Mirror of Justice

The Washington florist case: is Jim Crow the best analogy?

I've written an essay for America magazine on the Washington Supreme Court's recent ruling rejecting a florist's claims that the Constitution shields her from being compelled by the state to provide flowers for a same-sex wedding ceremony.  I continue to think that the legislature needs to do the heavy lifting if we're going to navigate the tensions between religious liberty and anti-discrimination norms, but the Washington Supreme Court's reasoning leaves plenty to be desired.  For example, the Court approvingly quoted the customer's brief that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."  Here's a responsive excerpt from my essay:

Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.

Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.

An Atheist and a Monk Discuss Church-State Separation and the Justification of Punishment

In preparation for an upcoming conference on Russian traditionalism, I thought it was a good moment to pick up Dotoyevsky's "The Brothers Karamazov." In a fairly early part of the book, I came across the following incredible exchange between Ivan Karamazov and the Orthodox monk "Elder," Father Zossima, concerning the separation of church and state and its effect on the justification of criminal punishment. It's as interesting and useful a reflection (particularly by the monk) on these issues as one can find anywhere:

"If everything became the Church, the Church would exclude all the criminal and the disobedient, and would not cut off their hands," Ivan went on. "I ask you, what would become of the excluded? He would be cut off then, not only from men, as now, but from Christ. By his crime he would have transgressed not only against men but against the Church of Christ. This is so even now, of course, strictly speaking, but it is not clearly enunciated, and very, very often the criminal of today compromises with his conscience: 'I steal,' he says, 'but I don't go against Church. I'm not an enemy of Christ.' That's what the criminal of today is continually saying to himself, but when the Church takes the place of the State it will be difficult for him, in opposition to the Church all over the world, to say: 'All men are mistaken, all in error, all mankind are the false Church. I, a thief and murderer, am the only true Christian Church.' It will be very difficult to say this to himself; it requires a rare combination of unusual circumstances. Now, on the other side, take the Church's own view of crime: is it not bound to renounce the present almost pagan attitude, and to change from a mechanical cutting off of its tainted member for the preservation of society, as at present, into completely and honestly adopting the idea of the regeneration of the man, and of his reformation and salvation?"

....

"Yes, but you know in reality it is so now," said the elder suddenly, and all turned to him at once. "If it were not for the Church of Christ there would be nothing to restrain the criminal from evil-doing, no real chastisement for it afterwards; none, that is, but the mechanical punishment spoken of just now, which in the majority of cases only embitters the heart; and not the real punishment, the only effectual one, the only deterrent and softening one, which lies in the recognition of sin by conscience....

"[A]ll these sentences to exile with hard labor, and formerly with flogging also, reform no one, and what's more deter hardly a single criminal, and the number of crimes does not diminish but is continually on the increase....Consequently the security of society is not preserved, for, although the obnoxious member is mechanically cut off and sent far away out of sight, another criminal always comes to take his place at once, and often two of them. If anything does preserve society, even in our time, and does regenerate and transform the criminal, it is only the law of Christ speaking in his conscience. It is only by recognizing his wrongdoing as a son of a Christian society--that is, of the Church--that he recognizes his sin against society--that is, against the Church. So that it is only against the Church, and not against the State, that the criminal of today can recognize that he has sinned. If society, as a Church, had jurisdiction then it would know whom to bring back from exclusion and to reunite to itself. Now the Church having no real jurisdiction, but only the power of moral condemnation, withdraws of her own accord from punishing the criminal actively. She does not excommunicate him but simply persists in fatherly exhortation of him. What is more, the Church even tries to preserve all Christian communion with the criminal. She admits him to church services, to the holy sacrament, gives him alms, and treats him more as a captive than as a convict. And what would become of the criminal, O Lord, if even the Christian society--that is, the Church--were to reject him even as the civil law rejects him and cuts him off? What would become of him if the Church punished him with her excommunication as the direct consequence of the secular law?

