Clause. In lieu of taking down the memorial or altering the monument so it was no longer a cross, the circuit court suggested the bi-county Commission explore whether the memorial could be moved to private land or that the Commission transfer the land into private hands.

    When the U.S. Supreme Court granted these appeals there was little doubt by anyone that the Justices have in mind reversal. It is just too much to suppose that a memorial to our nation’s war dead, one that has stood for almost a century without objection to its religious content, is going to be torn down or privatized by the Judicial Branch. The remaining suspense, rather, is the rationale to be employed by the High Court majority in explaining why the Memorial Cross is not a transgression of church-state relations. Will the holding be heavily fact-bound and thus so narrow as to be of limited precedential value? That was the path urged by counsel for the bi-county Commission. That approach drew little enthusiasm during the “hot bench” oral argument. SCOTUS does not exist to right individual wrongs, but to lay down general principles of law to guide the lower courts.

    Lawyers for The American Legion and the Solicitor General were more ambitious. They asked that the Court’s new conservative majority seize the opportunity for a more sweeping change in the law. Specifically, they urged that the Court abandon the much-reviled test of Lemon v. Kurtzman (1971), as well as Lemon’s “no-endorsement” spin-off and its “reasonable observer” excretion. Lemon lead to erratic results because it invited judges to substitute their own values under a pretense of objectivity. It had not been used by the High Court for years, yet never overruled by name. The lower courts have persisted in following Lemon because no comprehensive verbal map has been substituted in its place. Besides, Lemon is tempting because it allows trial judges to satisfy their personal preferences while looking like they were following the law. On the other hand, while there is agreement among conservatives that they do not like Lemon and all its children, there is less consensus about what ought to be the new no-establishment test. Indeed, the Court’s past struggles with how to articulate a general principle for the task of policing the boundary between government and religion means that the Justices here may well generate multiple opinions but no majority. Still, that is the sort of mishmash that the Chief Justice hates. So look to C.J. Roberts to step up and labor to get five Justices on a single opinion. Justices Breyer and Kagan are expected to uphold the memorial but write more narrowly.

    Government expression of religious content has long been the subject of lawsuits by secular-oriented plaintiffs in cases of religious symbols on government property, as well as memorials, Christmas holiday displays, and God-referencing pledges, mottos, and anthems. These are not instances of asking government to “accommodate” the religion of one of its citizens. Rather, the government itself is the speaker and government has no rights under the Free Speech Clause. The First Amendment is not there to protect the government from the people, but to protect the people from the government. Further, the Free Exercise Clause is inapplicable because the act of the government speaking through a passive symbol or motto does not entail religious dissenters having to do anything contrary to their faith or to refrain from doing anything that their faith demands. If nothing is required of a claimant that countermands his or her religious tenets, then the exercise of religion is not burdened.   

    That leaves the Establishment Clause and the scope of its operation. The Establishment Clause states that government has no authority to “make … law” about “an establishment of religion.” So how does the Establishment Clause work concerning government expression of religious content unwanted by the plaintiffs? Despite the frequently heard whining about the Establishment Clause being in hopeless disarray, the High Court has laid out steps for breaking down that question:

    First, the expression by the government or by someone in the private sector? The Establishment Clause restrains only the government, not private speakers. On the other hand, if expression in the private sector is adopted by the government as its own, then the government must answer for the speech. Pleasant Grove City, Utah v. Summum (2009). If the offending message is from both the government and private speakers, that does not change the analysis. The Establishment Clause requires a focus on the government’s message, even if the messaging is shared with others.

    If this is private religious speech in a public forum of the government’s dedication, then the Establishment Clause does not apply. By allowing into the forum speech without regard to its content, including religious content, the government is the sponsor of none. Indeed, the Free Speech and Free Exercise Clauses protect religious speech from discrimination. Widmar v. Vincent (1981); Rosenberger v. Rector and Visitors of UVA (1995).

    Second, government speech is not forbidden merely because it happens to coincide or harmonize with a religious tenet. Commonplace is the overlap of law with morality where the codified moral postulate is consistent with a widespread religious teaching. Laws against murder or theft are not unconstitutional because their prohibitions are also prominent teachings by major religions. See McGowan v. Maryland (1961) (Sunday as required day of rest free of labor and retail); Harris v. McRae (1980) (a law encouraging a woman to carry her unwanted pregnancy to live birth).

    Third, given that government has no authority to “make … law” about “an establishment of religion,” this surely calls for an inquiry into the law’s purpose. The judiciary is to probe into the government’s purpose or object in maintaining this symbol with its religious content. The purpose must not be to aid or otherwise advance or support religion as religion.

    The government can speak about history, art, architecture, archaeology, ethics, etc., where the topic has religious content. A history class can teach the Protestant Reformation. A class on the Bible in English Literature is common in the course catalogue at state universities. Public law schools have electives in the First Amendment and church-state relations. A city gallery displaying religious art is quite ordinary. You cannot study art, music, or architecture without studying the role of religion in profoundly shaping all of those forms. These are not establishments. As Justice Clark wrote for the Court in Abington Township Sch. Dist. v. Schempp (1963), “[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. …  Nothing we say here today indicates that such study … may not be effected consistently with the First Amendment.”

