Mirror of Justice

"Serious Questions About Religious Liberty"

From Justice Roberts' dissenting opinion in today's marriage ruling:

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

June 26, judicial impartiality, and Justice Kennedy -- cause for concern?

At Above the Law, David Lat wrote yesterday "Why the Same-Sex Marriage Decision Will Likely Come Out Tomorrow." That's today, June 26.

Lat and others find in this speculation reason for excited anticipation. They should not, for the timing would further sharpen the perception that Justice Kennedy's amour-propre has played an outsized role in the Supreme Court's evaluation of same-sex marriage under federal law. 

The speculation about June 26 as a day for "Big Gay Cases" (to use Lat's phrase) is based on the belief that Justice Kennedy has written an opinion for the Court requiring states to license and recognize same-sex marriages. Lat writes:

A June 26 hand-down of Obergefell would make that the day of decision for three of Justice Kennedy’s four Big Gay Cases — Lawrence, Windsor, and Obergefell (with Romer v. Evans, decided on May 20, 1996, as the only case not falling on June 26). And authorship of Obergefell would arguably make Justice Kennedy the single individual who has done more to advance gay rights in the United States than, well, anyone in history.

An astute observer of the Court corresponding with Lat points out that it appears unusual based on experience in recent years for the Court to schedule an opinion announcement for the Friday before the end of the Term. "There is no reason to break with character and issue a Friday decision," Craig Konnoth writes, "except to celebrate an anniversary." In an update, Lat notes that Justice Kennedy has "a sense of history and also a sense of drama, so if any justice would be attentive to anniversaries, it would be AMK."

All of this is highly speculative, as all involved acknowledge. And the final update on Lat's post quotes Eric Citron (a former Supreme Court clerk, current SCOTUSBlog commentator, and Supreme Court practitioner) with a strong formulation of the conventional wisdom about the timing of hand-downs. "The main determinant of when a case comes out is when it is ready; the Court barely considers other factors at all. And these matters are largely under the control of the Chief’s office, and I think it would be genuinely surprising, given all the things the Court is working on right now, if this kind of coincidence was in mind." I tend to agree with Citron. But Lat further comments "even if the decision on timing is ultimately up to Chief Justice Roberts, perhaps with input from the Reporter of Decisions, I can’t help thinking that the Chief would try to accommodate Justice Kennedy if AMK expressed a strong preference for June 26." And it is hard to disagree with that.

So, why would this timing be bad if deliberate? Justice is supposed to be blind. Judges should not try to create anniversaries of decisions of theirs that they would like to be celebrated. That is not how impartial judging operates. As John Finnis has written in the related context of criticizing Dworkinian moralism, "the horizon is ordinarily not the best focus for the judicial gaze."

I don't want to overstate the principle at work here. Judges may often properly have regard to the effect of timing on particular litigants. And this may even properly push them to work overtime to issue a decision more quickly. Consider the wrongfully convicted and imprisoned man now in possession of conclusive evidence exonerating him. The judicial system should work hard to end that injustice as soon as possible.

One might analogize that situation to same-sex marriage under the Constitution. Interpreting the Fourteenth Amendment to require State licensing and recognition of same-sex marriage, on this view, would be the correction of a historic injustice that cannot come fast enough. But that is not how Justice Kennedy and his colleagues have managed the issue thus far. A more accurate perception is the careful cultivation of public opinion, and concern to be on "the right side of history." Because these are not the actions of judges under the law, I hope this speculation of Above the Law is wrong. 

The role of the judge

OK, I think I finally get it!  The role of the judge in constitutional interpretation is to insert into the text words that aren't there but, in the judge's opinion, should be ("abortion," "marriage," etc.).  The role of the judge in statutory construction is to remove from the text words that are there but, in the opinion of the judge, should not be. Eureka! (I must have been absent the day they taught this in law school.)

Mary Ann Glendon’s 2015 Cardinal Egan Lecture: “Religious Freedom: Yesterday, Today and Tomorrow”

 

Many of us who contribute to or read the Mirror of Justice know and appreciate the importance of religious liberty to our American republic and beyond. As an important voice in our nation, our bishops are encouraging us to once again observe, discuss, and pray for the Fortnight for Freedom in anticipation of the Fourth of July. In this context, I note that Professor Mary Ann Glendon delivered the 2015 Cardinal Egan Lecture at the NYU Catholic Center last month. Courtesy of the Magnificat Foundation, her lecture is HERE. It is entitled “Religious Freedom: Yesterday, Today and Tomorrow.” It should be no surprise that her thoughts are prescient. In relying on the work of the late Jean Elstain, she poses the question about the kinds of distractions used today to divorce authentic liberty—especially religious liberty—from the citizenry. It seems that bread and circuses can last only so long.

