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.

Monday, December 22, 2014

A Bad Decision from the NLRB

The National Labor Relations Board has issued its long-anticipated decision in the case of Pacific Lutheran University (available here), which is the first in a recent series of cases involving adjunct faculty unionization efforts at religiously-affiliated colleges and universities to be decided by the full Board (a number of Catholic universities—Duquesne, Seattle, Manhattan, and St. Xavier—have been involved in similar cases).

The case is already garnering some commentary (see this story at Inside Higher Ed) for its application of the Supreme Court’s NLRB v. Yeshiva University decision about whether faculty at private universities are managerial employees (and thereby precluded from collective bargaining under the NLRA). My interest is more in the Board’s (mistaken in my view, as I laid it out in testimony available here before two House Subcommittees in 2012) rejection of the test articulated by then-Judge Breyer in Universidad Central de Bayamon v. NLRB , 793 F.2d 383 (1st Cir. 1985) and the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) for when the Board can exercise jurisdiction over unionization efforts at religiously-affiliated colleges and universities. On that issue, the Board divided 3-2, with dissents from Members Phillip Miscimarra and Harry Johnson. Amicus briefs in support of Pacific Lutheran were submitted by, among others, the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities.

Recall that under the Great Falls test, a religious institution is exempt from NLRB jurisdiction if: (1) the institution “holds itself out to students, faculty and community as providing a religious educational environment,” (2) the institution “is organized as nonprofit,” and (3) the institution “is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.” 278 F.3d at 1347. In the Pacific Lutheran case, the Board decided to go along with the first component of that test “as a threshold matter” if a school “holds itself out as providing a religious educational environment” (slip op. at 6). This is a slight improvement over some prior decisions that had sought to figure out whether a school was “substantially religious” in the first place by trolling through the core curriculum and rates of attendance at religious services.

But what the Board gives with one hand, it takes away with the other when it imposes a requirement that “the university holds out its petitioned-for faculty members as performing a specific role in creating and maintaining that [ie, religious educational] environment” (slip op. at 7) (emphasis added), a requirement that Pacific Lutheran could not meet in the Board’s view. On this issue, the Board has a remarkably cramped account of whether faculty contribute to the religious mission of a university. The Board holds that where a school does not indicate that “faculty members are expected to incorporate religion into their teaching or research, that faculty members will have any religious requirements imposed on them, or that the religious nature of the university will have any impact at all on their employment” (slip op. at 8), then the university is not “holding out” its faculty as performing a religious function. Most troubling is the Board’s egregious claim that “[t]his is especially true when the university also asserts a commitment to diversity and academic freedom, further putting forth the message that religion has no bearing on faculty members’ job duties or responsibilities" (id.).

The problem with the “holding out faculty as performing a specific religious function” test is that it throws the Board back into the sort of intrusive religious inquiry that courts from NLRB v. Catholic Bishop, 440 U.S. 490 (1979) to Great Falls have said runs a high risk of unconstitutional interference with religion. On the Board’s view, only when faculty engage in “religious indoctrination or religious training” or where a school imposes a narrow religious test for hiring would the Board find no jurisdiction (slip op. at 9). But this is the Board’s view of what counts as factors sufficient for faculty at a school to be part of its religious mission, a view not shared by Pacific Lutheran (or, I submit, most Catholic universities). In its opinion, the Board begs the question by asserting its own (highly contestable) view of what constitutes the religious mission of a university, including a rejection of academic freedom and curricular and hiring practices in which very few schools engage. As Member Johnson puts it: 

The failings of the majority’s new test are made manifest by the majority’s dismissive treatment of the actual record here. The majority’s analysis is too narrowly focused on evidence of documented commitment of the faculty to indoctrination, orthodoxy, and exclusion. As a result, the majority appears to require that, to meet its burden, there must be evidence establishing that the university’s mission centers on blatant religious indoctrination or proselytization, that the institution fails to grant religious freedom or freedom of inquiry, and that the institution denies nonbelievers from participating on campus as students and faculty members. Because PLU, in its literature, does not correspond to this crabbed view of how a religion should express itself in a university environment, the majority finds that the faculty are, ipso facto, not held out as performing a specific religious function (slip op. at 37).

