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.

Tuesday, July 30, 2013

The Feast of Saint Ignatius of Loyola Redux


Readers of the Mirror of Justice may recall that two years ago on the Feast of Saint Ignatius of Loyola I posted at this site a pivotal segment of the Formula of the Institute by which the Society of Jesus was recognized by the Holy See back in the mid-sixteenth century. The link to my previous posting is HERE. A principal reason for posting then was to help readers understand why there is a Society of Jesus. The myths abound, but it is good to know the reality.

Since July of 2011 when I last posted on the subject of the feast, some things relevant to this memorial which the Church celebrates on July 31 and to the role of the Society of Jesus in the world (including the realm of education) have changed—whether for the better or not, I shall leave for another day. But one major change is clear as we have our first Jesuit pope, who is and remains a son of Father Ignatius. In spite of what others may argue or suggest, he remains a Jesuit until he is dismissed from the Society. I do not see any reason to justify this.

Still, I am asked by the curious, the faithful, and the skeptical a similar question: “So, what do you think of the Jesuit pope?” I think the intention underlying this question is to extract my impression of what the pope will do. My fundamental answer is based on the reason why Father Ignatius established a religious institute which was approved by Pope Julius III in 1550 under the Formula of the Institute. Here are some of the critical details that go into the formulation of my answer.

1. A man enters the Society of his own free will—because he desires to serve and follow Christ as a Soldier of God beneath the banner of the Cross. Once a member, regardless of his grade within the order, a Jesuit must continue to serve God and the Church with fidelity. Because he is a soldier, he may well face hostility from those forces pitted against God and the Church, but still he must serve the Triune God and the Church.

2. In particular, the Jesuit’s service to God and the Church is under the direction of the Roman Pontiff or whoever the pope appoints as his delegate. Since the current pope is a Jesuit, it is clear that this pledge of service which follows Pope Francis is not to serve himself personally but to attend with diligence and fidelity the office he holds which necessitates aiding God and the Church in whatever way he can.

3. The pope’s Jesuit service (and this applies to all members of the Society) can manifest itself in a multitude of contexts; however, there is one central objective of the order, i.e., to strive (a strong transitive verb) for two things: (a) the defense and propagation of the Catholic faith, and (b) the progress of souls in Christian life and doctrine. The tenets of the Catholic faith which Jesuits are called to defend and propagate (not sacrifice and frustrate) are revealed by God’s truth and the long history of teachings that the Church has established upon God’s truth. The progression of a person’s Christian life is to be accord with God’s truth as contained in the doctrines the Church has recognized over two thousand years. In this fashion, souls make progress by avoiding sin and seeking Christian virtue.

4. While the particular ministries for achieving the objectives of the Society of Jesus are diverse (education is a principal one), it is clear that another element of what the pope must do is to preserve, protect, and offer vigorously the sacraments of the Church. One of the sacraments is confession (the sacrament of reconciliation). It is through this sacrament that a penitent expresses his or her responsibility for offending God and the neighbor by freely choosing to sin. Yet, sin can be forgiven if the penitent seeks God’s mercy and forgiveness through the Church’s ministers who are competent to offer this sacrament. Pope Francis surely is a member of this group of ministers of this sacrament as he has already demonstrated on numerous occasions.

5. The sacrament of reconciliation is crucial the Church, her members, and the Society of Jesus because, as the Constitutions of the Society of Jesus note, the end of the Society is directed toward the salvation of souls—not only of the subject Jesuit but also of our fellow human beings whom we serve in many ways. The sinner is and must be loved; however, this does not translate into loving the sin as well. To the contrary, the sin must be identified and explanation offered as to why it thwarts God’s plan for human salvation. The reason why salvation is necessary is because of the existence of Original Sin and the commission of our own sins. Sadly, with our free will, sin is not a relic of the past, and this is something that Pope Francis has not forgotten and will continue to teach us even as he continues to reach out to all of us who sin. The sinner is not identified by who he or she is; the sinner is identified by what he or she does; what he or she fails to do; or, what he or she thinks of doing.


