Friday, August 5, 2022
My colleague, Mark Movsesian, has just posted this new and very interesting paper. It discusses a new and rising pressure point on the legal conception of religion. It also argues for the indispensability of a communal element for legal purposes. Here's the abstract:
Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.
Monday, July 25, 2022
I have a short piece contrasting the Dobbs' Court's approach to judicial reasoning with that employed in Brown v. Board of Education. Here is a snippet:
Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society. The Brown Court placed itself in the central role of creating a just society. The Dobbs Court cast itself in the supporting role of referee applying the standards set down by the Constitution, while locating the task of forming a just society in state legislatures on issues the Constitution is silent about.
Sunday, July 17, 2022
Prof. David Smolin (Samford) has a new paper out, which will be of interest to many MOJ readers. Here is the abstract:
Wednesday, July 13, 2022
I am reproducing here a Statement by Marschall S. Runge, MD, PhD, Dean of the Medical School of the University of Michigan, demonstrating the proper response by a leader of a public or non-sectarian private institution of higher learning to efforts to dis-invite or de-platform speakers or impose ideological litmus tests. The speaker in question here was Professor Kristin Collier, MD, who came under attack by campus ideologues because she believes in the sanctity of human life in all stages and conditions. Dean Runge refused to capitulate to the mob.
Dear Medical School faculty, students and fellows,
The Medical School White Coat Ceremony is a special day for our medical students and their families as they are welcomed into the medical profession. The ceremony is a meaningful tradition that celebrates U-M medical students as they prepare to become leaders in medicine.
Kristin Collier, M.D., was chosen as the keynote speaker for the 2022 White Coat Ceremony based on nominations and voting by members of the U-M Medical School Gold Humanism Honor Society, which is comprised of medical students, house officers, and faculty. The Society chapter, which was formed at U-M Medical School in 2016, represents exemplars of humanistic patient care and who serve as role models, mentors, and leaders in medicine.
We have received both positive and negative feedback on the choice of our keynote speaker. The White Coat Ceremony is not a platform for discussion of controversial issues, and Dr. Collier never planned to address a divisive topic as part of her remarks. Our values speak about honoring the critical importance of diversity of personal thought and ideas, which is foundational to academic freedom and excellence. We would not revoke a speaker because they have different personal ideas than others.
At this year’s White Coat ceremony, we will be honoring 168 outstanding scholars and formally welcoming them as the University of Michigan's newest class of medical students. This is an important day for them and their families, and we hope that all will honor this day dedicated to them and their families.
A forum on the importance of diversity of thought is being planned by Michigan Medicine, and additional details will be shared soon.
Marschall S. Runge, M.D., Ph.D.
Dean, University of Michigan Medical School
Executive Vice President for Medical Affairs
CEO, Michigan Medicine
July 13, 2022 | Permalink
Our conference, "Liberalism's Limits: Religious Exemptions and Hate Speech," which we co-sponsored with LUMSA last week in Rome, was a great success. Mark Movsesian and I will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy's Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and some of our broader joint projects.
The interview is in Italian, but I'm taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: "This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together--of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism's tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be."
Friday, July 1, 2022
I greatly enjoyed doing the National Constitution Center's "We the People" podcast (available here) with Dean Erwin Chemerinsky (UC Berkeley Law) and moderated by Jeffrey Rosen on the Supreme Court's recent decisions on school funding and prayer--Dean Chemerinsky and I had a lot of spirited but respectful disagreements!
The Post-Dobbs world in which we now live has brought with it an oft-repeated accusation, now voiced with renewed vigor: the pro-life position is inherently religious and so cannot serve as the foundation for any law restricting abortion. This accusation is an attempt to win an argument without really having one – to declare illicit and rule out of bounds ab initio an opposing point of view. Moreover, it is an accusation that draws upon the ugly history of anti-Catholic animus and violence in the United States. It is a slur that seeks to paint the advocates of the pro-life position as religious zealots who seek to impose the moral demands of their faith on the public at large. The image above, posted by an Illinois State Senator following the Dobbs ruling (and referred to in Rick Garnett’s First Things piece) reflects the hate directed toward Catholics as a result of the Church’s efforts to protect and foster unborn human life.
