Mirror of Justice

Another Judge Finds DOMA Unconsitutional

In the latest of a series of decisions striking down DOMA, today in Pedersen v. Office of Personnel Management, Judge Vanessa Bryant of the United States District Court for the District of Connecticut found Section 3 of DOMA to violate equal protection.  In her 100-plus page opinion, Judge Bryant, a George W. Bush appointee, conlcudes that "homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny."  Even so, she goes on to find that the statute fails to pass muster even under the rational basis standard.   

Scholarly Impact and Catholic Legal Education (Part One)

Taking the Scholarly Impact Ranking baton generously handed to us by University of Chicago Law Professor Brian Leiter (with his continued counsel), I led a team here at the University of St. Thomas (including librarians Valerie Aggerbeck, Debby Hackerson, and Mary Wells) in updating the ranking of American law schools by the Scholarly Impact of their collective faculties.   The “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured members of that law faculty.

Two weeks ago, the 2012 Scholarly Impact Ranking was announced on Brian Leiter’s “Law School Reports” blog and the full results and narrative may be found here.

Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value.  Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities (especially in an era in which law student debt is rising and job prospects are challenging).

In my view, this often (not always) reflects a false conflict between scholarship and teaching.  We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly reserarch and writing is complementary to greater depth in teaching.

When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!”  Especially during these challenging times, we as tenured faculty members need to step up and work even harder to achieve excellence in both responsibilities.

Moreover, it bears reminding, even if the teaching duties of tenured faculty were increased substantially during the academic year, the long glorious months of summer would remain.  At most law schools, few students are in school and few classes are being taught during the summer.  Given that luxury of uninterrupted weeks of work time, most tenured faculty have been given more than ample opportunity to produce one or two major works of scholarship each year.

(Note:  Along with Brian Tamanaha, Bill Henderson, and others, I do agree that law school accreditors should permit a greater diversity of approaches to legal education, including low-cost alternatives that employ primarily non-tenure-track faculty who teach higher loads year-round with no scholarly expectations.  While there are meaningful downsides to this lower-cost approach, such alternatives ought to be available to students who choose them, for reasons of economics or personal preference.  And, at most law schools, there is a vital and growing role for instructors, particularly in practice-oriented courses, who are not on tenure-track and have little or no scholarly expectations.)

I want to address today a more pointed question:  How important is scholarly impact to a Catholic law school?

For three reasons, I think the scholarly mission of the tenured (and tenure-track) law faculty takes on added importance for the Catholic law school:  (1) an intellectually engaged law school culture requires scholarly-engaged law faculty; (2) a scholarly-prominent Catholic law school is a strong witness for the intellectual vibrancy of scholars of faith; and (3) a Catholic law school through the scholarly work of its faculty influences for good the culture in which it is situated.

I’ll say a little more about the first of points below and then follow up with the other two points in separate posts later this week.

On my first point, a law school that is meaningfully Catholic in character will be grounded in the Catholic intellectual tradition, while giving careful attention to and including faculty who are grounded in and work from other intellectual traditions and scholarly movements.  A law school cannot be an intellectually vigorous place without faculty who are engaged in the quintessential intellectual activity of scholarly research and writing.  One can best convey to students the excitement and meaning of intellectual discourse, along with the satisfaction of applying reason informed by theory to new situations, when one is doing that hard scholarly work oneself.

I recall a friend and law professor many years ago who referred in casual conversation with me to the faculty at another law school (that shall remain unnamed) as intellectually engaged because, even though no one on that faculty produced much scholarly publications themselves, the faculty gathered every couple of weeks in the faculty lounge to discuss a recent scholarly article written by someone elsewhere.  At the time, I thought how odd it would be to describe the faculty at a school of music as musically engaged, even though none of the faculty wrote music or played instruments, but instead gathered frequently to listen to and discuss music written and played by others.

