Mirror of Justice

St. Thomas Amicus Supporting Cert. re. RFRA in the Military

Here's a news release concerning the latest brief filed by the Religious Liberty Appellate Clinic that I supervise at St. Thomas. It's an amicus curiae brief in Sterling v. United States, a cert petition involving the application of RFRA in the military. The petitioner, Marine LCpl Monifa Sterling, "was court-martialed for, among other things, objecting to a superior’s order to remove from her work station three small signs displaying a Bible verse." (It's Isaiah 54:17: "No weapon formed against me shall prosper.") Whether or not LCpl Sterling should ultimately win her case, the Court of Appeals for the Armed Forces wrongly cut off her claims at the threshold, making some bad errors in holding that the order to remove the verses had not "substantially burdened" her religious exercise. As the news item explains:

The courts held that Sterling had not been burdened because she had not shown that the order violated any religious tenet that she display signs, because she had not given clear notice that the signs were religious, and because she had not asked for a religious accommodation through the military’s administrative processes.

The certiorari petition and the St. Thomas clinic’s amicus brief argue that all these grounds for denying RFRA’s application are inconsistent with the statute and precedents. Moreover, they argue, the Supreme Court must review the decision because these grounds would broadly restrict the rights of military personnel—Sikh, Jewish, Christian, and others—to follow their religious practices in the military when it would not undercut combat-readiness or good order.

“The [military courts’] narrow conception of burden,” the clinic’s amicus brief states, “wrongly rejects claims at the threshold and neuters RFRA’s requirement—equally applicable in the military—that substantial restrictions on religious activity must be justified by compelling governmental interests.”

... The organizations joining the brief include several religious denominations; the National Association of Evangelicals; the Christian Legal Society (co-counsel); and the Chaplain Alliance for Religious Liberty, which represents religious organizations certifying 2,600 military chaplains, about 50 percent of those currently serving in the armed forces.

My student Andrew Hanson, class of 2018, did a great job doing much of the drafting on this brief.

Although the odds are always long on a cert petition, keep an eye out for this case. The petition was filed by Paul Clement; there are several other amicus briefs in support; and the justices ordered the government to filed a response after it initially waived responding.

Solidarity in the era of Trump

What does it mean to practice solidarity at a time marked by intense political divisions and alienation? Emily Esfahani Smith has a thoughtful essay in New York magazine about what it means to belong: 

[A] sense of belonging based on group membership is a false substitute for the real thing. Psychologists say belonging is defined by being in a relationship or part of a community where you are valued for who you are intrinsically. Just like we need food and water to thrive physically, we need to feel valued, needed, and cared for — like we matter to others — to thrive psychologically. Belonging that requires group affiliation is by nature contingent — your value is defined through associating with the group, not through who you are.

Group membership as a false proxy for belonging is nothing new, of course, but it may have taken on a more intense political dimension as we align ourselves according to the views expressed through our social media feeds and reactions to the President's latest [hateful bomb-throwing / plainspoken truth-telling].  Smith offers a beautifully simple example of the mindset to be reclaimed through the story of a restaurant encounter across the political divide.

Catholics have long taught this idea of unconditional belonging via the principle of solidarity -- the "firm and persevering determination to commit oneself . . . to the good of all and of each individual," as John Paul II put it.  This has proven easier to teach than embody, but there's no better time than now to remind ourselves that the most fertile ground in which solidarity can take root is in our immediate sphere of influence, one relationship at a time.  

Solidarity has implications for policy debates, to be sure, but if we're not committed to practicing solidarity in our everyday interactions, it can become a hopelessly abstract description of a worldview, which we then deploy as a bludgeon against those who reject that worldview.  If we value others intrinsically, our capacity for belonging to one another cannot be a function of our political agreement. 

Camosy on our Post-Truth Culture

Over at Crux -- a relatively new forum for Catholic news, analysis, and commentary edited by the indispensable John Allen Jr. -- Charles Camosy makes some important points in his op-ed on truth in our political culture.  Building on Andrew Sullivan's recent essay on truth-telling in the Trump administration, Camosy locates Trump as just the most extreme example of a post-truth trajectory we've been on for some years (e.g., it depends on the meaning of "is," unborn life as a "clump of cells," "hands up, don't shoot" being "built on a lie").  We are arriving at a moment predicted by Alasdair MacIntyre in After Virtue.  As Camosy reminds us, "[o]nce morality and politics were severed from any common understanding of the good-once the West at least tried to be genuinely plural with regard to our foundational moral principles-we got on a cultural road that could lead nowhere other than where we currently find ourselves."  Camosy calls Catholics to rise up to challenge the post-truth strategy that has become so politically effective, citing the Focolare movement as an example of how we can "create intentionally diverse communities of dialogue - communities in which people with different understandings of the good can at least come together in a shared reality and disagree on the basis of a common set of facts."