In responding to this accusation, some might find it helpful to consider my article Abortion, Religion, and the Accusation of Establishment. I am reposting it here following Rick’s suggestion. In the piece I engage in a line-by-line critique of Justice Stevens’ opinions in Thornburgh, Webster, and Casey where he attempts to show that the pro-life position is inherently religious such that, when it is embodied in law, it constitutes an establishment of religion in violation of the Constitution. Like others who level this accusation, Stevens fails in this regard. Indeed, he does nothing to actually show the religious nature of the normative premises he opposes. He merely assumes that they are religious, and in so doing channels the anti-Catholic sentiment now once again on vivid display throughout our country.
I will have more to say about this in a subsequent post.
July 1, 2022 | Permalink
Thursday, June 30, 2022
To say that the past Supreme Court term was consequential might be to understate matters. Mark Movsesian and I have this Legal Spirits podcast discussing Carson v. Makin and Kennedy v. Bremerton School District, two important church-state cases--potentially as important as we have seen in some time. Listen in!
I have a short piece up at First Things, here, about the predictable but still tiresome charges that the Supreme Court's Catholic justices are somehow imposing their religious beliefs, or ushering in a theocracy, by voting to (e.g.) undo the Roe and Casey decisions. I write:
Duly enacted laws do not become unconstitutional religious edicts simply because they are consonant with religious communities’ teachings. The fact that citizens are motivated or inspired by faith does not taint their political activism and participation. A jurist who concludes that the relevant constitutional text permits a controversial question to be decided politically is not issuing an encyclical or reporting a revelation.
The foundational premise of the pro-life position—that is, that every human being should be “protected in law and cared for in life”—is no more “theological” than the commitments behind laws mandating environmental stewardship and prohibiting unjust discrimination or exploitation. The facts about the human person and about human development, not secret knowledge or gnostic mysteries, are the basis of the pro-life case and the warrant for pro-life legislation. Neither bigoted attacks on Catholic justices nor superficial invocations of church-state separation change these facts.
Also, in the piece, I reference a detailed study of the deployment of these charges in the abortion context by our own Prof. John Breen. Check it out.
Wednesday, June 29, 2022
Our Center for Law and Religion (which I co-direct with Mark Movsesian) is co-sponsoring with our longtime partner institution, the Università LUMSA in Rome, a conference in Rome next week: Liberalism's Limits: Religious Exemptions and Hate Speech. We've got a wonderful group of presenters representing a broad range of perspectives. Cesare Mirabelli, the president emeritus of Italy's Constitutional Court, and the political historian Chantal Delsol, will kick things off, followed by three workshops considering the themes of the conference. More soon on the papers.
Tuesday, June 21, 2022
Way back in 1996, my wife Nicole Stelle Garnett was a young lawyer with the scrappy crew at the Institute for Justice, and participated in a challenge to the Maine tuitioning program that the Supreme Court just (finally) ruled against today in Carson v. Makin. (I filed an amicus brief in the case, for Agudath Israel, if I recall.) I usually don't buy claims about the "arc of history" but, this time, the long journey ended in a good place. The repair of the Court's education-funding doctrine over the last 20 years has been striking.
I was sorry to see Justice Breyer, in dissent, still beating his drum about the judicial obligation to evaluate state policies with an eye toward managing "strife" and "division." As I explained (at great length!) here, the "political divisiveness along religious lines" argument in church-state law has always been wrong:
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
Sunday, June 19, 2022
My friend and colleague, Dan Philpott, ran a research project called "Under Caesar's Sword", a collaborative global project that investigated how Christian communities respond when their religious freedom is severely violated. And, this Fall, he is putting on a six-week, online course on the subject, which should be great. Click the link to register!
Tuesday, June 7, 2022
Friday, May 27, 2022
A prominent structural feature on the surface of Professor Vermeule's Common Good Constitutionalism is its two-level presentation of CGC. One reason the book has received such divergent reactions is inattention to this two-level structure.
Level one is Generic CGC. This is in Chapter 1. This part is presented—and is to be taken—as correct, even if not entirely at face value. Vermeule deliberately leaves underdeveloped the key concept of the common good with respect to the God and religion, for example. This can be misleading even in ways that the author may not have intended. In any event, Generic CGC can more or less be taken as true except for what it explicitly disclaims addressing.
Level two is Vermeulean CGC. This in Chapters 2 and 5. The author explicitly advises the reader about the detachability of Vermeulean CGC from Generic CGC. Among other features, this insulates Generic CGC from warranting rejection just because Vermeulean CGC is shown to warrant rejection.