    However, the boundary between church and state is crossed when the government’s expression is no longer about religion but is religion. Justice Kennedy, concurring in part and dissenting in part in County of Allegheny v. ACLU (1989), gave the illustration of a municipality mounting a permanent Latin cross on the roof of city hall. The purpose of the city’s placement of the cross is nearly impossible to explain apart from having the object of elevating the merits of Christianity.

    The purpose test offers a quick and easy resolution to the Bladensburg WW I Memorial Cross. WW I cemeteries in Europe, with their poppy fields and row upon row of white crosses, apparently formed a picture in the minds of Americans in the early 1920s as a fitting symbol for memorials to those who fought in the Great War. There is evidence in the record that such a vision was behind the design of the Bladensburg Cross. If so, then the Town of Bladensburg’s purpose was secular. That is not to say that the Latin cross is not the foremost symbol of Christianity. It is. However, there are two meanings. If the government’s meaning was the nonreligious one, then there is no violation of the Establishment Clause. Of course, any purpose test does not unilaterally “take the government’s word for it.” Rather, the test looks at the context to consider if the asserted purpose is believable or a pretext.

    There are problems with the quick and easy resolution. If the American vision in the early 1920s was a nonreligious use of the cross, then why did Jewish members of the armed forces insist on a Star of David to mark their graves? Still, it might be that in designing the Bladensburg Cross officials at the time had a tin ear to Jewish sensitivities. As with any symbol there might be two or more meanings depending on the intent of the “speaker,” and here government has produced some evidence that its purpose was the secular vision.

    Does upholding the constitutionality of the Bladensburg Cross mean that a memorial cross newly placed today is also constitutional? No. At oral argument the Justices asked the lawyers to assume a twenty-first century memorial in memory of a mass shooting of students and teachers at a public school. Contemporary American society is more religiously plural and more attentive to minority sentiments, including those of our increasingly nonreligious neighbors. It is near impossible, even in America’s more rural communities, that today public officials could erect a stand-alone Latin cross and believably maintain that their purpose was a nonreligious remembrance of the victims.

    What if the government’s purpose is mixed? The law has faced this problem before. If, in the absence of the religious purpose, the government still would have proceeded with its course of expression for other reasons, then we do not have an establishment. See Mt. Healthy City Sch. Dist. v. Doyle (1977).

    Fourth, is the symbol under review just the cross, pedestal, inscriptions, and plaque with names? Or is the symbol under scrutiny the entire Veterans’ Memorial Park with its additional war memorials added at later times? Presently the Bladensburg Cross is somewhat isolated in a traffic circle, separate by a two-lane street from the larger Veterans’ Park.

    As an initial matter this question is framed by the Plaintiff’s pleading. The complaint challenges only the Bladensburg Cross, not the many other memorials in the Veterans’ Park. On the other hand, the bi-county Commission contends that to the extent context is relevant to the government’s purpose, the entire Park should be considered. This is an expected part of most defenses of a government symbol. That the balance of the Veteran’s Park is secular works in favor of the Commission.

    Fifth, a different but related question is whether the lawsuit requires an examination of the cross, pedestal, inscriptions, and plaque with names as the symbol in question, but nothing more. That is, should the focus here be on the Bladensburg Cross as a stand-alone memorial? Or does the lawsuit require an examination of the Bladensburg Cross in light of how the memorial and its grounds are actually used. The record built by Plaintiff shows that the government held events at the cross for Memorial Day and Veteran’s’ Day ceremonies, as well as other government-sponsored events. Some of these events had religious content, such as prayer and hymns. This evidence favors the Plaintiff. Again, this brings the question back to what is meant by considering the government’s purpose for the symbol. Is the memorial’s actual use relevant? From their briefs we know the parties are very aware of the evidence concerning ceremonial activities at the cross, but neither party was clear as to how this should be factored into the purpose test.

    Sixth, what if the government’s purpose has changed over time? The WW I Memorial Cross was rededicated in 1985 as a memorial to all veterans. Is the issue the government’s purpose when the message was first expressed back in the early 1920s? If the government’s purpose has evolved, it does not make sense to say what is controlling is the past. In this legal challenge, the Humanist Association seeks prospective injunctive relief. It does not seek damages for past harms. With the sought-after relief focused on the present and prevention of ongoing injury, it would seem that the government’s present purpose in maintaining the symbol is what ultimately matters in Establishment Clause litigation. Past purposes add materially to the contextual background, but the ultimate issue is the government’s purpose in the present.

    Seventh, which government are we talking about when it comes to purpose? The Town of Bladensburg controlled the site of the cross in the 1920s. Later traffic needs saw the Maryland State Roads Commission assume control of the land on which the cross is situated. Still later, in 1961 the cross and the larger Veteran’s Memorial Park were placed under the control of the Maryland-National Capital Park and Planning Commission. Since then the bi-county Commission has provided grounds keeping and Illumination, as well as paid for repairs. The Commission was certainly the proper party to have been sued, for only the Commission is in a position to grant the relief Plaintiff now seeks. Yet, it would seem that the inquiry into governmental purpose at any one point in time is necessarily addressed to the government entity in control of the site at the time in question. It is certainly awkward to insist that the bi-county Commission, as successor in title, be responsible for any unconstitutional purposes of the Town of Bladensburg or the state roads commission. Perhaps this is just another way of observing that in administering the purpose test what ought to ultimately matter is the present purpose of the bi-county Commission in maintaining the Memorial Cross.

