Mirror of Justice

Nussbaum & Thorpe: The "Error has no rights" Error persists

A good read.

Here's a bit:

[T] idea that “error has no rights" . . . has often (and, John Courtney Murray contends, wrongly) been labeled a medieval teaching of the Catholic Church. Whatever its source, the maxim has substantial appeal: Why should a state tolerate error? If civil unity matters, why risk infection from wrongheaded ideas? Many of the darkest moments in church–state relations drew strength from this view — from Calvin’s burning of Michael Servetus to the Inquisition, the beheadings of Bishop John Fisher and Thomas More, and the Saint Bartholomew’s Day Massacre. Legal rights should protect the good — we repeatedly hear. They ought not be asserted in the defense of evil. Fortunately, both church and state in the West generally reject that totalitarian idea.

Becket Fund Constitutional Law Fellowship - call for applications

From the Merry Band at Becket:

Becket is currently soliciting applications for our Constitutional Law Fellowship, to begin in September 2018.

The fellowship gives recent law school graduates immediate, hands-on experience litigating cutting-edge constitutional cases. Under the mentorship of experienced Becket attorneys, fellows will participate in all aspects of trial and appellate litigation, gaining valuable experience in litigation strategy, research, writing, and oral advocacy. The fellowship is an excellent stepping stone to private practice, academia, or a permanent position at Becket.

Applications will be received on a rolling basis starting now until December 31, 2017. Interviews will be conducted thereafter with offers made typically by the end of January 2018. The fellowship begins in September 2018. Fellowship terms are for one year and offer a competitive salary and benefits.

Applications should include a cover letter addressed to Becket's recruitment chair Hannah Smith, along with a resume, transcript, writing sample, and references. Applications should be emailed to Chelise Fox at [email protected].

"The Splendor of Truth in 2017"

I very much enjoyed this essay, in First Things, by Archbishop Chaput.  A bit:

. . . Next year, 2018, marks the twenty-fifth anniversary of the release of Veritatis Splendor, John Paul’s great encyclical on the “splendor of truth.” Written to encourage a renewal in Catholic moral theology and a return to its classical Catholic roots, Veritatis Splendor grounds itself in a few simple convictions. Briefly put: Truth exists, whether we like it or not. We don’t create truth; we find it, and we have no power to change it to our tastes. The truth may not make us comfortable, but it does make us free. And knowing and living the truth ennoble our lives. It is the only path to lasting happiness.

In the years that have passed, the crisis of truth has only seemed to grow. Our age is one of cleverness and irony, not real intellect and character. Today the wisdom of Veritatis Splendor is more urgently needed than ever.

It’s common, even among people who identify as Catholics, to assume that the Church’s moral guidance is essentially about imposing rules, rules that breed a kind of pharisaism. But this is exactly wrong. It’s an error that radically misunderstands the substance of Catholic teaching. It’s also one of the worst obstacles to spreading the faith.

John Paul II knew this. . . .

Amicus Brief in Masterpiece Cakeshop: Protect Both Sides

Doug Laycock and I have filed a brief in the Masterpiece Cakeshop case on behalf of amici who include a variety of religious and religious-freedom organizations: the Christian Legal Society, the LDS (Mormon) Church, the National Association of Evangelicals, the Union of Orthodox Jewish Congregations, the Queens Federation of Churches, and others. The brief has several important emphases, which are to one extent or another distinctive--sometimes quite different from other briefs in the case. Here are four representative passages:

 

From the statement of interest of amici: 

 

     Amici are religious organizations who accept that same-sex civil marriage is the law of the land. But some deeply religious Americans, including some of amici’s members, cannot in good conscience assist with same-sex weddings. Now that the Court has protected the liberty of same-sex couples, it is equally important to protect the religious liberty of these conscientious objectors. Most of these amici are involved in ongoing efforts, mostly unsuccessful so far, to negotiate legislation prohibiting sexual-orientation discrimination while providing religious exemptions. 

 

     Laws protecting the liberty of both sides are extremely difficult to enact in our polarized political environment; too many on each side resist liberty for the other. These amici believe that religious liberty is a God-given right, that it reduces human suffering, and that it is an essential means by which people with deep disagreements live together in peace. A fundamental purpose of the Constitution is to protect the liberty of both sides, and especially so when powerful factions seek to deny that liberty. 

 

From the summary of argument, parts I and II:

 

     The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.

 

     This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding. 

From the summary of argument, part III:

 

     Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 

 

     A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.

 

     B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....

 

     D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.

From argument section IV, re lack of a compelling governmental interest on these facts:

 

     [Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.

 

     Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.

 

     Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.] 

A comment on the "Masterpiece Cakeshop" case

Here's my contribution to the SCOTUSblog symposium on the upcoming Masterpiece Cakeshop case.  Here is a bit:

. . . One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.

That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.

This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.

So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience? . . .

 

California commemorates the 500th Anniversary of (a version of) the Protestant Reformation

Here's the California Senate's resolution relating to the 500th anniversary of the Protestant Reformation.  It seems to me that some in the Senate need to read, e.g., their Eamon Duffy and Brad Gregory.  A "Whereas" clause about the dissolution of the monasteries (#givebackYorkMinster) is conspicuously absent.  (I kid, I kid.)

Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood

The annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova University on Friday, October 27. All are welcome to attend, and there is no cost to attend except for those seeking CLE credit.  Details about registering for CLE credit will be posted on the Villanova School of Law homepage as the date of the conference approaches.

