Monday, November 11, 2019
From MOJ-friend Prof. Sam Levine (Touro) comes this news:
The winners have been selected for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. This year's co-winners are Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019), and Jessica A. Roth, The "New" District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019). The award will be presented at the AALS Annual Meeting in Washington, D.C., in January.
It is useful for anyone interested in the maintenance of orthodoxy to bear in mind the difference between heresy and apostasy. The Code of Canon Law sets forth this distinction in Canon 751, which differentiates among heresy, apostasy, and schism:
Can. 751 Heresy is the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.
The distinguishing factor here seems to be rejection of part of the faith ("some truth which is to be believed by divine and Catholic faith), as compared with rejection of the whole ("total repudiation of the Christian faith"). There are different ways in which heresy and apostasy may each be more damaging than the other in certain respects. But from the point of view of maintaining orthodoxy within a community, heresy seems more dangerous in that it might travel under the appearance of orthodoxy precisely because it differs from orthodoxy only in some truth rather than in repudiation of the faith itself.
Friday, November 8, 2019
In the 130 years since John Henry Newman’s death, few concepts have been more misunderstood and distorted than “conscience.” The danger is greater today than when the great saint wrote. The distorted view of conscience that Newman described as oriented to self and not to God has penetrated Western culture and religion. For many, the obligation to follow one’s conscience has been embraced, but fidelity to truth has been set aside. This untethered and counterfeit “freedom of conscience” has led to a widespread subjectivism that Newman saw emerging within modern European society, even in his own day.
Read more at Public Discourse.
November 8, 2019 | Permalink
Wednesday, November 6, 2019
Religious Freedom Under Scrutiny argues that without freedom of religion or belief, human rights cannot fully address our complex needs, yearnings, and vulnerabilities as human beings. Furthermore, ignoring or marginalizing freedom of religion or belief would weaken the plausibility, attractiveness, and legitimacy of the entire system of human rights.
Read more at the Law and Religion Forum.
November 6, 2019 | Permalink
Tuesday, November 5, 2019
This case, now on the Supreme Court's docket, concerns a Louisiana law requiring that physicians who perform abortions at clinics obtain admitting privileges at area hospitals. In this podcast, Mark Movsesian and I discuss the case: the 5th Circuit opinion, the petition, and the cross-petition. And in this post, I consider some of the arguments about standing advanced in the cross-petition.
Saturday, November 2, 2019
Thursday, October 31, 2019
Wednesday, October 30, 2019
We cannot consider whether or not America had a Christian founding without having an idea of what the phrase Christian founding actually means. James Bruce reviews a new book by Mark David Hall at Law & Liberty.
October 30, 2019 | Permalink
Saturday, October 26, 2019
Remarks at the Catholic Information Center Annual Dinner
Mayflower Hotel, Washington, D.C.
October 23, 2019
Robert P. George
It was the distinctive claim of late-20th century secular liberal political philosophy that sound principles of justice require that law and government be neutral as between controversial conceptions of the human good.
Critics, including me, argued that the “neutrality” to which the orthodox secularist liberalism of the period aspired (or at least purported to aspire) was neither desirable nor possible. That political philosophy was, we argued, built on premises into which had been smuggled controversial substantive ideas—liberal secularist ideas—about human nature, the human good, human dignity, and, indeed, human destiny—ideas as substantive and controversial as those proposed by Catholicism, Judaism, and other so-called “comprehensive doctrines,” be they secular or religious.
Today little effort is made by secular liberals (or “progressives,” as many prefer to be labeled) to maintain the pretense of neutrality. Having gained the advantage, and in many cases having prevailed (at least for now), on battle front after battle front in the modern culture war, and having achieved hegemony in elite sectors of the culture (for example, in education at every level, in the news and entertainment media, in the professions, in corporate America, and even in much of religion—including making inroads into the Catholic Church), there is no longer any need to pretend.
Take, as an example, the issue of marriage. Today virtually no one on either side doubts that marriage as redefined by the Supreme Court embodies substantive ideas about morality and the human good—ideas that differ profoundly from those embodied previously in marriage law, ideas that, according to partisans of the redefinition of marriage, are to be preferred to competing ideas, such as the biblical and natural law understandings of marriage, precisely because they are superior to the ideas they supplanted.
So now that the pretense of neutrality has been more or less abandoned, and is on its way to being forgotten, what is the substance of the perspective (or ideology or, perhaps, religion) that is now fully exposed to view—and not merely to the view of its critics? And what shall we call it? In an important recent book Steven Smith gives it a name: paganism. Now, this label is, of course, provocative. Professor Smith’s reasons for choosing it, however, go well beyond a mere desire to provoke. What he perceives (rightly in my view) is that contemporary social liberalism (“progressivism’”) reflects certain core (and constitutive) ideas and beliefs—ideas and beliefs that partially defined the traditions of paganism that were dominant in the ancient Mediterranean world and in certain other places up until the point at which they were defeated, though never quite destroyed, by the Jewish sect that came to be known as Christianity.
