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.

Wednesday, December 16, 2015

Capt. Singh's Beard and Turban and Religious Liberty

Good news, for the moment, from The Hill, about the ability of American soldiers to follow their faith in ways consistent with real military needs:

The Army has granted a temporary religious accommodation for a Sikh member of the armed forces, who will be allowed to wear a beard and turban when he reports to a new post on Monday.

"My Sikh faith and military service are two core parts of who I am,” Capt. Simratpal Singh, 27, said in a statement issued Monday....

The Army, which maintains meticulous grooming standards, must decide whether to make the accommodation permanent. It has granted thousands of exceptions for beards based on medical reasons, according to a legal group working on behalf of Singh, which said his accommodation is only the fourth such given since the early 1980s. 

Here is the Army's letter with the interim permission. Congratulations--and best wishes in the future on this case--to The Becket Fund, which continues with its mission of defending religious liberty for all faiths.

December 16, 2015 in Berg, Thomas, Current Affairs | Permalink

An important reminder

In the October 2015 issue of First Things, Rusty Reno concludes a sobering short piece on our religious-freedom challenges with this: "There will be no United States of America in one thousand years.  But there will be synagogues and churches.  The future is ours."  

December 16, 2015 in Garnett, Rick | Permalink

Tuesday, December 15, 2015

Catholic Universities and Unions, Again

Over at NCR, Michael Sean Winters has a post about the latest case involving adjunct faculty unionization efforts at Catholic universities, this time at Loyola-Chicago (following on similar cases at Seattle University, St. Xavier in Chicago, Manhattan College, Duquesne, and others). Those schools (along with the Association of Catholic Colleges and Universities and the Association of Jesuit Colleges and Universities in amicus briefs) have been engaged in an argument with the National Labor Relations Board for the past few years about NLRB jurisdiction over adjunct faculty unions. I’ve written about the issue previously here at MOJ.

At the outset, I resist the characterization (though understand why it would be rhetorically effective, especially in a Catholic setting) to frame this issue as one of being “for” or “against” unions. Before this is a freewheeling debate about Catholic social teaching or the value of unions, NLRB jurisdiction over adjunct faculty collective bargaining at Catholic universities is a straightforward and narrow question of statutory interpretation. Absent clear congressional intent to place teachers at religious institutions under the jurisdiction of the National Labor Relations Act, the canon of constitutional avoidance requires that the statute be interpreted so as to avoid raising First Amendment problems. That is the unambiguous holding of the Supreme Court’s decision in NLRB v. Catholic Bishop in 1979 (and for reasons that Doug Laycock classically expressed here). Every subsequent decision in the circuit courts looking at NLRB jurisdiction over religiously affiliated universities—from then-Judge Breyer’s controlling opinion in Universidad Central de Bayanom v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc) (Breyer, J., for half of an equally divided court), to the D.C. Circuit’s opinion in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)—agrees with that interpretation of the NLRA’s scope. The legal argument against NLRB jurisdiction over adjunct faculty unions at religiously affiliated schools (absent congressional amendment of the NLRA or a Supreme Court case revisiting Catholic Bishop) is about as clear as you can get.

But that hasn’t stopped the NLRB from engaging in more than 30 years’ worth of conceptual gymnastics to avoid the implications of those holdings (grounded in the Board’s non-acquiescence to circuit court precedents, see D.L. Baker, Inc., 351 NLRB 515, 529, fn. 42 (2007)). As I noted after the Board’s decision in the Pacific Lutheran case, the test now applied for withholding NLRB jurisdiction over faculty is whether the university “hold[s] out faculty as performing a specific religious function,” which requires, for example, findings about whether and which faculty engage in “religious indoctrination” (whatever that is) or whether the school has a commitment to academic freedom. (As an aside, I should clarify that this applies only to non tenure-track faculty, as tenure-track faculty are deemed “managerial employees” under the Supreme Court’s decision in NLRB v. Yeshiva University in 1980.) And, again, this means that the Board is exercising its judgment about the incompatibility of academic freedom with a religious mission or whether only faculty engaging in “religious indoctrination” are serving the mission of a school, both propositions that are widely rejected in American Catholic higher education. This inquiry, just as the earlier “substantially religious character” test, poses a serious risk of entanglement in the mission of religiously affiliated schools, a risk not posed by regulations about, say, asbestos or lead paint (which Winters cites for his argument).

A quick concluding point about how this comports with Catholic teaching on the rights of workers to organize. As argued in detail by Kathleen Brady in this article, there should be some hesitation before simply assimilating Catholic social teaching on unions to the NLRA’s framework. As Kathleen notes, Rerum Novarum and successive papal social encyclicals emphasize the fundamentally cooperative relationship between management and labor, not the conflict and balancing of interests that marks the approach of the NLRA. That cooperative vision of labor relations—and not the NLRB’s cramped definition of what constitutes a religious institution—should serve as our guide for resolving this debate.

