Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 29, 2005

Feldman's Solution

Thanks to Mike Perry for linking to Noah Feldman's upcoming NYT Magazine article.  Noah is a friend, and one of the smartest people I know.  I agree with a lot -- but not all -- of what he has to say.

His "church-state solution", in a nutshell, is this:  "[O]ffer greater latitude for religious speech and symbols in public debate, but also impose a stricter ban on state financing of religious institutions and activities."  This solution, he says, "would mean abandoning the political argument that religion has no place in the public sphere while simultaneously insisting that government must go to great lengths to dissociate itself from supporting religious institutions. It would mean acknowledging a substantial difference between allowing religious symbols and speech in public places (so long as there is no public money involved) and spending resources to sustain religious entities like churches, mosques and temples."  As he points out, "this approach goes against the trends of the last several decades, which are for stricter regulation of public religious symbolism and more permissive authorization of government financing and support for religion."  In fact, Noah's proposals will almost certainly prompt more strong (and, unfortunately, hostile) reactions (and probably more from the "left" than from the "right," even though Noah is a person of progressive political commitments).

Again, I agree with many of Noah's arguments, and am drawn to many aspects of his proposed solution.  I hope every MOJ reader will read the full article.  That said, Noah's arguments against school vouchers are, in my view, misguided.  He writes:

If we are to progress toward reconciliation of our church-state problem, it will not be enough for legal secularists to re-evaluate their attitude toward religious symbols and religious discourse. Values evangelicals must also change their ways and give something up -- by reconsidering their position in favor of state support for religious institutions.   The reason they should be prepared to do so is that such state support actually undercuts, rather than promotes, the cohesive national identity that evangelicals have wanted to restore or recreate. When filtered through vouchers distributed by the government and directed by individual choice, state financial aid for religious institutions like schools or charities does not encourage common values; it creates conflict and division.

As I see it, the best reason to oppose vouchers is that they have the potential to water down the identity, and even to threaten the independence, of religious schools and churches.  But this does not appear to be the reason on which Noah relies.  With respect to the just-quoted paragraph:  First, even if it were the case (and it is not) that vouchers "undercut[] . . . cohesive national identity," that would not, in my view, be much of a moral argument against vouchers, if we believe that vouchers are needed to make meaningful our commitments to religious freedom and educational opportunity, which are more important, I would think, than "cohesive national identity."  Second, it just isn't the case -- as the research of my colleagues David Campbell and David Sikkink, among others, has shown -- that private schools (particulary Catholic schools) produce less engaged, less other-regarding citizens than other schools.  Indeed, it appears that the contrary is true.  (To be clear:  the reason I support Catholic schools is not because they produce good Americans; still, the fact -- and it is a fact -- that they do produce good, engaged, other-regarding citizens is a reason, I would think, to support school vouchers).

Noah says, of "private religious schools," that "[i]t is at least as likely that balkanized schools will generate balkanized values as that they will promote a common national project."  Well, "balkanized" is doing a lot of work here.  In any event, Catholic schools are not "balkanized," and do not generate "balkanized" values.  (Some might wish that Catholic schools *did* work harder at producing upsetting and counter-cultural values, but that's a different matter).  That voucher programs do tend to cause political divisions is the result, it seems to me, of their opponents' political and ideological commitments (and economic self-interest) that should not be privileged over the good reasons for supporting such programs.

In any event, Noah's proposal, article, and forthcoming book deserve careful study and consideration.


UPDATE:  Jack Balkin has a detailed response to Noah's proposal, here.

June 29, 2005 | Permalink | TrackBack (3)

Noah Feldman's "Church-State Solution"

{This piece, by NYU's Noah Feldman, will appear in the NYT Magazine this Sunday.   To read the whole article, click here.]

New York Times
July 3, 2005

A Church-State Solution



For roughly 1,400 years, from the time the Roman Empire became Christian to the American Revolution, the question of church and state in the West always began with a simple assumption: the official religion of the state was the religion of its ruler. Sometimes the king fought the church for control of religious institutions; other times, the church claimed power over the state by asserting religious authority over the sovereign himself. But the central idea, formally enshrined at Westphalia in 1648 by the treaty that ended the wars of religion in Europe, was that each region would have its own religion, namely that of the sovereign. The rulers, meanwhile, manipulated religion to serve their own ends. Writing just before the American Revolution, the British historian Edward Gibbon opined that the people believed, the philosophers doubted and the magistrates exploited. Gibbon's nominal subject was ancient Rome, but his readers understood that he was talking about their world too.

