Mirror of Justice

John Allen on Francis and the Religious Freedom Signals

Here. It doesn't mean he necessarily supports Kim Davis in all her assertions, or even the Little Sisters of the Poor, but it is at least a symbolic statement in favor of a broad right of conscience, and perhaps meant to reassure conservatives more specifically on these issues.

To put the point in crudely political terms, Francis is a figure who utterly defies the usual left/right divides, equally capable of meeting Kim Davis and embracing poor immigrant children at a Harlem school – seeing both as part of a continuum of concern for human dignity.

The Pope met with Kim Davis / Responses to Vischer and Bowman [UPDATED]

The New York Times has an account, here.  This bit of news seems clearly to disrupt some narratives about the Pope and his visit, as do the Pope's remarks about the human right to conscientious objection, including by public officials.  I do not know what to make of the fact that he made these statements after leaving the United States and that his meeting with Davis was not publicized.  I do not agree with those who have tried to interpret the Pope's collection of events, addresses, and statements as somehow downplaying the importance of (and threats to) religious freedom, and yet, had the visit with Davis and his conscientious objection statements been part of that collection, it seems like it would have made that interpretation even more implausible than, in my view, it already is.

UPDATE:    A Vatican spokesperson "clarifies" regarding the meeting, here.  Clearly, some very different accounts are emerging, both of what happened between Pope Francis and Ms. Davis and how.  

UPDATE:    Spokesperson expresses a "sense of regret" over meeting?   And yet . . . the Pope said what he said about a human right to conscientious objection -- even by officials . . ..  One thing is clear:  those who imagine Vatican conspiracies to take over the world and steal our precious bodily fluids needn't worry.  The Church just isn't that organized.

 Like Rob Vischer (read his piece here), I think the Kim Davis case presents some tricky questions.  It is not as clear to me as it is to some that she can, in this moment, expect to be exempted from performing duties that attach to her elected, official position.  (This is not to say that it does not make sense to find ways -- as Robin Fretwell Wilson and others have described -- to accommodate, if possible, public employees' religious objections to participating in the legal recognition of same-sex marriages, if it can be done in a way that does not deny anyone legal rights.)  At the same time, I think Matt Bowman is clearly right to warn that those who control the power to define what "doing your job" means (or to control access to various positions and professions through licensing, accreditation, etc.) will be trying to use that power in the coming years against, say, pro-life doctors and nurses, or judges who belong to "discriminatory" organizations, or student groups and religious colleges with "discriminatory" views, practices,  or mission statements, etc.  Stay tuned.

A friendly reminder: Pope Francis and Justice Scalia believe in Satan

In the warm afterglow of Pope Francis's visit to the United States, Michael's posting of the prayer to St. Michael the Archangel reminded me of some reactions a while back to Justice Scalia's "I even believe in the devil" interview. Pope Francis's insistence on the reality of Satan has sometimes led to expressions of incredulity and scorn like those that greeted Justice Scalia's remarks. Not as many such comments, of course, because Pope Francis is way more popular than Justice Scalia. But enough to notice, I suppose.

Some ways of responding to these responses are better than others. One helpful piece ran on CNN.com earlier this year. In it, Fr. Thomas Rosica addressed the question: "Why is Pope Francis So Obsessed with the Devil?" MOJ readers may find it of interest.

Another take that may be of interest is the New Republic's April 2015 story by Elizabeth Bruenig: "Pope Francis's Populist War with the Devil." Bruenig writes that "perhaps the most promising aspect of Pope Francis’s wholehearted belief in the Prince of Lies is the way it unites all of humankind in a single struggle."

What does this have to do with Catholic legal theory? I'm not entirely sure. But this idea that awareness of a common enemy can unite an embattled group probably helps to explain some of Chief Justice John Marshall's success in holding the Justices together in unanimous opinions in some of his Court's controversial cases.

So there. Happy feast day.