If we are to bear witness to the Catholic intellectual tradition -- and other intellectual disciplines -- we must be thinking hard about those matters.  And that means writing about them.  We all know that a student can listen to a classroom discussion without thinking.  And, as we’ve all experienced, especially when trying to read an assigned text late in the evening, a person can read without thinking.  But no one can write without thinking -- at least to some extent.

By engaging in scholarly writing of our own, we enhance our ability to critically examine the previously published scholarship of others, and we frequently discover the greater persuasiveness of prior scholarly work when we take the time to examine it in our own work.  As I often am reminded in doing research, it is very easy to unfairly criticize the scholarly work that someone else has done, only to find when I actually engage with the same issues and materials in doing my own work, that the prior researcher did very well with what she had before her.  One is rightly skeptical of a purported scholar who pontificates on the work of others but has never done the heavy-lifting of laboring in that field himself.

More tomorrow.

Ignatius of Loyola

Today is the Feast of Saint Ignatius of Loyola, founder of the Society of Jesus. It's hard to think of a more consequential figure in Catholicism over the last 500 years, and, as Louis Dupre aptly argues in Passage to Modernity, Ignatius--most especially through the Spiritual Exercises--was an epochal figure in the making of the modern West. So on this feast day, watch Ennio Morricone conduct the music from "The Mission," give thanks for the work of the Jesuits, and consider what Ignatius wrought when he told Francis Xavier to "go set the world aflame."

Videos of Conference on State-Sponsored Religious Displays in the US and Europe

You can catch the video of our conference with the Libera Università degli Studi Maria SS. Assunta in Rome (including terrific presentations by Tom Berg and Judge Diarmuid O'Scannlain, as well as a lucid and deeply insightful talk by Silvio Ferrari) here.

Winters, Camosy & Garnett, cont'd

Michael Sean Winters has added to this discussion among him, Charlie Camosy, and me about politics, abortion, social-welfare policy, Catholic Social Teaching, prudence, and dissent.  His latest is here.  At some point, I realize, disagreement is what it is.  I am confident that my conclusions regarding, for example, the pressing need to rein in public-employee unions, reduce regulation, and reform entitlement programs do not proceed from first-order loyalty to a political party or from a misguided form of libertarianism, but from a faithful and informed effort to learn and confront the facts, and to consider which policies and programs are most likely, all things considered, to promote the common good, the protection of the vulnerable, and the flourishing of persons.  I hope that Winters shares my confidence, even though he has (obviously) arrived at different conclusions.

Three quick things:  I have to admit that I am not entirely sure Winters disagrees with what I have been saying to Camosy about abortion.  As everyone knows, overturning Roe would not end abortion.  But, I am insisting, Roe must still be overruled, because it was the misguided constitutionalization of a gravely wrong idea.  Yes, we need to "change our democracy," but an essential step toward changing it is removing (or reducing, as much as we can) the democracy-distorting and democracy-stifling force that is the Roe-Casey abortion regime.  A meaningfully pro-life legislator or citizen will not imagine that Roe is the whole ball game, but he or she cannot (in my view) endorse it.

Second, it is not my view that (quoting Winters) we or should "let tax policy, and economic policies more generally, off the hook" or that "Catholics can essentially think whatever they want on these subjects."  (It is my judgment that Catholics must support reasonably designed school-choice programs, for example!)  I'm no Randian, and Winters knows that I do not think Christians should be uncritical and unthinking fans of "modern ideas about the economy."  (And, we are both fans of Brad Gregory's The Unintended Reformation.) They also, though, should not romanticize pre-modern ideas about money, finance, production, investment, etc., or underappreciate all that (substantially) free people can achieve and have achieved through (substantially) free markets.  I join Winters in celebrating Gaudium et spes, but also Centissimus annus, with its (qualified) embrace of the free economy and its warnings about the potential dangers and dysfunctions of the "social assistance state." 

And, I appreciate, just as Camosy does, the challenge of figuring out the extent to which law can and should prohibit or deter various wrongs, but continue to think that Catholics should distinguish between the "practical" and "prudential" work that is involved in figuring out the best marginal tax rate and the question whether laws are tolerable that exclude vulnerable, disabled, and unborn persons from the political community's protection against violence.  