As I had several rough days in chemotherapy on Friday, Sunday, and today, I shall conclude here and let contributors and readers savor Professor Glendon’s insights. In saying this I hasten to add my strong recommendation to read carefully what she has to say.

 

RJA sj

Greenhouse & Siegel's abortion-enabling "Casey originalism"

Linda Greenhouse and Reva Siegel have a post at Balkinization that calls upon the Supreme Court to stay a Fifth Circuit decision refusing to enjoin various provisions of a Texas law regulating abortion clinics. "Casey and the Clinic Closings"  concludes with this:

Casey has now been the law of the land longer than Roe itself. The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago. Women have actual, not politically manufactured, health concerns at stake. And dignity, too, is at stake: women's, the Supreme Court's, and the dignity of law itself.

A few points: 

- Casey was a compromise, to be sure. But it's hard to imagine anything less un-law-of-the-land-like than that decision. The Constitution is the actual "law of the land"; "compromise" Supreme Court decisions are not. The reasoning of Supreme Court opinions provides a particular kind of law that inferior courts must make use of; but for the rest of us, the opinions of the Supreme Court are the opinions of the Supreme Court, and not "the law of the land."

- The Supreme Court owes fidelity to the Fourteenth Amendment ratified in 1868, not to a compromise that three of its nine Justices struck among themselves in 1992. 

- There is nothing dignified about groveling to Justice Kennedy, however effective this may be now and then, and however necessary this may be for anyone who wants his vote. But that is, of course, exactly what Greenhouse and Siegel find themselves doing in "Casey and the Clinic Closings." When we do this (and I do mean "we," for I cannot exclude myself from the sometimes-groveling-to-Kennedy lawyer crowd), we undermine our own dignity.

Unlike the originator of Balkinization, neither Greenhouse nor Siegel professes constitutional originalism. But those who reject constitutional originalism often end up as originalists of a different sort. They simply choose a different part of our positive law to be originalist about. No questioning whether Casey was right (indeed, Greenhouse and Siegel say Casey "is not the opinion either of us would have written"), the job of the Supreme Court is to be faithful to that decision. At stake, they say, is "the dignity of law itself." 

They're wrong about that much (thank goodness). How well they know their audience of one, we shall see.

St. Thomas More's advice for bloggers

An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:

 Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.

(HT:  Ryan Patrico).

Lucia Silecchia on "Evangelization and the Catholic Lawyer"

Prof. Lucia Ann Silecchia has posted (HT:  Prof. Bainbridge) "A Witness Lives First the Life He Proposes:  Evangelization and the Catholic Lawyer" here.  Here's the abstract:

This essay was presented at the lecture for legal professionals in Baltimore, Maryland, on May 21, 2015. The roots of the word evangelization are, literally, in the words that mean “to bring good news.” We live in a world that craves good news and, by virtue of our Baptism, all of us – lawyers included – are called to bring good news to a world that, despite all appearances to the contrary, aches for good news and deeply yearns to know the God from whom all good news comes, and to whom all good news leads. I am convinced that there is a powerful role for us in the legal profession to play in this great task of evangelization by being joyful, hopeful witnesses to what is good, just, and simply right. Each are called to respond to the call to evangelize in our own circumstances. This essay explores, briefly, the opportunities that we may have to evangelize, or “bring good news” as lawyers, in three distinct settings: in the ways in which we educate future lawyers; in the way in which our profession is practiced; and, in the substantive law of our land itself.

Check it out!

St. Thomas Garnet

On this day, in 1608, St. Thomas Garnet was martyred at Tyburn.  Here's more about him:

Protomartyr of St. Omer and therefore of Stonyhurst College; b. at Southwark, c. 1575; executed at Tyburn, 23 June, 1608. Richard Garnet, Thomas's father, was at Balliol College, Oxford, at the time when greater severity began to be used against Catholics, in 1569, and by his constancy gave great edification to the generation of Oxford men which was to produce Campion, Persons and so many other champions of Catholicism. Thomas attended the Horsham grammar school and was afterwards a page to one of the half-brothers of Philip Howard, Earl of Arundel, who were, however, conformists. At the opening of St. Omer's College in 1592, Thomas was sent there. By 1595 he was considered fit for the new English theological seminary at Valladolid, and started in January, with five others, John Copley, William Worthington, John Ivreson, James Thomson, and Henry Mompesson, from Calais. They were lucky in finding, as a travelling companion, a Jesuit Father, William Baldwin, who was going to Spain in disguise under the alias Ottavio Fuscinelli, but misfortunes soon began. After severe weather in the Channel, they found themselves obliged to run for shelter to the Downs, where their vessel was searched by some of Queen Elizabeth's ships, and they were discovered hiding in the hold. They were immediately made prisoners and treated very roughly. They were sent round the Nore up to London, and were examined by Charles, second Lord Howard of Effingham, the lord admiral. After this Father Baldwin was sent to Bridewell prison, where he helped the confessorJames Atkinson to obtain his crown. Meantime his young companions had been handed over to Whitgift, theArchbishop of Canterbury, who, having found that they encouraged one another, sent them one by one to different Protestant bishops or doctors. Only the youngest, Mompesson, conformed; the rest eventually escaped and returned to their colleges beyond seas after many adventures. We are not told specifically what befell young Garnet, but it seems likely that he was the youth confined to the house of Dr. Richard Edes (Dict. Nat. Biog., XVI, 364). He fell ill and was sent home under bond to return to custody atOxford by a certain day. But his jailer not appearing in time, the boy escaped, and to avoid trouble had then to keep away even from his own father. At last he reached St-Omer again, and thence went to Valladolid, 7 March, 1596, having started on that journey no less than ten times.

