Mirror of Justice

Some thoughts on Michael Peppard's "Final Thought in the Voting Booth"

Michael Peppard has a thoughtful post at dotCommonweal called "My Final Thought in the Voting Booth," in which he (among other things) works through his thought process with respect to selecting a candidate in the upcoming (RG: horrifyingly awful) presidential election.  As he notes - and as many of us here at MOJ have been noting for now four election cycles! --  "Faithful, informed Catholics in the United States are, in the words of John Carr, “politically homeless.” Anyone with even a passing knowledge of Catholic social teaching and the American political landscape can see this."

It's a detailed piece, but I want to engage, and push back against, just one part:

What then should I ask myself in that voting booth? What examination of conscience honors Catholic teaching and the realities of American power? I first ask myself not what are the most important issues to me, but what are the most important issues of a particular election to a particular office. Second, I determine whether a particular issue is realistically within a particular candidate’s sphere of influence. Then, if still undecided, I have one ultimate question that always works.

The main issues of this presidential election season are, in no particular order: the economy, and whether or how to resolve its inequities; racist violence and concomitant social tensions; the plight of migrants; religious liberty in conflict with civil rights; and the ever-present question of how American military power is used or not.

But not all of these are within a president’s sphere of influence to the same degree. For example, the current conflicts of religious liberty with civil rights—whether those relating to same-sex marriage or the rights of minority religions—are going to be worked out over years and decades through our judicial system. A president’s power to affect these decisions is several degrees removed: the process of judicial openings, legislative approval, the emergence of relevant cases, and the final decisions are almost entirely outside a president’s sphere of influence, especially on just a four-year time table.

The first paragraph, in my view, is exactly right, and it's a point that's so often overlooked, in many ways.  (For example, so many voters are unaware of how power is actually exercised in the House of Representatives -- i.e., in and through committees, closely bounded by seniority and party.)  The second paragraph, regarding "main issues", could be argued about.  Certainly the listed issues are important, but I would say that the challenges of unsustainable entitlement programs and public-pensions are right up there.  But put that aside.

With respect to the third paragraph, I'm afraid that this claim is wrong:

For example, the current conflicts of religious liberty with civil rights—whether those relating to same-sex marriage or the rights of minority religions—are going to be worked out over years and decades through our judicial system. A president’s power to affect these decisions is several degrees removed: the process of judicial openings, legislative approval, the emergence of relevant cases, and the final decisions are almost entirely outside a president’s sphere of influence, especially on just a four-year time table.

As I discussed a bit in my own election-related essay in Commonweal:

More important than a party’s platform, however, are an administration’s personnel. A Clinton administration will be carefully staffed with well-credentialed, competent, ideologically motivated people. They will interpret regulations, enforce rules, exercise discretion, and control funds in a wide range of consequential departments and agencies. In the modern administrative state, and particularly after President Obama’s embrace of an expansive view of executive power and regulatory authority, this is where the action is.

And so, whether or not the Democrats control Congress, committed but largely unaccountable activists, lawyers, and think-tankers will aggressively and creatively use a variety of tools, including litigation, accreditation, licensing, contracting conditions, funding-eligibility determinations, and “Dear Colleague” letters, to pursue their goals. I expect they will do what they can—which is a lot—to undermine or overturn reasonable limits on abortion, remove barriers to and increase support for embryo-destructive research and physician-assisted suicide, hamstring school-choice and education-reform efforts, narrow the sphere of religious freedom, and continue divisive “culture wars” campaigns.

To be clear, I understand that and why a faithful, informed Catholic like Michael could conclude that, all things considered, the best course is to vote for Mrs. Clinton.  (I do not believe that any informed person should cast such a vote without at least acknowledging, rather than ignoring, evading, or minimizing, Mrs. Clinton's very and unusually serious flaws in character and judgment.)  But, if one is going to go through the (reasonable) process that Michael outlines, one cannot -- consistent with the realities of American government -- do so well if one assumes that the President and his/her appointees -- and the Executive branch and administrative state more generally -- in the DOE, DOD, DOJ, HHS, etc. are not directly and crucially involved in the religious-liberty struggle.  Indeed, they matter more, really, than do the members of Congress.  