So, when the media, Jesuits, Catholics, and anyone else offer opinions about what the pope will do or what he should do, the authentic answer to this and related issues must be viewed through the lens of why the Society of Jesus exists. It does not exist to agree with popular culture; it does not exist to confirm the opinions of any elite; it does not exist to rationalize the license of freedom untethered by the responsibility for the common good and obeying God and His laws which is a duty of all Christians. The Society of Jesus does exist for the salvation of souls and saving the human person from sin. That is what Pope Francis is about because that is what a Jesuit is about.


RJA sj 

July 30, 2013 in Araujo, Robert | Permalink

Walsh on the Third Circuit's Contraception Mandate Decision

Mirror of Justice friend and University of Richmond law professor Kevin Walsh has a thoughtful and informative post about the Third Circuit's recent decision in Conestoga Wood Specialties Corp. v. US Department of Health and Human Services, which I noted and discussed here. One thing that Kevin's post makes me think is that given the nature of the legislative purpose for enacting RFRA, it is probable that the meaning of "exercise" was intended to be close to the constitutional meaning (pre-Smith). It would have been useful to have more statutory analysis of this type from the Third Circuit. From Kevin's post:

Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays. 

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.

July 30, 2013 in DeGirolami, Marc | Permalink | Comments (6)

Response to Marc About Reciprocity and the Political "Middle"

Because of vacation travel, I've been delayed in responding to Marc's good questions about my suggestions that religious-liberty claims for traditionalist believers need to appeal to "reciprocity" (accompanied by recognition of others' claims) and need to seek to reach the political/ideological "middle."  Marc asks "why--on what grounds--[Tom] holds (or seems to hold) to the comparatively sunny view of [the effectiveness of] sympathetic reciprocity in politics," compared with a view that "the acceptance of a 'live and let live' ethic [is] more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends--in sum, is it far more dependent on considerations of cultural and political power?"  He also asks on what basis I might say "that the middle's opinion of the strength and importance of the rights in conflict"--same-sex marriage and traditionalist beliefs--will lead them "to believe that trade-offs of rights are warranted, and that a policy of 'live and let live' is justified."

First, I think my advice about same-sex marriage and religious liberty rests as much on a realistic judgment as on a general "sunny" judgment (that opposing views easily and quickly reciprocate in politics).  I'm looking to the cultural and political context of this issue, and saying (in part) something closer to "Reciprocity here is the worst strategy, except for all the others."  I just don't see what's going to turn around the march toward increasing acceptance/endorsement of same-sex marriage.  I'm not sure I need to rehash the strength of that shift (from 39 to 50 percent over 2008-2013, a move of "quite unique" speed, according to a Pew researcher quoted in this Wall Street Journal commentary piece), or the heightened support among young vs. older Americans that means the shift will likely continue (70 percent support among 18-29-year-olds compared with 41 percent among those 65+ and 46 percent among those 50-64, according to Gallup).  And while I acknowledge (happily) that opinion has halted on, even turned away from, endorsement/approval of abortion, the evidence of which I'm aware suggests that this stems from factors, like ultrasound images, that have made the unborn visible and thus elicited sympathy for them.  I see no parallel factor concerning same-sex marriage.  The visible cases that move people all involve gay couples, and the children they are raising, who are harmed by an inability to marry.  (The exceptions are impositions on potentially sympathetic religious objectors, but sympathy there leads to protecting objectors' religious liberty, not denying same-sex marriage.)  In this context, I judge, the strategy of stopping the recognition of same-sex marriage is likely to make traditionalists, and their own claims to liberty, unsympathetic to an increasingly number of people--again, people in the middle whose views will be crucial.  And when stopping recognition is the main issue, appeals to traditionalists' religious liberty are easily dismissed as mere ploys for that purpose (I've seen this reaction in states where I've worked for stronger religious liberty protections).  These dynamics, it seems to me, make prioritizing opposition to same-sex marriage recognition a much less promising strategy for traditionalist terms, in practical terms, than is appealing to reciprocal recognition of rights.

