Saturday, July 6, 2019
From Book III of the Republic (PUP Edition, pp. 653-54, Paul Shorey trans.), to be set against Holmes's "bad man" theory :
"But a judge, mark you, my friend, rules soul with soul and it is not allowable for a soul to have been bred from youth up among evil souls and to have grown familiar with them, and itself to have run the gauntlet of every kind of wrongdoing and injustice so as quickly to infer from itself the misdeeds of others as it might diseases in the body, but it must have been inexperienced in evil natures and uncontaminated by them while young, if it is to be truly fair and good and judge soundly of justice. For which cause the better sort seem to be simple-minded in youth and are easily deceived by the wicked, since they do not have within themselves patterns answering to the affections of the bad...
Therefore it is, said I, that the good judge must not be a youth but an old man [Ed.: cf. Federalist 78: "Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."], a late learner of the nature of injustice, one who has not become aware of it as a property of his own soul, but one who has through the long years trained himself to understand it as an alien thing in alien souls, and to discern how great an evil it is by the instrument of mere knowledge and not by experience of his own. [Ed.: cf. "The life of the law has not been logic; it has been experience"]...
For he who has a good soul is good. But that cunning fellow quick to suspect evil, and who has himself done many unjust acts and who thinks himself a smart trickster, when he associates with his like does appear to be clever, being on his guard and fixing his eyes on the patterns within himself. But when the time comes for him to mingle with the good and his elders, then on the contrary he appears stupid. He is unseasonably distrustful and he cannot recognize a sound character because he has not such pattern in himself. But since he more often meets with the bad than the good, he seems to himself and to others to be rather wise than foolish...
[S]uch a one must not be our ideal of the good and wise judge...For while badness could never come to know both virtue and itself, native virtue through education will at last acquire the science of both itself and badness. This one, then, as I think, is the man who proves to be wise and not the bad man."
Wednesday, July 3, 2019
One of the most well-argued books I've recently read on the topic of abortion is Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press 2007). Because of a project I'm working on this summer, my attention was drawn in particular to Beckwith's argument against resting the humanity of the unborn on human appearance after a certain point of development. (A version of Beckwith's arguments, which draw on John Jefferson Davis, Abortion and the Christian: What Every Believer Should Know, is available here.)
Beckwith is right to observe that the human body takes on a variety of forms over the course of life. An elderly person does not have the body of a teenager, a teenager does not have the body of an infant, nor does an infant have the body of an embryo. A healthy, developing embryo at a particular time looks just like a healthy, developing embryo is supposed to look at that time. In Beckwith's words, "the unborn at any stage of her development looks perfectly human because that is what humans look like at that time." We risk confusing appearance with reality if we rest human moral worth on a certain type of human appearance.
But let us not be too hasty in pushing aside the moral significance of a baby's obviously human appearance. In designing laws, it can be helpful to meet people where they're at. Consider the possible legal significance of the first three search results that popped up just now when I googled "pregnancy at twelve weeks":
A baby at twelve weeks gestational age has an obviously human body. If a baby has an obviously human body, isn't it reasonable for us as a people and for our government as a government to treat that baby as a human baby? And don't human babies deserve the equal protection of the laws?
I haven't mentioned anything yet about human personhood. For the moment, though, let's stick with the basic point that a baby with an obviously human body is obviously a human baby. Let's add in a couple other characteristics to the obviously human body, such as life and healthy normal development. Should the law truly be powerless to protect this human being?
It's around this point that people interject considerations that tease apart the categories of human baby and human person. In unselfconscious reversal of the normal charge that pro-lifers are trying to impose their religious views about human personhood, those who seek to deny the human moral worth of babies with an obviously human body tend to rely on a controversial metaphysical claim. There is some property or quality, these people argue, that a human being with an obviously human body must _also_ possess in order to be a human person. But why should we let a controversial metaphysical position of this sort displace the idea that human bodiliness--whatever its relation to "full humanity" might be--is enough to bring a human being within the protective reach of positive law?
Tuesday, July 2, 2019
The Washington Metro Area Transit Authority (WMATA) accepts advertisements on the side of its buses but rejects religious ads along with political and "issue-advocacy" ads. Under that policy, WMATA rejected an ad from the Catholic Archdiocese for its "Find the Perfect Gift" holiday campaign (directing viewers to information about worship services, charitable giving, and charitable-service opportunities), even though WMATA had accepted ads from retailers encouraging holiday shopping, from the Salvation Army exhorting charitable giving in the holiday red kettles, and from others (a yoga studio, a Christian radio station whose ad was supposedly not as overtly religious as the Archdiocese's, etc.).
