Mirror of Justice

Oral arguments (and more) in the Janus case

There's been a fair bit of commentary -- here at MOJ and elsewhere in the Catholic interwebs -- about the Janus case, which presents the question (as I'd put it) whether the Constitution permits governments to require public employees to support public-employee unions and their activism as a condition of public employment.  Here is the transcript from today's oral argument.  (Those MOJ readers who went to law school will have flashbacks, during the questions of certain justices, to those awkward moments in law-school moot-court events when one was expected to respectfully answer questions from "judges" who hadn't read the record, the briefs, or the relevant precedents.)  

MOJ readers might also be interested in this exchange between Distinctly Catholic's Michael Sean Winters and Bench Memos's Ed Whelan.  Whelan has, in my view, the better of the argument.  Particularly wrongheaded is MSW's embrace and praise of Bishop David Zubik's entirely wrong argument:

The man who brought the lawsuit took a union job, agreed to the union terms, and then sued on free speech grounds because he objected to the union's political positions. It's similar to someone who has taken a job in the Catholic Church arguing that he should be allowed to keep his job while also publicly advocating for abortion. He knew the terms of employment when he accepted them.

This is (all due respect) just wrong.  The constitutional question is whether the First Amendment permits the government to make endorsing the "union's political positions" a condition of employment; it's not about what churches may or may not make conditions of church employment.  This is simply sophistry.  (And, no, it's not "libertarian" to point out "sophistry.")

 

Chaput on "Things to Come: Faith, State, and Society in a New World"

This piece, by Archbishop Chaput, is timely, covers a lot of ground - the Florida school shooting, the 2016 election, immigration and change, capitalism and development, church-state relations, sexuality, mercy, moral anthropology, and a long quote from Charles Camosy -- and is well worth a read.  A bit:

. . . Polanyi showed how the industrial revolution disrupted and reorganized the entire fabric of English life.  It revolutionized the structure of the British economy.  That much was obvious.  But in doing so, it also reshaped every other aspect of the nation’s culture — from family relations, to politics and education, to the use of time, to patterns of thought and behavior.

The same thing is happening right here, in our own country, in our own time and space.  A consumer market economy tends to commodify everything and recast all relationships as transactional.  In practice, it depersonalizes a culture by commercializing many of our routine human interactions.  It also very easily breeds a practical atheism by revolving our lives around the desire and consumption of new things. . . .

More:

There are no new paradigms; no new hermeneutical principles; no revolutions in thought; and no possible concordats with the world and its alibis, that can the erase the radicalism and liberating beauty of Christian anthropology.

Key to that anthropology is the nature of our sexuality, expressed in the complementarity of male and female, and ordered to new life and mutual support.  Human sexuality and relationships have a God-given purpose.  That purpose is a source of true freedom and joy.  It can’t be changed, or reinterpreted, or medically reimagined away.

This is the truth about who we are as embodied creatures, no matter what our personal confusions or weaknesses might be.  We need to affirm that truth for our own sakes, and the sake of our whole society, because the meaning of our humanity depends on it. And while truth spoken without love and patience can be a weapon, not speaking it is a form a theft.  Mercy without truth is not mercy.

Janus v. AFSCME and Catholic Social Teaching

The Supreme Court hears oral argument this morning in one of this term's major First Amendment cases, Janus v. AFSCME. Some of the questions posed about the case and especially the issues raised in this brief by the USCCB have been thoughtfully explored in a series of posts by Ed Whelan (e.g., here) and Michael Sean Winters (e.g., here).

I wrote about Catholic social teaching and public sector unions back in 2016 when the Supreme Court heard oral argument in Friedrichs v. California Teachers Association and am reposting that below. Suffice to say that nothing in the USCCB brief or in the commentary about it causes me to change my views. It's worth emphasizing that Janus is about a narrow if important bit of constitutional doctrine concerning compelled subsidies and speech in the public employment sector. The USCCB brief and commentary supporting it mistakenly, in my view, kick up a host of misleading (because usually failing to note the important distinction between the public and private sectors) and irrelevant (because not engaging the legal questions and the reasoning--or lack thereof--in Abood) issues about right to work laws, civil society, intermediate institutions, Bowling Alone, and so forth. More to come after oral argument.

From 2016:

I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?

One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.

For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.

And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:

The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.

Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.