    Eighth, where the Lemon test interjected chaos into Establishment Clause analysis was by insisting that the judiciary also inquire into the effects of a symbol on exposed members of the public. As with art, the effects of a symbol are going to vary with the audience. The “eye of the beholder” is a subjective standard. And as Americans have become more diverse, the “messages received” by a given audience has necessarily multiplied. Just to illustrate, a 2012 observer of the Bladensburg Cross, a local pastor, thought it blasphemous because it was a utilization of his Savior’s cross to extol war. In that view, the memorial is not religious imagery but a co-optation of religion to promote militarism. In the past, the Justices tried to account for the subjectivity of the effect test by constructing an “objective observer” as an audience of one. But this was soon seen for what it was: the construction of an observer that held values remarkably like those of the judge sitting on the case. After all, what federal trial judge does not think that she is objective, detached, and able to put herself in the shoes of her most cosmopolitan fellow citizens.

    Quite aside from the unworkability of the effects test, there is a deeper flaw. The Establishment Clause (indeed, the entire Bill of Rights) protects people from their government. So the purpose test makes sense. But the effects test seeks to hold the government accountable not for its own actions, but for the multifarious and conflicting responses of the many people who are exposed to the symbol. The Establishment Clause does not hold the government accountable for the actions and worldviews of its citizens. There is no accounting for an audience’s tastes, including bad tastes, extreme tastes, hypersensitive tastes, and so on. All the more so when it comes to a foundational belief and topic like religion. The test is an invitation to get different constitutional rulings from region to region and—let’s be honest—judge to judge. We do not need an Establishment Clause jurisprudence that further Balkanizes our nation. Preventing that very thing was one of the blessings hoped for upon the clause’s adoption.

    Plaintiffs here want to talk about the size and height of the Memorial Cross relative to other war memorials, including those in the Veterans’ Park. They want to talk about the memorial’s placement near a busy highway as opposed to a quiet out-of-the-way area. They want to talk about how big it is. As Justice Kagan said at oral argument in exacerbation with Plaintiff’s counsel, “[W]hy does it even matter .… I have been struck, some of these questions about how people process these symbols and what messages they convey, that you’ve sort of accepted this idea that that’s what we should be thinking about.” The bi-county Commission, in turn, counters with the Memorial Cross being in place for almost a hundred years, being prominently adorned with the secular seal of the American Legion, and that it is only 32 feet high rather than Plaintiff’s claim that it stands four stories high. The effects test is to turn SCOTUS into an interior decorator complete with tape measure and color chart. Chucking the effects test relieves the Supreme Court of having to consider all sorts of sticky evidence.

    Ninth, the American Legion and Office of Solicitor General, as well as several amici for Petitioners, argue for replacing the Lemon test with one of two options. One option is a coercion test. The obvious problem with a coercion test is that religious coercion is already prohibited by the Free Exercise Clause. At oral argument, Justice Ginsburg pointed out this weakness to counsel for the American Legion. The Legion’s lawyer responded by giving an illustration where there was no redundancy. He describe a tax assessment to support the ministers of the state church as not covered by free exercise. But it is coercive of a person’s religion to be compelled to pay a tax earmarked for the salary of ministers when the taxpayer believes they teach a false religion. Now if the person has no religion and yet is forced to pay the tax, then counsel for the Legion has a point. Nonetheless, for more than half a century the Court has been saying that coercion is not a required element of a claim under the Establishment Clause. In its school prayer cases in the early 1960s, students were permitted to opt out of the teacher-led prayer. Still the Court held that the prayer was in violation of the Establishment Clause. There is no prospect that the current Court has any taste for going back on long-accepted cases like Engle (1962) and Schempp (1963).

    The second alternative to Lemon is a test based on the original public meaning of the Establishment Clause. That requires a careful look at what is generally termed “a history of the founding.” This was the test followed in Town of Greece v. Galloway (2014), upholding meetings of the town board that were opened with prayer by a local volunteer cleric. If the Court takes the path of being guided by historical practices at the founding, there are two such relevant histories. One is the drafting history of the First Amendment in the First Federal Congress. Congress composed and debated the First Amendment from May to September 1789, and that amendment (along with the entire Bill of Rights) was debated and eventually ratified in the states during the balance of 1789 on through 1790. Also to consider is the early-on regard for the Establishment Clause by federal officials when doing federal business. The other relevant history is the process of disestablishment in the several states that took place from 1776 on through the last disestablishment in Massachusetts in 1833. Both histories would have to be searched to determine what was regarded by the founding generation as an establishment, both for examples and general principles.

    Even for those not tied to “originalism,” it certainly makes sense for the Court to take seriously what was regarded as an establishment in the founding period and what was not. This approach gives the American public more confidence that the Court is not “just making it up,” that there is a rule of law that the Court is doing its best to follow.