There is, of course, much more to say, but let me add a final note that this is not (but will be portrayed as) a matter of being crudely “pro-union” or “anti-union.” One can affirm (as I do) the Catholic Church’s historic commitment to the right of workers to organize while also affirming (as I do) the right of religious institutions to be free (in central respects pertaining to their mission) of government interference in their internal governance with regard to faculty matters. That is a difficult but necessary argument to make, and this decision (and appeals from it or similar cases) will provide many opportunities to do so.

December 22, 2014 in Moreland, Michael | Permalink

Fourth Circuit holds North Carolina abortion ultrasound show-and-tell requirement unconstitutional compelled speech, creates circuit split over standard of review

A three-judge panel of the United States Court of Appeals has unanimously affirmed a district court decision holding unconstitutional one portion of North Carolina's informed consent for abortion requirements. The provision held unconstitutional by the panel required a doctor to perform a pre-abortion ultrasound, to display the images to the pregnant woman (unless she chose not to view), to explain what the display shows (including "the presence of external members and internal organs, if present and viewable"), to offer an opportunity to hear the fetal heart tone, and to obtain and keep a certification that these requirements were followed. The Fourth Circuit panel analyzed the provision as a compelled speech requirement and held that the provision failed intermediate scrutiny. Judge Wilkinson wrote the opinion for the court in Stuart v. Camnitz, in which Judge Traxler and Judge Duncan joined.

The Court's application of heightened scrutiny created a seemingly direct split with the Fifth Circuit on the standard of review for an ultrasound show-and-tell, as well as with the Eighth Circuit if the split is viewed at a slightly higher level of generality.  For conflicting scholarly views on the constitutionality of laws like North Carolina's, compare Casey and a Woman's Right to Know: Ultrasounds, Informed Consent, and the First Amendment (by Scott W. Gaylord and Thomas Molony), with Compelled Disclosures (by Caroline Mala Corbin).


December 22, 2014 in Walsh, Kevin | Permalink

Friday, December 19, 2014

Sin, forgiveness, and the Post Office -- not a love affair

Among the peculiarities of our constitutional arrangement is its indifference to love.  A traditional Christian polity would be structured around the common obligation to worship God, a sacrificial act of love, and from that would follow many other obligations to be particularlized by the polity.   Our Constitution, however, rooted and limited in the project of power-checking-power -- whatever the respective faiths of the men who framed it -- designedly sidelines love, particularly in the form of public worship.  No public worship here, that's for sure.  With love goes forgiveness, however.  Again, with love goes forgiveness.  I confess, therefore, uncertainty about how modern states can do anything involving forgiveness.  The suggestion that the Post Office can forgive is risible; it commits a category mistake.  But it's not unthinkable, is it, that the governing authority could, one day yet, announce, introduce, and advance the ends of love, including in the form of forgiveness.  The sorry, ongoing celebration of pluralism per se could yet yield to a collective life rooted in the truth of love and the forgiveness it alone grounds.  Love has become a Hallmark term that almost preempts the field, and so the manifestation of love in the form of forgiveness merits special reconstruction, here in the words of Remi Brague:

A mistake that, perhaps, is even more freighted with consequences [than the mistakes of confusing sin with pleasure or misunderstanding the way in which sin "offends" God] is the one that consists in separating the two terms, "remission" and "sin," which are united in the Christian confession of faith.  Once they are separated, the two ideas are placed in a certain order, according to which the idea of sin occupies the first place.  A certain Christian apologetics has succumbed to this temptation.  It proceeds by attempting to convince man (and above all, "modern man," who is deemed more difficult to convince . . .) that he is a sinner and that he therefore has need of redemption (which, then, would be proposed to him, in second place).  [] In this optic, one can lament the purported "loss of the sense of sin," as if it complicated the matter, even made it impossible, because depribiving sin of its foundation.  

In doing so, one allows oneself to be misled by an analogy.  Most often, of course, the evil precedes the remedy, and it is necessary to become aware of the evil in order to experience the need for the remedy.  Thus, because I see that my teeth are crooked, I know that I need to go to the dentist.  However, the Creed confesses faith in "the remission of sins," not in sin.  What is an article of faith is not sin, but rather its remission.  


