Mirror of Justice

"The Theocracy Brief"?

At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures).  Here's the primary part of the post:

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

As it happens, the brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case.  It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.  

Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that.  But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why."  

 

 

Starr on "The First Freedom: Religious Liberty in America" at Touro

Pres. Kenneth Starr (Baylor University) is delivering a lecture at Touro, on March 26, called "The First Freedom:  Religious Liberty in America."  More information is available here.  And, you can watch it live here.  Should be great!

A Religious Constitution -- Christian, Jewish, Islamic?

Those interested in the lively issues presented by religious constitutionalism might want to check out the Clark Lecture to be held at the Rutgers School of Law (Camden)  this Thursday, March 26th (corrected from March 24th), at 4pm.  Details are here.   I will be addressing the question I was assigned:  "What would a Christian constitution, in a predominantly Christian nation, look like?"  

Two Reviews: Inazu on Smith, Movsesian on Russell

A couple of interesting new book reviews. First, a review by John Inazu of Steve Smith's most recent book, The Rise and Decline of American Religious Freedom, over at the Hedgehog Review (though John's original title, "Steve Smith, Optimist" really sang). Here's the ending:

Smith published Rise and Decline just prior to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Holt v.Hobbs, and it’s worth considering how those cases fit his story. Both were wins for religious liberty, but both were statutory rather than constitutional decisions. In one sense, the focus on statutes is completely unsurprising given the state of constitutional free exercise concerns. But it’s not clear that these statutory protections by themselves alter the direction of Smith’s narrative of decline. For that kind of directional change, we would need the Court to re-examine its reasoning in the 1990 peyote case, Employment Division v. Smith. Such a re-examination would be entirely warranted. As Laycock rightly noted in an amicus brief filed just this month, the rule announced in the peyote case came unexpectedly (the rule “was neither briefed nor argued” to the Court) and the decision “cannot be said to have become embedded in the law.” But the Supreme Court has thus far not budged. And as long as that decision stays on the books, Smith may have been better off basing the title of his latest book on an article he wrote in the Harvard Law Review a few years ago: “Discourse in the Dusk: The Twilight of Religious Freedom?” Even then, Smith’s question mark might be too optimistic.

Second, my colleague Mark Movsesian's review over at the Liberty Law blog of Gerard Russell's book, Heirs to Forgotten Kingdoms. Here are Mark's concluding paragraphs:

There is a danger in treating Copts and other Middle Eastern Christians like this. A major obstacle to getting American Christians interested in the plight of Middle Eastern Christians is the fact that they seem so foreign, so distant from the lived experience of Christianity in the United States. Accounts like Russell’s inadvertently emphasize the “otherness” of Middle Eastern Christians, thereby making it even less likely that they will draw the attention of Americans in a position to help. Of course, this is not Russell’s intention. As I say, he has genuine sympathy and admiration for all these groups, including the Christians. But his portrayal of them may have an unintended and unfortunate effect.

Nonetheless, this is an enjoyable and valuable book, instructive and a pleasure to read. It should appeal to anyone with an interest in the history of religion and the Middle East—indeed, anyone with an interest in the human spirit itself.

Saturday is World Down Syndrome Day!

Tomorrow (3/21) is World Down Syndrome Day. 

 

Celebrate by watching this great video put out by the Jerome LeJeune Foundation (named after the geneticist who discovered that Down Syndrome was caused by trisomy 21 (3 copies of the 21st chromosome), currently on the road to canonization.

 

Or this inspirational story about the basketball team of at Lincoln Middle School in Wisconsin defending one of their cheerleaders with Down Syndrome.

 

Or do yourself a real favor spend some time celebrating with a person with Down Syndrome!

 

Baude's "flouting the rule of law" critics should explain precisely which rule of law his proposal flouts

In the dust-up over Will Baude's op-ed proposal for plaintiff-specific compliance in King v. Burwell, one peculiar feature stands out. Some of Baude's legal critics contend that the Obama Administration's adoption of his proposal would flout the rule of law even while they do not identify any particular rule of law that the Administration would be violating. As far as I have been able to discern to this point, there is none.     

The opening paragraph of Noah Feldman's Bloomberg View commentary contends that "[o]beying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law." But one reads that essay in vain for an identification of which specific rule of law would be violated, flagrantly or not. Feldman's opening sentence asks: "Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed?" The problem with this sentence--as we know Feldman knows from elsewhere in his commentary--is that Baude makes no such proposal. Baude's proposal is not to ignore the Supreme Court's judgment, but to obey the Court only with respect to the plaintiffs in the case. 