    Tenth, neglected so far is the question of the harm to the Plaintiff. A showing of Plaintiff’s harm or injury is relevant to standing. But the nature of the injury also goes to the claim on the merits. What injury or damage is the Establishment Clause designed to safeguard people and organizations from suffering? It turns out that there are two possible claimants when the Establishment Clause is implicated by an unwanted government expression of religious content.

(a) There are plaintiffs, like the American Humanists, who disagree with the religious message and oppose the government expressing it. These plaintiffs view the government’s message as a preference for a religion or religion in general. They may be of a different religion or of no religion. In either event, there is no authority in government to prefer religion as religion, or to take sides in explicitly religious matters. In the natural course of events, presumably these plaintiffs have unwanted exposure to the government’s message. Under the Court’s precedents, that is all that is required to have standing. McCollum v. Bd. of Educ. (1948); Marsh v. Chambers (1983). A proper policing of the boundary between church and state does not require a showing of coercion; the task is to keep in right relationship the institutions of religion and government. Again, it is a test of the government’s purpose; was the purpose nonreligious or was it to preference religion.   

(b) There are potential plaintiffs who do not disagree with the religious message, but nevertheless they oppose the government expressing it. What drove disestablishment in the new American states, 1776 – 1833, was the principle that religion is a matter for the voluntary sector. Rather than support a state church, the government best leave churches and other religious organizations to their own devices, as voluntary works in the private sector, to wax or wane in accord with the appeal of their message, the zeal of their followers, and the effectiveness of their ministries. That churches and other religious organizations remain voluntaristic is essential to their health, for too close an embrace by the government will detract from, and even co-opt or corrupt, the churches and similar houses of worship. The American experience is that the enforcement of a boundary between church and state is good for both. This structure, in turn, furthers the freedom of both the religiously devout and those of no faith.

    In this case, the Humanists spoke for those of no faith. No party spoke up for the potential harms to religion. This is an inherent flaw in making law by litigation; only the arguments of the parties are fully heard. From historical experience, detailed below are the sorts of harms incurred by the religiously devout:

(i) The religious symbol gets diffused or watered down by the government’s alternative message. That makes clear communication more difficult for churches.

(ii) Government co-opts a religious symbol and bends it to the needs of the government. Government thereby uses religion as a tool to advance state policies. Those who oppose the government may then also oppose the religion.

(iii) The government may appropriate a religious symbol because it is unifying. The government needs unity. But it is not the role of the church to help unify, stabilize, and sustain the state. The latter is a harmful using of the church.

(iv) The message confusion dulls the prophetic voice of the church. The voice of the church is looked on with skepticism because of a perceived closeness of church and government.

(v) There are times when the church is called to boldly criticize and thereby check the government. This is one layer of the checks and balances built into our democratic system. But the ability of the church to check the government is compromised by message confusion. Church officials may even refrain from such criticism because they do not want the government to get upset and then withhold sponsorship of the church’s symbol.

(vi) Government-favored religion can become the religion of the culture. Cultural religion is never the real thing. It not only does not restore, but it dulls one to the need for a genuine decision and commitment.

(vii) The religion of culture can become a Civil Religion. This is a mixing of God and country, a blend of patriotism with belief. Civil Religion competes with genuine religion. As Justice Kennedy stated for the Court in Town of Greece v. Galloway (2014), it is no more acceptable to establish Civil Religion than to establish Christianity.

(viii) Putting the power of government behind the symbol of Christ’s sacrifice and death on a cross in vicarious payment for humanity’s sin is heresy to Christians. Christ’s kingdom is not of this world. Christ did not come in civil power and seek a kingship in Palestine, albeit many of his followers wanted just that.

    There are a lot of moving parts to the case of the Bladensburg WW I Memorial Cross. Reversal is a near certainty, but the rationale for that result is up for grabs. As Jeffrey Wall, Acting Solicitor General, said at oral argument, “The problem with the current law is that all of the current cases are hard.” Let us hope that SCOTUS leaves us with something better than we now have.

March 10, 2019 in Garnett, Rick | Permalink

Friday, March 8, 2019

The Traditions of American Constitutional Law

Here’s a new draft of an article I just posted: The Traditions of American Constitutional Law (forthcoming Notre Dame Law Review). Comments most welcome on what is still very much a work in progress. Here is the abstract.

This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.

The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.” 

The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.

March 8, 2019 in DeGirolami, Marc | Permalink

Monday, March 4, 2019

Garnett (a different one) on Christian Moral Anthropology

As longtime MOJ readers know, I've been interested in (ed.: try "obsessed with") the implications for law and the legal enterprise of the Christian account of what it means to be human, i.e., with Christian moral anthropology.  Here are some reflections on the topic by my daughter, a Theology student at Notre Dame.  A bit:

What does it mean to be a human being? To be both of and for? It is to be the image and likeness of the God who created us, and who Himself exists as relationship: to be human is to allow others to carry our burdens, to carry theirs in return, and to constantly strive to be related, now and forever, in love.

Check it out.