Of “Chicago Values,” Chicken, the Cardinal, Dead Fish, and Pigs

As Rob Vischer referenced last week (here and here), Chicago’s Mayer Rahm said that he supported Alderman Joe Moreno’s plans to deny Chick-fil-A’s application for a license to open a restaurant in his ward in the City of Chicago.

Moreno acknowledged that individuals like Chick-fil’A’s president Dan Cathy are entitled to their opinions, but warned ominously that “[t]here are consequences for freedom of speech (and) in this case the consequences are . . . you’re not going to have your first free-standing restaurant in Chicago.”  At a press conference Emanuel expressed his support for this saying that “Chick-fil-A’s values are not Chicago values.  They’re not respectful of our residents, our neighbors, and our family members.”  (See here and the video clip here).

Emanuel is well known as a crass political bully.  The former advisor to President Clinton, former Illinois congressman and former chief-of-staff to President Obama famously earned the nickname “Dead Fish” for sending a dead fish to a political pollster who delivered his polling results in an untimely fashion (see here and here) imitating the famous scene in The Godfather marking Luca Brasi’s death (see here).

Still, Emanuel is nothing if not politically savvy.  So, over the weekend, his press secretary “clarified” his remarks.   Notwithstanding the apparent meaning of Emanuel’s comments, she insisted that  “[t]he Mayor simply said the CEO did not share Chicago’s values.  He did not say that he would block or play any role in the company opening a new restaurant here.”

Still, when Emanuel was personally given the opportunity to walk-back his comments at another press conference today, “Rahmbo” (as he is sometimes called by friend and foe alike) decided to dig in with both heels.  When asked if he regretted his earlier comments he stood fast (see here).

 “No. I don’t” regret it, the mayor said under questioning at an unrelated jobs announcement.

“And the simple reason is, when it comes to values, there’s a policy as it relates to gay marriage. The values of our city are ones that welcome and recognize that and I will continue to fight for that.”

Yesterday, Chicago’s Cardinal Archbishop. Francis George, responded to Moreno's and Emanuel’s comments (here) and the question of same-sex marriage – the issue that gave rise to the controversy in the first instance.  George clearly sees the genuinely totalitarian implications of Emanuel’s remarks.

Recent comments by those who administer our city seem to assume that the city government can decide for everyone what are the “values” that must be held by citizens of Chicago.  I was born and raised here, and my understanding of being a Chicagoan never included submitting my value system to the government for approval.  Must those whose personal values do not conform to those of the government of the day move from the city?  Is the City Council going to set up a “Council Committee on Un-Chicagoan Activities” and call those of us who are suspect to appear before it?  I would have argued a few days ago that I believe such a move is, if I can borrow a phrase, “un-Chicagoan.”

The Cardinal goes to argue that “[n]either Church nor state invented marriage, and neither can change its nature.”  Rather, it “exists because human nature comes in two complementary sexes: male and female.”  He concludes by noting that:

People who are not Christian or religious at all take for granted that marriage is the union of a man and a woman for the sake of family and, of its nature, for life.  The laws of civilizations much older than ours assume this understanding of marriage.  This is also what religious leaders of almost all faiths have taught throughout the ages.  Jesus affirmed this understanding of marriage when he spoke of “two becoming one flesh” (Mt. 19: 4-6).  Was Jesus a bigot?  Could Jesus be accepted as a Chicagoan?  Would Jesus be more “enlightened” if he had the privilege of living in our society?  One is welcome to believe that, of course; but it should not become the official state religion, at least not in a land that still fancies itself free.

One might add that currently, same-sex marriage is not legal in the State of Illinois.  That is, the law prohibits the very thing that Emanuel says defines Chicago’s “values.”  Indeed, last year Governor Quinn signed legislation making civil unions available to same-sex couples expressly with the idea that the State was not recognizing same-sex marriage.  Given Emanuel’s comments, are we to conclude that the State of Illinois is “un-Chicagoan” and that the majority of people in the State who support traditional marriage are also unwelcome in the City?