The conference, "Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood," will focus on the new (not-yet-published) book by philosopher James Bernard Murphy, professor of government at Dartmouth, Humanhood: Beyond Childhood and Adulthood.  Many readers of MOJ will be familiar with Professor Murphy's earlier The Philosophy of Customary Law (Oxford 2014) and The Philosophy of Positive Law: Foundations of Jurisprudence (Yale 2007).  Here is a taste from the preface to the new book on which the conference will focus:

 

The study of a human life is intrinsically multidisciplinary. Although this book is framed by basic philosophical questions and arguments, I have drawn illustrative material from biology, psychology, political science, sociology, linguistics, biblical exegesis, anthropology, and literary theory. I have attempted to refer to studies reflecting major currents of scholarship in those fields. The questions we shall consider about the shape of a human life are timeless ones, but the empirical illustrations are undoubtedly time-bound. This book is thus perched between the eternal and the temporal, which is the story of every human life.

 

The timorous may stay at home!  

 

Professor James Murphy will deliver the keynote address, and the other speakers will include:

 

Shelley Burtt, Executive Director of the Camphill Foundation

Phillip Reynolds, Aquinas Professor of Historical Theology, Candler School, Emory University

Marya Schetman, Professor of Philosophy and member of the Law of Integrated Neuroscience, University of Illinois at Chicago

Harry Brighouse, Professor of Philosophy, University of Wisconsin-Madison

James Gordley, W. R. Irby Chair, Tulane University Law School

 

 

"The Nation's Premier Christian Law School"?

I see that our good friends at Pepperdine have started to market themselves as "The Nation's Premier Christian Law School."  I certainly agree that Pepperdine is an excellent institution that does a very good job of engaging and meaningfully embracing its Christian character.  I hope, though, that they have not fallen into the old error -- and, knowing so many at Pepperdine, I have to believe they have not -- of excluding Catholics (and, more specifically, certain outstanding Catholic law schools) from their definition and understanding of "Christian"!  Remember, Evangelicals and Catholics Together (on law)!

UPDATE:  Although (as I hope is clear!) I intended this post as a gentle and affectionate bit of teasing, and not a critique, I should add that in various other places and communications of Pepperdine's it is said that the institution "aspires" or has "aspirations" to be the Nation's Premier Christian Law School.  And, Dean Paul Caron has stated:

Since my first day, I have loved working towards our shared goal to become the nation's premier Christian law school by combining academic and research excellence with a deep-rooted commitment to our Christian mission that welcomes people of all faiths and backgrounds. 

Such aspirations are, of course, entirely appropriate and to be celebrated.  Those of us who teach at the Nation's Premier Christian Law School welcome the competition!  =-)  (I kid, I kid.)

UPDATE:    Dean Caron has written a gracious follow-up post which sets everything straight and kindly concludes:

 I am of course a huge fan of Notre Dame and the other great Christian law schools, and of the fine faculties at those schools.  None of us at Pepperdine would in any way ever intimate that Notre Dame or other Catholic law schools should not be considered Christian law schools.  Indeed, we have a large number of Catholics on our faculty (in addition to Jewish, Muslim, ans Sikh faculty).  Like Rick, we believe we are all "fellow laborers in the vineyard."

Supreme Court Roundup at First Things

Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.

But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.

And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.

12 September 2001 / Pope John Paul II / General Audience

Link here:

I cannot begin this audience without expressing my profound sorrow at the terrorist attacks which yesterday brought death and destruction to America, causing thousands of victims and injuring countless people. To the President of the United States and to all American citizens I express my heartfelt sorrow. In the face of such unspeakable horror we cannot but be deeply disturbed. I add my voice to all the voices raised in these hours to express indignant condemnation, and I strongly reiterate that the ways of violence will never lead to genuine solutions to humanity’s problems.

Yesterday was a dark day in the history of humanity, a terrible affront to human dignity. After receiving the news, I followed with intense concern the developing situation, with heartfelt prayers to the Lord. How is it possible to commit acts of such savage cruelty? The human heart has depths from which schemes of unheard-of ferocity sometimes emerge, capable of destroying in a moment the normal daily life of a people. But faith comes to our aid at these times when words seem to fail. Christ’s word is the only one that can give a response to the questions which trouble our spirit. Even if the forces of darkness appear to prevail, those who believe in God know that evil and death do not have the final say. Christian hope is based on this truth; at this time our prayerful trust draws strength from it.

With deeply felt sympathy I address myself to the beloved people of the United States in this moment of distress and consternation, when the courage of so many men and women of good will is being sorely tested. In a special way I reach out to the families of the dead and the injured, and assure them of my spiritual closeness. I entrust to the mercy of the Most High the helpless victims of this tragedy, for whom I offered Mass this morning, invoking upon them eternal rest. May God give courage to the survivors; may he sustain the rescue-workers and the many volunteers who are presently making an enormous effort to cope with such an immense emergency. I ask you, dear brothers and sisters, to join me in prayer for them. Let us beg the Lord that the spiral of hatred and violence will not prevail. May the Blessed Virgin, Mother of Mercy, fill the hearts of all with wise thoughts and peaceful intentions.

 Today, my heartfelt sympathy is with the American people, subjected yesterday to inhuman terrorist attacks which have taken the lives of thousands of innocent human beings and caused unspeakable sorrow in the hearts of all men and women of good will. Yesterday was indeed a dark day in our history, an appalling offence against peace, a terrible assault against human dignity.

I invite you all to join me in commending the victims of this shocking tragedy to Almighty God' s eternal love. Let us implore his comfort upon the injured, the families involved, all who are doing their utmost to rescue survivors and help those affected.

I ask God to grant the American people the strength and courage they need at this time of sorrow and trial.