Of course, some progressives will suppose that Smith is, and I now am, deploying the term “pagan” as an epithet. But we mean something quite specific by the word—we use it to characterize ideas and beliefs that a great many people today, especially those in the ideological vanguard, have in common with people of, for example, pre-Christian Rome. This does not mean that contemporary secular progressivism shares all the ideas and beliefs of ancient Romans (such as belief in gods like Jupiter, Neptune, and Venus), but rather that some of the central ideas and beliefs that distinguish secular progressives from orthodox Christians and Jews—and, one could add, Muslims—today are ideas and beliefs they have in common with the people whose ideas and beliefs Judaism and Christianity challenged in the ancient world.
Secular progressives, no less than people of other faiths, hold cherished, even identity-forming beliefs about what is meaningful, valuable, important, good and bad, right and wrong. They may not believe in God, or a transcendent and personal deity, but certain things are nevertheless sacred to them—things they live for and would be willing to fight and even die for (for example, what they regard as racial justice, LGBT rights, environmental responsibility, etc.). They have faith—and a faith. Just look at the child-preacher Greta Thunberg. But what is it about the secular progressive faith that warrants our labeling it “pagan”? After all, though not theistic, it is certainly not (in any literal sense) polytheistic. Professor Smith explains:
"Pagan religion locates the sacred within this world. In that way, paganism can consecrate the world from within: it is religiosity relative to an immanent sacred. Judaism and Christianity, by contrast, reflect transcendent religiosity; they place the sacred, ultimately, outside the world."
Now, Smith concedes that this characterization oversimplifies things a bit. But the oversimplification is mainly in the description or characterization of Judaism and Christianity, not secular progressivism. The biblical faiths conceive God as transcendent, to be sure, but not in a way that excludes elements of divine immanence. In Jewish and Christian doctrine, a transcendent God sanctifies the world of human affairs by entering into it, while still transcending it. And God’s transcendence means that for the believer this world is not one’s ultimate home—we are, in a sense, “resident aliens.” Smith contrasts Jews and Christians with pagans on precisely this point: “The pagan orientation . . . accepts this world as our home, and does so joyously, exuberantly, and worshipfully.”
Now, Christianity, had it been a religion of pure and exclusive transcendence, might have simply rejected this world and not concerned itself with its affairs. The authorities of pagan Rome might then have left it alone, treating it as one more odd or exotic religion. There were many of these in the Roman empire. But it’s not that kind of faith. So it took an interest in the world’s affairs and developed ideas about such things as authority, obligation, law, justice, and the common good—ideas that challenged pagan ideas and practices in a variety of areas, some of them profoundly important. A central area was sex.
As Smith notes, within the pagan “matrix of assumptions, the Christian view of sexuality was not only radically alien, it was close to incomprehensible.” This is certainly true historically. But consider that the Christian view of sexuality is today, within the “matrix of assumptions” of secular progressivism, perfectly aptly described as “not only radically alien, but close to incomprehensible.” Consider again the debate over marriage, as just one of many possible examples. The biblical and natural law conception of marriage as conjugal, that is, as the one-flesh union of sexually complementary spouses, is not only “alien” to secular progressives, who understand “marriage” merely as a form of sexual-romantic companionship or domestic partnership, but nearly incomprehensible—except, that is, as what they suppose is bigotry against people who are attracted to and wish to marry (as progressives understand the term) people of their same sex. Or consider the view that non-marital sexual conduct and relationships, including homosexual ones, are inherently immoral. That, too, is regarded by a great many secular progressives as not only unsound, but unreasonable, outrageous, scandalous, even hateful. They can account for it, if at all, only as religious irrationalism, bigotry, or, as many today now claim, a psychopathology.
As the historian Kyle Harper notes in a recent book on the transformation of beliefs about sexuality and morality in the ancient world, sexuality “came to mark the great divide between Christians and the world.” Christian ideas, rooted in Jewish thought, about sexual norms (rejecting fornication, adultery even by men, homosexual acts, pornographic displays, and so forth) were revolutionary; and the pagan establishment was no more welcoming of revolutionaries—even nonviolent ones—than any other establishment is. So paganism could not, and did not, tolerate the Christians—even when Christianity was far too weak to pose any real challenge to political authority. It was not that Roman authorities refused to allow minority religions of any kind in the empire; those that could co-exist with the dominant paganism were allowed to do just that. But the Romans always found the Jews to be troublesome, and they perceived Christianity—a convert-seeking religion—when it came along as a grave threat. And Christian ideas about sex (and, in consequence, about Roman sexual practices) figured significantly in that perception. They feared that Christianity would, in Steven Smith’s evocative phrase, “turn the lights out on the party.” And that, of course, is what Christianity eventually did.
But in our own time the lights have been turned back on and the party is going again. In the 1940s, Alfred Kinsey convinced a lot of people that sexual satisfaction is a human need—that psychological health and wholeness generally require frequent regular sexual activity, which may be inside or outside of marriage, and that Judaeo-Christian norms of sexual morality, when embraced, result in stilted, even twisted, personalities. In the 1950s, Hugh Hefner persuaded people that pornography was, or could be, innocent fun and that the “Playboy philosophy” of sexual indulgence was the way for up-to-date, sophisticated people to lead their lives. The “gay rights” or “LGBT” movement has made the affirmation of homosexual conduct and relationships the “civil rights cause” of our day. Dissent is not permitted. Claims to religious freedom are dismissed as mere excuses for discrimination. “Bake the cake, you bigot!”
