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.

Friday, January 23, 2015

"We Shall Not Weary, We Shall Not Rest"

I know that the March for Life in Washington, D.C. was yesterday -- the reason I know this is not, of course, because the annual arrival of hundreds of thousands of enthusiastic and hopeful young people bearing witness to the dignity and equality of every person is a story that is given much notice by the leading media outlets -- but I'm pretty sure it's not too late to re-read this -- which Robby George has called "the greatest pro-life speech ever given" -- by the late Fr. Neuhaus:  "We Shall Not Weary, We Shall Not Rest."

. . . That is the horizon of hope that, from generation to generation, sustains the great human rights cause of our time and all times—the cause of life. We contend, and we contend relentlessly, for the dignity of the human person, of every human person, created in the image and likeness of God, destined from eternity for eternity—every human person, no matter how weak or how strong, no matter how young or how old, no matter how productive or how burdensome, no matter how welcome or how inconvenient. Nobody is a nobody; nobody is unwanted. All are wanted by God, and therefore to be respected, protected, and cherished by us.

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person—of every human person. . . .


January 23, 2015 in Garnett, Rick | Permalink

"The Future of Catholic Schools and the Future of America"

Important, sobering reading from Peter Stravinskas at First Things.  In "The Future of Catholic Schools and the Future of America," he writes:

A case can be made that the story of Catholic education in the United States is the greatest educational success story not only in the history of the Catholic Church but in all of educational history. . . .

The maintenance and growth of Catholic schools is not merely a matter of internal Catholic interest. There is also societal payoff, however, especially as the government schools continue to struggle. Catholic schools will continue to provide the only serious national alternative to government schools. Which is to say, Catholic education is more necessary today than ever before in the history of the Church and of our nation.

January 23, 2015 in Garnett, Rick | Permalink

Is the Freedom of the Church "unnerving"?

At The Immanent Frame, Prof. Robert Yelle writes (in the course of a discussion about the Hobby Lobby case and related matters):

From a societal perspective, there are significant problems associated with granting such rights to corporations. The rise of the notion of an individual freedom of religion was complemented by a diminution of the Church’s corporate authority. At the beginning of the Reformation, William Tyndale translated the term ekklesia in the Greek New Testament as “congregation” rather than “church.” This was rightly perceived as an attack on the power of the Church, conceived as something distinct from a voluntary association of individuals. Thomas Hobbes followed Tyndale’s translation in an effort to demote the authority of the Church’s corpus mysticum, which would otherwise constitute a threat to the sovereignty of the king (or Leviathan). Churches became voluntary associations whose enforcement powers were limited largely to the power of excommunication. Already before the consolidation of the notion of religion as an individual right, the Peace of Westphalia attempted to remove the possibility that intermediary institutions would dispute, on religious grounds, the authority of the sovereign, by making the prince’s religion that of the land (cuius regio, eius religio). The freedoms that churches and certain religious associations have traditionally enjoyed under the law when acting as religious organizations are the result of a process of negotiation, under which the dangers represented—on the one hand, to individual rights, and on the other, to the sovereign authority of the state—have been sharply circumscribed, at least in America, by what Roger Williams and Thomas Jefferson called a “wall of separation.” The idea that we might be retreating from such settlements is, to say the least, unnerving.

More and more, I encounter the term "settlements" being used to describe the successes nation-states have enjoyed at shrinking, constraining, or dissolving the religious freedom appropriately enjoyed by religious communities, groups, institutions, and authorities (i.e., the Freedom of the Church).  It's tempting to declare the status-quo a settlement when one approves of it, but I'm not sure why that label should carry much weight with those  who do not.  Is some movement away from Hobbes, or Lemon-style misunderstandings of church-state separation, or laicite "unnerving," to use Prof. Yelle's term?  Maybe . . . maybe not.  

January 23, 2015 in Garnett, Rick | Permalink

Philpott on laicite, religious freedom, Europe, and Islam

This piece, by my friend and colleague Dan Philpott, at the Arc of the Universe blog (which is run by Notre Dame's Center for Civil and Human Rights) and the Cornerstone blog of the Berkley Center, is definitely worth a read.  Among other things, the piece engages critically and carefully Joan Wallach Scott's book, The Politics of the Veil(2007).  Here's a bit:

While Scott’s criticisms of France’s laïcité are on the mark, then, her post-modern democracy of difference fails to yield sustainable norms of religious inclusion. Is there a principle that both preserves the core values of liberal democracy and allows religious people to participate and practice their faith robustly within liberal democracy? Coming back to Europe’s Muslims, is there a basis for the principled inclusion of Muslim minorities in European democracies?  A strong candidate for such a principle is religious freedom. Ensconced in the global human rights conventions as well as the European human rights architecture, religious freedom has a strong claim to universality. The beauty of this principle is that it both comports with the European heritage of liberal principles and allows Muslims wide latitude to express and practice their religion, including dressing consonantly with their religious beliefs. Religious freedom means the right of women to don a headscarf in France and to doff one in Iran. It also means that religious people may advocate political positions according to their convictions. 