December 15, 2015 in Moreland, Michael | Permalink

Resolved: Dick Posner is the Donald Trump of Article III

I’ve been quite taken lately with Scott Adams’s use of his Moist Robot and Master Persuader ideas to make sense of Donald Trump. So I thought I would try on Adams’s filter for a while and see if it helped me understand matters closer to my areas of interest.

One of those is the judicial power.

Filter on, I looked around my digital world. And this is what came into focus:

Dick Posner is the Donald Trump of Article III.

Among life-tenured federal judges, Judge Posner is The Donald.

Think about it:

There’s more, of course, but let’s step back and consider concerns or counter-arguments.

Isn’t it a bit mean to compare Posner with Trump given their different day-job duties in law and politics? Maybe a bit. But not that much, and it’s a fair comparison. Trump and Posner are both highly effective people, very successful in their respective lines of work. Both would probably kind of like the comparison at some level.

Anyhow, “that’s mean” is more of a concern than a counter-argument. It does point to the question of motive, though. And here I must admit that I would like the Posner as Trump idea to stick.

Justice Scalia is my old boss, and I view him with affection. He can surely take care of himself. But some of Posner’s personal attacks on him offend me. The latest—accusing Scalia of pushing majoritarian theocracy—is particularly confounding given Posner’s own views on the Constitution and law.

Posner thinks "[t]he notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense." And he also thinks that "whatever judges do within their jurisdiction is law." Put these two together in the mind of someone who decides constitutional cases, and you have a recipe for lawless constitutional law.

Next, stir in Posner’s views on the relationship between public opinion and constitutional law. ("I do think the change in public opinion was decisive for all the courts that ruled in favor of creating a constitutional right to same-sex marriage.") And throw in the idea of Liberty as a goddess. Who’s the majoritarian theocrat now?

(Lest you think this idea of Goddess Liberty far-fetched, consider that the West Wall frieze at the Supreme Court of the United States has an allegorical depiction of Divine Inspiration speaking to Justice. Some federal judges (though not Posner) occasionally act as if they take the allegory a bit too personally.)

Anyhow, Posner is surely of the view that turnabout is fair play. If this post were to bother him in any way that he would care about enough to do anything substantial, he would probably crush me. (If I ever finish this book I'm working on, maybe I'll be lucky enough for him to write a review trashing it. But I suspect a wry smile is more likely.) I do expect “Scalia is the Trump of Article III” to emerge from somewhere, though, if it hasn’t already. So it’s not like there’s no downside to peddling the comparison.

I make no pretense of dispassion in tagging Posner as Trump, but it’s not as if I am incapable of assessing Posner dispassionately. I’ve co-authored an article about him (and Judge Wilkinson) that assesses his thought somewhat favorably (or at least not unfavorably). And who can’t recognize Posner’s particular gifts? 

Lately, though, Posner’s been reminding me of someone else, and that’s Donald Trump. So I thought I’d share.

My claim that Posner Is The Trump Of Article III is obviously debatable. And it would be fun to see it debated. So hopefully this post gets picked up by a blog with a lively comment section. (Maybe someone will read it and think "How Appealing," and it then gets discovered by The Volokh Conspiracy (bat signal to Orin Kerr) or Josh Blackman?)

December 15, 2015 in Walsh, Kevin | Permalink

Of scraped knees and broken legs; an observation on Blaine and Jefferson

Thanks to Rick for the pointer to the WSJ piece on the use of Blaine Amendments. I liked this paragraph near the end of it, in which the author explains the benefits denied by application of a Blaine Amendment to forbid a religious school from receiving a state grant to resurface its playground:

Although the playground-resurfacing program in Missouri provides aid directly to schools, the program’s environmental and safety goals are entirely secular. Those recycled tire bits are not going to indoctrinate the children playing on them. Rubberized playgrounds might save knees and the environment, but they do not save souls.

The claim seems something like the legal contrapositive (if that makes any sense) of Jefferson's comment about why his neighbor's religious beliefs (in comparison with the government's) did him no harm: 

The legitimate powers of government extend to such acts only as are injurious to others.  But it does me no injury for my neighbour to say there are twenty gods, or no god.  It neither picks my pocket nor breaks my leg. 

December 15, 2015 in Walsh, Kevin | Permalink

Anti-School Choice Religious Bigotry

Read Michael Bindas's Wall Street Journal piece on the way the Blaine Amendments continue to hamstring educational reform in many states.   The Supreme Court might get a chance to do the right thing soon.  (Here's hoping that, if given the chance, the justices do do the right thing!)