Religiously Affiliated Law Schools: New Scholarship

The third RALS panel is focused on new scholarship and includes presentations from Bruce Ledewitz (Duquesne), James Duane (Regent), Judith Reisman (Liberty), Stacy Scaldo (Florida Coastal), and Tom Folsom (Regent).

Prof. Ledewitz spoke about the role of law schools in renewing American democracy, particularly the tone of our democracy.  The state of crisis demands attention from law schools, but law schools focus instead on marketing themselves in a market of declining demand.  The source of our democratic crisis is spiritual - we are living with the consequences of a materialistic technocratic culture that fosters nihilism. He recommends serious study of Lonergan's cosmopolis. Could the study of law be something that is high and holy?  If not, why not?

Prof. Duane presented a paper titled, "The Day the Supreme Court Almost Outlawed Religious Discrimination in Jury Selection."  He explored the Davis v. Minnesota case, in which a prosecutor stated openly that he was striking a juror based on religion.  The Supreme Court, in deciding another jury selection case at the time, included religion on the list of prohibited grounds in draft opinions.  Justice Souter asked Justice Blackmun to take it off the list, believing that another case regarding religion would be coming to the Court.

Prof. Reisman spoke about transgender fluidity, recounting the history of Kinsey's research and the Model Penal Code.

Prof. Scaldo spoke about "seditious acts of faith," exploring the Supreme Court's cases on the HHS mandate.

Tom Folsom proposed a unifying set of non-theocratic principles that might make religiously affiliated law schools more relevant in the legal education conversation.  He suggested that we work to specify a common morality for a neo-tech, neo-global era, "Designing Law for Human Good," in the form of a Restatement.  

Religiously Affiliated Law Schools: Potential Accreditation Issues after Obergefell

The second panel at RALS features Bill Piatt (St. Mary's), Rena Linevaldsen (Liberty), Johnny Rex Buckles (Houston), Hon. Stuart Adams (Utah Senate), and Robin Wilson (Illinois).

Prof. Piatt spoke about his struggles to have a Christian Legal Perspectives CLE program approved by the Texas state bar. The CLE board denied approval on the ground that the programs pertained to individual moral or religious responsibilities, rather than the duties of an attorney.  Bill and his colleagues filed a formal challenge, and many rallied to their cause.  The state bar agreed to grant credit for training on moral and religious topics in the context of legal ethics training, but these challenges will continue.

Prof. Linevaldsen discussed ABA Standard 205 (non-discrimination and equality of opportunity) in light of Obergefell.  She emphasized the need for schools to articulate a strong religious mission in terms that will justify honor code policies. The student experience must be tied to the mission.  Imposition of non-discrimination norms must be shown to impair the mission-centered community.  Standard 205 provides a safe harbor for law schools that is coextensive with First Amendment protections.

Prof. Buckles spoke about the public policy doctrine and the Bob Jones case, arguing that religious institutions should maintain their tax-exempt status despite Obergefell. Even if 501(c)(3)'s restraint of Free Exercise rights is constitutional, it should not be applied in these cases -- the public policy doctrine should be applied narrowly.  There is nothing that attributes a lack of dignity to a person excluded from a faith community on the basis of holding a contrary faith perspective. 

Sen. Adams and Prof. Wilson spoke about the Utah compromise on religious liberty and LGBT rights.  The Supreme Court decided a case between litigants, but the Court does not have the responsibility or ability to decide what that decision means for everyone else.  We will need to help state legislatures reach prudent compromises on this issue, as Utah has done.  Fairness for all means that firing a judge who won't perform same-sex marriages is wrong, and firing an employee for being gay is also wrong.  They addressed the need to recognize gradations of the contexts in which religious liberty interests are implicated -- e.g., discrimination in the use of church property is not the same as discrimination by large commercial corporations, with different degrees of concern represented by the cases in between.

