Mirror of Justice

"My law clerks and I thought it appropriate ... to be a bit more expansive."

Judge Jones of Whitewood v. Wolf has given another media interview discussing his unusually "expansive" opinion holding unconstitutional Pennsylvania's definition of marriage as the union of husband and wife. See 23 Pa. C.S. § 1102 (defining "marriage" as "[a] civil contract by which one man and one woman take each other for husband and wife"). The interviewer explains that Judge Jones does not let the charges of "piling cliché upon cliché" or displaying "hubris" and "philosophical bombast" get to him. Says Judge Jones: "When you disagree with the premise or conclusion of a particular judge--well, we're an easy mark, aren't we? You can extract or mine opinions and take things out of context and describe us as something that we're not, but that goes with the territory."

This depends on "the territory" the judge chooses to occupy. And Judge Jones has chosen History, which is an unusually broad territory to defend.

It would reflect better on the judge if he were to be more reflective about the criticisms he has received for the way he wrote this opinion. After all, many other judges have been able to explain their reasons for reaching the same legal conclusions from similar legal premises without opening themselves up to some of the well-justified criticisms that Judge Jones has received.

Consider Judge Jones's made-for-Slate language discussing Pennsylvania's laws limiting "marriage" to the union of man and woman as husband and wife: "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history."

To say that this statement represents "incredible hubris" is not to "take things out of context" but to observe that Judge Jones believes he's something that he's not--the Judge as Everyman speaking for "a better people" than what he imagines their laws to "represent."

When one takes the judicial oath, statements like this do not "go with the territory." Criticisms for traveling beyond one's office do--and should.

 

Not Dead Yet .....

... is my all-time favorite name for an advocacy group.  Not Dead Yet is a "national, grassroots disability rights group that opposes legalization of assisted suicide and euthanasia as deadly forms of discrimination against old, ill and disabled people. Not Dead Yet helps organize and articulate opposition to these practices based on secular social justice arguments. Not Dead Yet demands the equal protection of the law for the targets of so called “mercy killing” whose lives are seen as worth-less."  

Two of their recent activities deserve our attention.

1.  Co-authoring an amicus brief with the Autistic Self Advocacy Network, in a case challenging the University of Wisconsin Hospital Center’s alleged practice of counseling families of people with developmental disabilities to withhold care for treatable but potentially life-threatening medical conditions, such as pneumonia. (Disability Rights Wisconsin v. University of Wisconsin Hospital and Clinics). The complaint alleges that:

one thirteen-year-old child died of pneumonia and one adult was denied care after University of Wisconsin Hospital physicians advised families to withdraw antibiotics, nutrition, and hydration. When the child's regular caregivers objected to withdrawing treatment, UWHC physicians allegedly encouraged the family to have him transferred to the University of Wisconsin Hospital, where he was taken off of antibiotics, nutrition, and hydration, and transferred to hospice care. He died the next day.

In both cases, Disability Rights Wisconsin claimed, doctors allegedly based their determinations on their patients’ supposedly low quality of life as individuals with disabilities, and acted without the approval of the hospital ethics committee.

2.  A comment letter filed in New York State, expressing concern about some aspects of a New York initiative to reduce unnecessary hospitalizations of Medicaid patients:

The comment letter claims that the Conversation Project makes it clear that the fear of living with a disability is what drives the seemingly innocuous decision-making process designed to steer people away from receiving care.  The letter quotes several excerpts from the Starter Kit on the Conversation Project website as examples of how living with disability is discussed in a negative way that could lead people to conclude that disability is a fate worse than death and, thus, execute advance directives that reflect that assumption.

 

Theodore F.T. Plucknett on Christianity and the "Problem of Church and State"

This story in today's New York Times reports on the Chinese government's decision to bulldoze the beautiful
and imposing Sanjian Church in Wenzhou. You can see the pile of rubble that remains. The ostensible secular purpose was a violation of a zoning ordinance. But the story reports that the Chinese government has issued demolition orders and orders for the removal of crosses for dozens of other Christian churches as part of a concerted, but non-public, strategy to suppress Christianity and its "excessive religious sites" and "overly popular" religious activities. Also of interest is that Christianity in particular seems to be a problem for the government. Government officials have been publicly praising other religions including Buddhism and Confucianism--a dramatic change in official policy--in an effort to augment the growing inter-religious tensions. But "Christianity," the story reports, "is seen by some in the government as a colonial vestige at odds with the party’s control of political and social life."

As it happens, I've started reading the mid-twentieth century British legal historian Theodore F.T. Plucknett's superb volume, A Concise History of the Common Law. Here is something apt from the beginning of the book:

While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognize some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution–and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power.

