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.

Tuesday, January 20, 2015

Some thoughts on Holt v. Hobbs

While waiting for what I am sure will be Marc's more thoughtful and insightful comments about today's welcome, clear, and correct decision in Hobbs, I've gathered a few of my own:

First, the opinion by Justice Alito is exceptionally well crafted.  It should win a Green Bag award or something.  It covers the necessary bases, and no more.  The language is clear and functional.  (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.)  One knows, at every point in the analysis, where one is.

Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so as to provide no more protection than did some of the Court's earlier First Amendment cases.  Here, he rejected the notion that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.

Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions.  Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'"  So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.

These last three points, together, are very helpful, I think, in helping us think more clearly about the idea of "substantial burdens" in the accommodation-of-religion context.  What it is that we are asking about when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility.  We are asking, instead, about the nature of the government's imposition on the sincerely asserted belief.  There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is an important one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics by $.01  would not impose a "substantial" burden on religious exercise.  Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial.  And, it is.

Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a  'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened."  And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.

In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion.  They wrote:

Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.

While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I wish one of the Justices had.  The claim that it violates the Establishment Clause to accommodate religion in ways that impose any costs or burdens on third parties is one that, of course, is made and believed by a number of very smart people, but I do not think it is correct.  The Court has not clearly established such a general rule; that is, the precedents and quotes that are invoked in support of this claim do not, in my judgment, clearly support such a rule.  As I see it (see more here), 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.

Finally:  today's opinion offers a very, very welcome counter to the unfair and mean-spirited notion -- one that is, I'm afraid, getting a lot of purchase in some quarters -- that concerns about "religious liberty" are "dog whistles" or "fig leaves" for "bigotry", and so can be dismissed as such.  Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable.  Many others will not.  We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.

And . . . congratulations to the Becket Fund for Religious Liberty and to Prof. Doug Laycock. 

January 20, 2015 in Garnett, Rick | Permalink

Another Unanimous Roberts Court Law and Religion Opinion

The Supreme Court today handed down Holt v. Hobbs, the RLUIPA case involving an Arkansas prisoner who complained of a state prison policy disallowing him to grow a beard in accordance with his understanding of his religious obligations.

The opinion was unanimous, with two separate, short concurrences by Justices Ginsburg and Sotomayor. I'll save analysis for a later moment (it was a rather straightforward application of RLUIPA in Justice Alito's majority opinion, though with some interesting language about the individual components of the test).

For now, though, I'll just note the fact of another unanimous opinion in this area from the Roberts Court. Holt v. Hobbs continues to follow the Roberts Court pattern of either unanimity or 5-4 outcomes in law and religion jurisprudence, as I discuss in greater detail at Part II of this article. The figures are now four unanimous law and religion decisions as against six 5-4 law and religion decisions. The article speculates about a few reasons that we might be seeing this particular voting pattern, contrasting it with the patterns of Supreme Courts past.

January 20, 2015 in DeGirolami, Marc | Permalink

Sunday, January 18, 2015

Justice Rehnquist, Religious Freedom, and the Constitution

I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution."  I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.  And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court:  Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief.  Here's the abstract:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

January 18, 2015 in Garnett, Rick | Permalink

Saturday, January 17, 2015

Lash Reviews American Sniper--"A Deeply Subversive War Movie"

I am posting, with permission, Professor Kurt Lash's superb review of the movie, "American Sniper." I haven't seen it, but after Kurt's very interesting comments, I want to.


A Review of American Sniper

Director: Clint Eastwood

This is a deeply subversive war movie. On its face, it appears to be a straightforward retelling of the life of a soldier in war. It’s a well-trodden script: The training, the first kill, the fearful family at home, the growing emotional disconnect between soldier and loved ones as the bloody and tragic experience of war takes it toll, the increasing difficulty of leaving the war behind. This has all been done before. True, director Eastwood has an especially skilled hand. He takes us into the experience of training and battle in a manner that is realistic and which avoids the self-indulgent errors of prior films: Yes, training is grueling, but it is not sadistic. Yes battle is jarring and horrific, but also dusty and boring. Yes some soldiers think the effort is pointless, but others believe the effort is profoundly important.