R. Brague, On the God of the Christians (and on one or two others) (St. Augustine's Press, 2013), 144-45.


December 19, 2014 in Brennan, Patrick | Permalink

Thursday, December 18, 2014

"The Fate of Unreasonable People"

I came across, while looking for a citation, this paper, by Fuat Gursozlu, a philosopher at Loyola University Maryland, "a Jesuit Catholic university committed to the educational and spiritual traditions of the Society of Jesus and to the ideals of liberal education and the development of the whole person."  The paper is called "Political Liberalism and the Fate of Unreasonable People."  I suppose it could be seen as simply yet another of the many, many exercises in Rawls exegesis but . . . I actually found it more than a little chilling (in part because it is hard to avoid the unsettling apparent fact that the position defended in the paper is probably entirely mainstream, at least in the academy).  Here is the conclusion:

The practical political task of containing unreasonable doctrines is primarily concerned with the reformation of unreasonable citizens over time. Rawls is aware that when unreasonable doctrines grow so strong, it may be too late for the liberal democratic regime. The argument for the normative stability of the regime and the account of containment as transformation points out the need to prevent the unreasonable from becoming strong enough to overwhelm the liberal political regime. Steven Macedo points out that liberalism constitutes a regime that cannot help but shape citizens’ lives “deeply . . . and relentlessly.”  For Macedo, political liberalism should shape people’s commitments and habits “without exactly announcing that purpose on their face.”  This is a necessary political work that is beyond any “regret, apologies, or adjustment.” The account of containment as transformation centers on the idea expressed by Macedo: transformation of the unreasonable people living in a liberal political order without announcing that purpose in their face. 

"Forced to be free," redux.  Justice Jackson, no doubt, would have had some appropriate things to say about this . . . . 

December 18, 2014 in Garnett, Rick | Permalink

"Catholic Midwives Must Supervise Abortions, Supreme Court Decides"

That’s the title of this report, though I would welcome more information from readers who may have it. The Supreme Court is that of the United Kingdom, and the case involves the issue of accommodation for objection to performing abortions on the basis of religious conscience. The statute interpreted by the Court is the Abortion Act of 1967, which provides that “no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.” The issue before the Court was the scope of the statute: it was clear that the objecting midwives would be under no obligation to participate in abortions themselves, but it was not clear whether they could be compelled to supervise other staff who did participate in abortions. “Participate,” ruled the Court, demands a “hands on” role in the abortion, and any supervisory role was insufficiently “direct” to come within the statutory definition.

The midwives claimed that it would have been very easy to accommodate them, because the number of abortions on their ward was only a very small fraction of the work, supervision of which could readily have been assigned to others with no risk that anyone desiring an abortion would go without care. But that sort of compromise was unavailing to Ann Furedi, chief executive of the British Pregnancy Advisory Service: “[E]xtending this protection to tasks not directly related to the abortion would be to the detriment of women needing to end a pregnancy and the health care staff committed to providing that care. There are enough barriers in the way of women who need an abortion without further obstacles being thrown in their way.”

UPDATE: More information on the case and a link to the decision may be found at Religion Clause Blog.

December 18, 2014 in DeGirolami, Marc | Permalink

Wednesday, December 17, 2014

The Proctor: A Legal Note from David Copperfield

The more substantial novels of Charles Dickens represent a regrettably sizable hole in my reading, one which with time I hope to plug up. I've started with David Copperfield and am enjoying it greatly. The writing, as much or more than the story itself, is truly magnificent.

Unlike with some of Dickens's other work in which it is generally portrayed unflatteringly, the law and legal practice is not an absolutely central theme in David Copperfield, though it does show up from time to time. The ingratiatingly servile Uriah Heep has already been described poring over some legal treatises, and this detail is sure to resurface by and by. But the law does make something of an appearance when David, now a young man of 17 and at the urging of his aunt, selects the profession of "proctor."

I had not before known what a proctor was. Apparently the proctor was a special kind of solicitor who dealt with both ecclesiastical and admiralty matters, an unexpected pair! The position of proctor was merged with solicitor in the late 19th century. Here is a charming bit from Chapter XXIII about proctors and their practice (as relayed only slightly in jest by David's prepossessing friend, Steerforth):

"What is a proctor, Steerforth?" said I.