Wallace Fowlie on T.S. Eliot and "Ash Wednesday"

In the early 1990s, I was fortunate to be a student of the great Catholic scholar, Wallace Fowlie. Professor Fowlie's particular area of expertise was French symbolist poetry, in particular Rimbaud and Mallarmé (he has an important set of translations of the former). But he was also deeply interested in the work of the symbolist-influenced Catholic poet, Paul Claudel and the (complicated) philosopher, Henri Bergson.

I took various classes on Dante and Proust with Professor Fowlie. I also remember visiting with him on several occasions in his home (at that time, in a quiet retirement community; he was already quite advanced in age) and chatting with him about his extraordinary life. On one memorable occasion, in 1995, just before I graduated, I recall driving him to a wonderful and simple Easter service. 

I thought about Professor Fowlie, who passed away in 1998, twenty years ago, in reading a little pamphlet of his published in 1994 titled, "Dante Today: A Personal Essay." Here is a passage of it for Lent, concerning an encounter in his youth with T.S. Eliot:

The year was 1932-33, when Eliot came to Harvard to give the Charles Eliot Norton lectures. These were public lectures in the evening. They were published in book form in 1931: The Use of Poetry and the Use of Criticism. In addition to these public lectures, Eliot gave a course on "English literature from 1830 to 1930," to fifteen students. Fourteen of these students were English majors. I was the fifteenth, just barely admitted since I was a French-Italian major.

I had two good friends in that class which was held on the second floor of Sever Hall. Before Eliot arrived in Cambridge, we had worked hard on "The Love Song of J. Alfred Prufrock" (1915) and on "The Wasteland" (1922). When I first read "Ash Wednesday" in 1930, it seemed to me a religious poem, a poem of peacefulness finally reached after the earlier poems of man's human dilemmas. We were proud to have Eliot there and hear him speak to us each week. We became almost childishly curious about him, about his life, and we developed the outrageous habit of following him in the street to see where he walked, where he ate, what he ate. If he went into the Coop, what did he buy? He had announced his allegiance to the Anglo-Catholic branch of the Episcopal Church, and we suspected that he attended Sunday services in the Church of St. John the Evangelist, on the back of Beacon Hill in Boston. That turned out to be true.

When Christmas Eve came, the three of us decided to attend midnight Mass at St. John's where the singing was Gregorian chant, directed by a skilled organist, Mr. Titcomb. We hoped, of course, that Eliot would be there. He was there in the first row, seated beside his colleague-friend Theodore Spencer. We took our places in the sixth row behind them. It is a small church, and that evening it was filled. It was snowing outside. The ladies wore fur coats. The liturgy was performed slowly and reverently, and the Mass was beautifully sung by the Cowley Fathers, an Anglican monastic order.

At the end of the service, the congregation stood and filled immediately into the one aisle that led to the entrance. The three of us decided to wait in our row until Eliot and Spencer passed us. Then we took our places somewhat behind them. Between us and Eliot, we noticed in the very slow moving crowd, a tall fellow we had seen in the Harvard yard. He was a graduate student. The church was quiet and we filed out. Suddenly, this student, whom we did not know, opened his mouth and recited in a strong voice a line in Italian, which he obviously directed at Eliot. We could see Eliot cringe and try to move faster in order to get out of the church. When we finally got outside, Eliot and his friend had disappeared into the falling snow, and the graduate student also had disappeared.

When I returned to college after the Christmas holiday, I ran into the student one day in the yard. I spoke to him then. "Excuse me. After midnight Mass on Christmas eve, I heard you recite a line of Italian. You seemed to direct it to Mr. Eliot. May I ask you what that line was? Possibly Dante?" He looked at me in a somewhat scornful way, and asked: "Haven't you read Guido Cavalcanti?"

"No, I haven't read Cavalcanti."

"Well, let me recite it to you and translate it. Perch'io non spero di tornar giammai. 'Because I do not hope to turn again.' Do you recognize the translation?"

This time I was able to answer in the affirmative. And I said, "Yes, it's the first line in Eliot's Ash Wednesday." "But," I continued, "Why did you do that in the quiet of that church? It disturbed Eliot."

"I wanted to tell that Old Possum that I knew he had stolen his first line from the first line of a Cavalcanti poem."

Abruptly he left me then. And I, both shocked and somewhat amused, made my way to Widener.

"Religious Freedom and the Common Good" Symposium: March 23 at St. Thomas Law

On Friday, March 23, in Minneapolis, the Law Journal at St. Thomas is sponsoring a symposium on "Religious Freedom and the Common Good." In past work, I've explored the idea that common-good-related arguments can be an important, overlooked ground for religious freedom in a society that needs to be persuaded of the importance of that principle. This conference will push that exploration further.