Unlike most war films, however, Eastwood take no position on war itself. This is not an Army (Navy, in this case) recruiting film, nor an anti-war “bring the troops home” film. Eastwood also avoids making any kind of political statement about the Iraq war. No doubt, some will perceive a political statement precisely because there is nothing anti-Bush or anti-Iraq about the film. But that’s merely a reflection of our poisonous political culture.

In some ways, American Sniper follows the path explored with such moving success in Band of Brothers: Soldiers are not psychopaths. They are ordinary men asked to perform extraordinary tasks. The crucible of battle melds men together into a profoundly protective “family.” They experience brotherhood and loss on a level difficult for any non-soldier to imagine. When Oliver Wendell Holmes wrote of his early experience fighting in the Civil War “in our youths, our hearts were touched with fire,” he may have intended it as a boast, but it can just as easily be understood as lament. The act of destroying human beings, however justified, leaves a scar on one’s soul.

But where Band of Brothers presented the humanity of the ordinary soldier, Eastwood presents the humanity of the outstanding soldier. This is territory not even Band of Brothers was willing to explore. Instead, Steven Ambrose and the script-writers for Band portray the most effective killing machine in the 101st, Ronald Speirs, as something of a psychopath. Rumored to have mass murdered prisoners of war, Band’s writers have Speirs instruct a frightened soldier “the only hope you have is to accept the fact that you're already dead, and the sooner you accept that, the sooner you'll be able to function as a soldier's supposed to function. Without mercy, without compassion, without remorse. All war depends on it.” This statement, of course, encapsulates the Hollywood version of the truly effective soldier since the time of Apocalypse Now. Soldiers are “baby killers,” we’ve been told. It is inhuman work. To be good at it means you are inhuman yourself, you have abandoned your humanity, or you are doomed to insanity and suicide. Thus, the Deer Hunter, Coming Home, Patton, Platoon, Full Metal Jacket, Apocalypse Now, etc etc.

It is here that Eastwood’s realistic but almost oddly subdued portrayal of Chris Kyle earns its title as a subversive war movie. Kyle was, in fact, an astonishingly effective killer. He was also a heroically committed soldier, serving four tours of duty in Iraq. I won’t recount all his stats and medals. Let’s just stipulate that Kyle did what soldiers do and did it as well as or better than any soldier in history. And, like prior Hollywood “killing machines,” Kyle is deeply patriotic and hasn’t the slightest doubt about the justness of his work. But jarringly unlike prior Hollywood warriors, Eastwood leaves open the distinct possibility that Kyle was right. There is nothing implausible about Kyle’s explanation about why his work is both important and just, and there is nothing in the movie to suggest that Kyle was anything but a decent human being, both in and out of war. Eastwood does not avoid portraying the inevitable psychological toll of war. Indeed, the toll is a major aspect of the film. But this is not the portrayal of a psychopath or a destroyed human soul. It is the story of a soldier who manages to maintain his humanity despite his commitment and skill at destroying other human beings.

How Kyle remains “human” is, of course, the key to understanding this movie. At key moments, Kyle interacts with other soldiers who either lose their belief in their work, or never had that belief in the first place. Such doubts cripple the soldier's mind and their skill. Kyle survives, and survives as an intact soul, Eastwood implies, because he never doubted the moral justness of his work. As we follow Kyle through the horrors of war, we are constantly shown examples of how one can be heroically committed to humanity, not only despite being an effective soldier, but through being an effective soldier.

Even more jarring (from a certain perspective), Eastwood’s movie is not about “the brotherhood of all soldiers.” It is about American soldiers. There are good guys and bad guys in this movie, and Eastwood leaves no doubt about who is who. In what has to be the most subversive move of all, the movie’s title, American Sniper, seems not the least bit ironic.

In truth, I would not have chosen American Sniper as a finalist for best picture. Eastwood’s pacing and the structure of the film results in a subdued experience that I am not sure sufficiently does justice to the man or the material. Perhaps that was Eastwood’s intention, perhaps this was never meant to be a blockbuster (Eastwood is long past needing any such validation), but instead a homage to the troops and their families. It certainly comes across that way: The silent credits of the movie mirrored the deep and respectful silence of the audience as we stood and exited the movie.