Read the whole thing!

January 23, 2015 in Garnett, Rick | Permalink

Holt v. Hobbs Podcast

My colleague, Mark Movsesian, and I have recorded a podcast on this week's Supreme Court decision in Holt v. Hobbs. We discuss the facts, holding, and possible implications of the case in about 20 brisk minutes. Click on over and have a listen.

January 23, 2015 in DeGirolami, Marc | Permalink

A couple of items defending the constitutionality of conjugal marriage laws

Nothing in the Constitution, even read loosely, requires states to recognize same-sex romantic or sexual partnerships as marriages. Here are two pieces on that point. 

First, an important Case Western Reserve Law Review piece by my former student and coauthor Sherif Girgis (available here). As Sherif shows, opponents of a judicial redefinition of marriage needn't be originalists, or conservatives in any sense of the term. For if the justices invalidates state laws enshrining the concept of marriage as a conjugal union, they will be following in the footsteps of a case that conservative and liberal scholars alike decry with something close to unanimity: Lochner v. New York. There, as Justice Holmes showed in what became a famous dissent, the majority was imposing its conservative economic policy choices over perfectly reasonable alternatives, without Constitutional warrant. The justices would be doing just that--but in the cause of imposing liberal social principles--if they were to strike down state marriage laws. In particular, Sherif shows in careful detail, they would be choosing between competing views of what marriage is and of why it ought to be regulated--views about which the Constitution says nothing at all.

To put it simply, I haven't seen a more comprehensive treatment (and demolition) of the Equal Protection argument against state conjugal marriage laws. 

The piece was written for a symposium on Windsor, but (bracketing a section on federalism) its argument applies to state laws. It addresses the increasingly fashionable (albeit, as Sherif shows, untenable) sex-discrimination argument. It offers historical proof that the conjugal view can't be attributed simply to animus or any particular religion. It shows that the Court would have to Lochnerize (to strike down state marriage laws) even if it adopted the more capacious equal-protection tests proposed by scholars like my friend Prof. Andy Koppelman and Prof. Jack Balkin. It addresses objections based on infertility, right-to-marry case law (Loving, Turner, Zablocki), and much more.    

As the nation gears up for a decision, of course, all eyes will be on Justice Kennedy, widely regarded as the swing vote on marriage. Kennedy has famously expressed concern that state marriage laws might unconstitutionally infringe the dignitary interests of children reared by same-sex couples. But that argument fails, as Sherif and I show in a second piece, an amicus curiae brief submitted in the course of Utah's marriage litigation. The brief is available here:


Here is a summary of our argument:  

Moral claims of equal dignity, a child’s entitlement to a mother and father, and democratic self-determination can be appropriately assessed and settled in the normal political process and have been here by the people of Utah.
The Tenth Circuit believes that Utah’s marriage laws harm the personal dignity of same-sex couples and of the children they rear. But no one disputes their equal dignity. The Tenth Circuit's conclusion misunderstands the social purpose of marriage law, which never has functioned—and could never function—as a mechanism for expressing individual dignity or social inclusion. Accepting this view would have absurd logical implications and harmful effects.
First, it would deprive the State of any limiting principle for its marriage law. 
Second, by dissolving the links between marriage and any historic marital norm besides consent, it would harm the state’s material interest in providing children with stable ties to their own parents. It would undermine their right to be reared by their own parents wherever possible--a right affirmed by the United Nations Convention on the Rights of Children.
Third, it could also thereby spread the stigmatic harms that children and partners of broken homes often suffer. And fourth, by reducing marriage to a primary mark of social inclusion and equality, it would—ironically—spread the very social message it was intended to oppose: that those outside the institution of marriage matter less.
In these ways, finally, it would deprive the People and the State of Utah of their own right to settle the purposes and contours of family policy for themselves--a right they can exercise, and have exercised, while respecting the social equality, and personal and romantic freedoms, of same-sex couples in full.