It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine. [citing C.H. Turner, Cambridge Mediaeval History]

Indeed, while the organization of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life. Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy. [4-5]

The influence of audience on post-Windsor opinions of inferior federal courts

Those in the habit of reading judicial opinions recognize that the post-Windsor opinions of some lower federal courts do not read like most other lower court opinions. As Robert Barnes wrote recently in the Washington Post, some of these opinions are "quite personal" while others contain "sweeping language" showing heightened consciousness of history. Some also praise the plaintiffs for personal qualities like courage and devotion.

The bottom-line outcomes in these cases may be partially influenced by "constitutional physics," as I've previously speculated. But something else seems to be going on in the opinions themselves, at a level that is too personal to be described in terms appropriate to the physical world. One perspective that comes to mind in thinking about this "something else" is that supplied by political scientist Lawrence Baum in his book Judges and Their Audiences: A Perspective on Judicial Behavior. In this book, Baum draws on social psychology and other disciplines to explain the influence of audience on judicial behavior. At the beginning of a chapter on"Judging as Self-Presentation," Baum explains:

In their essence, the premises of my inquiry into judges and their audiences are simple:

1. People want to be liked and respected by others who are important to them.

2. The desire to be liked and respected affects people's behavior.

3. In these respects, judges are people.

The connection with Baum's perspective came in thinking about the fact that Judge Jones gave a phone interview to Barnes in which he explicitly mentioned audience-related considerations when describing his opinion-writing frame of mind for Whitewood v. Wolf. If I had better command of Catholic legal theory, I'm sure that I could illustrate the usefulness of Baum's perspective with quotations from St. Augustine on human psychology. For now, however, I must plead my limitations and ask the patient indulgence of this post's audience.

The Becket Fund brief in Holt v. Hobbs

Here is the Becket Fund / Doug Laycock (you know, Doug Laycock) brief in the important religious-freedom-in-prison case, Holt v. Hobbs.  And, here is the Becket Fund's backgrounder page.  Stay tuned for opinion pieces appearing in the New York Times or Slate about how this is actually some kind of right-wing cause . . . 

Gerard Bradley on the Town of Greece decision

Check out my colleague Gerry Bradley's Public Discourse piece on the Town of Greece case.  A taste:

. . . Greece seems to have inaugurated—or renewed, with a fresh commitment—a partnership between constitutional doctrine and historical practice.

It is too early to say where this alliance will take the law. But it could preserve some important practices that, although presently lawful, would be vulnerable to any Supreme Court majority that shares the Establishment Clause interpretation of the Greece dissenters. Among these potential targets are tax exemptions for churches and other religious institutions, conscientious exemption from general laws, and a host of public-religious collaborations in projects that serve the common good (in health, education, welfare, and so on). The American tradition of such collaboration dates back to the founding, when most of what we now think of as “public” services were supplied by churches, often at public expense.

Some other practices that are now constitutionally endangered, such as prayers at public school occasions and the display of the Ten Commandments in public places, could also be buttressed by Greece. . . . 

"Laissez-Faire libertarism" as a straw man

The other day, this Twitter novice took to the Twitterverse and "tweeted" the suggestion that Michael Sean Winters's post, "The Catholic Case Against Libertarianism," occasionally indulged in some straw-mannery in invoking the threatening prospect of "laissez-faire" "libertarianism":  “’Laissez-faire’ is a straw man, I think. Doesn’t exist.”

Today, in this post, Michael Sean took issue with my "pithy, but woefully inadequate, comment."  Fair enough.  The tweet was, certainly, inadequate as a response to all the things that Michael Sean said in his post (much of which I agree with) about "libertarianism" as a philosophy or ideology.  And yet, although inadequate, the comment was right, I think.  Again, I agree with much of what Michael Sean says about moral anthropology and the centrality of the person.  He says, "To be clear, for a Catholic, the criterion for evaluating a solution to any human conundrum is not to ascertain if that solution is a government solution, and to support it because it is a government solution, nor is it to defend a free market solution because it is a free market solution. Our criterion, as Catholics, is the human person, not an abstract commitment to the state or the market."  I agree.

And yet -- no one really thinks that "the market" should be entirely unregulated.  And, in fact, it is pervasively, thoroughly, comprehensively (and sometimes stupidly) regulated.  Everyone agrees – that is, everyone who is in the conversation agrees – that “the market” is not and should not be entirely “free.”  Or, put differently, a “free market” – in order to be meaningfully free – is a (reasonably and intelligently) regulated one.  We enforce contracts.  We impose liability for harms caused.  We regulate all the time and everywhere.  The real debate (among people who concede the basic point, which Catholic teaching firmly and unambiguously affirms, that ordered-freedom, not statist command-and-control, should characterize “the economy”) is about how to locate the point at which regulations begin to stifle, rather than to promote, human flourishing and the common good, properly understood.