[To read the rest, click here.]


June 29, 2005 in Perry, Michael | Permalink | TrackBack (0)

No, We Shouldn't Care (At Least Not Much)

Tom Berg's post on the 10Cs case I think raises an important question about whether we should care about that case, or, more generally the legal status of government displays of religious symbols. Before I saw Tom's post I was thinking about asking  a similar kind of question:  "Which case is more important: Kelo or the 10Cs?"  I was thinking about that because I felt kinda bad that our fruitful discussion of Kelo seemed to have been dropped immediately as everyone ran off to get in their 2 cents on the 10Cs. I realize the 10Cs was a big Supreme Court case and a politically incendiary topic, and that most of my co-blogistas are professionally focused on the First Amendment Church/State area (which I am not), but in terms of actual importance in the "real world", isn't Kelo far more important -- especially if the dire interpretations of its significance for the integrity of private property emanating from the right are true ("You'll have to pry my Motel 6 out of my cold, dead hands")? But the question is more than one of relative significance.

As Tom suggests, should Catholics or people of faith care at all about the issue in the 10Cs case? I would anwer that we should not, or at least not much. We shouldn't care because the impetus behind the erection of many of these displays, and much of their current defense, comes from the kind of Christian nationalism (both Catholic and evangelical)that I find distinctly un-Catholic and un-Christian, and which I have called wrapping the Cross in the flag. This is a specific complex of values and beliefs that I don't share: that the US is providentially blessed, that we are a "Christian Nation," and that we can reestablish Christendom in America. Note that I believe very strongly that there should be a well-established place for faith in the public square, and in both the rhetoric and actions of religious politicians and decisionmakers, but this kind of symbology does little to advance that agenda, and suggests a type of identification of government with a particular religious symbol that is quite a different goal. It also does little, as Tom suggests, to protect the integrity of religious belief in a secularizing society through more substantive actions such as recognition of vouchers and protecting religiously-affiliated hospitals from government overriding of their ethical norms.

But note my qualication of "not much." Maybe we should care a little. Here's where the "proxy" argument that Tom mentioned comes in. This battle about public symbols is iself a symbolic battle between people who think that religion should be important in the nation's public life and those who do not. In other words, it really is about the whole "religion in the public square" debate, which I've just said is very important. On one level the "proxy" analysis is true -- it expresses the significance that some people on both sides have given  the dispute. I would argue, however, that this argument is a very poor proxy: the symbology of the 10Cs on public buildings is tainted by a narrow and contestable conception of the relationship between Christianity and the state; the stakes are trivial in comparison to those in more substantive disputes about the status of religion and religious actors in the polity; and the dispute distracts attention from the important issues, creating a hill on which those who support a robust conception of religion in the public square should not choose to die.

That being said, and despite my distaste for much of the rhetoric supporting the 10Cs displays, I am very troubled by the highly exclusionist and anti-religious rhetoric used against the displays. I thus can't say "I just don't care" about the issue. It's just "not much."


June 29, 2005 | Permalink | TrackBack (0)

Latest on Abortion Stats and the Safety Net

A few weeks ago Rob and I blogged about preliminary statistics suggesting that the abortion rate had risen during the Bush administration and later numbers, based on data from more states (43 in all), suggesting that the Clinton-era decline had merely slowed rather than reversed.  Now ethics professor (and pro-life liberal) Glen Stassen, who had publicized the original numbers, reviews the latest statistics and concludes "that abortions in those 43 states probably declined slightly [from 2001 on], but at a slower rate than previously - what I call a stall."