After ordination in 1599, "returning to England I wandered", he says, "from place to place, to reduce souls which went astray and were in error as to the knowledge of the true Catholic Church". During the excitement caused by the Gunpowder Plot in 1605 he was arrested near Warwick, going under the name Thomas Rokewood, which he had no doubt assumed from Ambrose Rokewood of Coldham Hall, whose chaplain he then was, and who had unfortunately been implicated in the plot. Father Garnet was now imprisoned first in the Gatehouse, then in the Tower, where he was very severely handled in order to make him give evidence against Henry Garnet, his uncle, superior of the English Jesuits, who had lately admitted him into the Society. Though no connection with the conspiracy could be proved, he was kept in the Tower for seven months, at the end of which time he was suddenly put on board ship with forty-six other priests, and a royal proclamation, dated 10 July, 1606, was read to them, threatening death if they returned. They were then carried across the Channel and set ashore in Flanders.

Father Garnet now went to his old school at St-Omer, thence to Brussels to see the superior of the Jesuits, Father Baldwin, his companion in the adventures of 1595, who sent him to the English Jesuitnovitiate, St. John's, Louvain, in which he was the first novice received. In September, 1607, he was sent back to England, but was arrested six weeks later by an apostate priest called Rouse. This was the timeJames's controversy with Bellarmine about the Oath of Allegiance. Garnet was offered his life if he would take it, but steadfastly refused, and was executed at Tyburn, protesting that he was "the happiestman this day alive". His relics, which were preserved at St-Omer, were lost during the French Revolution.

Today is also, FWIW, the birthday of my son, Thomas Garnett.  Pretty cool.

St. Thomas More and St. John Fisher

Yesterday, we celebrated the feast day of St. John Fisher and St. Thomas More, two Catholic heroes who refused to go along, merely "for friendship's sake", with Henry VIII's power-and-money grab.

Here is a powerful clip from Showtimes' "The Tudors," depicting the execution of Fisher.  And here is the execution of More, from the same series.

I realize that, in some quarters, it is thought to be an overreaction to worry about the coming (quickly) grave challenges to religious freedom.  It is thought, or hoped, that we can and should leave "culture wars" behind, and that the optimism, joy, and popularity of Pope Francis make worries and concerns about religious freedom something only for the pinched, crabbed, overly litigious or "obsessed."   But, unfortunately, the challenges and threats are real and the worries and concerns are well founded.  The Pope's popularity and the fact that some who are not ordinarily all that interested in the Church's moral anthropology or account of the world like a few sentences in the new encyclical do not change the fact that it is increasingly mainstream in developed, western countries to think the logic of congruence should be applied to religious institutions and agencies and that it is enough, for religious liberty, to allow people to believe and worship as they like.  

It's worth remembering, when we think of Saints Thomas More and John Fisher, that England was chock-full of Catholic bishops and lawyers like them right before the Act of Supremacy . . . and the Sovereign was able to get them on board.

Sound the Horne: Justice Sotomayor's description of facial challenges in Patel ought to "escape our approbation"

Among yesterday's four Supreme Court decisions was a Fourth Amendment challenge to a Los Angeles ordinance imposing special record-keeping and law-enforcement-access requirements on the operators of hotels and motels. Justice Sotomayor wrote the opinion for a five-Justice majority holding unconstitutional under the Fourth Amendment the on-demand inspection requirement in Section 41.49(3)(a) of the Los Angeles Municipal Code.

The first section of legal analysis in Justice Sotomayor's opinion for the Court in City of Los Angeles v. Patel is devoted to establishing that "facial challenges under the Fourth Amendment are not categorically barred or especially disfavored."

