Mirror of Justice

Supreme Court grants review in Montana "Blaine Amendment" case

This could be very big news.  For more -- an older, but still worth-reading essay, by me -- on the Blaine Amendment(s), go here.  This case gives the Court to embrace what seem to me to be the obvious implications of its recent decision in Trinity Lutheran, e.g., the Constitution neither requires nor permits discrimination in the context of secular-purpose-serving social-welfare programs against religious beneficiaries and institutions.

2018 Report on International Religious Freedom

The Department of State recently released the annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country.

"Eloquent ambiguity?" Or a loaded gun?

In case you missed it, the Catholic bishops of the United State recently voted 194-8, with three bishops abstaining, to revise the U.S. Catechism for Adults to state that capital punishment is  always "inadmissible."  "Inadmissible," of course, is what Pope Francis says that the Catholic Church now says that capital punishment is (and, for that matter, always was).   The bishops' stated purpose was to conform the U.S. Catechism for Adults to the change Francis made in the Catechism of the Catholic Church last August.  By their own proud and dutiful admission, the bishops are simply falling into line.  Meanwhile, one can be excused for finding it hard to keep up with all of the changes.  For those who can keep up with at least the headlines, there's the further question of the changes actually mean.  The question of the meaning of Church teaching can by no means be an afterthought, even or especially in this world of infotopia (to borrow Cass Sunstein's term from another context).  

Not everyone is convinced that Pope Francis or the Church herself has the authority to declare capital punishment always and everywhere immoral, and it is important that Pope Francis has not exactly declared capital punishment to be always and everywhere immoral.  He has declared it to be "inadmissible."  But what's the difference between "inadmissible" and "always and everywhere immoral?"  It's hard to the point of impossible to say, and the bishops themselves were content, 194-8-3, simply to fall into line. 

Any meaningful ambiguity about what the bishops were intentionally doing was eliminated by Bishop Robert Barron's speech in favor of "eloquent ambiguity"in Catholic teaching.  You got that right, "ambiguity" is now being praised as a predicate of what comes from the mouth and pen of the Successor of Peter and Vicar of Christ.

Allow me to demonstrate with the help of what Life Site News reported:

 

Asked in the Q&A session of his presentation on revision to elaborate on the term “inadmissible,” Barron steered clear of explaining what the pope meant by it, in favor of a curious admission of the pope’s ambiguity, and diverted to the emphasis of his committee having been on imitating the pope’s decree.

“To my mind, the pope maintains and our version imitates a certain, if you want, eloquent ambiguity on that point.  Here it doesn’t use the language of intrinsic evil for example,” he continued. “But it uses language like that, inadmissible, morally unacceptable, etc.” 

“So we’re just trying to imitate as much as we can what’s found in the way the pope revised this teaching,” said Barron. “But I wouldn’t dare speak to what the mind on the pope on that is, but that’s just my assessment of why that language is used. We just tried for the most part to imitate it.”

The new language on the death penalty does not explicitly state that the death penalty is intrinsically contrary to the Gospel.

Bishop Barron wouldn't dare to speak the mind of the Pope on the actual moral status of the death penalty, and it was enough for all but eleven of two hundred and five bishops to parrot something that was, according to the their spokesman, deliberately and "eloquently ambiguous."  

Taking a step back, I am Catholic enough in my sensibilities to expect doctrinal unity on all matters that are de Fide, and for that reason I would expect , as a normative matter, the U.S. bishops faithfully to follow Catholic teaching on capital punishment.  But now we have reached a state of affairs in which it is a point of pride for the bishops to do that which, by the Pope's own admission, contradicts what the Church has always authoritatively taught on the question of the morality of capital punishment.  I should add that Bishop Barron, a point-man for "the new evangelization" and the estimable Cardinal George's protege, is about as serious as the U.S. bishops get when they are doing their best to teach the Catholic faith.

The silliness that is afoot, in praise of "eloquent ambiguity" in Catholic teaching on matters of morals, should not allow us to lose sight of what is at stake: the salvation of souls.  If capital punishment is a grave moral evil, then those who culpably  participate in it -- as judges or jurors or legislators or policy advocates -- risk divine punishment unless they repent.  It is one thing to judge capital punishment to be bad policy; it is toto caelo different to sort-of-declare it to be a grave moral evil. 

Pope John XXIII is, to my mind, an historically ambiguous figure, but Roncalli was emphatically not in favor of theological ambiguity.  The Council that Roncalli loosed on the Church had the effect of depriving the Church of many of her treasures, notably the treasure of language for clear and constant teaching.  Roncalli would not have favored Bergoglio's "eloquent ambiguity," as his words on the eve of the Second Vatican Council and his untimely death establish:

Furthermore, the Church’s language must be not only universal but also immutable. Modern languages are liable to change, and no single one of them is superior to the others in authority. Thus if the truths of the Catholic Church were entrusted to an unspecified number of them, the meaning of these truths, varied as they are, would not be manifested to everyone with sufficient clarity and precision. There would, moreover, be no language which could serve as a common and constant norm by which to gauge the exact meaning of other renderings.

But Latin is indeed such a language. It is set and unchanging. it has long since ceased to be affected by those alterations in the meaning of words which are the normal result of daily, popular use. . . .

Finally, the Catholic Church has a dignity far surpassing that of every merely human society, for it was founded by Christ the Lord. It is altogether fitting, therefore, that the language it uses should be noble, majestic, and non-vernacular.

