Monday, July 28, 2014
Split panel of Fourth Circuit holds Virginia's marriage laws violate a fundamental individual right, protected by the Due Process Clause, to marry a same-sex partner
A split panel of the United States Court of Appeals for the Fourth Circuit held today that Virginia's definition of marriage to require a man and a woman violates the Due Process Clause. Judge Floyd wrote the opinion for the court in Bostic v. Schaefer, in which Judge Gregory joined. Judge Niemeyer authored a dissent.
I hope to have more analysis of the case down the road. My initial reaction is that the court's analysis in terms of fundamental rights presents a doctrinally clearer picture of the arguments on both sides.
If Glucksberg supplies the right framework of analysis (as I believe it should), then the majority's conclusion is untenable for the reasons set forth in Judge Niemeyer's dissent. The panel majority distinguishes Glucksberg by saying that Glucksberg's analysis "applies only when courts consider whether to recognize new fundamental rights." The crucial move, then, is the court's determination that "the fundamental right to marry encompasses the right to same-sex marriage." And that determination turns on a reading of Lawrence and Windsor. These decisions, Judge Floyd says, "indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships." Yet this attempt to harmonize Lawrence and Windsor with Glucksberg is unpersuasive. Those cases simply ignore Glucksberg and its fundamental-rights-based analysis rather than supply guidance for how to define the scope of fundamental rights.
Given how the Fourth Circuit decided this case and the fact that it is from Virginia, Bostic may turn out to be an attractive vehicle for a range of Justices. It is reasonable to assume that Justice Kennedy will probably continue to ignore Glucksberg's analysis. Yet this Virginia case provides a promising vehicle for maximizing the likelihood that the Court must confront its doctrinal incoherence in the substantive due process arena. After all, there would be something awkward about a Supreme Court decision that ignores the basic concept of a "fundamental right" that the lower court in a case like this thinks the Court's doctrine requires it to use. On the other side, those Justices interested in recognizing a constitutional right to same-sex marriage may be attracted by the symbolic significance of deciding same-sex marriage out of the same state that supplied Loving v. Virginia.
A panel of the United States Court of Appeals for the Second Circuit today unanimously upheld against Establishment Clause challenge the display of a 17-foot cross from the wreckage of the World Trade Center in the National September 11 Museum. (HT: @Edmannino) The decision also rejects an Equal Protection Clause challenge premised on the denial of funds for an accompanying symbol commemorating atheists. Judge Raggi wrote the opinion for the court in American Atheists, Inc. v. Port Authority of New York and New Jersey, in which Judge Lynch and Judge Chin joined.
From the opinion's concluding summary:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
The outcome seems plainly correct. The court's extensive reliance on Lemon and relatively light discussion of Town of Greece will be disappointing to those (like me) who think the methodological approach of Town of Greece should apply to Establishment Clause analysis beyond legislative prayer.
Saturday, July 26, 2014
Michael, you raise a good question about whether Blaine Amendments might be a "blessing in disguise" because they--albeit "unintentionally"--"shield many primary and secondary schools" from the choice to "capitulate to the secular orthodoxy or ween yourself from the government teat."
These are hard questions for schools. In a paper for a conference in Rome a few years ago, I presented various considerations, including the possibility that "withholding state financing to religious schools can affect their integrity and vitality as much or more as providing funds with conditions and controls attached":
When religious schools are denied financing while state [and secular private] schools receive it, parents face powerful financial disincentives against choosing religious schools for their children. To overcome that disadvantage, religious schools may have to change their programs to attract more donations, more applications, or more full-tuition-paying students instead of low-income students—all of which may compromise the school’s mission to teach the faith or educate the poor. Or schools may have to close altogether. Early in 2009, American newspapers reported that four Catholic secondary schools in New York City had been forced by fiscal necessity to join the state system as so-called charter schools. The change would permit them to receive funds but would require them to eliminate their religious components entirely, not just in selected classes as Supreme Court decisions like Lemon had required.
So I have a few reactions to your question:
1. To preserve their ability to choose their mission, Catholics and other religious groups should certainly try to increase their schools' financial independence so they are less exposed to the difficult choice of taking aid with strings or losing equal aid.
2. Nevertheless, whether the schools' integrity and vitality will be more threatened by taking aid or losing it depends on the situation, and on the kind of strings. Therefore, parents and schools should have the choice, even if the state has structured it as less than ideal. Blaine Amendments wrongly take the choice away from them.
3. If the societal opposition to Catholic or other religious doctrines and policies is so strong, it may not stop at putting strings on funding. Catholic and evangelical schools that violate antidiscrimination norms may face damages awards and fines even if they don't receive funding. Catholic schools have to figure out how to respond to that problem, entirely apart from Blaine Amendments.
(This sets aside, of course, the argument that secular regulation, such as nondiscrimination law, may sometimes actually push a school toward a better position even under Catholic teaching properly understood--the discrimination may be "unjust." But obviously how to understand Catholic teaching is for the school and religious leaders to decide, not the state.)
