Mirror of Justice

Peace Cross Puzzlement

The Maryland Bladensburg Cross was allowed to stand. That's the easy part. The hard part is what precisely prevented the Court--for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)--from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got

• a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
• one concurrence that would have overruled Lemon/endorsement;
• one concurrence that preserves Lemon/endorsement;
• 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
• two opinions concurring in the judgment that would have overruled Lemon/endorsement;
• a dissent by Justice Ginsburg joined by Justice Sotomayor.

The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I'm afraid. Still, I'll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.

Never Jam Today

 

Ever since I started law school in 1990, almost thirty years ago, I’ve been hearing that the Court’s libertarian-legalist conservatives would definitely invalidate some statute or other on nondelegation grounds, any day now, without question. This eschatological hope isn’t some recent development. It’s the ordinary state of conservative jurisprudence, the perpetual “Soon! But not yet” of conservative constitutional parousia. At a certain point, one saw a sign in the East — Justice Rehnquist’s concurrence in the Benzene case, combined with certain dicta in the majority opinion! At another point, one saw a portent in the West — Justice Scalia’s powerful dissent in Mistretta! And at every one of these points, people insisted that this time it’s all different, the ground is shifting, it’s really happening!

And yet somehow, when push came to shove, when it was a question of actually assembling five votes to declare a federal statute unconstitutional on grounds not invoked for decades, grounds that would threaten to destabilize much of the modern administrative state — when it came time to act, as opposed to venting one’s constitutional frustrations in concurrence and dissents — well, it never did quite happen. Justice Scalia’s Mistretta dissent became his brusque opinion in Whitman v. American Trucking, sweeping aside a serious nondelegation challenge to the Clean Air Act. Jam yesterday (yesterday being 1935), and jam tomorrow, but never jam today.

Given this base rate, which is subject to the usual base-rate neglect on the part of  overexcited commentators, I’m somewhat less in a tizzy about the Court’s decision today in Gundy v. United States than many others seem to be, whether the particular tizzy carries a happy affect or an appalled one. Gundy, of course, upheld the federal sex offender registration statute against nondelegation challenge, by a fractured vote; everything else is extrapolation.

The case for excitement is that if one adds Justice Alito, in concurrence, to the three dissenters (the Chief Justice, Justice Thomas, and Justice Gorsuch, who wrote); and if all of those four adhere to their views in the future; and if Justice Kavanaugh, who didn’t participate in the decision, joins them on some unspecified occasion; then there would be five votes to reject the prevailing “intelligible principle” test and therefore (?) start invalidating important federal statutes.

Quite a few ifs in this chain, however. Note that because of the logic of compound probabilities, even if each one of the links, taken separately, is more likely to hold than to break, the necessary conjunction of all of them may be quite unlikely.

So which link in the chain might fail? Several seem weak. The role morality of Chief Justices, in this case Chief Justice Roberts, is that they tend on average to be concerned above all with preserving the Court’s institutional position and the larger stability of constitutional arrangements. What they will say in a safe dissent or concurrence may be very different than what they will actually do. It by no means entails they will provide the fifth vote to do something very dramatic. Furthermore, it is by no means certain that even a change in the prevailing doctrinal test will translate to a change in adjudicated outcomes. Consider Heller’s seemingly revolutionary reinvigoration of the Second Amendment, which to date has not translated into major invalidations. Sometimes, the test changes but the results do not, or at least not to any important degree.

In many ways, Gundy represented the easiest possible case for constitutional invalidation: a low-stakes statute involving a “tail issue” of registration for past offenses, and a criminal-ish statute to boot. Both of those factors supported invalidation, the former because the low stakes would have avoided any immediate, serious destabilization effect, the latter because criminal law is plausibly an area where legislatures have special responsibility to articulate statutory standards. And yet, even here, the Court’s uniform practice of rejecting nondelegation challenges held. One suspects that as the stakes increase in future cases, as the consequences of casting the fifth vote to destabilize the administrative state focus the judicial mind (especially the mind of the Chief Justice), the likelihood of invalidation will fall correspondingly. Or so the safe bet seems to me. Put not your faith in the Second Coming of the Original Constitution.