So far so good. As a demonstration of the intelligence and strategic foresight of the author, this structural feature has shown its utility in anticipating and enabling facile authorial responses to the divergent reactions to the book thus far.
The divergence is that devotees warmly embrace it at Level One while critics denounce it at Level Two. I'm inclined to believe that both reactions are correct. Generic CGC is to be embraced; Vermeulean CGC is to be abjured.
This inclination is unsurprising, of course, given Vermeule's inability to distinguish Generic CGC from the classical natural law grounding Jeff Pojanowski and I were advocating years ago for fidelity to the U.S. Constitution as positive law. Generic CGC is just another label for the same understanding of classical natural law we and many others rely upon for St. Thomas Aquinas's understanding of law in terms of its four causes. We took up residence on Level One a while ago and are always happy to welcome others.
Pojanowski and I have differences with Vermeulean CGC, to be sure, but then again these are exactly the kinds of differences one would expect from a correct understanding of Generic CGC. As for Generic CGC as a new label for the classical Thomistic understanding of law's essence, the problem with Vermeule's new branding is its emphasis on just one of law's four causes: the common good (final cause). This tends to efface the necessary contributions of law's other three causes: ordinance of reason (formal cause), made by one with public authority/care for the community (efficient cause), and promulgated (material cause).
My advice for people trying to make sense of Common Good Constitutionalism is to pay close attention to the multilevel presentation throughout. This includes the distinction between Generic CGC and Vermeulean CGC. But it also includes attentiveness to other features of Vermeule's arguments both in the book and elsewhere that suggest the book's intentional incompleteness. Roughly contemporaneously with the publication of Common Good Constitutionalism, for instance, Vermeule published with co-author Conor Casey an article titled Myths of Common Good Constitutionalism. At the operational level for lawyers and judges, this Myths piece is much more helpful than the book that Myths tells you how not to read.
May 27, 2022 | Permalink
While I'm at it, here's a little notice for a new paper by Professor Steven Smith that may be of interest to MOJ readers, from the same conference organized by Professor Helen Alvaré as the one for which I wrote the paper below. Steve's paper is The Church in the Twilight and the abstract is below. It's well worth your time.
Writing in the 1970s, Robert Nisbet observed that we can observe in history “twilight periods”– the late Roman Republic, the late Roman Empire, the late Middle Ages– in which one form of civilization was collapsing and another form was emerging; and Nisbet believed that the West is currently in such a period. In recent years similar assessments have proliferated, coming from various points on the political spectrum. Such assessments are inherently speculative; nonetheless, they might naturally influence our political and cultural decisions: choices that might make sense when a society is growing and vibrant might make less sense in a period of decadence or collapse. In the area of religious freedom, more specifically, institutional religious freedom has in American history been secondary to or derivative of a dominant emphasis on individual religious freedom; and these priorities have been consistent with the individualism that has been a central and celebrated feature of Western civilization. But there is reason to think that this individualism now underlies some of society’s serious ailments. In this situation, it may be that institutional religious freedom– freedom of the church– should be the priority.
Thursday, May 26, 2022
A new draft paper, building on some work I've done on the nature of "establishment" today, its relationship to free exercise and exemption from general law, and particularly the idea of establishment as "regime" in classical political theory. One of the more controversial claims in the paper is that inquiries about "religion" as a legal category are no longer worthwhile from a scholarly perspective (though they continue of course to be highly necessary from a practical, lawyerly perspective), except as a way to conceive the shifting dynamics of power within the regime. Here's the abstract:
The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.
Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.
Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.
Tuesday, May 24, 2022
Mary, Help of Christians, Pray for Us -- World Day of Prayer for the Church in China -- Prayer to Our Lady of Sheshan
Today is the feast of Mary, Help of Christians. This is one of my favorite titles for Mary, a product of my Salesian high school education.
Today is also the World Day of Prayer for the Church in China. In 2007, on Pentecost, Pope Benedict XVI released a letter to the Church in China. He asked that May 24 be kept as a day of prayer for the Church in China. He wrote that on that day, "the Catholics of the whole world – in particular those who are of Chinese origin – will demonstrate their fraternal solidarity and solicitude for you, asking the Lord of history for the gift of perseverance in witness, in the certainty that your sufferings past and present for the Holy Name of Jesus and your intrepid loyalty to his Vicar on earth will be rewarded, even if at times everything can seem a failure." Longer excerpt:
19. Dear Pastors and all the faithful, the date 24 May could in the future become an occasion for the Catholics of the whole world to be united in prayer with the Church which is in China. This day is dedicated to the liturgical memorial of Our Lady, Help of Christians, who is venerated with great devotion at the Marian Shrine of Sheshan in Shanghai.