On the other hand, I cannot help but think Eastwood was speaking to all of us, not just soldiers and their families. It’s a worthy effort, even if not wholly successful. See it for Bradley Cooper’s outstanding effort (he fully deserves his nomination), and struggle with its protagonist to reconcile the good warrior with the good man.

January 17, 2015 in DeGirolami, Marc | Permalink

Friday, January 16, 2015

An interview with Prof. Steven Smith

Here is an interesting interview with Prof. Steven Smith (San Diego) -- in my view, one of the most important and insightful law-and-religion scholars working -- about his new book and about the "fate of American religious liberty."  (Especially as it becomes increasingly common for people to tendentiously dismiss concerns about religious liberty as "bigotry" or "dog whistles.") Here's a bit:

In Rise and Decline I suggest that our contemporary approach to religious pluralism might accurately be characterized as one of denial (or self-deception). We intone, over and over again, that government must be “neutral” toward all religions. And then we desperately try to ignore or obfuscate the fact that in cases of genuine conflict, there simply is no meaningfully neutral position. In this vein, a pervasive strategy is to criticize your opponent’s position for departing from neutrality (as it will, inevitably) while distracting attention (other people’s and your own) away from the fact that your own position is equally a departure from neutrality. There are various techniques for accomplishing this. But the language of “imposing values on others” is one very common (and often rhetorically effective) way of practicing this sort of deception or self-deception.

January 16, 2015 in Garnett, Rick | Permalink

Hanby, Weigel, and Dreher on "The Civic Project of American Christianity"

The exchange among Michael Hanby, George Weigel, and Rod Dreher, over at First Things, is very much worth a read.  Hanby, in "The Civic Project of American Christianity", takes stock of our times, and writes:    

"[A] revolution in fundamental anthropology will invariably transform the meaning and content of justice and bring about its own morality. We are beginning to feel the force of this transformation in civil society and the political order. Court decisions invalidating traditional marriage law fall from the sky like rain. The regulatory state and ubiquitous new global media throw their ever increasing weight behind the new understanding of marriage and its implicit anthropology, which treats our bodies as raw material to be used as we see fit. Today a rigorous new public morality inverts and supplants the residuum of our Christian moral inheritance.

This compels us to reconsider the civic project of American Christianity that has for the most part guided our participation in the liberal public order for at least a century. . . .

George Weigel (among other things) advises -- and makes a point that I think cannot be made often enough to those of us who aspire to some kind of constructive engagement with and expression about the whole "faith, culture, and public life" cluster of matters:

In a culture that has lost contact with reality, a Church in America equipping its people to be the missionary disciples they were baptized to be (a ­vocation that includes responsible citizenship) must, in its preaching and catechesis, help its people reestablish that contact. In circumstances as philosophically impoverished as ours, appeals to “metaphysics” and “anthropology” are likely to fail, save with a very small remnant. Similarly, attempts to fight the new Gnosticism with the weapons of logic deployed in service to moral truth are almost certainly doomed to be frustrated, because public life is not, in the ­final analysis, an exercise in logic alone. But offering the people of the Church a new way to see Things As They Are by looking at the world through the lens of biblical faith might offer a way forward. N. T. Wright puts what I’m trying to say succinctly when he argues that the entire burden of the Pauline ­letters is to teach new Christians to “think within the biblical narrative, to see themselves as actors within the ongoing scriptural drama: to allow their erstwhile pagan thought-forms to be transformed by a ­biblically based renewal of the mind” (emphasis added).

Dreher is (even) more pessimistic (or, as he says, "realistic"):  

If by “Christianity” we mean the philosophical and cultural framework setting the broad terms for engagement in American public life, Christianity is dead, and we Christians have killed it. We have allowed our children to be catechized by the culture and have produced an anesthetizing religion suited for little more than being a chaplaincy to the liberal individualistic order. . . .

The civic project of American Christianity has come to an end, for how can we produce Christian civic life when we are not producing authentic Christians?