"There could be no more terrible despair, at least for a Russian criminal, for Russian criminals still have faith. Though, who knows, perhaps then a fearful thing would happen, perhaps the despairing heart of the criminal would lose its faith and then what would become of him? But the Church, like a tender, loving mother, holds aloof from active punishment herself, as the sinner is too severely punished already by the civil law, and there must be at least someone to have pity on him. The Church holds aloof, above all, because its judgment is the only one that contains the truth, and therefore cannot practically and morally be united to any other judgment even as a temporary compromise. She can enter into no compact about that. The foreign criminal, they say, rarely repents, for the very doctrines of today confirm him in the idea that his crime is not a crime, but only a reaction against an unjustly oppressive force. Society cuts him off completely by a force that triumphs over him mechanically and (so at least they say of themselves in Europe) accompanies this exclusion with hatred, forgetfulness, and the most profound indifference as to the ultimate fate of the erring brother. In this way, it all takes place without the compassionate intervention of the Church, for in many cases there are no churches there at all, for though ecclesiastics and splendid church buildings remain, the churches themselves have long ago striven to pass from Church into State and to disappear in it completely. So it seems at least in the Lutheran countries. As for Rome, it was proclaimed a State instead of a Church a thousand years ago. And so the criminal is no longer conscious of being a member of the Church, and sinks into despair. If he returns to society, often it is with such hatred that society itself instinctively cuts him off. You can judge for yourself how it must end....

"What was said here just now is true too, that is, that if the jurisdiction of the Church were introduced in practice in its full force, that is, if the whole of the society were changed into the Church, not only the judgment of the Church would have influence on the reformation of the criminal such as it never has now, but possibly also the crimes themselves would be incredibly diminished. And there can be no doubt that the Church would look upon the criminal and the crime of the future in many cases quite differently and would succeed in restoring the excluded, in restraining those who plan evil, and in regenerating the fallen. It is true," said Father Zossima, with a smile, "the Christian society now is not ready and is only resting on some seven righteous men, but as they are never lacking, it will continue still unshaken in expectation of its complete transformation from a society almost heathen in character into a single universal and all-powerful Church. So be it, so be it!"

Danish Blasphemy Prosecution for Koran Burning

Here's a fascinating story in the New York Times about a prosecution in Denmark for blasphemy, against a man who burned a Koran and posted his burning to Facebook. It seems that blasphemy laws remain on the Danish books, notwithstanding that the country is, by all accounts, very secular. Though the decision to charge was made at the local level, it has been ratified by Denmark's attorney general.  

No one has been convicted under the Danish blasphemy laws since 1946, when the law was used to prosecute a man who dressed up as a priest and mock "baptized" a doll.

A few thoughts:

1. Apparently the defendant had been charged initially with a "hate speech" crime, but the charge was subsequently changed to blasphemy. Perhaps hate speech is a lesser included offense? The linear continuity of hate speech with blasphemy is itself worthy of a separate article. Indeed, as I have argued at length, but as Tocqueville said more pithily, freedom never governs without faith. The only real question for a society that enjoys some speech protections is for what ends speech will be restricted, not whether it will restrict it at all. Of course, it will. And it seems altogether natural that the proscription on hate speech would in the end find its fullest and most complete expression in the zealotry (I use the term neutrally) of an anti-blasphemy law. (Parenthetically, the man also stated that he hated children. That seems rather sweeping, and perhaps worthy of its own hate speech prosecution. Perhaps if he had said, "I hate some children," one might be more sympathetic.)

2. Denmark of course has a recent history of conflict with Islam, as in the infamous Mohammed cartoon incident about 10 years ago that resulted in no charges, and, as the story says, "deadly riots, attacks on Danish embassies in the Middle East and a trade boycott against Denmark." Perhaps, for these and other reasons, Denmark has come to a different conclusion today. Still, it's clear from the story that the burning of a Bible is legal, since in 1997 a Danish artist burned a copy of the Bible on television and nobody batted an eye. Perhaps what Denmark really needs is to refine its blasphemy laws--to give more detailed guidance about which religious texts may be defiled with impunity and which must be let alone. One thing that Denmark should not do: abandon blasphemy laws. It will only send such laws underground, and similar policies will be enforced through other means without the honesty of calling them what they are (vide, e.g., hate speech).

3.  The defendant's lawyer seems to be making the utterly bizarre claim that the man acted in "self-defense" in burning the Koran, because the Koran contains language about how Mohammed's followers "must kill the infidel." I don't know the Danish law of self-defense, but this strikes me as a highly unusual principle of proportionality. But I suppose we need to know about the physical assaults committed by the Koran on this poor man in order properly to judge the self-defense claim.