I would like that date to be kept by you as a day of prayer for the Church in China. I encourage you to celebrate it by renewing your communion of faith in Jesus our Lord and of faithfulness to the Pope, and by praying that the unity among you may become ever deeper and more visible. I remind you, moreover, of the commandment that Jesus gave us, to love our enemies and to pray for those who persecute us, as well as the invitation of the Apostle Saint Paul: "First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all men, for kings and all who are in high positions, that we may lead a quiet and peaceable life, godly and respectful in every way. This is good, and it is acceptable in the sight of God our Saviour, who desires all men to be saved and to come to the knowledge of the truth" (1 Tim 2:1-4).
On that same day, the Catholics of the whole world – in particular those who are of Chinese origin – will demonstrate their fraternal solidarity and solicitude for you, asking the Lord of history for the gift of perseverance in witness, in the certainty that your sufferings past and present for the Holy Name of Jesus and your intrepid loyalty to his Vicar on earth will be rewarded, even if at times everything can seem a failure.
In 2008, Pope Benedict XVI published a Prayer to Our Lady of Sheshan to be prayed by the Universal Church on this day, May 24, each year.
Prayer to Our Lady of Sheshan
Virgin Most Holy, Mother of the Incarnate Word and our Mother,
venerated in the Shrine of Sheshan under the title "Help of Christians",
the entire Church in China looks to you with devout affection.
We come before you today to implore your protection.
Look upon the People of God and, with a mother’s care, guide them
along the paths of truth and love, so that they may always be
a leaven of harmonious coexistence among all citizens.
When you obediently said "yes" in the house of Nazareth,
you allowed God’s eternal Son to take flesh in your virginal womb
and thus to begin in history the work of our redemption.
You willingly and generously cooperated in that work,
allowing the sword of pain to pierce your soul,
until the supreme hour of the Cross, when you kept watch on Calvary,
standing beside your Son, who died that we might live.
From that moment, you became, in a new way,
the Mother of all those who receive your Son Jesus in faith
and choose to follow in his footsteps by taking up his Cross.
Mother of hope, in the darkness of Holy Saturday you journeyed
with unfailing trust towards the dawn of Easter.
Grant that your children may discern at all times,
even those that are darkest, the signs of God’s loving presence.
Our Lady of Sheshan, sustain all those in China,
who, amid their daily trials, continue to believe, to hope, to love.
May they never be afraid to speak of Jesus to the world,
and of the world to Jesus.
In the statue overlooking the Shrine you lift your Son on high,
offering him to the world with open arms in a gesture of love.
Help Catholics always to be credible witnesses to this love,
ever clinging to the rock of Peter on which the Church is built.
Mother of China and all Asia, pray for us, now and for ever. Amen!
May 24, 2022 | Permalink
Monday, May 23, 2022
Some people think that punishment of criminals is justified by what Jeffrie Murphy called "retributive hatred," where that hatred, as Murphy underscored, is hatred of criminal persons, not just of their crimes. Christians, however, can never rightly hate persons, and eventually Murphy, who was a Christian, disowned retributive hatred and defended instead a justification of punishment on the basis of agape or charity. Murphy's account of punishment on the basis of Christian love provides the starting point in my new paper, "Punishment among Friends," defending legal punishment of persons except when mercy, properly understood, precludes it. The thrust of my argument in the paper is that because, as Aquinas contends, "all law aims at establishing friendship," sometimes law must redress violations of commutative justice by punishing justly convicted malefactors. Sometimes what the love of friendship requires is punishment for the good of the malefactor and his or her restoration to a rightful place in the community. Friendship can easily seem irrelevant as a norm for our common life in the civil order as we know it especially today, but Aquinas teaches us that friendship is always to be the governing norm where people live together because charity itself, from the reach of which no one is excluded, is itself a certain kind of friendship. Bringing together law, love, friendship, mercy, and punishment, this paper aims to show how criminal justice reform animated and disciplined by Christian love would be neither squishy nor vengeful. A Christian regime of criminal punishment would punish, proportionately, out of the love of friendship except where the judge judged that mercy should instead be employed to restore malefactors to the order of the virtuous. John Noonan long ago ventured that "the central problem of the legal enterprise is the relation of love to power," and the love of friendship is precisely what Christians can bring to the public square today as the right ultimate criterion for necessary reform of the criminal justice system with its mighty power. In all of this, Christians but especially Catholics need not be shy about the need for the supernatural to correct and transform the natural, for this is precisely what charity does (cf. Rom. 5:5).