"Why, he is a sort of monkish attorney," replied Steerforth. "He is, to some faded courts held in Doctors' Commons--a lazy old nook near St. Paul's Churchyard--what solicitors are to the courts of law and equity. He is a functionary whose existence, in the natural course of things, would have terminated about two hundred years ago. I can tell you best what he is, by telling you what Doctors’ Commons is. It’s a little out-of-the-way place, where they administer what is called ecclesiastical law, and play all kinds of tricks with obsolete old monsters of acts of Parliament, which three-fourths of the world know nothing about, and the other fourth supposes to have been dug up, in a fossil state, in the days of the Edwards. It’s a place that has an ancient monopoly in suits about people’s wills and people’s marriages, and disputes among ships and boats.”

“Nonsense, Steerforth!” I exclaimed. “You don’t mean to say that there is any affinity between nautical matters and ecclesiastical matters?”

“I don’t, indeed, my dear boy,” he returned; “but I mean to say that they are managed and decided by the same set of people, down in that same Doctors’ Commons. You shall go there one day, and find them blundering through half the nautical terms in Young’s Dictionary, apropos of the ‘Nancy’ having run down the ‘Sarah Jane,’ or Mr. Peggotty and the Yarmouth boatmen having put off in a gale of wind with an anchor and cable to the ‘Nelson’ Indiaman in distress; and you shall go there another day, and find them deep in evidence, pro and con, respecting a clergyman who has misbehaved himself; and you shall find the judge in the nautical case, the advocate in the clergyman’s case, or contrariwise. They are like actors: now a man’s a judge, and now he is not a judge; now he’s one thing, now he’s another; now he’s something else, change and change about; but it’s always a very pleasant profitable little affair of private theatricals, presented to an uncommonly select audience.”

December 17, 2014 in DeGirolami, Marc | Permalink

The Pernicious Endorsement Test, Part 287

My colleague, Mark Movsesian, comments on what he observed in the New York City subway.

December 17, 2014 in DeGirolami, Marc | Permalink

Shulman on parents rights, Pierce, barbarism, etc.

Prof. Jeffrey Schulman has posted a new paper (which relates to the subject of his new book, The Constitutional Parent), called "Meyer, Pierce, and the History of the Entire Human Race:  Barbarism, Social Progress, and (the Fall and Rise of)  Parental Rights."  Here is the abstract:

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, by some accounts, the demise of parental authority. 

The eighteenth and nineteenth centuries witnessed the emergence of social science disciplines built on a materialistic theory of cultural progress and an evolutionary view of law. One result of these early enthographic efforts was the enormously influential stage-theory of societal development. Simply enough, stage-theory describes how a society moves from a primitive to a civilized state of development, and how it might fail to do so. The theory was congenial to the moral philosophers and social theorists of the Scottish Enlightenment; to libertarian-minded contractualists of late-nineteenth-century America; and to the founding fathers of revolutionary socialism. It was a part of the nineteenth century’s great idiom of secular progress and social engineering, part of a story of worldly advancement and human achievement in which the courts had their own role to play. 

Part I of this article looks at what might be the most formative application of stage-theory to family relations, John Millar’s The Origins of the Distinctions of Ranks (1771). Drawing on the sociohistorical work of David Hume and Adam Smith, Millar provides an empirical account of how rights of personal authority (the right of husband over wife, father over children, and master over servant) arise out of and evolve in response to changing socioeconomic conditions. For Millar, there is little doubt that parental authority “has been reduced within narrower bounds, in proportion to the ordinary improvements of society.” 

A product of the Scottish Enlightenment’s focus on sociability, Millar’s historical critique of paternal authority translated comfortably to the individualistic currents of the nineteenth century. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural and legal historian Henry Maine and the British moral philosopher Herbert Spencer. Though these writers took different routes through the emerging sociological territory of the nineteenth century, they all agreed that the historical record dictated the conclusion that there is no social progress without the repudiation of patriarchalism. 