Christians, observant Jews, and other traditional religious believers have been knocked back on their heels. Reversing the sexual revolution (despite the growing evidence of its baleful social consequences, especially for children) seems nearly inconceivable. Few believe that its forward march can be paused or even meaningfully slowed down. The vast majority of Christians think that the most they can hope for in this new epoch of pagan ascendancy are some protections for their own liberty to lead their lives as they see fit, in conformity with their faith, and not to be forced to facilitate or participate in activities that they cannot in good conscience condone. Progressives say, after all, that they are all for individual autonomy and liberty. In pushing the redefinition of marriage, they insisted that all they were seeking was “live and let live.” Of course, that claim has already proven to be, if I may borrow a phrase from Hillary Clinton, “no longer operative.” Many Christians and other believers despair even of the possibility of protecting their children from being indoctrinated into the beliefs of the governing elite, the new ruling class (or what perhaps might better be described as the old, but re-paganized, ruling class). They believe we have entered a new Diocletian age. They not unreasonably suppose that it is precisely this reality that is being signaled when progressive intellectuals, such as Mark Tushnet of Harvard Law School, say things like this:
"The culture war is over; they lost, we won. . . . Taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won."
So there you are. The neo-pagans are in no mood to be “accommodating.” Christians and others who dissent from progressive orthodoxy can expect “the hard line approach.” We are to be treated like the defeated Germans and Japanese after World War II.
For faithful Catholics and our allies in dissent from neo-pagan orthodoxy, then, the question is “what is to be done?” How should we respond to the “hard-line” approach—an approach that will indeed be, and in fact is being, implemented by people who want to ensure that we never again get near the light switch and that we are properly punished for having switched off the lights to the party in the first place?
Some Catholics and other religious folk, including some entire denominations, have already taken the path of capitulation and acquiescence. They maintain the visible forms of faith while yielding its moral substance. They have made themselves the “useful idiots” of neo-paganism (to borrow Stalin’s famous characterization of the anti-anti-Communist liberals of his time). Obviously that is not an option for serious believers. So what do we do?
Often the question is posed as “flight or fight?” I’ve never been completely clear about what Rod Dreher, whom I admire, has in mind by the “Benedict Option.” He has described it as a “strategic retreat,” but also says that it doesn’t mean that we should not stay involved in the world. I certainly agree that we need to stay involved in the world—we have an obligation as believers to bear faithful witness to the values and principles we know are integral to justice and human flourishing—but I don’t see what we should be retreating from, even strategically. And to what--or where—could we retreat? To our families, religious communities, civil society associations? That won’t work. They’ll hunt us down and dismantle our institutions. Beto O’Rourke, in his characteristically charmingly hapless way, let the cat out of the bag on that point in a recent Democratic presidential debate, and none of his rivals contradicted him in any serious way. They are determined that our children or at least our grandchildren will think the way they think, not the way we think; so permitting us to retreat to the functional equivalent of the monasteries where we can quietly tend the gardens of our own families, and transmit to our children our own values, is not an option for them. Again, remember that we are to be treated like the defeated Japanese and Germans after World War II.
So flight, really, is not an option; we have no choice but to fight. And it is, and will continue to be, hard. There will be casualties. Lots of them. As I observed when I spoke in this city at the Annual Catholic Prayer Breakfast a few years ago, the cost of discipleship is a heavy cost—and it has only gotten, and will get heavier. The days of comfortable Catholicism are over. We are back in the position of our forebears in imperial Rome. If we are true to our faith—if we are true to ourselves—then we are quite literally intolerable, as far as the Mark Tushnets and Beto O’Rourkes are concerned. And they are legion. And they hold massive cultural, political, and economic power.
So the question and challenge we face is simply this, can we muster the courage to be faithful, to boldly bear witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power? Are we willing, if necessary, to pay the costs—the heavy costs--of discipleship? Of course, without God’s help, nothing of this kind would be possible? Yet we have it on the authority of Christ himself that God’s grace is superabundant. No one who asks for the courage to bear faithful witness will be denied it. No one who is prepared to take up his cross and follow Jesus will find the burden too great to bear. So, shall we flee from the battle? No. Quite the opposite. Onward, Christian soldiers.
October 26, 2019 | Permalink
Wednesday, October 23, 2019
Friday, October 18, 2019
Yesterday I blogged about our shortly-forthcoming edited book of essays, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. I've now posted on SSRN my chapter, which concludes the book with a summary of the essays and the themes. Here's a bit from the abstract:
This book gathers religious, secular moral, legal, and sociopolitical perspectives in one place. It aims to be a resource so lawyers, policy activists, and policymakers in patent debates might better understand what religious perspectives have to offer, and so religious thinkers and leaders might better understand biotech patents and thus have more to offer. The chapters include Christian, Jewish, and Muslim perspectives on bioethics and law--and both American and European perspectives on the limits of patentable material. The chapters explore various considerations: the importance of patents to innovation, the limitations on patenting of naturally occurring products and processes, the potential limits on patents stemming from distributive concerns, and the place of patents in international trade and development debates.