May 23, 2022 | Permalink
Sunday, May 22, 2022
Today’s Sunday edition of the St. Paul Pi0neer Press includes a guest editorial I wrote, with a less commonly heard narrative on the subject of abortion:
Friday, May 13, 2022
Sometimes the simplest questions are the easiest to answer. All federal judges take an oath to administer justice under the Constitution and laws of the United States. This is their promise, to render to each his or her lawful due. This thing lawfully due to each person in justice is his or her ius. The key question for a judge to ask in deciding any case should be: "What’s the ius?" Asking this question in every case can orient at the outset, channel throughout, and confirm at conclusion.
“What’s the ius?” is also often a simpler and easier question to answer than “what’s all the potentially applicable law?” or “what are all the material facts?” All of the law and all of the facts may sometimes be necessary to know, but other times it is unnecessary to go into all of that. In the famous case of Marbury v. Madison, for example, Marbury’s ius was his commission. The Court lacked jurisdiction to order Madison to render this ius to Marbury. It was therefore unnecessary for the Supreme Court to have gone into all that Chief Justice Marshall wrote in his opinion for the Court.
We Catholics have been invited by our bishops to pray today in a special way for the Justices of the Supreme Court as they continue their deliberations in Dobbs v. Jackson Women’s Health Organization, No. 19-1392.
My prayers in particular have been drawn to Chief Justice John Roberts, who is a model judge for me and for many others. The Chief Justice of the United States takes the same judicial oath as every other federal judge. I pray that he fulfills this oath. What that requires in this precise case, I do not pretend to know in all its particulars. There are many ways of going wrong, and those are to be avoided. But there are also many ways of doing right, and I pray that he is drawn to those.
I hope that Chief Justice Roberts orients his deliberations with his colleagues around the question: What’s the ius? What is the thing that we are being asked to render as lawfully due?
The ius requested by Jackson Women’s Health Organization and other plaintiffs is an immunity. More precisely, these plaintiffs’ principal prayer for relief is an order allowing them to avoid prosecution in state court for anticipated violations of a state-law prohibition against aborting an unborn baby after fifteen weeks gestational age. They claim this immunity from state law as their due under federal law.
It seems very likely that Chief Justice Roberts has already decided to order denial of the requested relief. Through his questions at oral argument, the Chief Justice signaled that the viability line on which plaintiffs rely was an invention of the Court and not well-founded. The plaintiffs need the Court to hold that line in order to win. The Court will not hold that line and they will therefore lose. That is as it should be.
The harder issue that the Chief Justice seems to be wrestling with is what to say about drawing a new line. Some have noted the Chief Justice’s apparent attraction to articulating a constitutional requirement that individuals be permitted some shorter period of time before viability to seek an abortion in a regulated but otherwise open and legally protected market for abortion services.
The Chief Justice should resist this attraction. Apart from the lack of warrant in the Fourteenth Amendment for drawing such a line, there is no warrant in this case for doing so. The plaintiffs’ claimed injury comes from the inability to perform lawful abortions after fifteen weeks. That claim lacks merit. It would be gratuitous to volunteer a new line in this case.
Justice Alito’s leaked draft does not volunteer a new line. It applies rational basis review and recognizes the legitimate interests of the state advanced by the law it has enacted. Chief Justice Roberts should do likewise.
To draw a new temporal line in pregnancy before which federal law purportedly preempts state-law protections against intentional killing would be to continue the federal judiciary’s complicity in the denial of the equal protection of the laws to prenatal persons within the jurisdiction of each state. But the rights of these prenatal persons are not directly before the Court in this case, which pits the authority of the government against the interests of abortion providers. It is enough to decide that the law does not entitle the abortion providers to a federal judicial order shielding them from the consequences of violating the state law at issue.