Michael Sean Winters has an excellent post welcoming Paul Ryan's proposal as a potential return by Republicans to serious discussions about how to assist and empower the poor. Michael Sean closes
by recalling the talk delivered by Bishop Robert McElory at John Carr’s Initiative on Catholic Social Thought in Public Life at Georgetown, in which +McElroy called for Catholics to become “insurgents” within their own parties. Ryan did that yesterday. I think he has further to go: I do not see how anyone committed to Catholic social teaching can fail to see the need to raise the minimum wage, for example. But, Ryan deserves great praise for taking on the issue and for putting forward ideas and for inviting criticism and continued debate. ... Shame on all of us if we do not seize this moment to remind the American Christian community that Matthew 25 says nothing about a rising middle class, and that we welcome anyone, but most especially Cong. Ryan, to the discussion our nation has for too long avoided: How do we continue the fight against poverty in ways that will actually help the poor?
Friday, July 25, 2014
It has been over 100 days - 102 days to be exact. 102 days since Boko Haram kidnapped over 200 girls and threatened to sell them into sexual slavery. I worry that in today’s 24-7 news cycle that fact has become “yesterday’s news.”
As a human trafficking scholar I think a great deal about the parallels between the slavery of today and the Trans-Atlantic slave trade in the 18th and 19th centuries. I have considered the role of the bystander in both these systems, trying to imagine how it was possible for people - particularly the bystanders - to justify the ownership of human beings as property. It is difficult to wrap one’s mind around the concept that it was acceptable and not shocking to abduct, buy, and sell other people.
And then 100 days pass since these girls were abducted and threatened to be sold and it seems as though this terrible crime is no longer at the forefront of the American consciousness. It is perhaps no longer shocking.
Three months after the crime, Malala Yousafzai visited Nigeria and met with President Goodluck Jonathan who claimed he would bring back the girls “as soon as possible.” Well, apparently “as soon as possible” means right after he finishes spending $1.2 million, not on the rescue effort, but on hiring the American public relations firm, Levick, to improve his image. It seems to me that such an amount of money may have been better spent actually trying to rescue the girls…rather than paying Americans to explain why the government has not done so. If that is “as soon as possible” I would hate to see what “when I get around to acknowledging it happened” looks like.
Yet, the outrage is gone. The shock is gone. We in the West seem to have largely moved on to other issues. How can this be? It may be because on some level we accept the objectification of people…just like bystanders accepted slavery centuries ago.
Some reject the parallels drawn between human trafficking and the Trans-Atlantic slave trade, asserting that there is an important distinction between legally sanctioned slavery and that which is not state supported. These events underscore that laws do not the society make. While it is indeed symbolically important to end laws that sanction slavery or other moral wrongs, it is necessary but not sufficient. A legal shift is interesting but a social shift is what is required. And we in the West seem not to have made that shift.
While I support Pope Francis’ bold call for human trafficking to explicitly be treated as a crime against humanity it will amount to nothing until we as a global society truly value the lives of such victims as though they were our own children…until the shock lasts longer than a week, a month, or 102 days. Until that day comes the parallel between the bystander in the 1800’s and the rest of us unavoidable.
This Atlantic article, "Whatever Happened to Dinesh D'Souza?," is an interesting account of how D'Souza went from writing seriously intended (if debatable) conservative books on multiculturalism, education, and politics to peddling s--t about Obama's Kenyan "rage" against America. The thesis is that D'Souza decided that trying to persuade thoughtful people on the other side wasn't worth it (didn't sell books etc.), and just started preaching to the choir. Something that could certainly be said about many smart people today, left and right, who write stuff far below their brainpower.
But here are my favorite sentences in the article:
Yet failing to take on the best arguments of the other side—“to play Notre Dame” in the words of Charlie Peters, editor emeritus of Washington Monthly—carries risks. D’Souza’s subsequent books and films testify to the intellectual pitfalls of ignoring the critics. His demonization of President Obama is a case in point.
They're my favorite, of course, because of the "play Notre Dame" metaphor. (Here's another example of it.) If Protestant/secular quarterbacks/intellectuals are going to take on the best on the other side, they have to mix it up with the fighting Irish. Let's remember, however, how many other Catholic schools have serious Catholic intellectuals (especially in the law schools, of course!), and also serious sports traditions--whether it's St. John's and Villanova basketball, or St. Thomas's potency across the big Division III sports.
Perhaps my principal difficulty in contributing to this blog "dedicated to the development of Catholic legal theory" is the endless plasticity that now molests the denotation -- to say nothing of the connotation -- of the capital-C adjective "Catholic" in so many minds. Most, though by *no* means all, of the disputes among contributors to this blog can -- and *should* -- be traced to their origins in different understandings of what it means to think as a Catholic.