March 4, 2019 in Garnett, Rick | Permalink

Thursday, February 28, 2019

Prof. Thomas L. Shaffer, RIP

My colleague -- and friend, teacher, mentor, inspiration -- Prof. Thomas Shaffer died on Tuesday. A former dean of the Notre Dame Law School, he was a creative, provocative, and incredibly prolific scholar. His writings on legal ethics, narrative, literature, poverty, religion, clinical teaching, and other things are a wonderful legacy. 

I first discovered his work during my second year of law school, when I was in a (great) seminar taught by David Luban on "The Legal Profession."  He assigned an article of Tom's called The Legal Ethics of Radical Individualism.  The piece's claims, tones, and premises were very different from most of what I was reading as a law student, and his unapologetic transparency about the relevance to lawyering of one's religious faith and commitments was welcome and inspiring.  It opened with this:

Most of what American lawyers and law teachers call legal ethics is not ethics. . . .  Its appeal is not to conscience, but to sanction. It seems mandate rather than insight.  [It] rests on two doctrines:  first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. . . .

Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. . . .  [O]rganic communities of persons are prior to life and in culture to individuals-- in other words, . . . the moral agent is not alone.    

This article led me to Tom's books, American Lawyers and Their CommunitiesOn Being a Christian and a Lawyer, Faith and the Professions, and then to his radically (think Hauerwas, etc.) Christian brand of communitarianism more generally. I wrote a paper for Luban's seminar on the legal ethics issues raised by representing so-called "death row volunteers" that became, eventually, this early article of mine. I mailed my paper to Tom -- whom I'd never met and who was, after all, being paid to teach other students, not me! -- and he wrote me back a three-page, single-spaced letter with helpful feedback, comments, and encouragement.  I was so happy to be able thank him, five years later, when I came to Notre Dame to be his colleague.

Tom was a deeply good person with a genuine heart for those on the margins. He was a chaired professor, but insisted on working and teaching in the Legal Aid Clinic. I believe that I very well might not be a legal academic today, but for him, and I'm very grateful to him for that (and many other things). RIP.

February 28, 2019 in Garnett, Rick | Permalink

Prof. Robert Cochran remembers Prof. Thomas Shaffer (RIP)

Prof. Robert Cochran (Pepperdine) gave me permission to re-post this remembrance of my late colleague, Tom Shaffer (RIP), who passed away yesterday:

Tom was my teacher, mentor, co-author (Lawyers, Clients, and Moral Responsibility), and friend for 43 years. He mentored me in law school and into and through law teaching. Most of what I know about law and religion I learned through his guidance.

Tom was a visiting professor at the University of Virginia during my third year of law school, 1975-76 (shortly after he left the Notre Dame deanship).  He taught a course on law and religion in his and Nancy’s rented home.  (The afterword of On Being a Christian and a Lawyer identifies that class as the genesis of the book and identifies each student by name.)  Three aspects of the class stand out.  First, when Tom discovered that all in the class were Christians—though of almost every stripe--he had us open with prayer.  That, no doubt, would have been troubling to the University’s founder, Thomas Jefferson.  We envisioned him looking down on us, and he was not pleased.  Second, we closed with beer.  That would have been troubling to my Baptist forbears, but to this Baptist boy it seemed to balance out the prayer.

The third thing I recall was that the class changed my life with a message that runs through Tom’s books.  Prior to the class, I lived a schizophrenic existence.  I saw little connection between what I learned in law school during the week and what I did in church on Sundays.  The following extended metaphor from Tom's American Lawyers and Their Communities captures Shaffer’s central call to Christian lawyers. Shaffer envisions a town square.  On one side is the church; on the other is the courthouse.  “We American lawyers learn to look at the community of the faithful, rather than from it.  We stand in the courthouse looking at the church.  We see the [church], even when we claim to belong to it, from the point of view of the government.” (210-11) 

“[The legal] part of the academy, more than any other, has systematically discouraged and disapproved of invoking the religious tradition as important or even interesting.  It ignores the community of the faithful so resolutely that even its students who have come to law school from the community of the faithful learn to look at the [church] from the courthouse, rather than at the courthouse from [the church].” (214)   

Tom encourages lawyers to "walk across the street and look at the courthouse from the church. . ." (210)   “Faithfulness to the tradition of Israel and of the Cross means that the lawyer stands in the community of the faithful and looks from there at the law.  Faithfulness means that a lawyer imagines that she is first of all a believer and is then a lawyer.” (198) 

From the vantage point of the church, Tom called on lawyers to do many things. 

  1. Consistency - A lawyer should be (as was said of Atticus Finch in To Kill a Mockingbird) the same person in town that he or she is at home.  Lawyers should bring the values that they are taught at home and church—truthfulness, justice, and mercy—to the legal profession, rather than playing a role. 
  2. Concern for All - Lawyers should be concerned about the interests of all who might be affected by legal representation.  Lawyers should resist the “radical individualism” encouraged by exclusive focus on client’s worst instincts.  
  3. Concern for Clients – Lawyers should be concerned with the whole, client, not their most selfish instincts.  “[T]he goal and purpose of a virtuous life in a profession is to help others become good persons...” (94) 
  4. Moral counsel – The apparent tensions between concern for other people and for clients is overcome if lawyers raise moral issues in client counseling as they would with a close friend, not imposing their values, but raising them for serious discussion.    
  5. Speaking Truth to Power –Christian lawyers should speak prophetically to those in power (both government and wealthy clients).     
  6. A Preferential Option for the Poor – As the holder of a prestigious chair at Notre Dame, he chose to serve poor people in the law school legal clinic (one of the less prestigious positions at most law schools). 