Three themes, summarized here, emerge from the balance of the chapters. First, patents on life call for evaluation under criteria of morality and social justice. Second, religious thought can contribute to (without dominating) such evaluations. Finally, however, for religious thought to contribute effectively, it must be more informed and sophisticated than it has been, about both patent law and biotechnology. The chapters aim to provide such knowledge.
This final chapter gives a good sense, I think, of what the rest of the book covers.
I hope readers interested in the "Catholic legal theory" project will give the volume a look--and suggest it to your academic libraries! First, take a look at it yourself. Second, pass the word to others who work, or have interests, in any of the areas of public moral theology, human life and dignity, technology, social justice, and development and human rights ("preferential option for the poor" etc). A few reasons why this topic may be of wide interest:
1) The vast majority of the chapters in the book are very accessible to non-scientists. It's meant to explain basic patent concepts, and genetic technologies, to religious thinkers (and explain religious ethics to patent lawyers and scientists). Patent law can get complicated, but at its base it has a quite comprehensible logic.
2) As I've argued in a previous paper on "intellectual property (IP) and the preferential option for the poor," IP laws, including patent, are by nature a kind of qualified (tho still valuable) property right that has parallels to Catholic approaches to property. IP is designed with social and common-good purposes in mind: encouraging innovation through exclusivity, while maintaining others' access through limits on exclusivity. Catholic thought on property tends to have a similar structure.
3) Partly because IP rights fit with the Catholic model of qualified and instrumental property rights, and partly because patents have affected poor people in developing nations, the Catholic Church has actually had quite a lot to say about them--albeit not in a systematic way. The Vatican has defended the right of indigenous people to control over and fair reward for the genetic resources, the claim of people in poverty to have access to essential medicines (including, for purposes of this book, "biologic" drugs produced from living organisms), and the claim of farmers to retain autonomy over genetically modified seeds in the face of licensing practices by companies holding patents on the seeds. This collection aims, among other things, (a) to make the Church's positions better known to policymakers in the field and (b) help Catholic thinkers integrate the important topic of IP into their understanding of Catholic social thought principles.
4) Because of the richness of Catholic social doctrines in this area, and because of the role of Catholic institutes in the project, we have several different Catholic contributors. Some focus very much on the development-and-poverty implications of patents on and access to biotechnologies. Others focus on the bioethical issues involved in giving humans ownership over materials or processes that are relatively close to "natural [God-created] phenomena." In any event, while the chapters contain considerable religious diversity in the chapters, they also contain a set of Catholic : essays that are rich, deep, and diverse. IP is now central to the economy and society, and not just in the biotech area. These essays will help people think through how Catholic thought applies to the "new form of ownership" that Saint John Paul II identified in Centesimus Annus (para. 32) as increasingly fundamental: "know-how, technology, and skill."
Thursday, October 17, 2019
Coming in the next few days and weeks from Cambridge University Press:
The book contains 16 interdisciplinary essays (law, theology, ethics, politics, business) on biotechnology patents and issues of justice. A bit from the description at Amazon (see also the Cambridge Press page here):
This volume brings together a unique collection of legal, religious, ethical, and political perspectives to bear on debates concerning biotechnology patents, or 'patents on life'. ... Even after many years and court decisions, important contested issues remain concerning ownership of and rewards from biotechnology -- from human genetic material to genetically engineered plants – and regarding the scope of moral or social-justice limitations on patents or licensing practices. This book explores a range of related issues, including questions concerning morality and patentability, biotechnology and human dignity, and what constitute fair rewards from genetic resources.
The issues the book addresses appear regularly in the news: gene-sequence patents and their effect on biomedical innovation and costs, "biopiracy" of developing-nation resources and its effect on indigenous peoples, genetically modified crops and their effect on farmers and farming practices, biologic-drug patents, gene-editing (CRISPR) technology patents.
This book responds to the fact that such issues concerning biotechnology ownership, patents, etc., have received considerable secular ethical (as well as political and economic) analysis--but relatively little theological/ethical analysis by religious traditions, leaders, and thinkers. There is plenty of religious bioethics, including on new genetic technologies, but relatively little of it addresses ownership, patents, and so forth. The Vatican has actually been a fairly active voice (emphasizing a moderate view of patent rights, their role in innovation, but also the need to temper them to ensure access for the poor and fair rewards to indigenous peoples)--but the Church's role is not as well known as it should be.
The premise of this book is that the great religious traditions and their leaders and thinkers can speak to those issues but haven’t addressed or studied them much. They need to understand the basics of patent law and policy better. Conversely, the many lawyers, policymakers, and activists engaged in moral debates over biotech patents and the creation and distribution of technologies haven't appreciated the contributions that religious thought can make. They need to understand religious social thought better.
This book, with its multidisciplinary contents, is a one-stop, readable resource for all of the groups above.
Please tell your libraries to buy the book! And--just in time for holiday gift-giving--you can pre-order it at Amazon in Kindle (delivery Oct. 24) or hardcover (available December) versions.