On the question of line drawing regarding life-and-death protections for prenatal persons more generally, the Chief Justice’s opinion for the Court in Rucho v. Common Cause should be his guide. The federal judiciary may not order relief on any constitutional claim that the government has gone too far in protecting prenatal life unless that claim is grounded in judicially discoverable and manageable standards for resolving it. These standards must rest on a “limited and precise rationale,” and must be “clear, manageable, and politically neutral.” These are the criteria identified by Chief Justice Roberts in his opinion for the Court in Rucho v. Common Cause. They are taken from Justice Kennedy’s concurrence in Vieth v. Jubelirer. These criteria cannot be satisfied when the question is how far along in pregnancy a prenatal person must have developed in order to be protected by the law. My prayer is that Chief Justice Roberts and his colleagues recognize that the federal courts cannot grant abortion providers’ prayers for relief from enforcement of prenatal-person-protecting laws like the one at issue in Dobbs v. Jackson Women’s Health Organization.
May 13, 2022 | Permalink
Saturday, May 7, 2022
Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic. "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said. "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.
Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here. He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"):
Stone's analysis generated an uproar, but it was correct then, as it would be correct now: someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).
As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.
I wrote then (I still cannot get over how long ago that was!):
[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law." What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.
It is interesting, I think, that Professor Stone invokes the example of Justice Brennan. Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice. And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith. Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?
Tuesday, May 3, 2022
On January 22, 1973, I was a high school student working a pro-life information table at the West Virginia University student center when we heard about the Supreme Court’s decision in Roe v. Wade. I recall the horror of learning that the Court had crushed the basic rights of an entire class of precious human beings—our tiny unborn brothers and sisters. I know that the horror I felt that day, and vividly remember to this day, is the horror many people who see the issue differently than I do are feeling today. These include a great many good and honorable people who deeply care about the well-being of women, especially vulnerable women, and believe that their rights are being crushed. Although I disagree with them about the rights and wrongs of abortion, and indeed applaud the reversal of Roe as a victory for justice and constitutional integrity, I feel no temptation to exult.
Roe v. Wade needed to be reversed, as I predicted it would be https://www.firstthings.com/article/2021/10/roe-will-go, not only because it was a grave injustice against the unborn, but also (and in the first place) because it was an unconstitutional decision—an act of “raw judicial power.” The right to abortion it proclaimed lacked any basis in the text, logic, structure, or historical understanding of the Constitution. To say that it was poorly reasoned is an understatement. The truth is that it wasn’t reasoned at all. This left its defenders with an impossible task—defending the literally indefensible.
That does not mean, however, that voting to reverse Roe is an easy thing for justices to do. If, as the draft opinion of Justice Samuel Alito which was leaked yesterday suggests, five or possibly even six justices are voting to reverse Roe, they merit praise for courage and fidelity to principle. The Roe decision lacked intellectual credibility but did not lack influential and powerful supporters. In fact, what sustained Roe for forty-nine years was precisely the prestige, influence, and power of people in academia, journalism, entertainment, key professions and professional associations, the great philanthropies, politics, and the corporate world who were deeply invested in maintaining it, despite its manifest lack of intellectual credibility.
In the beginning, the question of abortion and then the soundness or unsoundness of Roe were not "left" versus "right" issues. There were plenty of prolife liberals or progressives, and lots of prochoice conservatives. Jesse Jackson spoke passionately for the dignity and rights of the child in the womb. As Governor of California, Ronald Reagan supported and signed into law a statute broadly legalizing abortion. In time, though, abortion and support or opposition to Roe began coding as “liberal” and “conservative.”
The conservative legal community developed a critique of Roe that, though commendable and sound in a great many ways, was not fully adequate. That critique, championed by the late Justice Antonin Scalia, supposes that nothing in the Constitution is relevant to the question of abortion prohibition or regulation—hence the matter is left by the Constitution entirely to the judgment of state legislatures. This is incorrect—indeed demonstrably incorrect—and Professor John Finnis of Oxford University and I have demonstrated its incorrectness in among other places, a brief we submitted to the Supreme Court in the Dobbs case. (Published version and supplement here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3955231; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3973183.) Justice Alito’s leaked draft cites that brief and makes excellent, if limited, use of the evidence it provides and arguments it marshals. These establish that the term “person” in the Fourteenth Amendment—an Amendment that, among other things, imposes on States an obligation to afford to persons the equal protection of the laws (including the laws against violent assaults and homicides)—was publicly understood at the time of the framing and ratification of the Amendment as including the child in the womb. The permission by a state of elective abortion, therefore, is a violation of the Constitution and should be declared by the Supreme Court to be so. This is not, however, a claim the state of Mississippi made in defending the constitutionality of its statute and requesting the reversal of Roe, nor is it the outcome the state requested. Understandably, then, the Court did not reach the question. I hope it will do so in later litigation.