January 23, 2015 | Permalink

Thursday, January 22, 2015

Good Reading for Jan. 22

The always insightful and eloquent defender of pro-life feminism, Erika Bachiochi, hits it out of the ballpark again today in an op-ed on the CNN website. 

January 22, 2015 in Schiltz, Elizabeth | Permalink

TBT: When the March for Life made the U.S. Reports

Today's March for Life seems as good an occasion as any to share this portion of Justice Scalia's dissent in Planned Parenthood of S.E. Pa. v. Casey blasting the plurality's assertion that the Court needed to be even more unwilling than normal to reconsider precedent when that precedent has been the object of intense national controversy:

[T]he notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 6; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition--then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change--to show how little they intimidate us.

January 22, 2015 in Walsh, Kevin | Permalink

Wednesday, January 21, 2015

Did Justice Ginsburg endorse the Establishment Clause third-party burdens argument in Holt v. Hobbs?

I agree with Rick and Marc in rejecting the existence of a general rule that the Establishment Clause prohibits RFRA- or RLUIPA-required accommodations that impose third-party burdens (or allegedly impose such burdens, depending on one's understanding of the benefit/burden baseline). In my view, the Hobby Lobby amici curiae brief by Nathan Chapman lays out a better reading of the governing law than that adopted by the scholars linked in Rick's post. Unlike Rick and Marc, however, I do not read Justice Ginsburg's Holt concurrence as endorsing an Establishment Clause-based limit on third-party accommodations that should otherwise properly be recognized under RLUIPA and RFRA.

To assess this disagreement, one needs to follow Justice Ginsburg's Holt citations to her Hobby Lobby dissent: "See [Hobby Lobby], at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting)." {BTW, gotta love these Supreme Court citation conventions! See ___ (gratuitous personal op. at _:);)_).}

Justice Ginsburg's position in the cited portions of her Hobby Lobby dissent is that consideration of third-party burdens is part of the appropriate application of RFRA and RLUIPA. She does not adopt the view that these burdens could give rise to a freestanding Establishment Clause limitation on what would otherwise be required by those statutes. True, the Holt-cited portions of Justice Ginsburg's Hobby Lobby dissent do rely on Cutter v. Wilkinson and Estate of Thornton v. Caldor, which are Establishment Clause cases. But they also rely on Wisconsin v. Yoder and Prince v. Massachusetts, which are not.

Footnote 25 of Justice Ginsburg's Hobby Lobby dissent (not cited in her Holt v. Hobbs concurrence) most directly addresses the influence of the Establishment Clause on RFRA/RLUIPA analysis. It opens with the statement: "As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." But the closing sentence relies on United States v. Lee, which was neither a third-party burden case nor an Establishment Clause case: "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.' United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)." This is consistent with the position set forth in the Chapman brief, which is that Cutter interprets RLUIPA (and RFRA, by extension) to incorporate consideration of third-party burdens into the application of the statutorily required strict scrutiny.

If this reading of Justice Ginsburg's opinion is correct, then Justice Ginsburg actually agrees both with Rick that "the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry," and also with Marc, that "the strict scrutiny standard of RLUIPA and RFRA, if 'properly appl[ied],' itself incorporates the Establishment Clause limits raised by cases like Thornton."

January 21, 2015 in Walsh, Kevin | Permalink

What Does It Mean to Say that a Religious Accommodation Should Not "Detrimentally Affect Others"? And a Couple of Other Holt v. Hobbs Thoughts

Not too much to add to Rick's analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:

1. Rick quotes Justice Ginsburg's one-paragraph concurrence, which states that she only joins the Court's opinion "on th[e] understanding" that the accommodation here "would not detrimentally affect others who do not share petitioner's belief." I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose "significant burdens on identifiable third parties" (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that "detrimentally affect" anybody who doesn't share the claimant's religious beliefs. I don't believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a "detrimental effect" under that approach? Might symbolic harms count? I don't see why they wouldn't. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources ("the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration"). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not "detrimentally affected" by the inequality of treatment that results from Holt's accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes. 

2. Following from that point, the heart of these statutes (as Rick also notes) is to provide "very broad protection for religious liberty" or "expansive protection for religious liberty," as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects "unquestioning deference" but it acknowledges the "respect" that is due the prison administrators' "expertise"). Should not Hobby Lobby, in which there was no such presumptive deference or "respect" accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.

3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.

January 21, 2015 in DeGirolami, Marc | Permalink