Religious Freedom Annual Review

BYU’s International Center for Law and Religion Studies will start its 2019 Religious Freedom Annual Review today.  

You can view the list of speakers and watch the live stream here.

Podcast on the New Abortion Laws and Two Pieces

Two little notes from the Center for Law and Religion at St. John's. First, my colleague, Mark Movsesian, and I have a new Legal Spirits podcast concerning what we call the "new abortion laws"--laws in several states taking a comparatively strong position on abortion regulation, whether restrictive or permissive. Along the way, we discuss the Supreme Court's recent per curiam summary reversal in Box v. Planned Parenthood, as well as what these new laws might suggest sociologically and culturally.

Second, I'm pleased to note the St. John's Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark's articles and one of mine were published in the same issue.)

Mark's piece is Masterpiece Cakeshop and the Future of Religious Freedom.

Mine is The Sickness Unto Death of the First Amendment.

Law’s Abnegation — SCOTUS 2019 Edition

 

I’m moved, perhaps unwisely, to lay down a marker about the opinions SCOTUS will soon release on administrative law and executive power - to lay my bets before the wheel has stopped spinning. The main pending cases are Gundy v. U.S., the nondelegation case; Department of Commerce v. New York, the census case; and Kisor v. Wilkie, the case asking the Court to overturn Auer deference (aka Seminole Rock deference) to agency interpretations of their own regulations. My suggestion is that if the administration does well across the triptych, broadly speaking, it will mark a distinct failure for the recent wave of critiques of the administrative state, and a salient confirmation of the long-run unfolding of law’s abnegation to the administrative state.

It is entirely possible that the administration will prevail, in some sense, in all three cases, or at least prevail in some and fight to a draw in others. To be sure, the conditions of “victory” are not well-defined in all the cases. In Kisor v. Wilkie, for example, should the Court limit or curtail Auer deference without eliminating it altogether, whether the government will have “won” is a complicated question. The answer depends on what one thinks the administration’s real objectives were and what one’s baseline expectations were. Nonetheless, given the wild-eyed excitement in certain libertarian-legalist quarters about the prospect of overruling first Auer and then Chevron itself, anything less than a clean overruling in Kisor will certainly count as a defeat for the libertarian campaign against the administrative state. If Auer can’t be cleanly eliminated, it seems exceedingly unlikely that Chevron can be. Likewise, in the census case, it is possible, although not likely, that the Court will in effect deny victory to both sides for the time being, by sending the case back to the lower courts to examine recent claims of newly-discovered crucial evidence.

So suppose that the government wins in Gundy, over nondelegation dissents from Justice Thomas and one or two others; that Kisor does not squarely overrule Auer; and that the census case ends either in the government’s favor or in a procedural postponement. (In a variant, one could imagine a plurality opinion in Gundy upholding the delegation, joined on narrower grounds by, perhaps, the Chief Justice and Justice Kavanaugh, with dissents from their other conservatives). If anything like this scenario comes to pass — a scenario in which the decisions are, by and large and taken as a set, weighted in favor of administrative power — it will extend and confirm a trend going back to the end of the Obama administration and before: excited talk about reining in executive and administrative power usually turns out to be no more than talk.

What major victories have the forces of retrenchment won, exactly, in recent memory? King v. Burwell? Let us recall that the decision, in the end, rejected a serious challenge to the Affordable Care Act. Perhaps the best candidates are the decisions in Michigan v. EPA and Encino Motorcars v. Navarro. The former, however, is limited and ambiguous, while the latter is banal. Relative to the breathless expectations created (sometimes artfully) on social media and in law reviews about imminent decisions curtailing the administrative state, all this amounts to thin gruel. The great retrenchment, much discussed and anticipated, always seems to recede into a vividly imagined future.