Vita et Veritas

For anyone in or near New Haven, I'll be speaking at the Vita et Veritas conference at Yale this Saturday afternoon. My topic:  whether abortion is necessary for women's equality.

I learned to my great delight this past week that Yale Law Professor Reva Siegel, my principle interlocutor in "Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights" (HJLPP, 2011), teaches the article (quite fairly) in one of her classes at Yale Law.  

On the Feast of the Archangels

St. Michael the Archangel, 
defend us in battle. 
Be our defense against the wickedness and snares of the Devil. 
May God rebuke him, we humbly pray, 
and do thou, 
O Prince of the heavenly hosts, 
by the power of God, 
thrust into hell Satan, 
and all the evil spirits, 
who prowl about the world (our cities, and our families)
seeking the ruin of souls. Amen.

Pope Francis and Father Al

 We have an interim pastor at our local parish, someone to keep the trains running for a year until we get a new permanent pastor.  He was introduced to us as a former accountant who found his vocation later in life, so I expected someone who would be focused on cleaning up the books.  It turns out that the earlier part of his life included getting married and raising a family, and that he is one of the most joy-filled priests I have ever encountered.  In his age, his looks, and his profound yet simple sermons, he evokes Pope Francis for me every Sunday. 

I listened to and watched as much of what Our Holy Father was saying over the past week as I possibly could, and I'm looking forward to downloading & reading everything more carefully.  What a powerful display of loving, joyful confidence in the truth of the Gospel, in every encounter he had with the multitudes of people he saw, in the most diverse range of settings!  What a model for us all! 

When I read Fr. Al's "column" in our Church bulletin this Sunday, I found it a fitting coda to Pope Francis' visit.  It's a "new" version of the famous 'footprints in the sand' story.  I've included it here, after the split. 

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Pope Francis on religious freedom in Philadelphia

Here's Pope Francis's religious-freedom text.  Lots of really good stuff, but this jumped out at me (and, I hope, to many!):

I would like to reflect with you on the right to religious freedom. It is a fundamental right which shapes the way we interact socially and personally with our neighbors whose religious views differ from our own.

Religious freedom certainly means the right to worship God, individually and in community, as our consciences dictate. But religious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. . . .

Some will (indeed, already have) tried to (somehow) mute the force of the Pope's message on this point by noting the absence of words like "HHS mandate" or "First Amendment Defense Act," or by suggesting that the content of the views expressed by the Pope varies in some way from the public-square arguments that have been made in recent years by the American bishops. This is wrong, I think.  When the Holy Father says this:

 When individuals and communities are guaranteed the effective exercise of their rights, they are not only free to realize their potential, they also contribute to the welfare and enrichment of society.

. . . he's saying that faith-based institutions should be -- to borrow the title of a forthcoming book by Stanley Carlson-Thies and Stephen Monsma, and also the theme of the bishops' recent "Fortnight for Freedom" -- "free to serve."  An egregious example of this spinning -- and misreading -- is this New York Times editorial-masking-as-news piece, in which the author tried to suggest that the Pope's mentions of religiously-motivated violence and oppression abroad could be heard as speaking to "defiance in this country on religious grounds of same-sex marriage rulings" or that there was some distance between the Pope's observations about the role of religious freedom "in caring for others" and the efforts by (those the author mistakenly calls) "conservatives" to defend the integrity and mission of religious civil-society institutions.

The Living Constitution as an impediment to legislative abolition of the death penalty

Suppose one thinks that the way the Living Constitution works these days involves some judicial leading-from-behind emboldened by shifts in public opinion that have themselves been partially prompted by bolder, earlier attempts by other judges to shift public opinion. And further suppose that one supports the policy outcome pushed by the judicial norm entrepreneurs, but opposes their legal reasoning and the very idea of a Living Constitution. 

This is something of the frame of mind I bring to abolition of the death penalty.

I advocate legislative abolition of the death penalty at the state level. As a matter of political prudence, this seems more likely to occur if the death penalty at the federal level remains available. And while abolition at the federal level also would be desirable, a gradual transition appears more feasible and more likely to prove enduring.