Religiously Affiliated Law Schools: Ethical Formation in Law School

I'm at Regent Law School today for the RALS conference.  The opening panel features Neil Hamilton (St. Thomas), Benjamin Madison (Regent), and David Grenardo (St. Mary's).  The topic is ethical formation in law school.

Neil presented data regarding the ethical professional identity competencies that students need, discussing the shift to competency-based legal education.  Of the 55 law schools posting learning outcomes on their websites (as required by the ABA), 42 have adopted an ethical professional identity learning outcome that goes beyond what is required by ABA Standard 302(c).  Two foundational professional identity learning outcomes: 1) proactive professional development toward excellence; 2) an internalized deep responsibility to clients and the legal system.  The key is not that law schools agree on learning outcomes; the key is that law faculty engage students in light of chosen learning outcomes.  The research shows that we need to take into account that students are at different stages of development, provide repeated opportunities for student reflection, build into the student's existing narrative by linking future growth to their past experience and current goals, and remember that the process of experience / feedback / reflection is a very effective impetus for growth. 

Ben asked if there is a paradox between ethics and happiness.  Research shows that lawyers who live by intrinsic values -- integrity, compassion, respect, unselfishness, commitment to service -- display greater contentment and health.  Law schools can influence this process by encouraging knowledge of self, knowledge of God, and an attitude of reflectiveness and willingness to grow.

David presented the results of his survey on the use of prayer in law school classrooms.  Of the students at religiously affiliated law schools who responded, 78% liked the fact that their professor prayed at the beginning of class.  Students used words such as "calm, refreshes, tranquility, peace, serenity" to describe the effect of prayer on them.  Other students commented on classroom prayer bringing a sense of unity, regardless of the faith traditions represented in the room.

Front Porch Republic conference -- "Populism, Power, and Place" -- coming up at Notre Dame

More information here.  Phil Bess, Patrick Deneen, Rod Dreher, and others will be presenting.

Law and Religion Moot Court at Touro

The Fourth Annual Law and Religion Moot Court at Touro is coming up in April.  More information is available here.

Richard Epstein on the USCCR "Peaceful Coexistence" Report

I agree entirely with Marc DeGirolami's shredding of the recent and really lousy USCCR report on religious freedom and antidiscrimination law.  Another helpful take-down has been posted by Prof. Richard Epstein, here.  A taste:

[Baronelle] Stutzman has thought long and hard about her position. She draws subtle distinctions key to her faith. She works hard to respect the beliefs of those who disagree with her. She understands that she risks the loss of their business and that of others by living according to her beliefs. But she draws a line on principle. Her conduct bears no relationship to a “prejudiced or closed-minded person, especially one who is intolerant or hostile towards different social groups.” Her actions are not borne of some irrational fear.

But the words “bigotry” and “phobia” clearly do apply to the five commissioners who happily denounce people like Stutzman. They show no tolerance, let alone respect, for people with whom they disagree. They exhibit an irrational fear of those people’s influence. They show deep prejudice and hostility to all people of faith. They indulge in vicious overgeneralizations that make it harder to live in peace in a country with people of fundamentally different views. And they seem to take pleasure in bullying little people who can’t fight back. . . .

How Do Religion's Societal Contributions Support Religious Freedom?

The Berkley Center at Georgetown is a leader in supporting and publicizing the growing body of empirical research that catalogs and quantifies the contributions religious organizations make to society: serving those in need, employing workers, mobilizing volunteers and donors, etc. On the Berkley Center blog, I have a piece exploring how these findings are relevant to religious freedom for these organizations. It starts off:

       A new study by the Religious Freedom and Business Foundation quantifies the socio-economic value that religious organizations contribute to America: nearly $1.2 trillion yearly in economic activity and in services to others. The analysis reinforces evidence previously amassed by scholars like Ram Cnaan, John DiIulio, Steven Monsma, and Robert Putnam and David Campbell.