Thankfully, at least some understand that the intolerance expressed by Mayor Dead Fish represents a serious threat to the freedoms of belief and expression that traditional liberals have long cherished.  (See here and here).

Liberal push-back aside, Pundit & Pundette is left to wonder (here) where is the outrage?  Isn’t the measured response to Emanuel’s comments vastly understated?  Shouldn’t the response instead be “How dare you threaten to use governmental power to punish people for their beliefs – not their practices, not the practices of their businesses – but the beliefs of those with whom you disagree!”  Outrage is indeed in order.

Given his hardball tactics, some may think “Dead Fish” is an appropriate nickname for Mayor Rahm Emanuel.  But his comments concerning Chick-fil-A suggest that he is really a pig who walks on two legs (see here).  

N.B.  The location of the first and so-far only existing Chick-fil-A in Chicago, is on the ground level of the Loyola University Chicago School of Law.  All are welcome.

More on Seventh Circuit En Banc Decision in Elmhurst and Political Judging

When the Seventh Circuit issued its en banc decision in Doe v. Elmhurst School District last week, ruling that a public school violated the Establishment Clause by holding commencement in a church, I was on an island in Puget Sound with limited internet access.

I appreciate Marc DeGirolami’s post last week critiquing the decision, with several quotations from the dissents, and kindly noting Judge Posner’s dissent citing to the empirical study that Michael Heise and I have conducted on Establishment Clause decisions in the lower federal courts.

Judge Posner’s dissent rightly calls the Supreme Court to task for its “formless, unanchored, [and] subjective” case law on the Establishment Clause, setting the stage for Supreme Court review in the Elmhurst case.

In our Michigan Law Review article, Ideology “All the Way Down”? An Empirical Study of Establishment Clause Decisions in the Federal Courts, we found that, holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establishment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President.

As we stated in the article, this is a most troubling departure from the aspirational ideal of neutral and impartial judging.

And, like Judge Posner, we place a significant share of the blame on the Supreme Court’s Establishment Clause jurisprudence, which we described as an “attractive nuisance for political judging.” When too much room is left for judicial discretion, at least in such a highly contested and politically prominent area of constitutional law as Church and State, judges are likely to end up relying on personal premises, because there is no more objective standard to apply.

The (potentially) good news is that we also found that the Supreme Court’s recalibration of Establishment Clause doctrine (measured by a precedent variable) has made a measurable difference in outcomes in the lower federal court, although it has not (yet) reduced political or ideology disparities among ruling judges in the lower federal courts.  Thus, we have some optimism that a continued movement by the Supreme Court away from a subjective xxx to a new jurisprudential regime could arrest the unsavory political influence or at least reduce it.

We’ll all have to stay tuned to what the Supreme Court does next – perhaps in the Elmhurst case itself.

The Church's social teaching and criticizing current social-welfare programs (updated)

I join Michael Sean Winters is thinking that Catholics in the public square -- especially those of us who are interested in law and politics, and engaged in policy debates -- should be especially careful to avoid partisan hackery (by which I mean something like the practice of employing arguments and investigating and presenting facts not with an eye toward figuring out what is the best thing to do, but in order to gussy up one's prior decision to do what one can to promote a partisan agenda).  (Of course, it's always easier to see hackery on display in the interventions of those with whom one disagrees.  And, hackery should be distinguished from error.)

I disagree, though, with what seems to be his suggestion that it constitutes an "attack" on, or "dissent from", the Church's social magisterium to say, as George Weigel did recently, that "Catholic default positions in favor of shoring up, even expanding, the post-World War II American social welfare state must also be re-examined because of certain undeniable realities. Catholic social doctrine is a tradition of moral realism: it takes facts seriously."

The Church's social teaching, in my view, is communitarian, but not collectivist.  It emphasizes society, but it is not statist.  It proposes an account of the person -- a moral anthropology -- in which relationship, embeddedness, solidarity, and dependence are emphasized, but insists at the same time on the equal dignity, the transcendant dignity and destiny, and the freedom (correctly understood) of every individual person. 