I am sorry to see Tom pass, but I look forward to spending eternity with him and Nancy in the New Heavens and the New Earth.  I am grateful Tom's and Nancy's influence in this world on me and so many others.   

February 28, 2019 in Garnett, Rick | Permalink

Sunday, February 24, 2019

Hypocrites at times? Yes!

These were the words of Sister Veronica Openibo, the leader of the Society of the Holy Child Jesus who spoke on February 23 at the Vatican summit on sexual abuse of minors.  After reading about her profound speech I had simply planned to post a link to it without any commentary, as by all accounts her blunt speech captured so much of the Church crisis.  Unfortunately, her speech has not yet been posted by the Holy See but should appear here when available.   The video is available here.

Sr. Openibo, a Nigerian sister, earned her graduate degree from Boston College and is the first African sister to be elected leader of her order, which was originally founded in England.  She was one of three women to speak at the meeting.  For those without time to watch the video, here are some of what the media has reported she shared with the overwhelmingly male audience:

CNN covered her speech noting:

“In clear, direct and unsparing language, Openibo challenged the church's culture of silence on sexual issues and said priests are too often put on pedestals. Openibo also criticized the practice of letting elderly clergy who had abused children retire quietly with their pension and good names in place.

‘Let us not hide such events anymore because of the fear of making mistakes,’ Openibo said after reading a searing summary of abuse cases she has heard about during her work on sexual education in Nigeria.

‘Too often we want to keep silent until the storm has passed! This storm will not pass by. Our credibility is at stake.’"

She specifically rejected the claims by some bishops that this is not a problem in Africa and Asia by referring to the many cases she has worked on first hand. 

Crux included the following from her speech:

“’We must acknowledge that our mediocrity, hypocrisy and complacency have brought us to this disgraceful and scandalous place we find ourselves as a Church,’ she said.

She urged a strong “zero tolerance” policy: ‘By taking the necessary steps and maintaining zero tolerance with regard to sexual abuse we will release the oppressed.…’”

Notably, Crux also reported that she praised the Pope for his apparent change of heart on the abuse crisis.

“’I read with great interest many articles about the pope’s reactions in the case of the Chilean bishops - from a denial of accusations, to anger because of deception and cover-up, to the acceptance of resignations of bishops,’ she said.

‘I admire you, Brother Francis, for taking time as a true Jesuit, to discern and be humble enough to change your mind, to apologize and take action. This is an example for all of us….’”

As we wait for the sharing of the full text of her and other presentations, Crux has written an analysis of the outsized impact of  the three women who spoke at the meeting.  While in some way they all were part of the inner workings of the Church, they also seem to have made the most of this rare opportunity and provided an essential voice in the discussion of the crisis.

This impact mirrors the words of Pope Francis who closed the meeting with a mass in which he is reported to have stated “Indeed, in people’s justified anger, the Church sees the reflection of the wrath of God, betrayed and insulted by these deceitful consecrated persons….It is our duty to pay close heed to this silent, choked cry.”

While the summit was filled with at times frank and blistering acknowledgement of failings, some continue to criticize the meeting as lacking concrete steps.  However, healthy skepticism remains with many faithful that these words will result in action – the kind of action that will bring justice and transparency. 

The next weeks and months are the critical time.  They will demonstrate whether this summit was a success and the only measurement will be concrete measures to effectuate responsibility, accountability, and transparency.

As the meeting comes to a close, I think of the words of the well respected survivor of abuse, Marie Collins, who served on the Pope’s 2013 commission on child sexual abuse that was supposed to address this issue. Ms. Collins faithfully tried to serve on this commission, but ultimately resigned after a number of years due to the failure of the curia to execute the recommendation of the commission.  When asked what she would have told the Pope about her resignation she stated that “she would have asked him for three things: that the commission be given the power to implement their recommendations; that it be given more funds to do its work; and to lift the ban on recruiting professional staff from outside the church to work on the issue.”

The hierarchy would be wise to heed that advice now and actually execute a zero tolerance policy with independent outside lay experts leading the effort, and the institutional support to execute the vision of accountability, justice, and transparency in a real way. 


February 24, 2019 in Leary, Mary G. | Permalink

Friday, February 22, 2019

Summit on Clerical Sexual Abuse - Day I

February 21st marked the first day of The Protection of Minors in the Church Meeting at the Vatican.  There is an extensive website with the text of many of the presentations here.  Furthermore, Crux has coverage here.  

There were some positive signs and other rather disturbing ones.  On the positive side, Pope Francis opened the meeting noting, “The Holy People of God are watching us and wait for more than simple condemnations, they expect concrete and effective measures.”  Now is not the time for vague spiritual statements.  Now is the time for specific actions.  The structure of the meeting seems to suggest an understanding of that with each day having a theme.  The first was Responsibility, Friday is Accountability, and next will be Transparency.  These themes certainly reflect pillars necessary for the hierarchy to move forward. 