       Such evidence is relevant to the questions about religious freedom that currently vex American society—in particular, the rights of religious organizations, both churches and nonprofits, to adhere to their religious tenets and identity in hiring employees and serving clients. Countering the one-sided view that freedom of religion is simply a cover for irrationality and bigotry will open minds to considering religious freedom arguments rather than dismissing them out of hand.

       More specifically, this argument that religion benefits society reflects an important strain in America’s religious freedom tradition. One reason we protect voluntary religious organizations is that they are important means by which individuals develop and exercise “civic virtue.” ...

I go on to address some important challenges to the idea that religious organizations' societal contributions are a ground for protecting their religious freedom--for example, "If religious organizations are so important and pervasive, doesn’t society have to regulate them heavily to limit their harms to others?"

In an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make. This piece is a brief exercise in refining the arguments. (I have longer versions of my thoughts here, at pp. 113-26, and here, at pp. 307-18.) 

On the Egregious USCCR Report, "Peaceful Coexistence"

I have an extremely critical post on it over at Liberty Law. From the end:

[T]he crown jewel in this disaster is Commission Chairman Martin Castro’s one-paragraph statement at page 29. It has to be read to be appreciated, and so let me only discuss the chairman’s choice of epigraph. The words are attributed to John Adams, but they are actually a provision in the Treaty of Tripoli passed in large part in order to negotiate with Muslim national powers in Africa for protection against pirates.

They are: “The government of the United States is not, in any sense, founded on the Christian religion.”

There are at least two problems in beginning this way. The first is that it shows Mr. Castro to be ignorant of Adams’s actual views when it came to, for example, Christian establishments of religion in the early republic. Of all the platitudes he could have chosen, he landed on a spectacularly inapt one.

The second, and larger, difficulty is that it suggests that for all the commission’s talk of  nondiscrimination, it harbors hostility to one religion specifically: Christianity. The commission should be upfront about it, and simply state that its real object is to repudiate the country’s Christian heritage and to target Christianity for special legal disability. It would have saved all of us a lot of time and frustration.

Indeed, it is especially irritating for me to write this post because I wasted my time traveling to Washington, D.C., three years ago to testify before the U.S. Commission on Civil Rights. My testimony is at page 213 of the report and following, and I’m grateful at least to see the statements of Commissioners Peter Kirsanow and Gail Heriot. But I repent of my decision to testify. I’ll think twice and three times before ever doing it again.

 

David Upham on Meyer versus Pierce

I've just happened upon an intriguing comparison of the Lochner-era cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) in Rutgers Journal of Law and Religion, published in 2012. The piece, entitled Pope Pius XI's Extraordinary -- But Undeserved-- Praise of the American Supreme Court is authored by David Upham, Director of Legal Studies and Associate Professor in the Politics Department at University of Dallas.  

Though Meyer and Pierce are generally cited together for the proposition that the 14th amendment protects the right of parents to direct the upbringing of their children, Upham shows that the manner in which the Court reasons to that right is distinctive in Meyer and Pierce, though they deal with similar questions and were decided within two years of one another. According to Upham, in Meyer, the Court uses expressly natural law reasoning to depict the integral relationship between marriage, procreation, and educational authority: the parent had a "natural duty to give his children education suitable to their station in life..." to which a corresponding "right of control" in the parent was secured by the common law and 14th amendment. Upham argues that, unbeknownst to Pope Pius XI who praised the Court's opinion in Pierce, its authors were actually no friends of natural law theory (whether of the Thomistic or Lochnerean variety). 

Note that in Meyer, unlike Pierce, one reads an express statement that the common law and the Constitution served merely to recognize and guarantee, respectively, these natural familial rights, but not to establish or create them....Furthermore, unlike Pierce, which defined parental authority to include even the power to determine the child’s “destiny,” the Meyer opinion indicated that natural (and common law) rights are ordered to a pre-established natural end or destiny; that is, these rights are all essential to the pursuit of happiness.