The D.C. Circuit upheld the exclusion of the Archdiocese ad on the ground that it did not discriminate (impermissibly) against a religious viewpoint, but rather discriminated (permissibly) against religion as a "subject matter" in a nonpublic forum. The en banc court refused rehearing, over a strong dissent by Judge Griffith teeing up the case for cert (here is the SCOTUS Blog page). The cert petition, filed by Paul Clement et al. at Kirkland & Ellis, argues that the decision below is irreconcilable with Lamb's Chapel, Rosenberger, and Good New Club: the "equal access" decisions that hold, time after time, that exclusion of religious speech is viewpoint discrimination. (It also argues that excluding religious viewpoints as such violates the Religious Freedom Restoration Act.)
Our religious liberty clinic at St. Thomas filed a brief for multiple organizational amici supporting the petition. First, we zeroed in on a couple of the court of appeals' arguments for treating the religious exclusion as subject-based rather than viewpoint-based, including this argument:
the court of appeals reasoned that the Archdiocese would have been able to place an ad urging charitable donations if its ad, like that of the Salvation Army, “contained only non-religious imagery”—for example, an ad simply saying “Please Give to Catholic Charities.” App-25. This argument is irreconcilable with Lamb’s Chapel, Rosenberger, and Good News Club. In each of those cases the presentation of a religious perspective involved explicit religious language, not mere reference to a religious identity or the religious nature of a belief. A restriction on “religious imagery” cripples the ability of speakers to present religiously grounded, and only religiously grounded, perspectives.
Second, we argued that "the specific subject matter involved in this case—the meaning and essence of Christmas and the winter holidays—itself presents important and recurring questions":
There is an ongoing debate in society about the essence of the holiday, the priorities to observe in celebrating it, and the motivation for gift-giving. On these subjects, various religious and secular perspectives compete, and the government must not discriminate among expressions of these perspectives by private groups and individuals.
By allowing holiday-related ads exhorting commercial gift-giving and charitable giving, but not an ad exhorting the religious basis for the holiday and for gift-giving, the court upheld viewpoint discrimination within subject matters included in the forum. Our brief touched on some of the societal controversies over "keeping Christ in Christmas," etc. Those controversies, we argued,
show that there is a set of competing perspectives on the subjects of the holiday season and which elements of it are most important. Some of those controversies arise in contexts not applicable here, such as speech by employees of private businesses or displays sponsored by government. But this case involves a government restriction on private speakers expressing their religious perspective in a government forum. In that category of cases, the government’s proper course is clear: it must allow varying perspectives on a subject matter to be expressed, on equal terms. To accept ads emphasizing the commercial and charitable aspects of Christmas and gift-giving but refuse ads emphasizing religious perspectives on those subjects skews public debate—the fundamental harm to free expression from viewpoint discrimination.
Like the Montana tax-credit case (Espinoza) where cert was just granted, this case focuses on what Justice Kavanaugh recently called "the bedrock principle of religious equality"--a concept more simple than the sometimes complex questions over government-sponsored religious symbols and government accommodation of religious practice. Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 139 S. Ct. 909, 909-11 (2019) (statement of Kavanaugh, J., respecting denial of certiorari). I would put the principle as "freely chosen religious activity should not be discouraged through discriminatory government actions"--but so framed, the principle is just as clear and foundational.
Both the Montana and D.C. cases show lower courts struggling mightily to validate discriminatory rules against voluntary religious speech and activity. A grant and reversal in the second case, joining the first, would clearly signal to judges and other officials that those efforts should cease.
Have you ever had the experience of getting in your car, turning on the radio, and hearing some really lousy song? It’s one you’ve heard many times before. And it’s a terrible. The tune is bad. The lyrics don’t make any sense. It’s not good music, yet it gets played over, and over, and over again. And you wonder how did this song ever manage to get so much airplay?
On May 23rd, the New York Times decided to spin an old song—that pro-life legal measures violate the Establishment Clause. It’s a horrid tune in which two notes barely fit together, but it gets played again and again. This time, the tune was covered by Linda Greenhouse, the Times’erstwhile Supreme Court reporter who has devoted some of her post-NYT career to writing in support of abortion rights (see here and here).
In the opening riff of her op-ed, Greenhouse praises the Republic of Ireland for having thrown off “the shackles of the Roman Catholic Church” by repealing the country’s constitutional ban on abortion. And she bemoans “the impact of religion’s current grip on public policy” in the United States and what she describes as the country’s march toward “theocracy.”