Also positive was the opening of the meeting with video testimonials from survivors of clerical abuse.  They were candid and searing (one woman describing repeated rapes by a priest, forced abortions, and severe beatings), but if the text released by the Vatican is any indication – relatively brief.  Voices of survivors are essential to this process.  One of the causes of this crisis is a fundamental failure of the Church hierarchy to understand the realities of child sexual abuse – its violence, its destruction, its pain, the lifelong scars inflicted not only on the victims, but their present and future families.  As one victim described it in the Pennsylvania Grand Jury Report, it is “murder of the soul.”  These video statements, although brief, appear to begin with answering the question “what hurt you most?”  This is an important question – the answers to which must be heard by these clerics.

While the voices of some survivors were indeed present, the theme of responsibility to provide justice to survivors was aptly captured by this survivor’s op ed which all should read.  It captures some of the lifelong pain endured by survivors and the bishops could benefit from reading it. 

That being said, one must ask how one can become a bishop in the Church hierarchy and still need to be educated on the realities of sexual abuse.  Some bishops were quoted as saying the problem in their diocese was very minimal, or still resisting bishops’ accountability for a failure to act.  Yet, as The Atlantic reported recently, major news organizations began covering stories of abuse by the early nineties.  But it extends much further than that.  The reality is that this has been an issue in our world and in the Church hierarchy for over 100 years.  In 1870 a bishop wrongly excommunicated Mother Mary MacKillop for her disclosing a priest’s sexual abuse of a child (the bishop rescinded this action on his deathbed).  The fact of the matter is that one should not need to be educated on a problem – both the abuse and the efforts to create a climate of silence – that has been well documented, for over a century.  Understanding of this issue should be a prerequisite for any person serving the faithful, but certainly to becoming a leader in the hierarchy.  If child sexual abuse were understood – truly understood in all its horror - the resistance to reform and accountability of bishops, would likely disappear.

Similarly, some survivor groups are disappointed with the Pope’s “21 points of reflection” which appear to be intended as a framework for conversation.  Prior to the meeting survivors and advocacy groups demanded that this meeting “deliver clear outcomes if it is to begin to restore the church’s damaged credibility on the issue and avoid being seen as a talking shop.”  While these points call for some specific action, in the eyes of many survivors they fall short of the “concrete” zero tolerance policy so often promised, but not achieved.

This is a meeting of leaders.  Leadership requires knowledge and courage.  Hopefully the bishops are receiving some of that knowledge over these days – knowledge they should already have possessed.  But the challenge in the past has been to both listening and then to execution.  Whether they have the courage to act on this overdue knowledge correctly will be determined in the coming days. 

February 22, 2019 in Leary, Mary G. | Permalink

Thursday, February 21, 2019

Judge Amy Coney Barrett at Villanova Next Week

For readers in the Philadelphia area: the McCullen Center at Villanova Law will host Judge Amy Coney Barrett of the US Court of Appeals for the Seventh Circuit for a lecture on "Constitutional Originalism and Continuity" next Monday, February 25 at 3:00pm. Details and registration available at this link.

February 21, 2019 in Moreland, Michael | Permalink

Looking Back at MOJ and Looking to the Future for the Church

I have delayed and delayed a post on MOJ’s anniversary…so much so it is past the anniversary week.  My delay has not been due to lacking the right words to capture the importance of this blog.  It is axiomatic that this blog brings to the legal dialog deep reflection on Catholic legal thought.  This is a necessary component of legal education and contemporrary legal thinking.

Rather, this delay has been due to the near despair I have for our Church and its future.  The wave of revelations regarding child sexual abuse, sexual assault and human trafficking of nuns, and sexual abuse of adults that have emerged in the last 6 months have been devastating to the faithful.  The pain that these actions inflicted on the victims and survivors is immeasurable and matched possibly only by the institutional cover up by church leaders.  These innocents, these children or other people, faithfully turned to the Church for help or to devote their lives, only to be met with victimization of sexual assaults. they then were victimized again by the very institution to which they turned when it engaged in a massive cover up.  It is difficult to have hope when in 2002 the Church hierarchy apologized and asked for the trust of the faithful to address this horrible sin, only to learn that not only did they not seriously address it, but engaged in an even further cover up

Early on in my blogging with MOJ I reported on the trial of Msgr. William Lynn in Philadelphia.  At that time, it was extremely unusual for MOJ to write about this muddy water of such a sensational trial.  Regardless of how one felt about the merits of the prosecution, two themes emerged from those posts.  First, the allegations of cover up and indifference were shocking and almost unbelievable.  Second, I predicted it would be a watershed event that a clergy member could be held responsible not for abusing children but for playing a role in the reassignment of abusive priests.  I thought at that time that it would be the rare occurrence that my criminal law research agenda would overlap with the subject matter of MOJ. 