December 15, 2015 in Garnett, Rick | Permalink

Under Caesar's Sword: Christian Response to Persecution

I just returned from a fascinating, engaging, and challenging conference in Rome, called "Under Caesar's Sword:  An International Conference on Christian Response to Persecution."  For more on the conference -- and on the multi-year research project of which it is a part -- go here

"Under Caesar’s Sword" is a collaborative global research project that investigates how Christian communities respond when their religious freedom is severely violated. It is a partnership of the Center for Civil and Human Rights at the University of Notre Dame and theReligious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University.

We heard from religious leaders, activists, scholars, and believers from around the word -- from the Chaldean Catholic Patriarch of Babylon, the Syriac Patriarch of Antioch, the Cardinal Archbishop of Yangon, the General Bishop of the Coptic Orthodox Church in the United Kingdom, the U.S. Ambassador-at-Large for International Religious Freedom and many, many more.  Big kudos to my friends and colleagues, Dan Philpott and Tim Shah, and their colleagues.

The testimonies of those living under often very severe persecution -- in some cases, of members of communities facing obliteration -- and oppression was powerful and moving.  And, frankly, "convicting," in the sense that a common theme of the presentations from those living and working in troubled lands was "why are you (that is, those of us in the west) standing silent, on the sidelines, while this is happening?  How can you just stand by?"  Indeed.

December 15, 2015 in Garnett, Rick | Permalink

Valuing the Work of the Home

Last week, Lisa Schiltz blogged about some of the presentations at the Vatican meeting on women and work. She mentioned Bryan Sanderson, now Chairman of the Home Renaissance Foundation, former CEO of BP and current trustee of the Economist. I too enjoyed his presentation for its substance--and because it was he who was saying it.  Here's a bit from it (find the whole thing here): 

A dichotomy evident in contemporary thought is that of the work of the home and work in the broader market. They are seen to be rivals, with the latter taking the cake in terms of social prestige, legal and political recognition, and perceived importance in our society. This is detrimental to sustainable business practices, and unfair to the millions of people who look after their homes, and the care of the people in them, with a professional outlook. Every worker, and that includes every homemaker, has a home, and needs to care for that home, whether directly or through contracting and overseeing services that allow for a healthy and balanced home environment, and in turn family life, to flourish. Care of the material and social environment of the home impacts people in the same way that the material environment at a BP facility can have a profound impact on the overall success of the operations, and the risks involved. The homes of the nation impact the productivity and overall wellbeing and morale of the employees of any firm. Without the stability of schedules and routines, healthy and balanced meals, clean and welcoming spaces for work, sleep and family enjoyment that the home provides, stress levels and the ability to work well outside the domestic sphere are seriously jeopardized. Inside and outside the towers of company headquarters and the ivory towers of academia, we ought not forget this. We need to seriously examine how corporate practices, at all levels, can actively take the realities of family and home life into account. It is not merely about balancing two competing worlds, but understanding how the success of each is a strength for the other....


I will end by paraphrasing Moses and the Old Testament. He says in Deuteronomy what will determine the future of the people will not be strength whether military or demographic but the values and ideals that permeate society, justice, compassion, welfare, social responsibility, love of neighbour and stranger and care for the poor, lonely and disenfranchised. Don’t even think you can survive without these values. You can’t. They are learnt in the home.


December 15, 2015 | Permalink

Truth on Trump from a Speechwriter for 43

Michael Gerson had an op-ed worth reading at the Washington Post yesterday. It bears the title "Donald Trump presents evangelical Christians with a crucial choice." Some excerpts:

There is a fine line between reflecting the concerns of voters and performing a crude and offensive imitation that mocks and defiles their deepest beliefs. Okay, maybe not so fine a line.

Donald Trump — who knows something about crude and offensive imitations — has now taken to calling himself an “evangelical."

* * *

Trumpism has a cruelty at its core — seeking enemies and exploiting differences. And it comes into conflict with evangelicalism at some very basic points: a belief in honesty and respectfulness, a commitment to religious liberty and an inclusive conception of human dignity.


December 15, 2015 in Walsh, Kevin | Permalink

Sunday, December 13, 2015

Gaudete Sunday 2015

Gaudete Sunday is soon to end. But let us not forget the core message from Philippians 4 ...

Brothers and sisters:
Rejoice in the Lord always.
I shall say it again: rejoice!
Your kindness should be known to all.
The Lord is near.
Have no anxiety at all, but in everything,
by prayer and petition, with thanksgiving,
make your requests known to God.
Then the peace of God that surpasses all understanding
will guard your hearts and minds in Christ Jesus.

We await the birth of Christ with anticipation. We then may sing Gaudete.


December 13, 2015 | Permalink