It is not, in my view, helpful to label as “idolatry” the unremarkable view that we can and should evaluate policies with respect to their effectiveness and that the effectiveness of policies is related to, and perhaps depends on, a number of things that the economists like to remind us about.  No one thinks that government should do nothing.  But, some of us think – and there is absolutely nothing not-Catholic about thinking – that there are limits to (a) what governments are morally authorized to do and (b) what governments, practically speaking, do well.  To say this is not to make an “idol” of the market (though it is to avoid the error of making an “idol” of populism or statism)

Like Michael Sean, I have no interest in (my understanding of) the "objectivism" of Ayn Rand.  It seems to me that the best and most morally attractive legal-and-economic regimes will be democratic-capitalist and constitutionalist with appropriate and effective social-welfare-protecting programs and constraints.  But, it is not “Randian” to think that the basic “liberal” ("libertarian"?) insight -- i.e., governments should be limited by law and non-state ordering and associations should be protected and respected by law remains, well, insightful.

I agree with Michael Sean that conversations about public policy should be couched in terms that treat ideas like "competition" and "consumer choice" as means and mechanisms.  But, it's worth remembering that they are, often, very effective means and mechanisms.  To the extent they are, let’s use them!  Sometimes, “libertarian” (or "free market" or "non-state" or "private ordering") policies are the better ones, not so much because of imperatives connected with deep anthropological premises or because of an idolatrous attachment to autonomy, but because . . . they work better (at bringing about human flourishing and common good, properly understood).

The Disingenuous Pressure Campaign Against Professor Laycock

Dahlia Lithwick in Slate calls attention to--and eviscerates--the campaign, by a couple of University of Virginia students (one actually a new alum) and an LGBT advocacy group, against Doug Laycock of UVA. The campaigners claim they want to open a "dialogue" with Prof. Laycock about "the [allegedly harmful] real-world consequences" of his work in defense of religious freedom in the contexts of gay marriage and the HHS mandate. They claim they don't want to silence or harass him but only to make him aware of how conservative groups have used his writing. But the campaigners have initiated their "dialogue" with a FOIA request for telephone and email records in order to see Doug's communications with conservative groups.

Lithwick's article says most of what needs to be said against this. (So does our MOJ friend Steve Bainbridge: "You don't start a dialogue with FOIA requests.") It's remarkable, the disingenousness of these campaigners in claiming they're simply seeking to educate one of the leading and most thoughtful religious-liberty scholars of our time--and that a FOIA request is somehow part of an effort to promote dialogue rather than to harass an academic because of some of his positions.

The dark lesson one could draw from this (and other episodes like Brandon Eich at Mozilla) is that left-ish activists will increasingly try to intimdate those who depart from their views on even one  important matter--even on whether to protect religious dissenters (since Prof. Laycock, as many MOJ readers will know, is a supporter of same-sex marriage itself). That kind of pressure will no doubt intensify in the future. (The FOIA tactic, it should be noted sadly, is increasingly being used by both sides in political/cultural wars.) More optimstically, however, one could note that this pressure campaign drew no support from major gay-rights groups, at UVA or elsewhere, and has quickly been condemned by Lithwick and Brian Leiter--neither of whom, to put it mildly, sympathizes with the traditionalist position on gay marriage.

Roe at 40: The Controversy Continues

The Washington & Lee Law Review just published the papers from the “Roe at 40″ conference held at W & L on November 7, 2013. Much of the funding for this conference came from University Faculty for Life (UFL). The conference was largely made possible through the efforts of Sam Calhoun (who is a member of the W & L faculty and a member of the UFL Board).  The hospitality of everyone at W & L was extraordinary. One of the W & L law review hosts was Lara Gass who was tragically killed in a car accident a few months after the Symposium. The law review issue is dedicated to Ms. Gass and also contains a tribute to her.

The papers are available here, http://scholarlycommons.law.wlu.edu/wlulr/

The conference included speakers from varying perspectives. I strongly encourage people to take a look at the conference papers.  

Richard M.

Weigel on Garnett & Brinig on Catholic-school closings

Over at First Things, George Weigel has a very nice post up about the new book by my colleagues Prof. Nicole Stelle Garnett and Prof. Margaret Brinig, Lost Classroom, Lost Community.  (Buy it here!)  Here's a taste:

It’s commencement season and tens of thousands of students are graduating from inner-city Catholic elementary schools. As decades of empirical research have shown, these kids have a better chance of successfully completing high school and college, and are better prepared for life-after-the-classroom, than their peers attending government schools. These inner-city Catholic schools are “public schools” in the best sense of the term; they’re open to the public (not just to Catholics), and they serve a genuine public interest, the empowerment of the youthful poor.

   There is ample research to demonstrate inner-city Catholic schools’ educational excellence, going back to the pioneering Coleman/Greeley studies in the 1970s. Now comes an even more comprehensive claim about the positive impact of these schools: For, according to two law professors at the University of Notre Dame, Margaret F. Brinig and Nicole Stelle Garnett, inner-city Catholic schools are important factors in urban renewal as builders of “social capital” on inner-urban areas. . . .