4. Don't miss the wonderful comments of Professor Per Mouritsen, who with one side of his mouth tells us that "blasphemy law is a thing of the past" and with the other tells the Times that in Denmark, "the very idea that religion is taken seriously is the antithesis of being a good citizen." Perhaps Denmark should adopt laws authorizing the state-enforced (but nondiscriminatory, of course) burning of all holy books. It could be done on a state holiday. Call it "Conflagration Sunday." 

Should Catholic parishes join the sanctuary movement?

With the Trump administration’s expansion of deportation efforts, there is increasing talk of churches stepping up to serve as “sanctuaries” for undocumented immigrants. With many Catholics suspecting that “the current policies of the administration toward immigrants and refugees is at odds with the clear command of the scriptures to welcome the vulnerable stranger,” Charles Camosy points out that it may become necessary for Catholic parishes to risk fines and prosecution by protecting those subject to deportation. As NPR reports (in a story featuring expert insight from our own Rick Garnett), this clash is already becoming a reality.

This re-emergence of the sanctuary movement raises an important but difficult question: When is it appropriate for the Catholic Church to defy the law? I believe that there may be circumstances over the next four years in which defiance is justified, even obligatory.  But given the Church's support for the rule of law, those circumstances must be articulated with specificity, humility, and restraint.

The “sanctuary” label is thrown around loosely in our current debates. I’m not talking about material support for undocumented immigrants – that is, to me, a clear obligation for Christians that does not turn on one’s immigration status. That’s why past efforts to criminalize the provision of such support were roundly and rightly condemned by bishops. 

I’m referring instead to the provision of shelter to undocumented immigrants for the express purpose of preventing their deportation. Churches have no legal authority to prevent deportation of someone who has sought sanctuary on church property (and never have, in the U.S. at least); any prevention power comes from the understandable reluctance of government agents to carry out enforcement actions on church property or from making it more difficult to find individuals subject to deportation by utilizing church-centered networks of concealment.

As fans of Victor Hugo know, European churches functioned as sanctuaries in a more formal, jurisdictional sense. In my understanding, though, entry into the church was not a permanent shield from the law, but simply a temporary respite during which time the church might intervene on the individual’s behalf or the individual was expected to choose whether to turn himself over to the temporal authorities or leave the country.  It was not a blanket escape from the law’s reach.

More recently, American churches formed a network of sanctuaries in the 1980s for refugees seeking to escape Central America. This was not a categorical response to the Gospel’s call to welcome the stranger; this was a response to a particular problem: it was nearly impossible for these refugees to gain asylum status because the Reagan administration could not admit that their home countries were committing human rights abuses.  Our law prohibited foreign aid to countries committing such abuses, and we were funding the Salvadoran and Guatemalan governments.  Instead of jeopardizing the aid, the Reagan administration classified the Central Americans as economic migrants.  The churches that defied the law in the 1980s were targeting a particular injustice, not vindicating a more general commitment to welcome the stranger.

Faithful Catholics can reasonably disagree about the prudent contours of our immigration laws. The Church does not teach that all immigration laws – and the enforcement of such laws – are contrary to the moral order and should accordingly be defied as unjust.  The Church does teach that the rule of law is important to human flourishing, and that the legitimacy of the political community’s duly elected leaders should be respected.  As such, those instances when the Gospel supports – or even requires – defiance of the law should be spelled out with care.  Perhaps the grounds for defiance are formed when the federal government would seek to deport a parent with dependent children, or to return an immigrant to a country where her life will be in danger, or to deport a person who arrived her as a child and knows no other home.  Whatever the particulars, my only point is that the particulars matter.  A categorical stance of defiance toward the enforcement of immigration laws strikes me as inconsistent with Church teaching.

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Prof. Samuel Levine (Touro) passed on this information, which might be of interest to MOJ readers:

Submissions and nominations of articles are now being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017.  The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]<mailto:sl[email protected]%3cmailto:[email protected]>.  The deadline for submissions and nominations is September 1, 2017.

Inazu on the University

For those who have not (yet) read John Inazu's important recent book, Confident Pluralism, you can get a helpful preview of his prescriptions through a short essay he has just posted, Law, Religion, and the Purpose of the University.  Key sentence: "If we can make university a place for MacIntyre’s constrained disagreement and Murray’s warring creeds, we can help to initiate students into the kind of conflict through which they learn to live together rather than fracture through indifference, apathy, or violence."

When is "all-out war" an appropriate political strategy?