Stassen also summarizes evidence that the abortion rate slowed in its decline, and actually increased among poor women and those on Medicaid, at around the time welfare reform kicked in in the mid-1990s.  (I should comment that for the causal analysis to be complete and convincing, it would have to be a lot more extensive than what's in this short article.)  He concludes:

Taking $200 billion per year out of tax income for the wealthy and therefore squeezing down justice programs for children, schools, the CHIP health insurance program that should support children, and jobs programs, and shifting income from the broad consumer base to the wealthy has been bad for mothers and children. We need a motherhood mandate - health insurance, accessible clinics, economic support, parental leave with pay for a child's first year (as most every other democracy except the U.S. has), jobs programs, and support for schools such as my wife's, where teenagers can bring their babies and get their clinic visits without either quitting school or having an abortion - or getting someone else to parent their baby.

Stassen also has choice words for conservative pro-lifers who criticized his initial numbers and publicized the later statistics (which came from the pro-choice Guttmacher Institute):

So here is the irony of advocates who claim to be pro-life cheering data from a pro-choice source to say things are not as bad as I thought. They attack my pro-life effort to push the Bush administration to adopt policies that decrease abortions. It raises the question as to whether their real loyalty is pro-life, or whether their priority is partisan politics.

Tom B.

June 29, 2005 in Berg, Thomas | Permalink | TrackBack (0)

Should We Care About Religious Symbols Cases?

To me, one of the most interesting questions discussed at the SCOTUS 10 Commandments Sub-Blog is whether these cases about religious symbols really should matter much to anyone.  (Some liberals such as Burt Neuborne suggest relaxing their opposition because lawsuits against these symbols unnecessarily alienate a lot of Americans.)  From the standpoint of Catholic legal theory -- or more broadly, from the standpoint of the vitality of Christian faith or religious faith in civil society -- should we care about whether the government puts up plaques expressing Christian (Jewish-and-Christian, monotheistic) statements?

In one of my SCOTUS blog posts I argued that fighting for official religious symbols "should be at most a low priority for religious believers, and at worst [such fights] tempt them away from more important goals."  We should be less concerned with what the government itself says, and more concerned with whether religious entities -- schools, social services, and so forth -- are able to pursue their missions and contribute to society without government interference or discouragement and with government cooperation when appropriate.  Thus it's far more important to ensure that religious schools can participate in school-choice funding than it is to get a "few scraps" of religion like a prayer at graduation or a plaque in the courthouse.

Fighting for symbols is not just a lower priority, it actually harms the more important goals.  Energy and other resources go into symbols cases instead of the other ones.  Other citizens, even many of good will, become alienated from the orthodox religious sector because they think its main goal is selfish, to get official recognition of its preferred status.  And believers are wrongly led to think that we can helped toward being a "Christian" nation by virtue of symbolic pronouncements -- what the prophet Amos might have criticized as empty "solemn assemblies" -- rather than by "let[ting] justice roll down like waters" (Amos 5:21-23).

Consider also that if we care about religious organizations having a distinctive freedom to pursue their mission in the face of the far-reaching modern state, we have to argue for treating religion specially.   For example, if we want Catholic Charities to be able to resist paying for contraceptives for employees, that means arguing for special accommodation from an otherwise generally applicable law on the basis of religious conscience.  In my experience as a religious-liberty litigator, it is much easier to be able to argue for such distinctive protection for religion if I can point out that, over on the Establishment Clause side of the First Amendment, religious symbols are also specially limited from benefitting from government promotion.  That argument from reciprocity has gut-level appeal to many who would otherwise be hostile to any special concern for religious liberty.  But we lose that argument from reciprocity if we always complain about religious symbols being specially barred from official government displays:  people respond that if religion wants more equal treatment in official pronouncements, it should also be equally subject to all of the laws in a modern welfare state no matter how burdensome the law.

I recognize that there are arguments on the other side, arguments for fighting on behalf of official religious symbols.  As Noah Feldman put it on the SCOTUS blog, people think that official symbols do matter because they really are a proxy for the most fundamental question affecting Christian legal theory, namely, "whether religious values should inform public policy choices or rather should remain a private matter, irrelevant to the state's public decisions and the public reason that justifies it."   

So setting aside the Establishment Clause issues per se, I'd be interested in other's thoughts:  should we care about official religious symbols?

Tom B.