Relatedly, Josh Blackman's commentary at National Review Online describes Baude's proposal as a "procedural putsch" (though it is probably more precisely pegged only as "precedential parsimony").  Blackman accuses the Obama Administration of making "unprecedented assertions of power" that "have flouted the rule of law," but he ultimately differentiates the question of legal correctness from the rule of law. "Even if legally correct," he writes of plaintiff-specific compliance,"this practice should be emphatically rejected." 

I understand the political and practical difficulties posed by plaintiff-specific compliance in King v. Burwell. And I understand why some others of Baude's critics disagree with his proposal even while acknowledging that he is right about its legal permissibility. But the "rule of law" criticisms are of a different sort, and they remain puzzling insofar as they are untethered from what one might call "the law of law." 

In the United States, there are three ways that a court's judgment can have binding legal effect: the law of preclusion, the law of precedent, and the law of remedies.

Of these three types of "law of law," both the law of preclusion and the law of precedent operate primarily in other, later cases. If the government were to lose in King v. Burwell, a non-party to that case could almost certainly use non-mutual offensive issue preclusion to win another challenge to the subsidies in a later case. [UPDATE: D'oh! Shouldn't have needed to be reminded, as I was shortly after posting, about United States v. Mendoza. Non-mutual offensive issue preclusion is unavailable against the federal government.] But it would not even be necessary to rely on preclusion, for every court would be bound as a matter of precedent to hold the subsidies illegal. To the extent that the doctrines of preclusion and precedent operate only in other, later cases, however, their reach extends only to whichever other, later cases there happen to be. Given the nature of the relief sought in King v. Burwell, there may not be very many such cases.

By contrast with the law of preclusion and the law of precedent, the law of remedies at least has the potential to provide for broader binding effect in King v. Burwell itself. If legally authorized, a nationwide injunction against the responsible government officials would authoritatively forbid any further implementation of the challenged subsidies. But the legal propriety of a nationwide injunction is far from clear.

Josh Blackman addressed some of the issues relevant to nationwide injunctive relief in two earlier posts criticizing Baude's proposal, ultimately suggesting that "unusual factors" in this case would allow for a nationwide injunction. But the reason that he had to rely on "unusual factors" is that the usual approach toward injunctive relief would require that the injunction should only be as broad as necessary to give the plaintiffs relief from their injury, and the King plaintiffs do not advance nationwide injury requiring nationwide relief. (It might also be worth noting that Blackman discusses D.C. Circuit precedent about nationwide injunctions, but not the seemingly more confining Fourth Circuit precedent that would govern in King if the Supreme Court itself does not specify the scope of injunctive relief. See, e.g., Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 434-36 (4th Cir. 2003) (reversing nationwide injunction that was "broader in scope than that necessary to provide complete relief to the plaintiff" and that "did not carefully address only the circumstances of the case").)

Another way of coming at the scope-of-injunctive-relief issue is to imagine that the King plaintiffs had sought to represent a class of all subsidy-eligible plaintiffs and asked a court to certify that class under Rule 23(b)(2). Would it have been proper to certify the King plaintiffs as representatives of such a class? Not a chance. Why, then, should they be able to secure an injunction that would accomplish the same result?

The reason this all seems confounding is that it would usually be foolish to engage only in plaintiff-specific compliance with a Supreme Court ruling. But that is largely because of all the court losses that would follow in later cases. Those losses would be attributable, however, to the law of precedent and the law of preclusion, not to a nationwide remedy. And it would be a mistake to treat the potential absence of enough later cases in which precedent or preclusion would compel practical nationwide compliance as an argument for authorizing nationwide injunctive relief.

Perhaps I am missing something. But until Baude's "flouting the rule of law" critics explain which particular rule of law would be violated by adoption of his proposal, I don't know how to find my way to agree with them on this point. 

To say that plaintiff-specific compliance is legally permissible is far from suggesting it would be advisable for the Obama Administration to follow that course. There is much that is legally permissible that is inadvisable for any number of reasons. And I would not advise being so grudging in King v. Burwell.

It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court's crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.

Archbishop Chaput on Human Dignity and Dignitatis Humanae

Over at First Things, you can read Archbishop Chaput's March 17 lecture, "Of Human Dignity:  The Declaration of Religious Liberty at 50."  In his address, "outline[s] what the Church teaches about religious freedom"; "list[s] some of the key religious liberty challenges heading our way"; and "talk[s] about why the Council was right."  Like the man says, "highly recommended."