Indeed, one might go farther to argue that the main effect of the recent wave of libertarian litigation aiming to restrict executive and administrative power has actually been to further clarify, strengthen and entrench such power — a perverse result from the standpoint of the administrative state’s critics. In the case of presidential power, recent landmarks here are Trump v. Hawaii, the travel ban case, and Zivotofsky II, the Jerusalem passport case. Both are among the most expansive statements of presidential power in the Court’s recent history. Both were essentially own-goals on the part of forces who hoped to create a precedent going in the other direction, and whose second choice would certainly have been no precedent at all, rather than a clear precedent in the wrong direction. If the opinions soon to be delivered, taken overall, have even roughly the same character as to agency authority, then the perversity of forcing the Court to clarify and confirm the scope of executive and administrative power will be all the more obvious.

(Postscript: This post isn’t quite as rash as it seems. The betting here is, I believe, rigged in my favor. As an unscrupulous rhetorician, I would of course refuse to acknowledge that even clear losses for the administration in all the forthcoming cases would amount to a serious blow against law’s abnegation. Take Gundy, for example: should the Court dramatically invalidate (part of) a statute on nondelegation grounds, for the first time since 1935, I will immediately claim that the statutory provision at issue was of relatively little consequence, and that Gundy is best seen as a nondelegation version of Lopez, the case that invalidated the Gun-Free School Zones Act as beyond Congress’ commerce power — a relatively low-stakes case that proved to be largely symbolic, and that hardly lead to a sweeping retrenchment of the Commerce Clause. This unscrupulous argument will be all the easier in that I believe it to be true).

Notre Dame Program on Church, State & Society Newsletter

The Program on Church, State & Society just published our summer newsletter.  You can read it here:

https://mailchi.mp/44c57fefee98/fall-2018-news-from-the-program-on-church-state-society-2698321

To be added to our email list and receive future newsletters, one can subscribe here:

http://eepurl.com/gtZ841

 

Good News/Bad News on Legalization of Assisted Suicide

Bad news: 

Maine's Governor Janet Mills signed the bill that  had passed in both chambers by narrow margins that legalizes assisted suicide in that state,  joining California, Colorado, DC, Hawaii, Oregon, Vermont and Washington. This law was opposed by, among others, a coalition of disability advocacy groups  in an open letter to Governor Mills that ends with the argument:

There are ways to address the reasons people have for requesting assisted suicide, but it starts with a societal commitment to treat all suicides as a tragedy, to respond to anyone’s expression of suicidal feelings with an equal level of support, affirmation of the value of their life and effort to address their concerns. A two-tiered system where most people get suicide prevention but certain people get suicide assistance is a deadly form of discrimination that should not be accepted. Assisted suicide laws exacerbate the disability stigma that prevails in our culture and undermine people’s genuine autonomy by establishing a medically administered program of suicide approval and assistance in a health care environment already riddled with pressures to cut costs of care.

The letter was signed by the following groups:

• ADAPT
• American Association of People with Disabilities
• Assn of Programs for Rural Independent Living
• Autistic Self Advocacy Network
• Disability Rights Education and Defense Fund
• National Council on Disability
• National Council on Independent Living
• National Organization of Nurses with Disabilities
• National Spinal Cord Injury Association
• Not Dead Yet
• TASH
• The Arc of the United States
• United Spinal Association

Good news: The American Medical Association (AMA) upheld its long-standing opposition to assisted suicide by a vote of 392-162, holding that:

“Physician-assisted suicide and euthanasia are fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”

DoJ Files Statement of Interest in Maine First Amendment Case

The Department of Justice filed a Statement of Interest in the U.S. District Court for the District of Maine supporting students who claim that the State discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution when it barred them from a program paying the public or private school tuition of students who do not have public schools in their school districts, because the students wish to use the tuition to attend private religious schools that otherwise satisfy State education requirements. 

The full press release can be found here.

For background on the Blaine Amendments, Rick Garnett’s article The Theology of the Blaine Amendments can be found here.

To Fr. Jim Martin, a good and kind man--and my friend

Dear Fr. Jim: Twitter is probably not the best place for the discussion I’d like to have, but I would like to make a few points here in defense of Pope Francis and of the teachings of the Church that are strongly reinforced in the recent document about which you, in your laudable compassion, have expressed reservations and concern.

