Mirror of Justice

Complicity Cornucopia

Just in time for Thanksgiving, your horn of plenty of accomplice liability runneth over. I recently noted Sherif Girgis's smart piece and you ought also to take a look at Gideon Yaffe's terrific recent work. In this post I want to highlight the work of my friend Jim Stewart (UBC), who specializes in comparative criminal law and writes about corporate pillage in Africa (a conducive place to think about problems of accomplice liability).

Here is a succinct and very useful piece on complicity. I especially like Jim's methodological approach, one which seems to pair naturally with a comparative perspective. Rather than constructing a top-down account of the best understanding of complicity, Jim identifies several recurring problems or themes in the area and discusses various solutions that have been offered by different jurisdictions. It is an approach which, Jim says, "exposes blind spots in the various schools of thought about accomplice liability." One particular section I thought provocative was the discussion of the relationship of complicity and justification (pp. 10-11). Jim argues for using the affirmative defense of justifcation to obviate the need to decide between a purpose or knowledge mens rea requirement (he relies on a British case involving the sale of contraceptives by doctors to minors, who were then implicated in charges of statutory rape). The choice of evils defense is a familiar repository for the problems of moral nuance, but I'm not sure the law of complicity ought to be let off the hook this way. At any rate, read the piece, and also take a look at Jim's newest piece on corporate criminal responsibility (h/t Larry S.).

Also, here is Jim's extremely well-written and powerful editorial last week about the moral outrage of corporate pillage in Africa--wrongdoing which, of course, presents the problem of corporate complicity in stark terms. 

Podcast on Town of Greece v. Galloway

My colleague, Mark Movsesian, and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center for Law and Religion's first in a planned series of podcasts on law and religion cases and issues. 

We tried to be fairly complete in our discussion of the case, and I hope that this podcast might be particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.

Lincoln's Gettysburg Address was the address Lincoln gave at Gettysburg

Perhaps today, on the 150th anniversary of the Gettysburg Address, it is worth remembering that Lincoln's Gettysburg Address is the address Abraham Lincoln gave at Gettysburg. It is the words he spoke on that occasion. The drafts made in preparation of the Gettysburg Address are not the Gettysburg Address. In the Gettysburg address---the actual address, the words Lincoln spoke---the Great Emancipator referred to the United States as "this nation, under God." Period. End of story.

http://www.firstthings.com/article/2010/07/god-and-gettysburg

Notice the framing of the question . . . hear the bells?

Sherif Girgis, Ryan Anderson, and I will, of course, be publishing a reply to Charles Reid's critique of what he claims is our argument. In the meantime, though, I'm wondering whether there are any MoJers who hold that "love makes a marriage." I also wonder whether any MoJers believe that Sherif, Ryan, or I (or, for that matter, anyone), believes that "sex makes a marriage." Just pause for a minute and think about the manifest implausibility of these propositions. Professor Reid's framing of the dispute, and his characterizations of his own side's position and that of those of us on the other side, should set off alarm bells in the reader's mind. Our aim in replying will be to show that those alarm bells are fully warranted.

What Is Marriage?

MOJ readers will recall the important article-turned-book:  What Is Marriage?  Man and Woman:  A Defense (2012), by Sherif Girgis, Ryan T. Anderson, and MOJ’s Robert P. George.  Andrew Koppelman, in an article in a forthcoming issue of the University of Illinois Law Review—an article in which in he criticizes the book—has described the book as “the leading statement of the case against same-sex marriage . . .”  (The Koppelman article is here.) University of St. Thomas law prof Chuck Reid has just posted, over at ReligiousLeftLaw, some comments on the central argument of the book.  The comments begin with this:  “Does love make a marriage?  Or does sex?  And if sex makes a marriage, then what kind of sex?  These were central themes of a debate I participated in at the University of Notre Dame on November 9th, where I discussed these questions with two proponents of a highly traditional understanding of the marriage relationship, Ryan Anderson and Sherif Girgis.”  Reid’s comments are available in full here.

"Christian humanism" and ideology

The website The Imaginative Conservative has this interesting essay, by Bradley Birzer, called "Making Modernity Human:  Can Christian Humanism Redeem an Age of Ideology."  It's about, inter alia, Lewis, Tolkien, Gilson, Maritain, Kirk, O'Connor, etc.  It ends with this:

. . .  The average American student knows that he “is worth something” and “is as good as everyone else,” but he could never name the last serious book he read, let alone one of the seven cardinal and Christian virtues. He may well not even know what a virtue is or that such a thing exists.

All of this should make us return to first principles and to the most important questions one can ask: What is man? What is God? And what is our relationship to God and to one another? The Christian Humanist does not pretend to have the answers, but he knows these questions must be raised. The Christian Humanist, wrote Kirk in 1956, understands that the “past and present are one—or, rather, that the ‘present,’ the evanescent moment, is infinitely trifling in comparison with the well of the past, upon which it lies as a thin film.” Indeed, the Christian Humanist understands that he is always a second away from eternity.