I continue to be troubled by many of President Trump’s stated priorities, chosen narratives, and policy decisions.  I confess that I am also troubled by the opposition’s deepening embrace of across-the-board resistance to the Trump administration per se, rather than resistance targeting particular actions and statements.  This tactic did not originate with Democrats in 2017, of course, though it appears that we may witness a significant ratcheting up of the obstructionist tendencies reflected previously in the GOP’s default stance toward President Obama.  

How should Catholics think about, and respond to, a political culture that appears set to cast every disagreement on policies and priorities as part of a no-holds-barred contest of good versus evil? I know that Catholic philosophers and theologians have contributed key insights to our understanding of the moral permissibility/obligation of armed resistance and conscientious objection, for example, but our current climate poses a different question: Under what circumstances should citizens and elected officials withhold all cooperation and support from those elected officials with whom they disagree?  This is not just about resisting the enforcement of enacted laws (though it likely will include that); it’s also about refusing to offer even selective encouragement, build relationships, or compromise across the great Trump divide – and punishing those elected officials who do.  Is across-the-board resistance morally justifiable short of a regime that lacks any political legitimacy (e.g., took power by force) or reflects a sustained and deliberate course of action that conflicts totally with the moral law (e.g., the Nazis)?

I believe that Catholic social teaching on the importance of participatory political structures and practices is premised on an orientation toward optimism, cooperation, good faith, and a willingness to discern the potential for positive outcomes, even from elected officials who lack virtue. I do not believe that a stance of across-the-board resistance to our duly elected officials is morally justifiable unless and until we are at the point at which political revolution is morally justifiable.  That might be simultaneously harshly judgmental and hopelessly naïve on my part.  I’m certainly open to being persuaded that I’m wrong.  This strikes me as a subject that warrants more insight from the Catholic intellectual tradition, and soon.

Is the Catholic Church Anti-Woman?

That's the question the Aquinas Institute at University of Colorado at Boulder is asking UChicago Law Professor Mary Anne Case and me - tomorrow night.  Apparently, it's a sold out event. 

The Beatitudes: The Trump Rewrite

Minnesota's very own Garrison Keillor (of Prairie Home Companion fame) offers a revision of the Beatitudes in Trumpian style.  Herewith a sample:

The Lord is my shepherd. Okay? Totally. Big league. He is a tremendous shepherd. The best. No comparison. I know more than most people about herding sheep. And that’s why I won the election in a landslide, and it’s why my company is doing very, very well. Because He said, “I’m with you, Donald. You will never want.”

Find the rest at the Washington Post site here.

Newman on "the World" . . . and ambition, pride, and work-life balance

It's hard to go wrong, reading Newman sermons, but this one ("The World our enemy") really jumped out at me.  Those of us who are blessed with interesting jobs -- in the academy, law, etc. -- might be able to identify well with some of the temptations he discusses.  A bit:

By the world, then, is meant this course of things which we see carried on by means of human agency, with all its duties and pursuits. It is not necessarily a sinful system; rather it is framed, as I have said, by God Himself, and therefore cannot be otherwise than good. And yet even thus considering it, we are bid not to love the world: even in this sense the world is an enemy of our souls; and for this reason, because the love of it is dangerous to beings circumstanced as we are,—things in themselves good being not good to us sinners. And this state of things which we see, fair and excellent in itself, is very likely (for the very reason {30} that it is seen, and because the spiritual and future world is not seen) to seduce our wayward hearts from our true and eternal good. As the traveller on serious business may be tempted to linger, while he gazes on the beauty of the prospect which opens on his way, so this well-ordered and divinely-governed world, with all its blessings of sense and knowledge, may lead us to neglect those interests which will endure when itself has passed away. In truth, it promises more than it can fulfil. The goods of life and the applause of men have their excellence, and, as far as they go, are really good; but they are short-lived. And hence it is that many pursuits in themselves honest and right, are nevertheless to be engaged in with caution, lest they seduce us; and those perhaps with especial caution, which tend to the well-being of men in this life. The sciences, for instance, of good government, of acquiring wealth, of preventing and relieving want, and the like, are for this reason especially dangerous; for fixing, as they do, our exertions on this world as an end, they go far to persuade us that they have no other end; they accustom us to think too much of success in life and temporal prosperity; nay, they may even teach us to be jealous of religion and its institutions, as if these stood in our way, preventing us from doing so much for the worldly interests of mankind as we might wish.