The book also reflects both US and European approaches to the patentability of genetic material and the role of moral considerations in granting patents, both topics that involve interesting trans-Atlantic contrasts and comparisons. And it also reflects multiple religious approaches: Catholic, Jewish, Muslim, and Protestant (both evangelical and mainline).
Tuesday, October 15, 2019
This recent article in Foreign Policy tells the story of a young woman and her family’s plight in Xinjiang.
China’s treatment of religious minorities continues to violate basic human rights, and the state’s response to its own people and the international community is simply that “most people” in re-education camps have been released. Yet, stories like this one are all too common.
October 15, 2019 | Permalink
Way back when, in April 2015, during the oral argument for Obergefell v. Hodges (transcript here; see also here) Justice Alito, probed what he thought might be the implications of the Court’s recognizing a constitutional right for same-sex couples to marry, noting that in Bob Jones University v. United States "the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating."
With this prior decision in mind, Justice Alito asked Solicitor General Donald Verrilli: "So would the same apply to a university or a college if it opposed same-sex marriage?" Verrilli at first sought to avoid the question, but then responded with some unscripted candor: "You know, I—I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I—I don't deny that. I don't deny that, Justice Alito. It is—it is going to be an issue."
This should have been enough to warn anyone about what was coming down the road. Still, to be warned is one thing, but to hear one's fears confirmed in blunt terms by those seeking the nation’s highest office is something else.
At CNN's Equality Town Hall (which, showing the objectivity and neutrality of a modern American news network, CNN co-hosted with the Human Rights Campaign) on Thursday night, CNN's Don Lemon asked presidential candidate Beto O'Rouke (transcript here) "Do you think religious institutions, like colleges, churches, charities, should they lose their tax-exempt status if they oppose same-sex marriage?"
"Yes" said O'Rouke emphatically, without skipping a beat. He then went on to elaborate: "There can be no reward, no benefit, no tax break for any one, any institution, any organization in America that denies the full human rights, and the full civil rights of every single one of us. And so as president we're going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans."
O’Rouke was not asked to explain, nor did he volunteer an explanation as to how it is that a church that does not recognize same-sex marriage is “infringing” upon the rights of anyone. Isn’t it the case that the church (that does not marry same-sex couples) and the same-sex couple (who are married or seeking marriage) are each exercising their respective rights to live as they see fit? Under O’Rouke’s bizarre understanding of “infringement” wouldn’t a newspaper editorial page “infringe” upon the rights of someone who held the opposite point-of-view by refusing to publish that person’s opinion?
This is, of course, far beyond what we were promised legal recognition of same-sex marriage was all about. We were told that legal recognition of same-sex marriage would enshrine an ethic of tolerance and equality, a norm of live-and-let-live which would leave people free to live their own distinctive lives by embracing their different conceptions of the good. O’Rouke’s promise to use tax policy to pick and choose among religions – favoring those that approve of same-sex marriage and disfavoring those that do not – shows that tolerance is not the end-game. The goal is affirmation. And those who refuse to affirm same-sex marriage as a social good will be targeted for negative treatment by the coercive power of the state.
Unfortunately, O’Rouke was not alone in this radical approach to the use of state power to punish wrong-think and to ensure actions compliant with the new understanding of sexuality.
Cory Booker (transcript here), another Democratic presidential candidate at the Town Hall, was asked: “Do you think religious education institutions should lose their tax-exempt status if they oppose LGBTQ rights?”
Booker responded: “Whether you’re a school and – or providing healthcare for folks, whether you are a – bakery, you cannot discriminate fundamentally no.” When pressed whether this meant the withdrawal of tax-exempt status Booker said: “I will press this issue and I’m not – I’m not saying because I know this is a long legal battle and I’m not dodging your question. I’m saying that fundamentally discrimination is discrimination. And if you are using your – your – your position to try to discriminate others, there must be consequences to that. And I will make sure to hold them accountable using the DOJ or whatever investigatory authority. You cannot discriminate . . . . I’m going to make sure that I hold them accountable. And if it means losing your tax status – but I’m telling you private – private organizations that do not have tax, there has to be consequences for discrimination.”
Booker’s statements are of course overwrought, and not well thought through (which is not surprising from a politician, but which is surprising from someone we are told is an intellectual). “Discrimination” denotes a number of different kinds of acts, some of which are benign, even laudable (such as discriminating between different wines to find the best vintage, or between different viruses to find a cure), and some of which are unjust (such as refusing to do business with a person because of his or her race). “Discrimination” is a part of what every religion does. There are believers and unbelievers, co-religionists and people who subscribe to another faith or no faith at all, and in various ways religions tend to treat these different people differently. Simply put, not all acts of “discrimination” are the same. While some are constitutionally repugnant, others are constitutionally protected.
Booker did not explain what being held “accountable” would entail, nor did he specify the “consequences” (other than to allude to tax-exempt status) that would befall religious schools that did not embrace same-sex marriage, but the threat was clear: Get in line and learn to affirm same-sex marriage or you will pay a price.