This is not to endorse quietism. I don’t think we can afford to be disengaged from public and political life. But it is to advocate for a realistic understanding of where we stand as Christians in twenty-first-­century America. Our prospects for living and acting in the public square as Christians are now quite limited.

Put bluntly, given the dynamics of our rapidly changing culture, I believe it will be increasingly difficult to be a good Christian and a good American. It is far more important to me to preserve the faith than to preserve liberal democracy and the American order. Ideally, there should not be a contradiction, but again, the realities of post-Christian America challenge our outdated ideals.

Read it all.  Think about it.  Thoughts?

January 16, 2015 in Garnett, Rick | Permalink

Blaming Corwin for constitutional confusions

The J. Reuben Clark Society and Career Development Office here at the University of Richmond School of Law hosted an excellent lecture yesterday by Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit. The flavor of the lecture can be seen in its title: A Constitution We Are Confounding: Some Observations on the Constitution as Written and the Constitution as Taught.

At the risk of oversimplification, the basic claim of the lecture was that the case method of teaching initiated in the last few decades of the nineteenth century, together with a judge-centered understanding of constitutional law traceable to Marbury v. Madison, have underwritten a "common law" way of teaching constitutional law that slights the writtenness and legal fixity of the Constitution.

In reflecting on Judge Bybee's historical narrative, the case method seems more to blame than Marbury. In my view, formed largely by Christopher Wolfe's insightful arguments in The Rise of Modern Judicial Review, the practice that we now call "judicial review" is different in important respects from the practice engaged in by Chief Justice Marshall.

One piece of evidence for this claim of partial discontinuity is terminological. As Mary Sarah Bilder has explained, it was not until the early twentieth century, through the writings of Edward Corwin, that "judicial review" became the standard term for the practice of refusing to apply unconstitutional statutes as law in the course of deciding a case. 

The achievement of Corwin of perhaps the greatest interest for Catholic legal theory is his influential mangling of the relationship between natural law and American constitutional law. Corwin developed and evangelized an account of natural law "under the skin" of the Constitution that collapses the natural law into a misunderstood version of the common law and ends up in ignoring the written Constitution as positive law. My Richmond colleague Gary McDowell, criticizing "Corwin's corrosive constitutionalism" has described the result of this thinking:

[A]ppeals intended to square the Constitution with the demands of natural law will be made through the courts. The result will be for judges to create judicial doctrines derived from what they perceive to be the dictates of natural law by Corwin's "rugged massage" of the Constitution's text. To believe, Corwin said, that "judicial review is confined to the four corners of the written Constitution" does no justice to the influence of "natural law ideas" on judicial review.

January 16, 2015 in Walsh, Kevin | Permalink

Thursday, January 15, 2015

Inviting Applications for the 2015 Libertas Project Summer Workshops

Libertas Header

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2015 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation. 

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants. 

The dates for the 2015 summer workshops are July 6-8 on religious freedom and July 13-15 on economic freedom. Participants in the workshops will each receive an honorarium of $1500. 

The workshop moderators will be Richard Garnett (University of Notre Dame), Marc DeGirolami (St. John’s University), and Zachary Calo (Valparaiso University) on religious freedom and Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom. 

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation. 

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are available. 

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law ([email protected]) by March 1, 2015


The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom. 

Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice. 

At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom? 

The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.

January 15, 2015 in Moreland, Michael | Permalink

Wednesday, January 14, 2015

The influence of the Justices' religious beliefs

There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?"   The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.  

I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases.  (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")

Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants.  (Here's WSJ thing I did on this subject a few years ago.)  I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific): 

[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.

That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete.  (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.")  For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters."  I am skeptical.  For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs.  It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid.  It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment. 

I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court.  Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean.  For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates  what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs."   And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."


January 14, 2015 in Garnett, Rick | Permalink

Tuesday, January 13, 2015

The March for Life . . . and the University of Notre Dame

I am so proud and pleased that a contingent of 690 (!) students, faculty, and staff from Notre Dame will be travelling to bear witness at the annual March for Life in Washington, D.C.  (More here.)  "What Would You Fight For?", indeed.  Go Irish.


January 13, 2015 in Garnett, Rick | Permalink