The program will bring together (1) social scientists who measure the contributions of religion to society and (2) legal scholars, advocates, and policy analysts interested in religious freedom--for an interchange on how the two disciplines can learn from each other in the service of productive initiatives. Co-organizer is the Baylor University Institute for Study of Religion (ISR).

So far just a Facebook link, so I'll post at a bit of length. Speakers include:

• Brian Grim (lunchtime speaker), founder of the Religious Freedom and Business Foundation, whose widely-reported study quantifies the socio-economic value that religion contributes in the US as $1.2 trillion yearly
• Byron Johnson, director of the Baylor ISR and one of the leading sociologists on the empirical contributions of religious organizations
• Anthony Picarello, general counsel and associate general secretary for the U.S. Conference of Catholic Bishops (which has made "freedom to serve others" an important part of its religious-freedom advocacy)
• Jackie Rivers, an expert on the social role and contributions of African-American churches
• Melissa Rogers, now at Brookings, who handled issues concerning faith-based institutions for the Obama White House
• Sahar Aziz, Rutgers Law School, an expert on Muslim organizations, anti-terrorism efforts, and religious-freedom issues
• Stanley Carlson-Thies, founder, Institutional Religious Freedom Alliance
• Angela Carmella, Seton Hall Law School, an expert on Catholic social thought and religious freedom
• Mark David Hall, political scientist at George Fox U., expert on the framers' understanding of religion and the common good
• Dana Mataic (with Prof. Roger Finke, Penn State U.): on the causes and consequences of religious-freedom restrictions around the world
• Yours truly

Here's a fuller description: 

Continue reading

"The Question of Religious Freedom" (Loyola)

For readers in and about Chicago: The theology department at Loyola U. is sponsoring a program on "The Question of Religious Freedom," on Monday, March 12 (evening keynote), and Tuesday, March 13 (day-long) at the downtown campus. Speakers include Barry Hudock, author of Struggle, Condemnation, Vindication: John Courtney Murray’s Journey toward Vatican II; Robin Lovin, one of the nation's most distinguished mainline Protestant social ethicists; and three legal scholars, Kathleen Brady, Leslie Griffin, and yours truly. 

From the description:

In recent times, religious freedom has reemerged as a key and controversial issue within the United States and around the world.  With a desire to contribute to this essential conversation, we have invited prominent scholars to discuss and analyze religious freedom as it relates to issues of social polarization, peaceful coexistence, non-discrimination and the common good. We also will look back to the contribution of John Courtney Murray, S.J. to Dignitatis Humanae, the groundbreaking document on Religious Freedom issued in [1965] by the Second Vatican Council. 

I'm looking forward to the program: an examination of Murray's legacy on this issue, a wide-ranging set of current perspectives, an important set of themes ("social polarization" et al. above), and ample time allocated for the speakers and audience to air and explore those themes thoroughly.

Bishop Paprocki's response to USCCB's amicus brief in Janus

As Michael Perry noted a few days ago, the USCCB filed an amicus brief in the Janus case, which does not -- contrary to the suggestion in the USCCB's brief -- present the question whether right-to-work should be constitutionalized in the private sector, but instead asks the Court to decide whether the First Amendment permits governments to condition public employment (employment that is, collective bargaining aside, heavily regulated and protected) on affiliating with a political association (i.e., a public-sector-employee union) whose activities and expression one opposes.  

In my view -- and I've gone through my reasons here at MOJ many times (Ed.:  Talk about an understatement!) it is a mistake both to (a) think that strong support rightly expressed in Catholic Social Thought for the dignity and rights of workers means that Catholics should support the policy agenda of today's unions (e.g., opposing school choice) and (b) to fail to distinguish between the labor-capital dynamic, on the one hand, and the taxpayer/government/party/public-employee dynamic, on the other.  But, I understand, many intelligent Catholics disagree with me, though I cannot help being frustrated that some persist in the tired and inaccurate claim that my view is somehow "libertarian" or (shudder) "neo-liberal."  In any event, and notwithstanding my huge admiration for the General Counsel, I think the challengers' legal arguments are the stronger ones.  And, here (in City Journal) is a helpful and, in my view, compelling analysis of the case. 

All that said, here is a statement from Bishop Thomas Paprocki (Springfield), responding to the USCCB's brief. 