Wendel & Luban on religious lawyering

Two of my favorite legal ethics scholars -- Brad Wendel and David Luban -- have joined forces to write an accessible history of philosophical legal ethics.  Breaking down the relatively short (40-year) span of serious theoretical work in the field into two waves, the first grounded in moral philosophy and the second grounded in political philosophy, Wendel and Luban provide a helpful introduction to how scholars have criticized and defended the lawyer's role against broader normative frameworks.  MoJ readers might be especially interested in the treatment of the religious-lawyering perspective, championed most famously by Tom Shaffer.  The authors conclude:

A Christian lawyer may wonder, for example, whether it is possible to be a lawyer without being involved in the fallenness of all human institutions, including the law. Since the answer to questions formulated in these terms would themselves be dependent upon other theological commitments, the influence of the religious-lawyering literature was somewhat limited. Its wider impact depended upon its translation into what Rawls would call public reasons, in which case it risked losing its distinctive prophetic voice.

They're undoubtedly correct to characterize the influence of the religious-lawyering literature as "limited" (at least for now), but I'm not entirely certain that those limits are strictly a function of a failure to undertake a Rawlsian translation.  That's a longer conversation.  In the meantime, you should check out the paper - it is worth your time.

Where are Catholic law schools on the road to character?

I finally got around to reading The Road to Character by David Brooks. Brooks often receives the same criticisms as law professors doing interdisciplinary scholarship – i.e., that our work reflects a glibness and lack of depth, skating from one field of knowledge to another without mastery.  I see Brooks (and many law professors) as providing a needed service in making a broad set of relevant insights more broadly accessible than they would ever be if left solely in the hands of the scholars who have spent their whole careers studying a single field.  What may be lost in depth is gained in currency.  The same is true of his latest work.

I enjoyed The Road to Character for many reasons, but for MoJ purposes, it made me think about the role that Catholic law schools can play in character development.  Brooks points out early in the book that today, “teachers tend to look for their students’ intellectual strengths, so they can cultivate them,” but a century ago, they “tended to look for their students’ moral weaknesses, so they could correct them.”

He recounts asking the head of a prestigious prep school how the school teaches students about character. She responded “by telling me how many hours of community service the students do. That is to say, when I asked her about something internal, she answered by talking about something external.”  Brooks observes that “[m]any people today have deep moral and altruistic yearnings but, lacking a moral vocabulary, they tend to convert moral questions into resource allocation questions.”

What would Catholic law schools say if Brooks asked us how we teach about character? I admit that our public service requirement would be a strong candidate for inclusion in my answer (at least before reading this book).  Law schools also – I hope – work to inculcate the norms and dispositions that are integral to membership in the legal profession.  And some schools (including St. Thomas) are doing more to facilitate self-awareness (through required exercises like Strengths Finder and courses that allot time for structured self-reflection), which is a necessary component of character development.

But should we do more to tap our theological resources? As Brooks explains, for example:

[S]in is a necessary part of our mental furniture [because] without it, the whole method of character building dissolves. From time immemorial, people have achieved glory by achieving great external things, but they have built character by struggling against their internal sins. People become solid, stable, and worthy of self-respect because they have defeated or at least struggled with their own demons. If you take away the concept of sin, then you take away the thing the good person struggles against.

Of all the historical figures Brooks mined for insights on character development, the most powerful (not surprisingly) was Augustine. According to Brooks, Augustine observed that “people can understand themselves only by looking at forces that transcend themselves. Human life points beyond itself.”  For Augustine, at least, there was no substitute for the divine, and “if you think you can organize your own salvation you are magnifying the very sin that keeps you from it.”  I don't know if Augustine's insights are as translatable outside a Christian experience as the structure of Brooks' survey approach implies (take a bit of Dwight Eisenhower here, a bit of George Eliot here, and some Augustine for good measure).  Transformative religious experience is a tricky road-to-character program ingredient for law schools open to students from any or no faith tradition. 

But we cannot ignore Augustine's lessons for education.  Since “you become what you love,” Augustine believed that education should entail the reordering of our loves. Brooks explains that “[w]e don’t become better because we acquire new information. We become better because we acquire better loves.” As such, “[w]hen you go to a school, it should offer you new things to love.”  What are we teaching our students to love?

In the book’s conclusion, Brooks laments the rise of the meritocracy mindset, in which the self is seen as “a vessel of human capital,” rather than the seat of the soul; the self is thus about talent, not character.” The meritocracy has shaped our definition of character, as the term now “is used less to describe traits like selflessness, generosity, self-sacrifice, and other qualities that sometimes make worldly success less likely,” and more often “used to describe traits like self-control, grit, resilience, and tenacity, qualities that make worldly success more likely.”