"It Was Twenty Years Ago Today ..." (Happy Birthday to RFRA)

On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise.  A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America.  A lot has happened in 20 years.  A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate.  But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:

... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.

A few remarks about that quote.  The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch.  That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values.  (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)

Notice the implications of President Clinton's remarks for these matters.  First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society.  Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens.  Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs.  Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."

In 1993 virtually every member of Congress agreed with those remarks and with the legislation.  In 2013, that consensus has shrunk.  But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.

(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)

Scaraffia and Voce on "Women in the Church"

John Allen's latest column references (and translates, for those of us who don't speak Italian) a recent article on the front page of  L'Osservatore Romano, titled "Women in the Church,"  in which Lucetta Scaraffia  "a widely respected correspondent and columnist who often writes on women's issues", interviewed Maria Voce, president of the international Focolare movement.  Allen writes:

 

As Scaraffia notes, the Focolare, founded by Italian laywoman Chiara Lubich, have made it a principle of their statutes that the president must be a woman. For that reason, and because the Focolare are among the largest movements, Scaraffia describes Voce as "the most eminent woman in the Catholic world." 

 

Scaraffia argues that for too long, women were willing to accept a "subaltern" status in the church, but that today, "the situation is changing rapidly." She quotes with approval Voce's line that the church needs not only to appreciate what have been traditionally defined as "female gifts," such as the capacity to form loving relationships, but also that it must "seek out, and listen to, the thinking of women."

 

Three possible new roles for women emerge in the L'Osseravtore piece:

 

• A "not too small" entrance into "organisms of consultation, thought and decisions" in the church. Presumably, though Scaraffia doesn't quite say this out loud, this implies in part more women at decision-making levels in the Vatican.
• The creation of a consultative body to the pope similar to the Council of Cardinals but composed of both laywomen and men. Such a group, Voce says, "would make me enthusiastic."
• Allowing movements such as the Focolare to incardinate priests who have been ordained elsewhere. Up to now, Voce reports, permission has been denied -- perhaps, she says, because someone is afraid of putting a priest under the authority of a woman.

"The words of Maria Voce make clear that legitimate requests for true recognition of the feminine presence in the church don't come just from groups of radicals demanding women's ordination, but from authoritative and moderate figures," Scaraffia writes.

 

"Behind those requests," she adds, "is certainly the majority of women who belong to the church."

 

 

A couple of observations about the Seventh Circuit's discussion of RFRA's reach in the contraceptives mandate challenges

I have finally finished reading through the 154 pages of the Seventh Circuit opinions in Korte v. Sebelius (mentioned by Rick a bit earlier today). To Rick's assessment of Judge Sykes's "excellent opinion" as "one of the most detailed and deep" analyses of the interaction between RFRA and the contraceptives mandate, I would add that Judge Rovner's dissent is one of the most thorough expositions of the government's side of the case (although Judge Rovner's mode of analysis does not map directly onto the government's). Reading the majority and dissenting opinions together provides a good overview of the state of the arguments on both sides. 

Judge Rovner's dissent argues that allowing a corporation to assert a RFRA claim against the government mandate on the same terms as a human being is "irreconcilable with the very essence of religious faith and, for that matter, humankind." Although the dissent acknowledges that "[p]erhaps there are good reasons to extend the right of free exercise to religious organizations, including not-for-profit corporations organzied to pursue religious ends," Judge Rovner says that "it is not entirely clear to me why even this step is necessary given the associational standing of such entities to assert the free exercise rights of their members." While the dissent views corporate RFRA claims with deep skepticism, the majority judges "take it as both conceded and noncontroversial that the use of the corporate form and the associated legal attributes of that status--think separate legal personhood, limitations on owners' liability, special tax treatment--do not disable an organization from engaging the exercise of religion within the meaning of RFRA (or the Free Exercise Clause, for that matter)."

For reasons I have identified previously (as well as some additional arguments advanced by the panel majority in this decision), I think that the panel majority is on the mark in its assessment of this issue. I will not repeat my earlier arguments or those adopted by the panel majority. But here are a couple of additional observations about the differing interpretations of RFRA's reach:

(1) In forming one's own assessment of the merits of the competing analyses of RFRA's reach, it might be helpful to explicitly foreground the oeprative methodologies that lead to the different results. While textualism and purposivism are not always easy to distinguish, it's a fair assessment to describe Judge Sykes's reasoning as more textualist, and Judge Rovner's as more purposivist. Judge Sykes relies on the Dictionary Act and the Supreme Court's instruction that judges should not "stray too far from the statutory text" in applying the Dictionary Act's direction as to context. Judge Rovner, by contrast, focuses on the enactment of RFRA against a Free Exercise Clause backdrop in which the Supreme Court had not previously recognized "that secular corporations have free exercise rights." To compare to another area of the law, Judge Rovner's approach to RFRA seems more like the interpretive approach that the Supreme Court has adopted toward the Eleventh Amendment in its sovereign immunity jurisprudence while Judge Sykes's approach to RFRA is more like that advocated by John Manning with respect to the Eleventh Amendment. (Perhaps it is also revealing that Judge Sykes twice cites Nick Rosenkranz's Federal Rules of Statutory Interpretation.)