On the cancellation of Professor Rosen's course at Princeton

Princeton University, where I have had the privilege of teaching for more than thirty-two years, recently received a black eye in the media when Anthropology professor Lawrence Rosen cancelled his course "Cultural Freedoms: Hate Speech, Blasphemy, and Pornography" after several students were offended by his saying--purely and unmistakably for bona fide pedagogical purposes--a racially derogatory word. Here's an update from Reason magazine on the matter.

https://reason.com/blog/2018/02/14/princeton-professor-cancels-hate-speech

I stress that Professor Rosen's mentioning of the word, which he did several times (as he had done in previous classes on culture and free speech with no adverse reaction), was pedagogical. No one was in any doubt about that. No one could possibly have been in any doubt about it. The idea that Lawrence Rosen, whom I have known since I arrived at Princeton in 1985, is a racist is beyond risible. He is a person of decency and upright character in every way. There isn't the slightest trace of animus in the man. He treats all of his colleagues and students with respect. As it happens, he is also one of the Princeton's most brilliant and eminent social scientists. He is MacArthur genius award winner, among countless other distinctions. It is painful for me personally, as I know it must be in even greater degree for him, to see his name dragged through the mud for allegedly (as some media misleadingly put it) "using a racial slur."

It is important for people to know another thing about the incident. Princeton did not pressure or even ask or encourage Professor Rosen to cancel his class. No pressure was placed on him by colleagues or administrative officials of the Department or the University. Princeton's president, Christopher Eisgruber, strongly defended Professor Rosen against the smears to which he was subjected and expressly and forcefully supported his right to use the words he deemed necessary and suitable to accomplish his pedagogical mission in teaching about hate speech and related issues. The same is true of Professor Carolyn Rouse who chairs Princeton's Department of Anthropology. Neither President Eisgruber nor Professor Rouse deserves to be counted among those college and university administrators around the country who have brought shame on themselves and their institutions by caving in to demands for speech policing and the curtailment of academic freedom. Quite the contrary. Both deserve high praise for standing up for freedom of expression on campus and other core academic values.

Why did Professor Rosen elect to cancel his course? I do not know the whole story, but I do know that he made the decision in light of his judgment that cancellation was in the interests of the students who had enrolled in the course. I do not know how that could be, but I haven't the slightest doubt that this was in fact Professor Rosen's sincere judgment and motivation. He is not a coward and would never yield to intimidation tactics. I know that some students who privately told Professor Rosen they wanted the course to continue were too afraid to speak out publicly. Evidently they feared being defamed as "racists" or "bigots." That makes me sad. As Professor Rosen told his students, the surest way to lose freedom is to remain silent in the face of efforts to squash it.

Announcing the Fourth Biennial Colloquium in Law and Religion

My colleague, Mark Movsesian, and I are pleased and honored to announce the fourth biennial (how many years is that?) Colloquium in Law and Religion, to be hosted at St. John's in fall 2018. This seminar invites leading law and religion scholars and judges to share their work in law and religion before a small audience of students and faculty. Here is the slate of speakers:

September 17: Professor Robert Louis Wilken (University of Virginia, Emeritus)

October 1: Professor Philip Hamburger (Columbia Law School)

October 15: Professor John Inazu (Washington U. St. Louis School of Law)

October 29: Professor Micah Schwartzman (University of Virginia School of Law)

November 12: The Honorable Diane S. Sykes (U.S. Court of Appeals for the Seventh Circuit)

November 26: Professor Vincent Phillip Muñoz (University of Notre Dame)

To read more about past colloquia, please see these links:

• 2012 Colloquium
• 2014 Colloquium (hosted with Villanova Law School)
• 2016 Colloquium

For more information about the 2018 colloquium, please contact me at [email protected] or Mark at [email protected].

"How to keep 'em content in Lent"?

We can't serve dishes made with quick-melting Ched-O-Bit any more, so I'll be running out later today to pick up some tomato soup instead. No need to wait, though to enjoy Amy Welborn's "Gallery of Regrettable Lenten Food."

A taste of the advertising copy: "Is Lent a Problem? 'No!' ... says Chef Ernest Cuony of New York's Fashionable Hotel Barclay. 'You've shown me, Mrs. America, that it's not necessary to sacrifice deliciousness and flavor in order to 'toe the mark' during Lent. As a matter of fact, your pure, wholesome, delicate-flavored WESSON OIL gives--how you say it?--'oomph' to even every-day dishes.'"