In addition, the Latin language “can be called truly catholic.” It has been consecrated through constant use by the Apostolic See, the mother and teacher of all Churches, and must be esteemed “a treasure … of incomparable worth.” It is a general passport to the proper understanding of the Christian writers of antiquity and the documents of the Church’s teaching. It is also a most effective bond, binding the Church of today with that of the past and of the future in wonderful continuity. . . .

It will be quite clear from these considerations why the Roman Pontiffs have so often extolled the excellence and importance of Latin, and why they have prescribed its study and use by the secular and regular clergy, forecasting the dangers that would result from its neglect.   (Pope John XXIII, encyclical letter Veterum Sapientia (1962) (citations omitted)).

 

Let me say without ambiguity that, in my humble opinion, we are living the dangers that result from teachers' using (deliberately) ambiguous language while exercising authority that is in fact limited to handing on, explicating, and, to some extent, applying what has been handed down.  What is allowed to pass as the meaning of the ambiguous terms may be, some of it, ultra vires and even false.

Yes, to be sure, insight can grow into what has been handed down (cf. Dei Verbum No. 8 (1965)), but the job and authority of the teachers is to manifest the intelligibility of Revelation, not to trade in shadows and ambiguities.  If this generation's bishops knew some Latin and felt constrained to use it to limit and guide their work, the Church would have something valuable from their teachers, not the loaded gun that is "eloquent ambiguity."

Cross Purposes

That's my essay on The American Legion v. American Humanist Association over at Public Discourse this morning. A bit:

The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam[] the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.

Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.

There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.

Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.

At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.

"The Perception Gap"

As reported by Yascha Mounck of Johns Hopkins in The Atlantic,  a group called More in Common has released a study called "The Perception Gap," showing the divergence between what people of one political party think the other party's members believe, and what they actually do believe. For example,

      Democrats ... estimated that four in 10 Republicans believe that “many Muslims are good Americans,” and that only half recognize that “racism still exists in America.” In reality, those figures were two-thirds and four in five.

      Unsurprisingly, Republicans are also prone to caricature Democrats. For example, Republicans approximated that only about half of Democrats are “proud to be American” despite the country’s problems. Actually, more than four in five Democrats said they are. Similarly, Republicans guessed that fewer than four in 10 Democrats reject the idea of open borders. Actually, seven in 10 said they do.

And education doesn't help--the study "found that the best educated and most politically interested Americans are more likely to vilify their political adversaries than their less educated, less tuned-in peers":

      Americans who rarely or never follow the news are surprisingly good at estimating the views of people with whom they disagree. On average, they misjudge the preferences of political adversaries by less than 10 percent. Those who follow the news most of the time, by contrast, are terrible at understanding their adversaries. On average, they believe that the share of their political adversaries who endorse extreme views is about 30 percent higher than it is in reality.

Finally, the intensifying effect of higher education is skewed--it makes Democrats caricature their opponents more than it makes Republicans do so:

      Perhaps because institutions of higher learning tend to be dominated by liberals, Republicans who have gone to college are not more likely to caricature their ideological adversaries than those who dropped out of high school. But among Democrats, education seems to make the problem much worse. Democrats who have a high-school degree suffer from a greater perception gap than those who don’t. Democrats who went to college harbor greater misunderstandings than those who didn’t. And those with a postgrad degree have a way more skewed view of Republicans than anybody else.

I can't vouch for the study's methodology. But the results are worth looking at: they are striking, even if not especially surprising.

U.S. State Dept. Honors Italian Nun

This story from Crux about an Italian nun who has spent most of her ministry working to rescue people from human trafficking is truly inspiring.

Sister Gabriella Bottani was honored on Thursday, during a ceremony introducing the 2019 Trafficking in Persons (TIP) Report, presented by U.S. Secretary of State Mike Pompeo.

Bottani was one of nine individuals who were named “Heroes” in recognition of their tireless efforts to fight modern-day slavery, which affects an estimated 25 million people and has been labeled by Pope Francis as a “crime against humanity.” The nun was tasked with speaking for the group of honorees.

Happy Feast of St. Thomas More

The Death of a Martyr (here), from The Tudors.

Happy Feast of St. Thomas More

The Death of a Martyr (here), from The Tudors.

"Religious Freedom and the Common Good" Symposium Papers

I've been away from blogging recently, for a variety of reasons: a heavy teaching semester, including an enjoyable two weeks teaching Hungarian and other law students in Budapest; a book manuscript in the editing and proofing stages; and acting in another Gilbert & Sullivan production (a thing I do).

The papers from the St. Thomas Law symposium on "Religious Freedom and the Common Good" are now published and online (here). They include contributions by sociologists of religion, political scientists, legal scholars, folks with government experience on religious-freedom matters, etc. 

We think the collection of papers will be important to future discussions about the common good both as one important justification for religious freedom and as a framework for its proper scope and boundaries. As challenges to religious freedom mount (around the world and here), it will be increasingly important (as I've previously argued here and here) to how religious freedom is not just a selfish assertion but a key contributor to a healthy, thriving community.

Justice Alito’s Second-Best Problem

One additional note on Gundy: Justice Alito’s concurrence is obviously struggling with the constitutional problem of second-best, one that I analyze here with respect to nondelegation and here, at book length, with respect to constitutional law and theory generally.