Senator Booker also responded to a question from a young woman who said she attended an all-girls Catholic high school in New Jersey where students were not allowed to form an LGBTQ club or Gay-Straight alliance. She also noted that a neighboring Catholic high school had fired a female teacher after she married another woman. She then asked Booker “How would you address the at times juxtaposing issues of religious freedom and LGBTQ rights?”
Booker responded as follows: “I cannot allow [sic] as a leader that people are going to use religion as a justification for discrimination. I can respect your religious freedoms but also protect people from discrimination.” Booker went on to say that the country needs laws like the Equality Act “which set parameters where people are not allowed to discriminate.”
Booker attributes a noxious motive to the Catholic schools involved in the question. In his mind, they are not acting in good faith in support of their sincerely held religious beliefs—a doctrine of sexual morality that the Church has professed since apostolic times. They are instead only using religion as a kind of mask behind which lurks a deplorable anti-LGBTQ animus.
Booker apparently thinks that it is the province of government to determine what a Catholic school is “allowed” to do in living out its religious mission. He does not think that a Catholic school is free not to hire or retain a teacher even though the teacher’s actions contradict the teaching that the school is attempting to impart to its students and proclaim to society as a whole. According to this logic, the government could require the World Wildlife Fund to hire a job applicant even though that person, in his spare time, likes to go on safari and hunt big game in Africa.
As the U.S. Conference of Catholic Bishops has warned (here), under the Equality Act “[p]rivate schools could . . . be required to hire or retain people whose speech or conduct violates tenets of the school’s faith. This limits the ability of a religious group to enculturate its religious views.” The USCCB acknowledges that the “ministerial exception” may provide some protection for religious schools, but that the contours of this doctrine are “evolving.”
Don Verrilli prophesized the future, and here it is.
But it doesn't take the gift of prophecy to predict the Babylonian captivity when the Babylonians are telling you to your face that captivity awaits.
October 15, 2019 | Permalink
Monday, October 14, 2019
In a couple of posts last week, I began to introduce a three-ingredient recipe for overruling Roe v. Wade. The first post identified the three ingredients: Prenatal Equal Protection, Judicial Incapacity, and Catholic Guilt. The second post discussed Prenatal Equal Protection. This post continues by discussing the ingredient of Judicial Incapacity.
Consideration of this ingredient begins with what Peter Westen has labeled "The Empty Idea of Equality." By "equality," Westen means the basic principles that "people who are alike should be treated alike" and "people who are unalike should be treated unalike." When we ask how people should be treated, the question then becomes in what respects they are like and what respects they are unalike. Some of the ways in which people are unalike matter in considering how they are to be treated.
In his article, Westen sought to establish that statements of equality entail and collapse into simpler statements of rights, and that transforming the simpler statements of rights into statements of equality is unnecessarily complicated and engenders confusion. One need not accept all the particulars of Westen's use of rights to appreciate the force of his claim that equality is a formal concept, a way of stating moral and legal propositions whose substance derives from more fundamental judgments.
Once we recognize that "person" as used in the Fourteenth Amendment is not limited to postnatal human beings, we next have to determine what it means for a state to provide to unborn persons within its jurisdiction "the equal protection of the laws." At a minimum, this means not treating the unborn as non-persons. But it does not mean treating them identically to the born in all respects. Nor does it mean categorically prohibiting the intentional taking of their lives. As self-defense against lethal violence is a justification more generally in the law, a state does not run afoul of its equal protection duty through declining to criminalize or by providing an affirmative defense for abortions performed to save the life of the mother.
What about other types of limitations on the reach of criminal abortion laws? Right now, a two-drug combination can be used to induce medication abortions. This two-drug combination is approved by the FDA , with certain limitations, through ten weeks of pregnancy. Suppose a state decides not to criminalize medication abortion because of enforcement- and privacy-related concerns. Would this amount to a denial of the equal protection of the laws to unborn persons ten weeks and under? In one sense, yes, and in another sense, no. The answer depends on whether the reasons the state has for structuring its laws the way that it has are good enough reasons. And an appeal to the formal ideal of equality will not help in answering that question.
It could provide a baseline of sorts, a presumption that the difference in location between born and unborn persons is not itself a justification for differential treatment. But once we move beyond that baseline and allow for the potential relevance of factors such as enforcement-related concerns, maternal-safety concerns, and so on, any doctrinal implementation of the equal protection of the laws by judges should be informed by their very limited capacity for making judgments of this sort. That is why the default standard for judicial review of legislative classifications is rational basis review.
Both proponents and opponents of acknowledging the Fourteenth Amendment of personhood have often assumed that this acknowledgment would have obvious consequences for the substantive content of the law--either that all abortion must be criminalized with rules equivalent to those governing infanticide (because of personhood plus equal protection or personhood plus right to life) or that all questions about abortion are simply a matter of state policy judgment as modified by judicial overlay through substantive due process for mothers (because the Fourteenth Amendment does not protect the unborn as persons). But even if we stop treating the unborn as constitutional zeroes when it comes to personhood, there is ample room for a variety of reasonable legislative judgments about abortion regulation compatible with recognition of the personhood of the unborn.