Here's a bit:

In the mind of the Council, religious liberty means much more than the freedom to believe whatever you like at home, and pray however you like in your church. It means the right to preach, teach and worship in public and in private. It means a parent’s right to protect his or her children from harmful teaching. It means the right to engage the public square with moral debate and works of social ministry. It means the freedom to do all of this without negative interference from the government, direct or indirect, except within the limits of “just public order.”

And, in his discussion of threats and challenges, there's this:

The biggest problem we face as a culture isn’t gay marriage or global warming. It’s not abortion funding or the federal debt. These are vital issues, clearly. But the deeper problem, the one that’s crippling us, is that we use words like justice, rights, freedom and dignity without any commonly shared meaning to their content.

We speak the same language, but the words don’t mean the same thing. Our public discourse never gets down to what’s true and what isn’t, because it can’t. Our most important debates boil out to who can deploy the best words in the best way to get power.

And he concludes, quoting St. John Paul II's "be not afraid!", with this:

There’s too much beauty in the world to lose hope; too many people searching for something more than themselves; too many people who comfort the suffering; too many people who serve the poor; too many people who seek and teach the truth; too much history that witnesses, again and again, to the mercy of God, incarnate in the course of human affairs. In the end, there’s too much evidence that God loves us, with a passion that is totally unreasonable and completely redemptive, to everstop trusting in God’s purpose for the world, and for our lives.

I must admit -- or confess -- to an increasing inability to really embrace and express the hope that Archbishop Chaput holds up.  As my friend and colleague, Bob Rodes (RIP), put it:

Gods plan made a hopeful beginning 
man spoiled its chances by sinning
we hope that this story
will end in Gods glory
but at present the other sides winning.

 

Notre Dame's excellent Laetare Medal selection

I am delighted by the news that the University of Notre Dame will award this year's Laetare Medal to Aaron Neville.  (I admit, I have nominated Neville several times, including this year.)  Although I'm not a huge fan of some of his biggest pop hits, the Neville Brothers are, in my view, one of the country's all around best bands.  Take a few minutes to read this nice piece about Neville's faith.   Then go listen to his Ave Maria.  And then -- why not? -- kick out the jams with "Fiyo on the Bayou" (here).

Two Virginia governors with different estimations of various things Catholic

As a Catholic Virginian, it was somewhat jarring to read in the same sitting Thomas Jefferson's correspondence from approximately two hundred years ago and a statement of Terry McAuliffe's spokesman reported in Friday's Richmond Times-Dispatch. From Jefferson there was condemnation of various dogmas of the Catholic faith, while from McAuliffe's spokesman there was confusion about Catholic teaching.

Governor McAuliffe's spokesman publicly professed him to embrace what Jefferson privately condemns-- Catholic faith. But it remains unclear what the governor's professed faith has to do with his actions in office. The spokesman portrays Catholic teaching on the protection of unborn human life and the definition of marriage to require a man and a woman as improper for implementation in public law: "The governor is a lifelong Catholic who takes his faith very seriously. . . . He also believes in keeping government out of decisions that should be left to women and their doctors, or to consenting adults who love each other.” 

As for Jefferson, it is difficult to know which of his many expressions on matters of false faith would be the best to quote for a flavor of his thinking. But an aside in his Halloween 1819 letter to William Short includes a helpful list of examples of the "imputation of imposture, resulting from artificial systems, invented by ultra-Christian sects, unauthorized by a single word ever uttered by [Jesus]," from which Jefferson believed it desirable to rescue the enlightened teachings of Jesus (whom Jefferson described in the same letter as the "greatest of all reformers of the depraved religion of his own country").

Jefferson's list of imputations of imposture contains "[t]he immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, regeneration, election, orders of Hierarchy, &c."

Given this list, Jefferson would presumably be disappointed to find the spokesman of the present governor of Virginia professing Governor McAuliffe a "lifelong Catholic who takes his faith very seriously." But this disappointment would probably be offset by attention to Governor McAuliffe's public actions with respect to the law over his spokesman's public words with respect to the governor's faith. 

Amicus Brief in Marriage Cases: Protecting Same-Sex Marriage and Religious Liberty

Doug Laycock and I have filed an amicus brief in the same-sex-marriage cases on behalf of ourselves, David Blankenhorn of the Institute for American Values, and Professors Marie Failinger and Edward Gaffney. It argues that the Court can and should protect both the right to civil marriage for same-sex couples and strong rights to religious liberty for religious objectors. From the summary of argument:

       The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.
       The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages.

Tom B.