(2) Judge Sykes's discussion of the problems with the government's attempt to argue for implication of a religious/nonprofit limitation from Title VII and the ADA into RFRA is the best I have yet seen at relating these statutes to the differing strands of constitutional protection for religious liberty. Here are a couple of key paragraphs:

The religious-employer exemptions in Title VII and the ADA are legislative applications of the church-autonomy doctrine. By their terms the exemptions are limited to religiously affiliated employers, a limitation that makes sense in light of the rationale for the rule. The exemption is categorical, not contingent; there is no balancing of competing interests, public or private. In other words, where it applies, the church-autonomy principle operates as a complete immunity, or very nearly so. Such a strong hands-off principle isn't justified for organizational associations that are not religiously affiliated.

In contrast, the judicial remedy in RFRA is both broader and more flexible. It covers religious organizations as such, but it does not stop there. The remedy is available to any sincere religious objector--individuals and organizations alike--and its organizational applications are not limited to religiously affiliated organizations. The exemption is comprehensive in that it applies across the United States Code and Code of Federal Regulations and restrains the conduct of all federal officials. But it can be overriden by a sufficiently strong governmental interest.

The Typhoon in the Philippines

The newspapers and television news report that the death toll in the Philippines from the strongest typhoon in recorded history could climb to 10,000 (or higher).  I am reminded of the cynical but sadly often true observation:  When one person close to you dies, it is a tragedy.  When 10,000 people die in a distant land, it is a statistic.  Even for us as Catholics who cherish the unique value and dignity of each individual, we can find it difficult to get our minds around loss of life at a large scale, and we struggle to feel an emotional connection with the victims of disasters occurring in exotic places.

When I spent a summer teaching in Rome in the Summer of 2007, I regularly watched “BBC World News” in the mornings and evenings, as it was one of two English-language stations available on our cable network (the other being, interestingly enough, “Al Jazeera Sports”).  That was the summer of the 1-35 bridge collapse in the Twin Cities, which of course was a story of particular interest to those of us from the University of St. Thomas.  But I remember being struck one morning when the BBC anchor announced, “Ten thousand people have died in Turkey as the heat wave continues.  But, first, we go to our person on the scene at the bridge collapse in Minnesota.”  (And, yes, the BBC indeed had a reporter — complete with BBC British accent — at the scene of the bridge collapse for live reports every half hour.)  Ten thousand dead in Turkey.  But the priority news story for the BBC was the bridge collapse in Minnesota at which thirteen lost their lives.

Now we can ridicule or disparage the BBC’s choice to highlight one story over the other, or we might attribute the choice to the race for ratings.  But I think there is another way to understand that seemingly odd contrast.  For those of us in the western developed world, we can more easily relate to the calamity of a collapsing highway bridge, plunging dozens of cars into the river — that is, we can imagine such a thing happening to us.  We have more difficulty imagining ever being in a situation without easy access to cooling and clean water where scorching temperatures would cost thousands of lives.

Because our empathy and sympathy grows out of relationships, we naturally will have more for those with whom we are in relationship — or at least those with whom we identify in common experience and thus can envision a form of relationship.  The Gospel of John reminds us that "God so loved the World," but it is so hard to love "the World" until we develop relationships within the Body of Christ.

The same is true for most of us in America when we see the images of destruction left by a typhoon on the other side of the globe.  We pause to be shocked and sincerely express pity, but we lack the imagination to be deeply moved (for any length of time) by what we see.  And I must confess that I have often been counted in that number — wanting to care and meaning to care, but lacking the connectedness to have the concern of relationship.  While I want to do the right thing and lift up others in prayer and contribute to disaster relief, it may be hard to think with the mind of Christ about persons so far removed from me and my situation.

For me, not anymore.  Or at least not today.  My brother, Dan, was in a small city on the Filipino island of Biliran, which was directly in the path of Typhoon Haiyan.  You’ve all seen the horrifying images of death and devastation coming out of Tacloban on the island of Leyte.  The provincial capital of Naval on Biliran, where my brother was staying with his expecting fiancé, is just 50 miles to the west of Tacloban.  We know Dan and Dayline were in Naval when the storm struck.  We have not heard anything more from him in the few days since, nor has the State Department or the American embassy in Manila been able to offer us any word of his situation.

We prayerfully assume that they are both well and simply unable to get word out with electricity and communications down and likely to remain down for days or weeks more.  We pray that they are able to persevere and find food and water as they wait for rescue and restoration.  And in praying for my brother, whom I know, I can better envision the lives and plight of those around him in the wake of the typhoon.

Catholic Relief Services is working with its partners to provide shelter and water to the tens of thousands in need in the Philippines.  Please consider giving today: http://emergencies.crs.org/typhoon-haiyan-help-philippines-survive-and-recover/