This recognition would rule out some of the most radical state-law regimes that authorize the taking of unborn life all the way through pregnancy based on the unreviewed decision of one physician and one mother for any reason. And this recognition would also require a reorientation of the law that requires a justification for differential protection of the laws for the born and unborn. But this reorientation would not change the judicial incapacity for making value judgments on the relative weights of justifications that underlies rational basis as the doctrinal default in this area.
Thursday, October 10, 2019
Wednesday, October 9, 2019
I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine." Among other things, it discusses the striking developments in AI/machine learning and the ways that the PRC's dictatorship is using them for policing, surveillance, rewards, and punishment. Along the way, though, there was this, which reminded me of the crucial role that both the Catholic Social Tradition and the various instances of Tocqueville-inspired political theory have assigned to mediating institutions:
The point of the state apparatus is not to silence all debate, but to prevent organisation and co-ordination; the ultimate no-no is the formation of any kind of non-party group. The CCP’s goal is not silence but isolation: you can say things, but you can’t organise. That is why the party has cracked down with such ferocity on the apparently harmless organisation Falun Gong, whose emphasis on collective breathing exercises wouldn’t normally, you would think, represent much of a challenge to CCP control of China. But Falun Gong grew popular, too popular – seventy million by 1999, as many as the CCP itself – and had an unacceptable level of collective organisation. So the party set out to destroy it. Two thousand members of Falun Gong have died in custody since the crackdown began.
Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.
For my own take (now quite a few years old), check out this article:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.
In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties - that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.
Tuesday, October 8, 2019
The first ingredient in the recipe for overruling Roe v. Wade is Prenatal Equal Protection.
The most basic function of any government is the protection of persons within its jurisdiction. In the United States, the Fourteenth Amendment imposes on States a duty of supplying the equal, protection, of the laws, to all persons, within its jurisdiction.
This constitutional duty is worded negatively: "No state ... shall deny to any person within its jurisdiction the equal protection of the laws." But it imposes an affirmative duty. As Christopher Green explained in two articles ten years ago (here and here), the original legal meaning of this Equal Protection of the Laws Clause was precisely about the duty of equal protection: no separate laws or patterns of law enforcement for disfavored groups of people; no license for some—such as the Ku Klux Klan—to harm others with legal impunity.
If unborn human babies are persons within the meaning of the Fourteenth Amendment, then this duty of equal protection prohibits the state from licensing lethal private violence against them without some justification tied to their location in the womb to authorize differential treatment. There may be very good reasons for states to have legal rules that differ in some respects for the born and the unborn. After all, equality means treating like things alike, and the born and unborn are unlike in some respects. One way in which they are alike, though, is that they are persons.
The Supreme Court infamously held otherwise in Roe v. Wade, interpreting "person" to exclude unborn human babies. The Court's reasoning on this issue was pretty thin throughout and demonstrably flawed in part.
The demonstrable flaw came in Justice Blackmun's claim that, if unborn humans are persons, the case for a right to abortion "collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Justice Blackmun here had in mind the Due Process Clause, as context makes clear.
The belief that the Due Process Clause protects against private lethal violence is a common mistake, one which has ensnared many pro-lifers as well. When one private party kills another, something bad has happened. But not a violation of the Due Process Clause. Only state action violates the Due Process Clause.
While this state-action limitation had been established since well before Roe, post-Roe decisions have made even clearer that the state-action requirement for the Due Process Clause cannot be met by redescribing state failure to intervene against private violence as state action.
The leading case is DeShaney v. Winnebago County Department of Social Services. In Deshaney, the Court held that a “State’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.”
More recently, the Court stood by the general rule of Deshaney in Castle Rock v. Gonzales, holding that police failure to enforce a restraining order, which resulted in the death of children, did not violate the Due Process Clause; this grievous law enforcement lapse was state inaction rather than state action.
Taken together, Deshaney and Castle Rock refute Justice Blackmun’s operative assumption in Roe that a state’s failure to prohibit and to punish abortion would violate the Due Process Clause.
Monday, October 7, 2019
Testimony of Robert P. George
U.S. House of Representatives
Committee on Oversight and Government Reform
May 22, 2018
I wish to thank the chairman, ranking member, and members of this committee for holding this important hearing and for inviting me to give testimony. It is a particular honor to appear alongside Professor Stanger and Dr. Weinstein, whose courage, integrity, and commitment to freedom of thought and expression and robust civil discourse are inspiring.
I have provided to the committee’s excellent staff my formal written testimony. This afternoon I wish to share some thoughts drawn largely from a statement I issued some months back along with my dear friend and teaching partner Professor Cornel West. Professor West and I, though representing different political perspectives, share concerns about the state of American higher education and the condition of American democracy. We worry that too narrow a range of perspectives is represented in a great many colleges and universities, especially among faculty, and that this tends to create an echo chamber in which education degenerates into indoctrination and dissent is stigmatized, marginalized, and even punished or driven off campus. We also worry that the American people are becoming polarized in ways that foment a level of distrust and hostility to each other, and an unwillingness to listen to and engage each other, that undermines the foundations of democratic civic life.
By hard experience, mankind has learned that the pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of certain virtues, including intellectual humility, openness of mind, and, above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs and who represent causes one disagrees with and points of view one does not share.