With the pressure to attract the best and brightest, and to maximize those students’ chances of gainful post-graduation employment, it is not easy for law schools to be counter-cultural when it comes to character formation. But Catholic law schools may be positioned to broaden the conversation in ways that create space for our students to grapple with the classic understanding of character.  The road to character, as Brooks puts it, “begins with an accurate understanding of our nature, and the core of that understanding is that we are flawed creatures.”  Character, in the end, is “a set of dispositions, desires, and habits that are slowly engraved during the struggle against your own weakness.”  Our faith tradition provides a framework through which to conceive of such a struggle, and we (hopefully) have a community that can support the struggle.  We all need, in Brooks’ memorable phrasing, “redemptive assistance from outside,” for we “wage our struggles in conjunction with others waging theirs, and the boundaries between us are indistinct.”

Can we help our students see beyond the external striving that makes up so much of the law school experience and identify the internal struggle that is constitutive of character? If so, what form could that help take?

Brennan and Brewbaker on Christian Legal Thought

Here's a new casebook, from Foundation, on Christian Legal Thought, thanks to Prof. Bill Brewbaker and our own Prof. Patrick Brennan.  Congrats!

Check out the table of contents - fascinating materials.  Here's hoping it's adopted widely, and that professors at many law schools -- not just religiously affiliated ones -- consider offering the course.

Civil friendship in a digital age

John Allen Jr. is always worth reading, and he has a lovely reflection comparing "two different Americas" through the lens of New York City's "two Dolans" -- the Knicks owner (angry and confrontational) and the Cardinal (open and committed to friendship despite disagreements).  He identifies as a "defining quality of [Cardinal Timothy Dolan] a relentless determination to keep lines of communication open, never to demonize or alienate anyone, and to demonstrate that one can have strong convictions without forever going to war against people who don’t share them."  The roots of this quality are best captured, according to Allen, by a story the Cardinal tells about his dad:

My dad was a very upbeat guy, with a tremendous sense of humor, who would always see the best in people. The kind of people that others didn’t get along with, he liked. It was almost like he wanted to give them a chance … Dad’s philosophy of life was that if you can get somebody on a lawn chair, outside on a Sunday, while he was doing pork steaks in the barbeque pit, listening to Harry Caray and the Saint Louis Cardinals in the background with a bottle of Busch, you could win over anybody. There’s nobody that if you eyeball, and really start talking to … rare would be the person with whom you could not find common ground.

This beautifully conveys the attitude of civil friendship, which calls citizens to live the virtue of solidarity within the political community.  As illustrated by the Cardinal's recollection, we are to assume the good will of our neighbors; not make our relationships with our fellow citizens contingent on political agreement, worldview alignment, or personality compatibility; and recognize that connections across difference and disagreement are intrinsically valuable, not just instrumentally advantageous.  But how do we embody this spirit when so little of our social interaction takes place in any sort of face-to-face venue, much less on lawn chairs around the barbeque pit? 

One obvious (but by no means easy) answer is to reallocate and reprioritize our time toward the face-to-face.  We should do that, early and often, but that will only go so far in terms of shaping the society-wide perceptions of politics- and worldview-driven division and alienation.  The front porch and neighborhood coffee shop are not going to reemerge as the primary venues for engaging our fellow citizens across our differences anytime soon.  As such, it is absolutely vital that scholars, community advocates, clergy, politicians, and neighborhood grill masters spend time thinking and sharing ideas about how we talk to each other across difference, especially when those exchanges are facilitated by technology, not by adjoining back yards.  I mean more than internet etiquette, I think.  Can emerging technologies actually help use digital tendencies to promote face-to-face relationships?  (I'm thinking, for example, of apps like Next Door.)  Can technology make local politics more accessible -- and appealing -- to residents?  Can opinion leaders change the tone and expectations of political engagement, whether in-person or online, and can the public incentivize them doing so?  How can we train young people (and not-so-young people) to embrace vulnerability? 

Realistically, true friendship will not be the aim in most political engagement that takes place in a digital world.  But an orientation toward friendship should still shape that engagement.  That's what civil friendship contemplates; we need to figure out what it looks like today. 

Alberto Mora: It's Not Just About How to Protect the Country; It's About How to Protect Our Values

President Trump now has twice stated that, if the United States experiences a terrorist attack on American soil, the blood will be on the hands of the judges who have stayed the effect of his travel ban against seven majority Muslim nations.