The alert reader should recognize that something is off beginning with the opinion's opening description of what a "facial challenge" is: "A facial challenge is an attack on a statute itself as opposed to a particular application." This description reflects a common confusion. Within the universe of justiciable cases and controversies, there is no such thing as "an attack on a statute itself." The judicial power is confined to cases and controversies, and these are always about the operation of the laws with respect to persons or things. If the term must be used (and really, legal analysis would be better off if the term were retired), a "facial challenge" is best understood as a challenge asserting that a particular law is unconstitutional in all of its applications.

Even thus understood, the label can be confusing because many so-called facial challenges are just to a single textually discrete section, or subsection, or phrase in a subsection of a statute. Like in City of Los Angeles v. Patel. The provision declared facially unconstitutional yesterday was just one part of a recordkeeping ordinance enacted in 2008. That ordinance, No. 179533, revised the entirety of Section 41.49 of the Los Angeles Municipal Code, which takes up about three and a half pages of text. The purportedly "facially unconstitutional" subsection is 41.49(3)(a), which is only three sentences long. The successful challenge was not to "a statute itself," but to this subsection (and actually just to a part ... read on).

Even a description of facial unconstitutionality just for subsection 41.49(3)(a) appears overbroad in light of the court's reasoning. In the linked version of Ordinance No. 179533, I have x-ed out the portions of § 41.49(3)(a) that conflict with the requirements of the Fourth Amendment as expounded by the Patel majority: " §41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection." The on-demand inspection requirement is just one-half of one of the three sentences in the subsection. And the best solution may be to leave even that language in, and simply to add "after an opportunity for precompliance review" at the end of the subsection's second sentence. All of which is to say that the text of subsection 41.49(3)(a) is not itself unconstitutional. A statement that it is unconstitutional is shorthand (and sometimes misleading shorthand) for something like "because police reliance on the on-demand inspection authorization in LAMC § 41.49(3)(a) brings about states of affairs in which the Fourth Amendment rights of hotel and motel operators may be violated, no police officer may rely on that authorization unless and until Los Angeles provides an opportunity for pre-compliance review."      

Justice Scalia's dissent lays out much of this (and more) in two paragraphs worth quoting in full:

Article III limits our jurisdiction to “Cases” and “Controversies.” Accordingly, “[f]ederal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’” Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 5). To be sure, the reasoning of a decision may suggest that there is no permissible application of a particular statute, Chicago v. Morales, 527 U. S. 41, 77 (1999) (SCALIA, J., dissenting), and under the doctrine of stare decisis, this reasoning—to the extent that it is necessary to the holding—will be binding in all future cases. But in this sense, the facial invalidation of a statute is a logical consequence of the Court’s opinion, not the immediate effect of its judgment. Although we have at times described our holdings as invalidating a law, it is always the application of a law, rather than the law itself, that is before us.

The upshot is that the effect of a given case is a function not of the plaintiff ’s characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it. If a plaintiff elects not to present any case-specific facts in support of a claim that a law is unconstitutional—as is the case here—he will limit the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases. The decision to do this might be a poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by. Cf. Sibron v. New York, 392 U. S. 40, 59 (1968). But even had the plaintiffs in this case presented voluminous facts in a self-styled as-applied challenge, nothing would force this Court to rely upon those facts rather than the broader principle that the Court has chosen to rely upon. I see no reason why a plaintiff ’s self-description of his challenge as facial would provide an independent reason to reject it unless we were to delegate to litigants our duty to say what the law is.

(emphasis added)

For whatever it's worth, Justice Scalia's claim that "it is always the application of a law, rather than the law itself, that is before us" is consistent with understanding set forth in Professor Richard Fallon's article on facial challenges cited by Justice Sotomayor's opinion for the Court: Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Cal. L. Rev. 915 (2011). While there is much in the article worth digesting, I commend footnote 31 in particular. (For a less conventional, but still orthodox (if perhaps "more Catholic than the Pope") analysis of the problem of partial unconstitutionality more generally, one can check out my article on the topic. I also wrote a shorter take on facial vs. as-applied challenges for a symposium a little while back.)

And now to the first half of this post's awkward title. An error in wording appears to have made its way into Justice Sotomayor's solo dissent yesterday in Horne v. Department of Agriculture. The Justices in the majority held that a government order grabbing the fruit of the vine from raisin producers was a taking that required just compensation. Justice Sotomayor disagreed with the majority's assessment of the government's raisin marketing order as a per se taking. Her dissent states that the Order "should easily escape our approbation." In context, however, Justice Sotomayor probably meant something like "should easily escape our reprobation" or (for something less theologically loaded) "should easily escape our legal condemnation as a per se taking." This is not a big deal, of course; errors like this can easily creep in at the tail end of an editing process, particularly during the frenetic end-of-the-Term push to get opinions out. Fortunately, there is a process for correcting slips in slip opinions, and "approbation" can be amended before the opinion is off probation.