As Professor Finnis and I point out in the brief, resolving the matter in the way we argue the Constitution requires does not mean that the Supreme Court should dictate abortion policy tout court. Where pregnancy poses a grave threat to maternal life and health—that is, when we are no longer speaking of elective (or “social indication”) abortions—there are policy and policy-related questions that cannot be resolved by the straightforward application of equal protection principles. These questions are, therefore, properly in the legislative domain and judgments about them should not be imposed by the judiciary.
Two more points.
If, as the leaked draft opinion seems to suggest, the Supreme Court has decided to reverse Roe and return the question of abortion entirely to the legislative domain, then the pro-life movement faces a new set of challenges—challenges even more daunting than overturning Roe. In the face of profound opposition from the wealthiest, most powerful, and most influential forces and institutions in the country, the movement needs to extend the protections of law on terms of fairness and equality to mothers and children alike. Going still further, it needs to work in both the public and private spheres to provide necessary support for mothers and children, never allowing their interests or well-being to be pitted against each other. To its great credit, the pro-life movement has been doing this since before Roe v. Wade—again, in the face of hostility from the most powerful forces. We will need now to do more and better. We can and we will.
What about the leaking of the Alito draft? It is an outrage, of course. Even if the leaker is caught and subjected to appropriate disciplinary proceedings, the damage to the Court will be deep and abiding. Anyone who has worked in the building knows that trust is indispensable to the functioning of the institution. The leak has destroyed trust. Perhaps someday the Court will get it back. But not in my lifetime. Probably not in my students’ lifetimes. For decades—at least—there will be the mere simulacrum, a pretense, of trust; there will not be trust. Trust was shattered in what appears to have been a desperate effort to unleash forces that would bully justices into doing something other than what they regarded as their constitutional duty. In this respect, it is tragically in line with the broader trend in our culture and politics for people to get their way by bullying others. People on the left can think of the examples from the right that stand out in their minds. People on the right can think of the examples from the left that stand out in theirs. It is time—long past time—for decent and honorable people on both sides to say: “Enough! We will not tolerate bullying. We will not tolerate it from our political opponents. But we will be equally and equally vocally intolerant of it when it comes from our political allies.”
May 3, 2022 | Permalink
This review essay, in The New Atlantis, connects nicely with the moral-anthropology theme that has been a part of the Mirror of Justice conversation for nearly two decades (!) now. Here's the opening:
In thinking about technology, three questions are fundamental. What is technology for? What are we for? And how is our answer to the first question related to our answer to the second?
Since the Enlightenment, we have come to take for granted that there really is no relation, because we cannot publicly agree on what humans are for. We can answer that question only privately. But technology is public, not private. We create it for common use, ostensibly in the service of the common good. If we cannot broadly agree on what we are for, then how can we reason together about what our technology is for?
It appears that we cannot.
It's a long piece, and I cannot do justice to it here. But again: We've often observed, and reflected on the observation, that one cannot really "do law" without engaging the question, "what are human persons?" Certainly, a "Catholic legal theory" must be one that gives priority to this question.
On this day, in 1606, Henry Garnet, S.J. was hanged near St. Paul's Cathedral in London. (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.) He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot." (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.") Ora pro nobis.
Friday, April 29, 2022
I have a short piece, coauthored with my student, Joseph Graziano, up at Newsweek, on the Kennedy case (and other things). A bit:
Both Boston and Bremerton have the constitutional calculus backward. Not only do they not have to exclude religious voices from their halls; under the First Amendment, they may not. Camp Constitution and Coach Kennedy have as much right to witness to their religions as any others have to witness to their ideologies on the streets or up the flagpoles of city halls. In these two cases—Shurtleff v. Boston and Kennedy v. Bremerton School District—the justices should clarify that our Constitution demands that the religious be allowed to participate in public life on the same terms as everyone else, and that, barring actual coercion, free exercise of religious speech should be welcome in the public square.