So, as I see it, Catholics whose politics are on the "progressive" left have to be careful not to equate the Church's affirmation of "society" with a default preference for government or state action.  And, Catholics whose politics are on the "conservative" right have to be careful not to allow an appropriate apppreciation for the facts that the society (like the family and the Church) is prior to and different from the state, the competence and legitimate authority of which is limited, to become a crude, knee-jerk, anti-government stance.

It cannot be the case -- and it is not the case -- that embrace of the Church's social teaching and magisterium requires, or even advises, us to support current policy with respect to, say, social-welfare programs and spending, or public-sector unionism.  It is sometimes hackery, but in any event it's mistaken, to assert (as some in recent months have done) that, "because the Church supports unions, it's contrary to Church teaching to criticize public-employee unions," or to claim that "because the Church teaches that the political community has an obligation to the vulnerable, it's contrary to Church teaching to express concerns about the costs, efficiency, and long-term sustainability of current social-welfare-spending practices." 

It is entirely possible -- and it is not "dissent" from the Church's teaching to say that it's possible -- that, as Weigel suggests, the post-World-War-II social-welfare state is in trouble (and not simply because the "1%" are allegedly failing to pay their "fair share") and that Catholics, Catholic leaders, and Catholic bishops should be thinking about whether new, creative, sustainable models for promoting the common good and protecting the vulnerable are warranted and possible.   

Of course -- as the President might say, "let me be clear":  It is not the case that we should, or that Catholics may, give up on solidarity or on using political and other resources and power to care for the vulnerable.  No one is saying that.  We might well conclude that the current regime, all things considered, works well enough, and that it should be retained and repaired, rather than re-imagined and re-invented.  But, we might conclude otherwise.  (We should certainly conclude otherwise with respect to the "teacher-unions v. school choice" debate.)  It has to be, though, (if we hope to avoid hackery) that whether or not a proposal is sound, and whether or not it is authentically "Catholic", does not depend on the extent to which it is consonant with the status quo, or the platform of the Democratic, or Republican, Party in 2012.  (Yes, this is true whether we are talking about Medicaid, or about comprehensive immigration reform.)

UPDATE:  To say what I said above is not to say that any particular Republican politician or proposal is correct.  I wouldn't have thought this needed to be said, but some e-mails I've received make me think that maybe it is.  My point is, I think, a pretty general one:  It's not the case that calling into question our current social-welfare, taxation, and public-sector-union-related policies and practices -- on the ground that they, or some parts of them, are unsustainable, inefficient, ineffective, or unjust -- constitutes "dissent" from, or an "attack" on, the Church's social doctrines.  I embrace entirely -- at least, I do the best I can to understand, embrace, and apply them -- the Church's social teachings and their premises. 

UPDATE:  Winters responds to me, here.  Hey, he spells my name right!  (insert smiley-face emoticon here.)  Like Winters, I think it is important to identify and engage what he calls "the political realities", but he and I have a very different understanding, it appears, of what those realities are. 

UPDATE:  And, Charlie Camosy responds, here.  Charlie's last paragraph, I think, suggests an equivalence -- one that, in my view, we should reject -- between "prudential" judgments when it comes to social-welfare programs (i.e., "what's the best way to set up a taxation-and-social-welfare-spending regime in order to, all things considered, get the best results?") and the "I'm pro-life but think we should continue excluding unborn children, because they are unborn, from the protections the law provides to other human beings against lethal violence" position. 