She then intones the oft-repeated canard that abortion “was legal at the nation’s founding, and for much of a century afterward.” No serious student of legal history believes this, and Greenhouse cites no authority for the proposition, though she likely has in mind Cyril Means, the general counsel for NARAL (then the National Association for the Repeal of Abortion Laws), who invented the idea of a “common law liberty” to abortion in a law review article he published in 1968. As Joseph Dellapenna demonstrates in his comprehensive book, Dispelling the Myths of Abortion History, abortion was treated as a crime in English common law in colonial America, as reflected both in those judicial opinions that survive, and in the writings of English commentators Edward Coke, Matthew Hale, and William Blackstone, and American writer Francis Wharton. Indeed,Dellapenna shows that, prior to Means’ invention, “[t]he unanimous sense of the legal and general community was that abortion was a crime because it involved the killing of a child—if one could prove that the child was alive at the time of the abortive act and died as a result” (p. 237).
But this is only a side melody. Greenhouse’s main chorus is that restrictions on abortion violate the Establishment Clause because “God’s will cannot be a constitutional justification for a law that erases an individual right.” That might serve as a plausible interpretation of the Clause insofar as the law being challenged required some act of worship, prayer, or religious confession, but it is not plausible if the act regulated is explicable in thoroughly secular terms.
Of course, pro-life legal measures do not order anyone to go to church. They do uphold a foundational premise of civilization and the rule of law—defending the lives of innocent, vulnerable human beings. This is not religious. Or rather, it is religious but in much the same way that support for laws prohibiting discrimination against racial minorities and people with disabilities are religious. It is religious in the same way that opposition to torture as a method of interrogation, and support for legal protection of the environment are religious. Religious people support each of these things. And they often do so in explicitly religious terms, by referring to the Bible, or the teachings of their religious community, or the will of God. Indeed, Greenhouse is deeply troubled by the statement issued by Governor Kay Ivey in support of Alabama’s recent statute prohibiting most abortions, that the legislation stands as a powerful testament to the belief “that every life is precious and that every life is a sacred gift from God.” Yet this same language could have been lifted word-for-word from statements made in support of the Americans With Disabilities Act.
Greenhouse acknowledges that when the Establishment Clause claim was put forth in the Hyde Amendment litigation, it “never got any traction,” but she never pauses to ask why. So confident is she in the merits of “Establishment Clause arguments” that Greenhouse doesn’t recognize the fact that she hasn’t put forth any arguments, only assertions that the Establishment Clause precludes pro-life legal measures.
Greenhouse offers Justice Stevens’ opinion in Webster v. Reproductive Health Services as a model for asserting the Establishment Clause claim against abortion restrictions, but, as I explain at some length here, Stevens fails to set forth an argument demonstrating the religious character of pro-life laws. Stevens’ merely assumes these laws are religious and then writes his opinion based on that assumption. He makes no effort to establish the truth of what, in the end, is only a bare accusation.
Stevens would have invalidated the preamble to the Missouri statute at issue in Webster. The preamble declared that the “life of each human being begins at conception.” For Stevens this was an “unequivocal endorsement of a religious tenet” that “serve[d] no secular purpose” and so violated the Establishment Clause. He failed to account for laws that coincide with the religious beliefs of some religious adherents, such as laws against perjury and the Biblical injunction “You shall not bear false witness against your neighbor.” Supreme Court cases such as McGowan v. Maryland and Harris v. McRae uphold this principle and Stevens is at pains to distinguish them.
Moreover, in the post-Casey era, lower federal courts have upheld legislation that makes the same factual claims as set forth in the preamble to the statute in Webster. Courts such as the Eighth Circuit in Planned Parenthood v. Rounds have acknowledged the foundation of these statements as empirical observation and scientific fact, not religious belief.
In the end, Greenhouse’s op-ed (like Stevens’ opinions in Thornburgh andWebster) is founded on the mere accusation of religious establishment. She points to a policy position with which she disagrees (a position supported by some overtly religious people) and then cries “Establishment Clause!” This is not the music of constitutional argument, but the shrill voice of someone desperate to hold on to power.
Archibald Cox once said of brief writing that “a good brief marches, and a great brief marches and sings.” The claim that pro-life legal measures violate the Establishment Clause stumbles and wails because those who employ it never demonstrate the religiosity of the laws they would strike down. This tired, old song should come to an end.
July 2, 2019 | Permalink