The Second Vatican Council changed no doctrine of the Faith, as it was exactly a "pastoral" Council. The oft-asserted spirit of "Vatican II," however, did, with the help of its enablers, introduce what Chris Ferrara has aptly termed "the regime of novelty" into the life of the Church (see Ferrara and Woods, The Great Facade: Vatican II and the Regime of Novelty in the Roman Catholic Church (2002)). Consider that, these days, the closing of countless parishes on account of the auto-demolition of the Church is couched in terms of "Making All Things New." Hah! Even Rex Mottram would see through the shams that have become the way of diocesan business in so much of the Church in the United States. Here in the Archdiocese of Philadelphia, the much-touted "new springtime" in the Church has resulted in a fire sale (to pick just one among countless possible examples: nursing homes sold ) that will spare precious little of what those who held the Faith built brick by brick in a spirit of sacrifice and appropriate Christian triumph of the Church Militant
The point is, nothing Catholic -- neither doctrine nor discipline -- prevents Catholics from faithfully holding and practicing the Faith as it was held and practiced before the Second Vatican Council. If that Council contributed prudential solutions to today's problems, that prudence has yet to be demonstrated, in my judgment. Rod Dreher asks with characteristic insight "what is traditional Christianity anyway?" The term "Traditional Catholicism" is a piece of pleonasm made necessary by the regime of novelty, but Catholicism will outlive the partisans of novelty, as Cardinal Newman taught us. The true Church is Christ-continued-in-the-world, and the faithful live by the promise made in Matthew 16:18 .
This news is a few days old, but I thought it appropriate anyhow to follow up on my prior post about the post-Town of Greece legislative prayer practice of Chesterfield County, Virginia.
The Board of Supervisors has changed its legislative prayer policy. Starting next year, the supervisors will rotate among themselves in delivering an invocation or presiding over a moment of silence. This is a shift away from a practice of inviting ordained clergy of monotheistic religions, which some contended was unconstitutional under a perceived non-discrimination requirement in the Supreme Court's decision in Town of Greece v. Galloway.
The shift is prudent even if not constitutionally required, and it may be that the supervisors were closer in thinking to Josh Blackman's assessment of Town of Greece than to mine. The decision may also reflect the reality that the County would be on the hook for plaintiffs' attorneys' fees and costs if the County litigated and lost, but the County could not recover it own fees and costs if the County litigated and won.
Thursday, July 24, 2014
The papers from the St. Thomas Law symposium on "Intellectual Property and Religious Thought" have been published. I'm confident they'll be a great resource for future reflection on this now-vital subject. My foreword to the symposium is available on SSRN. All of the papers are available here. Some of the papers are also on SSRN (see this earlier post). Here's a taste from the abstract to my foreword:
The time is ripe for wider exploration about how religious themes, practices, and communities may inform IP law and policy....
This foreword summarizes the symposium papers, which fall into three categories: "God, Ownership, and Intellectual Creation"; "Life Patents, Religion, and Social Justice"; and "IP, Religion, and Social Relationships/Obligations." Symposium contributors include IP legal scholars Margo Bagley, Shubha Ghosh, Roberta Kwall, Bashar Malkawi, Alina Ng, and David Opderbeck, and religion/ethics scholars Audrey Chapman, Marco Fioretti, Paul Griffiths, and Jeremy Stern.
The foreword concludes with brief reflections on future directions in research and practice. First, religious reflections on creativity and ownership should influence the practice of religious communities and individuals, quite apart from the content of civil law. Second, with respect to law and policy debates, religious thought may “root” themes such as social obligation, or the sense of creativity as a gift, “in a richer social imagination that gives them meaning and weight,” as David Opderbeck puts it. Finally, religion has particular relevance to issues concerning IP, trade, and development in the global South--partly because many developing nations are deeply religious, and partly because religious agencies do much of the on-the-ground humanitarian work on matters with IP ramifications such as health care and agriculture.
With a new cover of the song being highlighted on a recent episode of “Under the Dome,” I was reminded again of the truly counter-cultural the lyrics for the late-Sixties era classic “Who’ll Stop the Rain” written by John Fogerty and performed by Creedence Clearwater Revival.
Lest we mistakenly remember the Sixties counter-cultural movement as uniformly liberal and infatuated with big government as the social justice answer, “Who’ll Stop the Rain” includes this pointed observation:
Caught up in the fable, I watched the tower grow
Five year plans and new deals wrapped in golden chains
The song warns that government promises seldom come without strings attached and government-centric solutions often have negative consequences that may not be anticipated. Attempting to solve social problems through entitlement programs risks the interposition of impersonal bureaucratic agencies and expanding government special interests, while trapping recipients in dependency and obliged to comply with government rules mandates that reflect the different moral ethos of the elite. One need not eschew all government programs (and I certainly do not) to believe that “Who’ll Stop the Rain” is healthy reminder that the rose may have thorns.
Now the song could be characterized as libertarian in nature, and Fogerty last year acknowledged that he’s “probably a lot more like some kind of libertarian or something.” But I also hear something decidedly spiritual in the first verse of the song — a reference to the age-old search for greater meaning and truth:
Long as I remember rain’s been comin’ down
Clouds of mystery pourin’ confusion on the ground
Good men through the ages tryin’ to find the sun
And I wonder, still I wonder who’ll stop the rain
While the singer of this song is certainly weary, the hope of noble people to find the sun remains — a hope that we as Catholics place in a person, not in a political messiah.
For those who wish to reminisce and those for whom this song is new, you can listen to the original recording here (with the standard YouTube license).