Among the greatest achievements of Christianity is its thoroughgoing rejection of the separation of self and body that one finds in, for example, Platonism, Cartesianism, and (most pertinently) various forms of gnosticism—ancient and modern. The temptation to embrace such separation is perennial, but the Church has always resisted it and borne faithful witness to the unity of the human person—body and spirit. We human beings are not “ghosts in machines.” We are our bodies (whatever else we are) and do not merely “inhabit” them and use them as extrinsic instruments of the supposed “real self,” considered as the psyche, spirit, or soul. The body, male or female, far from being a subpersonal object to be used and even manipulated by the “self” or “person,” is part of—an irreducible aspect of—the personal reality of the human being.

This understanding of the human person—this philosophical anthropology—undergirds the moral truths proclaimed by the Church, including (among many others) those pertaining to marriage and sexual morality, and to the sanctity of human life. To reject it is to cut the rug out from under those truths. It is this anthropology that is at stake in the debate over sexual or gender identity. To affirm that the human person is his or her (male or female) body is by no means to suggest that persons who experience gender dysphorias “do not exist.” Nor is it to suggest that such persons are anything less than bearers of profound, inherent, and equal dignity, precious brothers and sisters who deserve to be not only respected, but loved and cherished.

To respect, love, and cherish a person, however, does not require us—and sometimes does not permit us—to endorse their philosophical or ideological beliefs or, a fortiori, to affirm choices they may make in light of those beliefs. A standard rhetorical move one encounters when one makes this point is the claim that a person’s “truth” (especially the truth about his or her “identity”) is established by his or her “lived experience.” But experience (including “lived experience”) is not self-validating. To suppose otherwise is to fall into a form of subjectivism that Christianity, Judaism, Islam, and, indeed, all sound philosophy firmly rejects. Our feelings are real, but they do not determine reality—even the reality of one’s identity as a human being. A dysphoria, whether it is a gender dysphoria or a dysphoria of another type, may cause a person sincerely—and intensely—to feel that he or she is something other than what he or she is, but it cannot make him or her into what he or she feels he or she is. Feelings are indeed subjective; but fundamental anthropological truths are objective.

Of course, to disrespect someone who experiences a dysphoria of any type, including a gender dysphoria, is wrong. To ridicule, mock, or taunt someone who is trying to deal with a dysphoria, is cruel and grotesque. It is, indeed, unChristian and, to be bluntly judgmental, sinful. And this is true irrespective of whether an individual who experiences a dysphoria deals with it in a way that we believe (or the Church teaches) does justice to our obligations to the truth about the human person and his or her identity. I have always praised and commended you for defending the humanity and dignity of all people--including those who self-identify as “sexual minorities,” including those who identify as transgender. But I hope that you will also, particularly in your one-on-one pastoral ministry and in your public commentary, found your work on the truths proclaimed by the Church about our embodied nature as male and female.

We would have compelling reasons to affirm these truths—and to join Pope Francis in rejecting gender ideologies that reject or compromise them—even if we were not Catholics. Sound philosophy is sound philosophy. But as Catholics we have additional reasons to attend to these truths and to join in their proclamation—even when bearing witness to them is difficult and risky, as it has become in our day when basic anthropological and moral truths proclaimed by the Church are unpopular among the powerful and influential. And if I may say so, these truths must be at the foundation of a priest’s or a deacon’s pastoral care of Catholics who experience, and so often struggle deeply with, gender dysphorias. It is critical for those providing pastoral care to speak truth—the whole truth—in love, even when truth, or aspects of the truth, are unwelcome and perhaps off-putting. To withhold the truth, even out of a sense of compassion, is not truly to love the person to whom one is ministering. The truth, we as Catholics believe, is liberating and life-giving, even when it is hard to hear and hard to live up to. The pastoral and the truthful are in the same “hylomorphic” unity as body and spirit. They are inseparable—and any attempt to separate them will, in the end, prove to be something far worse than a mere failure. And the highest price will be paid by those who most badly needed to hear the whole truth proclaimed. -- Yours faithfully, Robby

Freedom of Religious Institutions in Society

The Freedom of Religious Institutions in Society (FORIS) Project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world.

The first public event was held on May 29th in Washington, D.C.

You can watch the archived footage at this link: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society