June 29, 2005 in Berg, Thomas | Permalink | TrackBack (5)


In the inaugural issue of the University of St. Thomas Law Journal (Fall 2003, Volume 1, Number 1), I published an article titled What Do the Free Exercise and Nonestablishment Norms Forbid?  Reflections on the Constitutional Law of Religious Freedom.   In that article, I presented and defended what I still believe to be the optimal understanding of the establishment clause.  As it happens, Justice Scalia, in the Ten Commandments Cases this week, presented/defended a very similar understanding.   (So perhaps I am wrong after all!)   I'd love to know whether Bob Araujo, Rick Garnett, or anyone else is unwilling to concur in my judgment--and if so, why.   A PDF version of my article can be downloaded from this site; the relevant pages of the PDF version are 20-38.


June 29, 2005 in Perry, Michael | Permalink | TrackBack (0)

Defining "establishment"

I am so pleased and honored by Fr. Araujo's decision to join us at the Mirror of Justice.  And, I appreciate very much his call for an "answer" -- or something closer to an answer than what we have at present -- to the question, what is an "establishment" of religion for purposes of the First Amendment?  He writes:

My quest, and I suspect that of many others interested in the First Amendment, is for a solid (not “simple”) answer that will be a strong, reliable, and enduring guide for lawyers and judges who tackle First Amendment concerns. I believe that lawyers and judges of today can provide this answer that takes into account the concrete problems that the Founders were trying to address and not the imagined fears of litigants who believe that certain government action constitutes an “establishment” when in fact it does not.

Can we define, in a general, principled way, an "establishment" of religion?  Or, are we stuck with a litany of state actions -- e.g., composing prayers for recitation in government schools, direct funding of religious education, etc. -- that seem clearly enough to be "establishments", even if we cannot say why?

I wonder what Fr. Araujo would think if we were to embrace -- or, at least, start our inquiry with -- the discussion provided by Justice Thomas in last year's Pledge of Allegiance case, Elk Grove v. Newdow:

The traditional “establishments of religion” to which the Establishment Clause is addressed necessarily involve actual legal coercion: “The coercion that was a hallmark of historical estab­lishments of religion was coercion of religious ortho­doxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. L. Levy, The Establishment Clause 4 (1986). . . .  Even if “establishment” had a broader definition, one that included support for religion generally through taxation, the element of legal coercion (by the State) would still be present. . . .

It is also conceivable that a government could “estab­lish” a religion by imbuing it with governmental authority, . . . or by “delegat[ing] its civic authority to a group chosen according to a religious criterion[.]” . . .  A religious organization that carries some measure of the authority of the State begins to look like a traditional “religious establishment,” at least when that authority can be used coercively. . . .

It is difficult to see how government practices that have nothing to do with creating or maintaining the sort of coercive state establishment described above implicate the possible liberty interest of being free from coercive state establishments.


June 29, 2005 | Permalink | TrackBack (0)

What is "establishment"?

I have had some opportunity to reflect on Tom’s and Rick’s postings in the Scotus forum and have found their respective contributions thoughtful. I have had the additional opportunity to read and reflect on the Court's opinions. As a former teacher of Constitutional Law, I have often been troubled by the Supreme Court jurisprudence on the establishment component of the First Amendment. I am one of those individuals who thinks that First Amendment cases simultaneously raise establishment and free exercise issues. In the context of Monday’s decisions on the establishment question, free exercise issues gestate. But that is not the topic here today. The subject is this: what is “establishment.” How should it be defined? I am not aware of any Supreme Court definition of this important term that has general application. Historically, the Court has addressed illustrations of “establishment” that present concerns about government neutrality or the purpose of the government activity that is under scrutiny. In the context of the Kentucky case, an important paragraph that begins to address but fails to answer the question about the meaning of “establishment” appears on page 27 of the slip opinion:

The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U.S.1(1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment contains no textual definition of “establishment,” and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason.

My question concerns the search for the answer that is overdue. I am not pursuing a “simple answer,” but I am searching for a solid answer about the meaning of the crucial term “establishment.” Since Establishment cases began to surface in the late 1940s, the meaning of this vital term has haunted Supreme Court decisions but eluded definition presenting a general rule for broad, even universal, application. If human beings trained in a particular legal tradition could draft the term “establishment” (knowing that some compromise may have been involved in the drafting exercise that produced the final text), why is its meaning so elusive that it is impossible for human beings trained in the same system to assert that there is “no simple answer”? Is this a pretext for saying that there is no answer: simple, complex, or otherwise?