Whether my assessment of the political landscape is correct (it often isn't, after all), legislative abolition of the death penalty is more likely to occur if public opinion supporting abolition grows. So I'd like to see that happen.

But we've learned that Justices of the Supreme Court also have been known to take shifts in public opinion as permission to implement their policy preferences through appeal to the Living Constitution. I don't like to see that happen. It is contrary to the bedrock idea of fixed, authoritative, superior law that underwrites judicial enforcement of the Constitution in the first instance.

So the shift in public opinion I'd like to see regarding the death penalty is not as simple as "death penalty, bad." It's more like "we (the people ... of Virginia, of Pennsylvania, of Indiana, and so on) should get rid of our death penalty."

The headline of a recent Bloomberg News article captures some of what underlies my uneasiness: "Death for the Death Penalty? Justice Scalia Predicts It's Coming."

As an aside, the headline is a little misleading. Justice Scalia said he "wouldn't be surprised" if his colleagues were to find the death penalty unconstitutional. That is not a prediction that Justice Scalia's colleagues will do so, just a statement that he would not be surprised if they did. And there may not be much that some of his colleagues would do with the Constitution that would surprise Justice Scalia, anyway. With respect to the parallel to same-sex marriage suggested in the article, there is an important difference of degree. Justice Scalia's language in Lawrence v. Texas and United States v. Windsor was much stronger, explaining that the Court was dismantling the justification for understanding marriage as requiring a man and a woman. Justice Scalia did not need to be a prophet to see where the Court's logic was leading. 

Put aside, though, problems with the headline. The possibility of an emboldened judiciary using the Living Constitution to find the death penalty itself cruel and unusual is a plausible one.

Anyone who would celebrate this, though, should beware that the Living Constitution can take as well as give. Consider one of the article's main sources:

The ACLU’s national legal director, Steven R. Shapiro, told reporters in Washington Thursday that he, too, sees momentum toward a Supreme Court ruling ending the death penalty. Pointing to the abolition of capital punishment in Connecticut this year, Shapiro likened the cause to the gay marriage movement, which won victories at the state level before the court legalized it nationwide in June. "We may see a repeat of the same-sex marriage playbook," Shapiro said. "We can now see in the future a moment when the death penalty will be declared unconstitutional."

Mr. Shapiro and his organization are the same people who were on the wrong side of the unanimous Supreme Court free speech decision in McCullen v. Coakley. If you want to see "evolution" on constitutional meaning, check out footnote 5 of the ACLU's brief in that case.

Now consider the evidence that Mr. Shapiro cites: "the abolition of capital punishment in Connecticut this year." The reference is to a Connecticut Supreme Court opinion from earlier this year. That opinion eliminated the death penalty judicially for people who remained subject to capital sentences after the Connecticut legislature abolished the death penalty prospectively in 2012. It was a judicial clean-up effort, further evidence of a leading-from-behind judiciary emboldened by shifts in public opinion. By placing prospective legislative abolition of the death penalty off the table, the opinion's reasoning makes it harder in other jurisdictions to undertake abolition legislatively; a powerful compromise for the transition is declared unconstitutional.

Another problem for anti-death-penalty, anti-Living-Constitution people like me is posed by Eighth Amendment doctrine that counts legislative abolition as evidence of "evolving standards of decency" used to underwrite judicial abolition.

Is there any way to abolish the death penalty in one's state without providing more grist for the evolving standards of decency mill? Nothing comes to mind, but I sure would like to know.

For now, I'll simply express regret for, and opposition to, the way in which current Eighth Amendment doctrine makes it more difficult and more costly to accomplish abolition appropriately under our law.

Francis on the Golden Rule

Gosh, there are a lot of striking phrases in Francis's address to Congress today. Millennial Journal has 25 of them. Here's one that especially hit me. In explicating the Golden Rule, he said:

Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves.