With its focus on economic conditions and its pragmatic approach to rights, stage-theory could be put to far more radical uses. In the socialist utopia imagined by Marx and Engels, the private family would vanish along with private property and profit. Part III of this article has two goals: to remind readers that 1) socialist historymaking considered the dissolution of the bourgeois family as a key step toward a stateless state, and 2) this repudiation of the family was no mere doctrinal abstraction for American legal professionals. As the Supreme Court weighed the competing claims of parent and state, the threat of a socialist takeover of the family — “the principle of the soviet” — was always close at hand. 

In response to this unhappy prospect, the Court drew from the murky, mysterious well of state-constraining liberties we refer to as substantive due process. Repudiating the communistic models of ancient states — Sparta being the poster-child of historical statism — the Court began to write it own story of social progress. Social primitivism lay not in the patriarchal family but in the paternalistic state, and progress did not lie in a movement from personal rights to public responsibilities, but just the reverse. With regard to domestic life, this narrative of progress was one of struggle: a struggle of parental rights against the ever encroaching state. For the modern Court, regulation of the family would no longer be one of the proper functions of government. If history has an ash heap, and if the Court had its way, Sparta would once and for all be relegated to it.

One of the first papers I published, as a law professor, was a defense of Pierce and of a relatively strong view of parents' rights, or of what Prof. Stephen Gilles calls "liberal parentalism."   Here is the abstract to that paper:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

Interesting readers might also want to check out our own Mike Scaperlanda's take, here.  

December 17, 2014 in Garnett, Rick | Permalink

Tuesday, December 16, 2014

New Edition of Dawson's "The Gods of Revolution"

Here is a new edition of a work by the brilliant historian, Christopher Dawson--The Gods of Revolution--first published in 1972. The book was Dawson’s last monograph, published posthumously The Gods of Revolution with an introduction by Arnold Toynbee, with whom Dawson shared both a wonderfully sweeping methodological style and an interest in certain overarching religious themes--a style and a set of interests that quite went out of fashion in the work of many subsequent historians. The volume has been reissued by CUA Press with a new introduction by Joseph Stuart. In a college course in the intellectual history of western civilization many years ago, one of the required readings was the final part of Dawson’s book. I went back and looked at it, and have the following line highlighted: “And a free society requires a higher degree of spiritual unity than a totalitarian one, hence the spiritual integration of western culture is essential to its temporal survival.” Here is the publisher's description.

In The Gods of Revolution, Christopher Dawson brought to bear, as Glanmor Williams said, “his brilliantly perceptive powers of analysis on the French Revolution. . . . In so doing he reversed the trends of recent historiography which has concentrated primarily on examining the social and economic context of that great upheaval.”

Dawson underlines the fact that the Revolution was not animated by democratic ideals but rather reflected an authoritarian liberalism often marked by a fundamental contempt for the populace, described by Voltaire as “the ‘canaille’ that is not worthy of enlightenment and which deserves its yoke.” The old Christian order had stressed a common faith and common service shared by nobles and peasants alike but Rousseau “pleads the cause of the individual against society, the poor against the rich, and the people against the privileged classes.” It is Rousseau whom Dawson describes as the spiritual father of the new age in disclosing a new spirit of revolutionary idealism expressed in liberalism, socialism and anarchism. But the old unity was not replaced by a new form. Dawson insists the whole period following the Revolution is “characterized by a continual struggle between conflicting ideologies,” and the periods of relative stabilization such as the Napoleonic restoration, Victorian liberalism in England, and capitalist imperialism in the second German empire “have been compromises or temporary truces between two periods of conquest.” This leads to his assertion that “the survival of western culture demands unity as well as freedom, and the great problem of our time is how these two essentials are to be reconciled.”

This reconciliation will require more than technological efficiency for “a free society requires a higher degree of spiritual unity than a totalitarian one. Hence the spiritual integration of western culture is essential to its temporal survival.” It is to Christianity alone that western culture “must look for leadership and help in restoring the moral and spiritual unity of our civilization,” for it alone has the influence, “in ethics, in education, in literature, and in social action” sufficiently strong to achieve this end.

December 16, 2014 in DeGirolami, Marc | Permalink

President Obama's Immigration Action Unconstitutional According to U.S. District judge

A United States District judge has concluded that President Obama's Executive Action on Immigration is unconstitutional as beyond the president's prosecutorial discretion. The opinion is here.

December 16, 2014 in Scaperlanda, Mike | Permalink