This crude attempt to intimidate those committed to the rule of rule into setting aside legal qualms about presidential action closely resembles the post-9/11 argument made by some who wanted legal cover to employ extraordinary interrogation methods – that is, torture – against detainees who might have information about Al Qaeda terrorist plots.  Advocates for the use of waterboarding and other “harsh” measures during the Bush Administration argued that lawyers who timidly resisted with legal objections would then be responsible the thousands of deaths that would be lost in the next terrorist attack. 

During that earlier episode, Alberto Mora, the general counsel for the United States Navy, responded with words that should resonate today:  “The debate here isn’t only how to protect the country. It’s how to protect our values.”

Christian Legal Thought: Materials and Cases (Foundation Press, 2017)

It was a while in the making, but Brennan and Brewbaker's Christian Legal Thought: Materials and Cases will be published momentarily -- that is, any day now -- by Foundation Press, well in time for Fall adoption.  Here is Foundation's description of the book: 

This text examines law and legal institutions through the broad lens of Christian thought, both Catholic and Protestant. The book addresses methodological issues in Christian legal scholarship (What makes legal thought “Christian”?); the relevance of Christian theological doctrines—such as creation, the Christian conception of the human person, the kingdom of God, and the natural and divine laws—for reflection on law; the significance of historical context for Christian legal thought; Christian reflection on important jurisprudential issues and concepts, such as equality, justice, rights, and the rule of law; and Christian perspectives on various legal subjects, such as contracts, torts, and property. The point of the book is less to prescribe what a Christian legal theory should entail in the way of outcomes than to use the Christian faith as a lens through which to understand, and reflect critically upon, law and legal institutions.

Here is where the book's table of contents can be viewed and complimentary copies requested from the publisher.

It was a joy and an honor to collaborate with my dear friend and MOJ-friend Bill Brewbaker, William Alfred Rose Professor of Law at the University of Alabama School of Law, in writing this book.  The process itself was inspiring to the authors, and both Bill and I hope that the finished product reveals something of what the breadth of Christian thought offers to those who think or believe that law is something we should care about and that la should, in turn, convey our care to this needy world of ours.  Not a book about "law and religion," Christian Legal Thought: Materials and Cases is a book, for use in law school and other classrooms, about what Christianity, Catholic and Protestant, can tell us -- and has already told us -- about the ends and the limits of law.  The book does not shy away from differences between Catholic and Protestant thought, nor from historical and ongoing disagreements internal to the Catholic tradition or to the several Protestant denominations discussed; it does, however, look for common ground both among Christians and between Christians and contributors to our (legal) culture who are not Christians. 

I'll blog later more about the topics and themes of the book than the table of contents can reveal.  For now, though, I'd like to thank, on Bill's and my own behalf, all those MOJ bloggers, MOJ friends, and MOJ readers, as well as many, many others, for the guidance and encouragement they gave us in what turned out to be a more challenging project than we had imagined at its outset.  The book's index records just some of many familiar names, many of them familiar from MOJ itself, whose work in the Christian-legal-thought vineyard we have tried to harvest for the purposes animating our book.  We will be grateful to receive suggestions, as well as notices of omission or of corrigenda, for the next edition.  The current edition is obtainable not only from Foundation but also, of course, from here.

Finally, at least for now, I should add that Foundation will be publishing a thick Teacher's Manual to accompany the book. Although  running a little behind the book in the production schedule, the Manual will be out very soon.  We wrote the Manual with the goal, among others, of making it easier for those who otherwise might hesitate to offer a course in Christian legal thought.      

Will anti-Trump = pro-institutions?

In America magazine, Bill McGarvey has an optimistic essay suggesting that the Trump administration is inspiring a defense of institutions that the public had long taken for granted:

The good news? These unprecedented executive actions [by President Trump] have inspired equally unprecedented public outrage. Countless people—men, women, young, old, from every imaginable background—have taken to the streets to protest. People who have never been activists before are getting involved. In this time of institutional diminishment, it has taken the threat to stable institutions that we take for granted for millions to awaken and rise up in their defense.

I hope he's right, but I think it's too early to tell.  One concern I have is that the political movement that ultimately wins out over President Trump's populist nationalism will build on Trump's political strategy and simply replace his substantive policy ideas and worldview.  Trump succeeded, in part, by promoting a cynical view of institutions, which, in his rhetoric, are largely indistinguishable from "the establishment."  Will the Democratic Party's next standard-bearer beat out his or her rivals with a full-throated defense of institutions, or by using Trump's tactics ("the system is rigged") to accomplish different policy goals while doubling down on cynicism toward institutions?  The case for institutions may be too nuanced to get much oxygen  in a political climate where outrage will be the dominant element for the foreseeable future.