With all that said, I do believe that reciprocity is, not infrequently, effective in strengthening liberties.  One example is the easing of intolerance against American Catholics in the mid-20th century.  Many things caused that, but among them (as I've described here, echoing many other scholars) was that the Church announced its commitment to religious liberty in principle, moving away from doctrines that treated religious liberty for non-Catholics--or could reasonably be seen to treat it--as merely a prudential matter, applicable only when Catholics weren't a majority.  (To be clear, my piece argues that the anti-Catholicism was always unwarranted, an overreaction, given American Catholics' actual longstanding support for religious freedom; nevertheless, the official doctrines gave even reasonable people pause.)  Today's situation seems analogous.  A significant religious group (Catholics then, traditionalists today) is capable at some times and places of restricting or disfavoring others' important interests (religious liberty then, marriage today), but is itself subjected to restriction and intolerance (anti-Catholicism, coercion of objectors to gay marriage), in part because of its attempts (or perceived attempts) to disfavor/restrict others.  In the mid-20th century, Catholicism's increasingly explicit affirmance of others' liberty (culminating in Dignitatis Humanae) contributed to reciprocal responses: the end of the "no Catholic president" rule, acceptance of Catholics in other parts of public life, etc.

(I concede that the story above is complicated--the price that society imposed for increased tolerance in the mid-20th century arguably included some weakening of Catholic identity, and things have taken other negative turns since then--but still, I think, the advance at mid-century was real and good for the Church in many respects.  My argument also doesn't depend on equating the two situations in every way: I understand that many will argue the principled embrace of religious liberty was consistent with deepest Christian principles while acceptance of same-sex marriage is not.  The point of analogy is simply that greater recognition of others' rights and interests can help increase reciprocal recognition of one's own.) own's one.)

More generally, many of our liberties rest in part on commitments of reciprocity.  We accept the  protection of rights of free speech and religious exercise, even for views with which we (deeply) disagree, in part because we expect return commitments that our own speech will be protected.  Historically, disestablishment of religion happened partly as a matter of reciprocity: churches decided to give up seeking legal supremacy or favoritism based on the expectation that other churches could not get those goodies either.  It's true that such decisions were partly pragmatic: with increasing pluralism, each church came to realize it might be in the minority.  But reciprocity as an operative principle can be triggered by pragmatic considerations and still have moral meaning and force (principle and pragmatics often coexist and interact in complex ways).  Marc, you include "effective rhetoric" among the "considerations of cultural and political power" that might determine things.  Reciprocity can be both a fair principle and (because it is fair) "effective rhetoric"--and, for reasons I've already given, the best (least imperfect) strategy for traditionalists today.

Finally, Marc asks how we know what the political "middle" thinks, both about same-sex marriage and about religious liberty.  I've already said why I think the increase in support for the former will continue.  As to religious liberty, there are reasons to think it has appeal (not unlimited, but still meaningful) to many people in the middle even if they disagree with the particular religious view claiming the freedom.  Let me give one example, if I can indulge myself with a quote from my article on why progressives should support freedom for religious organizations (an article that makes the bet to which Marc is asserting his friendly challenge):

Quite a few liberal Catholics, it appears, care about the religious-liberty issues.  The Pew Center in 2012 found that 56 percent of Catholics agreed with the bishops’ concerns about religious liberty—on which the [HHS] mandate was the key issue—versus 41 percent of Americans overall. The 56 percent must include many Catholics who dissent from the bishops on contraception itself, since we know that large majorities so dissent, and since in the Pew poll 51 percent of Catholics “sa[id] Barack Obama best reflects their views on [other] social issues such as abortion and gay rights.”

[*] Catholics Share Bishops’ Concerns About Religious Liberty (Aug. 1, 2012), http://www.pewforum.org/Politics-and-Elections/Catholics-Share-Bishops-Concerns-about-Religious-Liberty.aspx.  A June 2012 poll showed that 57 percent of Americans, and a higher percentage of Catholics, favored exempting religious organizations.  See New Poll: HHS Mandate Hurts Obama with Women, Catholics, Life News (June 19, 2012),  http://www.lifenews.com/2012/06/19/new-poll-hhs-mandate-hurts-obama-with-women-catholics/.

I include liberal Catholics among the center-left many of whom who are reachable on religious-liberty issues (it also obviously includes non-Catholics and some non-believers).  Appealing to reciprocity and aiming to reach moderate supporters of same-sex marriage are a bet, I'll admit.  But I think they're the best bet for traditionalists' religious liberty under the circumstances today and in the foreseeable future.