Now we know all of that was incorrect.  As revealed by the Pennsylvania Grand Jury Report; 60 minutes, or admissions from the Holy See itself, the active cover up exceeds our worst imaginings.  The cover up is not a thing of the past, but as demonstrated most recently here in Washington, it continues.  By that I refer to Archbishop Wuerl’s 2018 statements that he knew nothing about his predecessor defrocked Theodore McCarrick’s sexual abuse.  As was revealed in January, in fact he had reported McCarrick’s action in 2004.  So even after the grand jury report and a new round of claims of transparency, the faithful received less than truthful information, incomplete lists of offending priests, and a website to defend the Cardinal.  Fifteen years ago, we could not have imagined the abuse committed by the clergy and the lengths they have gone to circle wagons around the hierarchy rather than a circle of love around victims and survivors. 

With the Protection of Minors in the Church meeting scheduled to begin tomorrow, the question remains, how does the institutional church arise from this crisis?  Many have offered solutions.  I myself have called for path with the minimal five  hallmarks of independent review, accountability, transparency, survivor input, and execution of proposals.  This includes a top to bottom outside analysis of causes, climates, and solution by an independent inspector general, followed by execution of solutions without delay.  This necessarily requires a change in leadership and review of leadership on the diocesan level which may involve the reinstatement of some leaders, but not others.  It also requires transparency and a transformative role of the laity, survivors, and those outside Church hierarchy to lay out the path forward.  Others have called for many other proposals, addressing difficult topics such as the role of women, celibacy, and lay people.    

During this pain, the Church hierarchy is at crossroads.  Will it finally take the right actions, or will it fail as it did in Baltimore, Dallas, or previous attempts to address the issue ending in failure due to a lack of commitment?  As is so often the case, there is a path forward.  I would love to claim I created it, but I found it one weekday mass in the sermon of a new Jesuit priest.  It was the day after the revelation that Archbishop Wuerl seemed to be less than candid about his knowledge of McCarrick – a revelation that again shook the Washington faithful.  It also was a few days after the Epiphany.  Here, in this small daily mass with about 20 parishioners, this parish priest offered the way forward.

“As I prayed this morning, the scripture that came to me…was where Jesus says: “I am the way, the truth, and the life.” The truth. And if I am afraid of the truth – if we are afraid of the truth – then we are afraid of the One we have come to meet at this table.”

The path forward is as simple as that.  The truth. I think MOJ has brought some of that to the Catholic legal dialog over the years.  And I hope the Cardinals and the hierarchy listen to this simple guidance from a young priest: show the world the absolute truth.  It is the way.

February 21, 2019 in Leary, Mary G. | Permalink

Tuesday, February 19, 2019

"Pluralism in a Polarized Age"

You can watch/listen to Prof. John Inazu and Eboo Patel discussing "Pluralism in a Polarized Age: Navigating Our Deepest Differences Together", at the Lumen Christi Institute, here.

February 19, 2019 in Garnett, Rick | Permalink

Thursday, February 14, 2019

Chapman, "Money for Missionaries"

Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN.  It's called "Money for Missionaries:  Rethinking Establishment Clause History."  (He workshopped this paper a while back, at Notre Dame, and I learned a lot.)  Here's the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

February 14, 2019 in Garnett, Rick | Permalink

Wednesday, February 13, 2019

Lumen Christi Summer Seminars

Many MOJ readers will likely be interested in the various Summer Seminars run by the Lumen Christi Institute.  Check them out -- great line-ups of topics and speakers/presenters, and some cool destinations, too:  "Business and Catholic Social Thought", "Economics and Catholic Social Thought", "The Thought of John Henry Newman", "The Thought of Rene Girard", "Augustine on God, Self, and Society", "Catholic Social Thought:  A Critical Investigation".

February 13, 2019 in Garnett, Rick | Permalink

Sunday, February 10, 2019

Why MoJ Has Mattered: Live at the Dubliner!

In early 2004, I remember sitting in my office at St. John's and getting a call from Mark Sargent asking if I wanted to participate in a new blog that he and Rick Garnett were putting together.  I was not entirely sure what a "blog" was, but as a junior law prof looking for any platform that would have me, I readily accepted his invitation.  My primary objective in my early posts was to come across as knowledgeable enough about Catholic legal theory to belong on a blog dedicated to Catholic legal theory.  As the years went by, I'm not sure my grasp of what we mean by "Catholic legal theory" became a whole lot clearer.  My favorite post of the last fifteen years ("Catholic Legal Thought: Live at the Dubliner!"), though, reflects what is undoubtedly the central legacy of MoJ in my own life: relationships. 

Since I composed that post ten years ago, law schools have gone through some tumultuous times, prompted by legitimate skepticism about the value proposition of legal education, causing us to focus on student outcomes to an extent not seen in many years, if ever.  Does that mean that the broader Catholic legal theory project from which MoJ emerged has lost some energy?  Perhaps, if measured by the number of conferences and colloquia dedicated to the field.  But not if we take a broader view to ask how and why Catholic legal education matters - a question that can only be answered comprehensively and coherently with at least some resort to Catholic legal theory, as lived out in the context of academic and professional communities.  What are we offering to prospective students and other stakeholders, and why should they care that we're Catholic?  In that sense, MoJ has been a remarkable incubator of the type of conversations - and resulting relationships - that both aim at, and reflect, the heart of the project.  Whether that continues in the form we've enjoyed for the past fifteen years or proceeds into new venues, the relationships must remain central to the work.

February 10, 2019 in Vischer, Rob | Permalink