I think there can be an answer, and there should be one. I have been accused of being a perfectionist before, but it is not perfection I seek. My quest, and I suspect that of many others interested in the First Amendment, is for a solid (not “simple”) answer that will be a strong, reliable, and enduring guide for lawyers and judges who tackle First Amendment concerns. I believe that lawyers and judges of today can provide this answer that takes into account the concrete problems that the Founders were trying to address and not the imagined fears of litigants who believe that certain government action constitutes an “establishment” when in fact it does not. It would probably mean that some in the national community would not be pleased with such a “solid” answer, but I hasten to add that the two Establishment Clause decisions issued this week have brought little pleasure to anyone. But I digress. The law is not about pleasure. It is about right reason and its objective application. In the community of MOJ readers, I will suggest that the kind of reason of which I speak is a gift of God. Perhaps one day litigants and the courts will realize that the time has come to define what is constitutive of “establishment.” Then we will not have to rely on strained explanations distinguishing why the paying of Congressional and military chaplains from public funds is not an “establishment” but permitting public school prayer is.   RJA sj

June 29, 2005 in Araujo, Robert | Permalink | TrackBack (0)

Tuesday, June 28, 2005

Forgiveness: Pope Benedict's legacy?

My friend and Notre Dame colleague Dan Philpott has this essay, "Pope's Greatest Legacy Could Be Forgiveness", in the South Bend Tribune.  He writes:

What is now needed is a social ethic of forgiveness, one that explains when, how and under what circumstances nations ought to practice the principle. Were Benedict XVI to take up this challenge, he would be forging an important development in the long tradition of Catholic social thought, a tradition that offers a rich legacy of doctrines about the justice of war -- ones now ensconced in international law and U.S. military doctrine -- but that provides little guidance for societies like Iraq or Bosnia, or Rwanda or Northern Ireland, which have already been devastated by war or dictatorial rule and are now seeking to rebuild.

Forgiveness in politics is rare, critics will point out, and for good reason: It is utopian. But one day before Benedict XVI was elected, The New York Times carried the following headline: "Atrocity victims in Uganda choose to forgive." In the mid-1990s, South African Archbishop Desmond Tutu proposed that wounded countries have "no future without forgiveness" and encouraged it through his country's Truth and Reconciliation Commission. Half a decade earlier in Chile, President Patricio Aylwin called for national repentance for the torture and killing of thousands during the dictatorship of Augusto Pinochet. Militants and civilians, politicians and prelates have also granted and received forgiveness in El Salvador, East Germany, Northern Ireland, Guatemala and elsewhere.

Most of these voices advocate forgiveness as one of several practices in a larger process of reconciliation, complementary to the public telling of the truth about past injustices, reparations, apologies and, most of all, accountability for offenders. These are the ingredients of an ethic of forgiveness. Weaving them together and passing the product along to the world is a job for which a global moral leader with an impressive intellect -- like the new pope -- is uniquely suited. In an era when war is fueled anew by the deepest sorts of identities -- religious, ethnic, national, and civilizational -- forgiveness may well prove Benedict's greatest legacy.


June 28, 2005 | Permalink | TrackBack (1)

The Washington Post on the 10C's and Division

Here is today's Washington Post editorial, endorsing Justice Breyer's opinion in the Texas Ten Commandments case.   As I mentioned yesterday, Justice Breyer puts the "divisiveness" of religious expression at the heart of the inquiry into its constitutional validity.  The editors write:

In striking down the Kentucky counties' displays while allowing Texas's, the court sends a strong message that new displays created specifically to promote religion will get the most exacting of judicial scrutiny. But it also suggests that it will grandfather in longstanding monuments whose uprooting, as Justice Breyer put it, would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid." The court's approach may not be philosophically satisfying, but in practical terms, it isn't a bad way to evaluate public religious monuments.

My view, again, is that this approach actually is a "bad way to evaluate public religious monuments."  By the way, to say this is not to endorse the idea of Ten Commandments displays and similar monuments.  I'm inclined to agree with Tom Berg that such displays, and the surrounding litigation, distract us from the real religious-freedom challenges.


June 28, 2005 | Permalink | TrackBack (0)