I should be straightforward and acknowledge my own view on merits of these matters: I'm ultimately not convinced by the arguments against same-sex marriage, and I think the better prospects for reaffirming the value of marriage as an institution for social stability lie in including same-sex couples in the institution.  But I think my strategic advice still holds up independent of my own views on the merits.  Marriage traditionalists will have to be able to assert, credibly, arguments for reciprocity of rights, in a society that increasingly disagrees with them on the matter of same-sex marriage.  

July 30, 2013 in Berg, Thomas | Permalink | Comments (1)

Monday, July 29, 2013

Pope Francis Indicates a Possible Shift in View Toward Homosexuality

The Wall Street Journal has reported that when asked about the Church's position on gay priests, he responded, "Who am I to judge a gay person of goodwill who seeks the Lord? [...] You can't marginalize these people." In the wake of the sexual abuse scandals, many gay priests and seminarians felt judgment and pressure to leave on the basis of orientation. To the extent that such judgment and pressure comes from bishops and those responsible for priestly formation, it would seem that Pope Francis is likely to find it problematic.

July 29, 2013 in Powell, Russell | Permalink | Comments (0)

Gray on Machiavelli and the Weakness of Law

This is a bracing essay by the skeptical philosopher John Gray about legal scholar Philip Bobbitt's new book on Machiavelli. Way back in the stone age, I studied Machiavelli and Guicciardini (whose immense Storia d'Italia is a relatively unknown masterpiece) in graduate school and wrote my master's thesis about contemporary misinterpretations of Machiavelli's writing (I called this "Machiavellianism," and I argued that the aristocrat Guicciardini had a much more acute understanding of Machiavelli than did most contemporary commenters). But Gray's piece actually says something larger about the comparative weakness of law as against politics. And what he says has direct application to the way in which it is fashionable to discuss many legal issues--from religious freedom to international human rights. Here is a fragment of the essay:

One of the peculiarities of political thought at the present time is that it is fundamentally hostile to politics. Bismarck may have opined that laws are like sausages – it’s best not to inquire too closely into how they are made – but for many, the law has an austere authority that stands far above any grubby political compromise. In the view of most liberal thinkers today, basic liberties and equalities should be embedded in law, interpreted by judges and enforced as a matter of principle. A world in which little or nothing of importance is left to the contingencies of politics is the implicit ideal of the age.

The trouble is that politics can’t be swept to one side in this way. The law these liberals venerate isn’t a free-standing institution towering majestically above the chaos of human conflict. Instead – and this is where the Florentine diplomat and historian Niccolò Machiavelli (1469-1527) comes in – modern law is an artefact of state power. Probably nothing is more important for the protection of freedom than the independence of the judiciary from the executive; but this independence (which can never be complete) is possible only when the state is strong and secure. Western governments blunder around the world gibbering about human rights; but there can be no rights without the rule of law and no rule of law in a fractured or failed state, which is the usual result of western sponsored regime change. In many cases geopolitical calculations may lie behind the decision to intervene; yet it is a fantasy about the nature of rights that is the public rationale, and there is every sign that our leaders take the fantasy for real . . . .

If Bobbitt misreads Machiavelli, it is because Machiavelli is as much of a heretic today as he ever was. Resistance to his thought comes now not from Christian divines but from liberal thinkers. According to the prevailing philosophy of liberal legalism, political conflict can be averted by a well-designed constitution and freedoms enshrined in a regime of rights. In reality, as Machiavelli well knew, constitutions and legal systems come and go. According to Bobbitt, “The lesson of Machiavelli’s advice to statesmen is: don’t kid yourself. What annoyed . . . Machiavelli was the willingness of his contemporaries to pretend that quite simple formulations were adequate to the task of governing in the common interest.” Plainly, the market state is a formula of precisely this kind.

The true lesson of Machiavelli is that the alternative to politics is not law but unending war. When they topple tyrants for the sake of faddish visions of rights, western governments enmesh themselves in intractable conflicts they do not understand and cannot hope to control. Yet if Machiavelli could return from the grave, he would hardly be annoyed or frustrated by such folly. Ever aware of the incurable human habit of mistaking fancy for reality, he would simply respond with a Florentine smile.