The Golden Rule means more than just "Don't harm others." It has many positive, and not just negative, implications. We want more than just not to be harmed, and we (as individuals and in society) should give more than that to others.

Initial Reflection on Pope Francis’s Address to Congress

Like, I suspect, may readers of MOJ, I just finished watching the Holy Father's address to a joint session of Congress.  The full text of the Pope’s remarks is available here.

There is much to praise in the Pope’s speech.  What stands out in this regard is Francis’s use of an American idiom to speak to Americans, that is, his use of four figures drawn from American history – Abraham Lincoln, Martin Luther King, Jr., Dorothy Day, and Thomas Merton – to talk about the challenging work that lies ahead of us to build a just society and foster the common good.

Still, I fear that the Pope’s one reference to the scourge of abortion ("The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.") will be treated as a throw-away line by most of the political class -- certainly all but a handful of Democrats.  I wish that the Pope had elaborated on this in the same way that he elaborated on his principled opposition to the death penalty.  It may be that many Republicans will treat the Pope’s call for the abolition of capital punishment as a throw-away line, but at least he put the argument out there: the death penalty is wrong, not because “just and necessary punishment” isn’t called for, but because it represents the abandonment of hope in the person who is put to death, and the repudiation of the “inalienable dignity” of every human being.

Francis could have said more about abortion while still maintaining his gentle, measured, pastoral tone, through the abiding method of “dialogue” with which he began his address.

For example, Francis could have tied respect for the science of climate change to respect for the science of human development which proves (as it did, long before Roe was decided) that the entity developing in the womb is a human being – one of us.  Likewise, he could have tied the obligation to welcome the stranger who comes from across the border and who may be thought of as a burden to welcoming the stranger in the womb who is often seen as an alien and a burden -- a stranger who is not only rejected and turned away (as the migrant often is), but dismembered and killed in the most brutal way imaginable.

Yesterday, Francis told the American bishops that with respect to “the innocent victims of abortion” it is “wrong . . . to look the other way, or to remain silent” (see here and here).  While the Pope was not silent on the issue of abortion, he was certainly understated in a way that Catholic politicians who support the culture of death will take comfort.

Indeed, shortly after the Pope’s speech, Nancy Pelosi was interviewed by Andrea Mitchell on MSNBC.  “Surely,” said Ms. Mitchell, “there are things in his message you would not support? .  .  .  Certainly he repeated the Church’s long held position on abortion.”  In response Ms. Pelosi was unflappable:

I think the Pope was very, shall we say, diplomatic or philosophical in how he presented what he said.  He honored his own guidance to us to not be condescending or judgmental in the way he phrased what he said. . . . In terms of the sanctity of life, we all support the sanctity of life.  We all rose up and applauded on what he had to say there.  But again, in terms of interpretation, how you hear it, how you respect it, you respect your own values.  In that regard, I think he left plenty of room for people to respect other people’s opinions.

So there you have it.  The fact of the humanity of the unborn human child is not a fact for Ms. Pelosi, but a mere “interpretation,” an “opinion” about which others can disagree and still proclaim agreement with Peter’s successor.  One can even say with a straight face that one supports “the sanctity of life” while at the same time supporting a “right” to kill the child in the womb through all nine months of pregnancy and insist that the government pay for the procedure.

What manner of dialogue can move the intransigence of someone so committed to the abortion license?  What kind of conversation can overcome such obstinance?  What kind of respectful exchange can cure someone of such delusion?  Apparently not one that is so understated, so “diplomatic” and “non-judgmental” that one’s dialogue partner remains blissfully content to “respect her own values” while claiming that they are consistent with their antithesis.

Perhaps then what is called for is a dialogue that speaks truth to power – gently and firmly – but with a clarity that makes the nonsense of this bogus fidelity to the sanctity of life plain for all to see.

The goal of dialogue is truth and the solidarity it engenders.  The truth is not “condescending.”  Rather, it liberates us from error and teaches us to walk humbly in the path of justice.