So, Charlie asks, "It would also be interesting to see if Weigel (and Garnett) would accept the same doctrine/policy distinction when it comes to life issues."  I would not accept it, and don't think that I should, and I wouldn't have thought Charlie would, either.  It's not, in my view, the "same doctrine / policy distinction."  Certainly, I agree, to identify a moral truth is not to identify the best, let alone the morally required, policy or law.  The Church does not purport to teach what is the best way to structure, all things considered, a taxation regime.  It does teach, though, that it is fundamentally unjust to discriminate, in the way that our abortion laws do, against one class of human persons.  It's an old argument, I realize -- it's one that we kicked around a lot during the run-up to the last election, when then-Sen. Obama was characterized by some as the pro-life candidate.  But, in my view, to be "pro-life" is not only to think we should hope for, and try to find strategies for, reducing the number of abortions; it is also -- I believe it has to be -- about rejecting the anti-Catholic premises about human dignity and equality that our abortion laws reflect.  (This is a different question from the "for which candidate, given all the givens, should we vote?" question.)

STILL MORE UPDATES:  Charlie Camosy responds to my update, here.  I think he is wrong, though, when he writes this:

[C]an we really say that her support of pro-choice laws and justices (on the basis described above and no other) dissents from Church doctrine?  At least if we set up the doctrine/policy relationship the way that Garnett and Weigel have done, it seems that she has not.  Our disagreement with her is about practical matters of public policy, something about and over which Garnett and Weigel claim the institutional Church has no particular expertise or authority.

Again, I think Charlie is employing a comparison, and suggesting an equivalence, that does not work.  The Church does teach that the positive law should protect unborn children from lethal violence; it does not only say "abortions cause the deaths of human beings and public policy should aim at reducing their number."  For example, at Pars. 2270 ff., the Catechism provides (among other things) that:

"The moment a positive law deprives a category of human beings of the protection which civil legislation ought to accord them, the state is denying the equality of all before the law. When the state does not place its power at the service of the rights of each citizen, and in particular of the more vulnerable, the very foundations of a state based on law are undermined. . . . As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights."

The legislator Charlie hypothesizes is voting to prevent the positive law from doing what the Church teaches it "must" do, it seems to me.

Douthat calls for candor

Ross Douthat's latest NYT column closes -- after discussing (inter alia) the HHS mandate, the Chick-Fil-A controversy, the German circumcision debate, etc. -- with this:

It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held.

It would be refreshing, though, if it were expressed honestly, without the “of course we respect religious freedom” facade.

If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.

There, didn’t that feel better? Now we can get on with the fight.

"Building a Culture of Religious Freedom"

The text of Archbishop Chaput's excellent lecture, "Building a Culture of Religious Freedom," is available here, at Public Discourse.  For me, given my own work and interests, this part stood out:

Our political system presumes a civil society that pre-exists and stands outside the full control of the state. In the American model, the state is meant to be modest in scope and constrained by checks and balances. Mediating institutions such as the family, churches, and fraternal organizations feed the life of the civic community. They stand between the individual and the state. And when they decline, the state fills the vacuum they leave. Protecting these mediating institutions is therefore vital to our political freedom. The state rarely fears individuals, because alone, individuals have little power. They can be isolated or ignored. But organized communities are a different matter. They can resist. And they can’t be ignored.

This is why, for example, if you want to rewrite the American story into a different kind of social experiment, the Catholic Church is such an annoying problem. She’s a very big community. She has strong beliefs. And she has an authority structure that’s very hard to break—the kind that seems to survive every prejudice and persecution, and even the worst sins of her own leaders. Critics of the Church have attacked America’s bishops so bitterly, for so long, over so many different issues—including the abuse scandal, but by no means limited to it—for very practical reasons. If a wedge can be driven between the pastors of the Church and her people, then a strong Catholic witness on controversial issues breaks down into much weaker groups of discordant voices.

His assessment of the current scene is sobering, but he ends on a welcome, hopeful, but challenging note:

If we want a culture of religious freedom, we need to begin it here, today, now. We live it by giving ourselves wholeheartedly to God and the Gospel of Jesus Christ—by loving God with passion and joy, confidence and courage; and by holding nothing back. God will take care of the rest. Scripture says, “Unless the Lord builds the house, those who build it labor in vain” (Ps 127:1). In the end, God is the builder. We’re the living stones. The firmer our faith, the deeper our love, the purer our zeal for God’s will—then the stronger the house of freedom will be that rises in our own lives, and in the life of our nation.