July 29, 2013 in DeGirolami, Marc | Permalink | Comments (0)

Sunday, July 28, 2013

Programming note

I'll be spending the next week in lovely Union Pier, Michigan with my family.  During this time, all comments will be "moderated" (that is, they will be held until approved).  I will do my best to quickly approve appropriate comments.  In the meantime, Happy (in advance) Month of the Immaculate Heart of Mary! 

July 28, 2013 in Garnett, Rick | Permalink | Comments (0)

Saturday, July 27, 2013

Baude on the Third Circuit's Contraceptive Mandate Decision

Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot "exercise" religion and that they therefore can have no constitutional free exercise or RFRA claims.

Will asks some good questions about the court's analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions--the distinction between "for profit" and "nonprofit," and the distinction between "religious" and "secular." There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can "exercise" religion. But they do not appear in the majority's opinion.

There is another odd portion of the majority's opinion that Will does not discuss. Will's post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority's argument was surprisingly short:

Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).

Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA.

With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That's not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority's own preferred approach to divining the meaning of "exercise" in the Free Exercise Clause is to engage in what it calls a "historical" analysis. But presumably to divine the meaning of the statutory language, one would begin with the "plain meaning" of the words in the statute. The court uses the words "plain meaning" in the first paragraph, but it does not discuss plain meaning. One might also, depending upon one's views, talk about or maybe just mention legislative intent. Perhaps the usage is the same in the RFRA as in the Free Exercise Clause; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be mistaken.

ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term "tax" as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that "tax" in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term "exercise." See 42 USC s. 2000bb-2(4) (exercise of religion "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief") (emphasis added).

July 27, 2013 in DeGirolami, Marc | Permalink

Thursday, July 25, 2013

Bipartisan Effort by Politicians to Enhance Human Dignity -- Yes, It's Really True!

For those who cynically believe that our elected officials are hopelessly divided by party and generally focused on materialistic concerns that fail to consider higher ideals, yesterday's vote in the House of Representatives to restrain surveillance of Americans by the National Security Agency is an example of the best in political deliberation and courage.

As the New York Times reports (the whole article is available here):

The 205-to-217 vote was far closer than expected and came after a brief but impassioned debate over citizens’ right to privacy and the steps the government must take to protect national security. It was a rare instance in which a classified intelligence program was openly discussed on the House floor, and disagreements over the  program led to some unusual coalitions.

Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.

I've blogged previously here at Mirror of Justice about why we should be gravely concerned about our government collecting massive amounts of information, from which government agents could assemble a detailed dossier on a person, thus effectively treating all of us as future criminal suspects.  Catholic teaching affirms the moral weight of privacy and confidentiality, as a matter of respect for human dignity.

Although the political leadership of both parties -- from President Obama to House Speaker Boehner -- would prefer that we simply fall in line and accept that the NSA's sweeping surveillance is good for us, the vote in the House shows that a growing number of our representatives, responding to a growing number of Americans, are demanding a thorough examination and a full-fledged debate.  We will hear more in the future.

July 25, 2013 in Sisk, Greg | Permalink | Comments (1)

Wednesday, July 24, 2013

Garnett on "The Freedom of the Church"

I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church."  I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc.  Others -- including Michael Moreland, Patrick Brennan, Tom Berg, Steven Smith, etc. -- have, too (and better).  Anyway, the paper is called "'The Freedom of the Church':  (Towards) an Exposition, Translation, and Defense."  Here is the abstract:

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

As Legal Theory king Larry Solum would say, "download it while it's 'hot'".  

July 24, 2013 in Garnett, Rick | Permalink | Comments (8)

DeGirolami, on "why standing matters", at Commonweal

Adding to the recent pieces at Commonweal by Michael Perry and me commenting on the Windsor and Perry decisions is Marc's excellent essay, "Why Standing Matters" (and, it does).  Here is a taste:

The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly: The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict. Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers. - See more at: http://www.commonwealmagazine.org/why-standing-matters#sthash.1NvZ6LCb.dpuf

July 24, 2013 in Garnett, Rick | Permalink | Comments (3)