That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree—especially on college and university campuses. As the great 19th century English liberal philosopher John Stuart Mill taught, a recognition of the possibility that we may be in error is a good reason to listen to and honestly consider—and not merely to tolerate grudgingly—points of view that we do not share, and even perspectives that we find shocking or scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it.
None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.
All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.
It is all-too-common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular communities. Sometimes this is done by questioning the motives and thus stigmatizing those who dissent from prevailing opinions; or by disrupting their presentations; or by demanding that they be excluded from campus or, if they have already been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like or simply walk out and refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. But before exercising that right, each of us should ask: Might it not be better to listen respectfully and try to learn from a speaker with whom I disagree? Might it better serve the cause of truth-seeking to engage the speaker in frank civil discussion?
Our willingness to listen to and respectfully engage those with whom we disagree (especially about matters of profound importance) contributes vitally to the maintenance of a milieu in which people feel free to speak their minds, consider unpopular positions, and explore lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and groupthink, both of which are toxic to the health of academic communities and to the functioning of democracies.
When universities are permitted to degenerate into ideological echo chambers, which is what tends to happen when a campus lacks viewpoint diversity, especially among its faculty, freedom of thought and expression quickly come under attack and are sooner or later (usually sooner rather than later) lost. Dissent from campus orthodoxies comes to be perceived and even experienced as attacks on "our community's values" and even as personal "assaults." People begin defining “hate speech” way too broadly and saying things like “free speech is violence.” Some may even begin defending actual violence—violence against dissenters from campus orthodoxies—as a form of “free speech.”
Following in the wake of these developments are censorship, language policing, and disciplinary proceedings and “re-education” for people who offend against “our community’s values.” Education, which requires the careful and critical exploration of competing perspectives on disputed questions, degenerates into indoctrination. Universities cease being truth-seeking institutions and courses become catechism classes for whatever ideology happens to be dominant on campus. That’s fatal for the cause of learning. And it’s very bad for the cause of democracy.
October 7, 2019 | Permalink
Uighurs are Muslims who trace their roots back thousands of years in Central Asia, most currently living in the Chinese province Xinjiang. The group represents less than 1 percent of China's population, but they have endured what the U.S. calls one of the worst human rights crises of modern times. Nick Schifrin at PBS News Hour reports on how Communist China has persecuted this religious and cultural minority: https://www.pbs.org/newshour/show/china-calls-it-re-education-but-uyghur-muslims-say-its-unbearable-brutality
October 7, 2019 | Permalink
This past Saturday morning, I had the privilege to address the 2019 General Assembly of the Catholic Bar Association. This year's Assembly was held in St. Louis, and the title of my talk was "What Kind of Law Will It Take to Overturn Roe v. Wade in the Short Term?"
The location and setting brought to mind Webster v. Reproductive Health Services, 492 U.S. 490 (1989). This case out of Missouri placed the constitutional law of abortion in the United States on the trajectory on which it has proceeded for the past thirty years. Doctrinally, one might attribute that significance instead to Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). But the plurality decision in Casey was the product of momentum from Webster. It was in Webster that Justice O'Connor's undue burden standard broke away from the rational basis fold that Chief Justice Rehnquist was trying to nudge the Court toward, and it was in Webster that the rift between Justice O'Connor and Justice Scalia on the constitutional law of abortion became permanent.
Webster came about a couple years after two new Justices had recently been added to a Supreme Court with a Chief Justice publicly committed to judicial restraint. If that sounds familiar, it should. We are talking now, thirty years later, about the very kinds of variables that Court-watchers were talking about thirty years ago: when to distinguish versus to overrule; when to overrule sub silentio versus explicitly; when to construe statutes to avoid constitutional difficulties versus confronting the constitutional difficulties head on; what is "judicial statesmanship" and is it good or bad? And so on.
Tactically speaking, one desideratum for moving toward a stable, more pro-life equilibrium in the constitutional law of abortion in the United States would seem to be avoiding another Webster. By that I mean a narrow tactical "win" that presages a broader strategic defeat rooted in divisions over the pace and explicitness of displacing bad precedents with good ones.
In days to come, I hope to lay out in more detail some of the elements of my Catholic Bar Association approach. Just by way of preview, the recipe for overruling Roe v. Wade that I am working up has three main ingredients: (1) prenatal equal protection; (2) judicial incapacity for line-drawing with respect to relative values of prenatal and maternal life and health; and (3) Catholic guilt.
Thursday, October 3, 2019
A very public story of tragedy and violence set on a stage of racial injustice that ends with expressions of mercy and faith.
If you have not taken the time to watch the two videos following the sentencing of Amber Guyger and the response of Brandt Jean, the brother of the homicide victim Boothan Jean, and that of Judge Tammy Kemp, you should do so. As one of the reporters described it, this was a scene of "extraordinary grace." No person of faith can fail to be inspired and brought to tears.
In a troubling period of our history in which people of Christian faith too often are seen by the public as apparently advocates for cruel policies and agents of division rather than as witnesses for the Gospel, this episode reminds us that Christ still walks among us through his disciples.