Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, October 31, 2019

Touro Law Center's 6th Annual National Moot Court Competition in Law & Religion

Touro Law Center has announced its Sixth Annual National Moot Court Competition in Law and Religion.  The competition will take place in April of 2020.  Information and registration can be found here.  Congratulations to Touro for maintaining such an excellent competition.

October 31, 2019 | Permalink

Remembering the English Martyrs on "Reformation Day"


St. Margaret Clitherow, pray for us!

October 31, 2019 in Garnett, Rick | Permalink

Wednesday, October 30, 2019

Founding Deists and Other Unicorns

We cannot consider whether or not America had a Christian founding without having an idea of what the phrase Christian founding actually means. James Bruce reviews a new book by Mark David Hall at Law & Liberty.

October 30, 2019 | Permalink

Saturday, October 26, 2019

Remarks at the 2019 Catholic Information Center Annual Dinner


Remarks at the Catholic Information Center Annual Dinner

Mayflower Hotel, Washington, D.C.

October 23, 2019

Robert P. George


It was the distinctive claim of late-20th century secular liberal political philosophy that sound principles of justice require that law and government be neutral as between controversial conceptions of the human good.

Critics, including me, argued that the “neutrality” to which the orthodox secularist liberalism of the period aspired (or at least purported to aspire) was neither desirable nor possible. That political philosophy was, we argued, built on premises into which had been smuggled controversial substantive ideas—liberal secularist ideas—about human nature, the human good, human dignity, and, indeed, human destiny—ideas as substantive and controversial as those proposed by Catholicism, Judaism, and other so-called “comprehensive doctrines,” be they secular or religious.

Today little effort is made by secular liberals (or “progressives,” as many prefer to be labeled) to maintain the pretense of neutrality. Having gained the advantage, and in many cases having prevailed (at least for now), on battle front after battle front in the modern culture war, and having achieved hegemony in elite sectors of the culture (for example, in education at every level, in the news and entertainment media, in the professions, in corporate America, and even in much of religion—including making inroads into the Catholic Church), there is no longer any need to pretend.

Take, as an example, the issue of marriage. Today virtually no one on either side doubts that marriage as redefined by the Supreme Court embodies substantive ideas about morality and the human good—ideas that differ profoundly from those embodied previously in marriage law, ideas that, according to partisans of the redefinition of marriage, are to be preferred to competing ideas, such as the biblical and natural law understandings of marriage, precisely because they are superior to the ideas they supplanted.

So now that the pretense of neutrality has been more or less abandoned, and is on its way to being forgotten, what is the substance of the perspective (or ideology or, perhaps, religion) that is now fully exposed to view—and not merely to the view of its critics? And what shall we call it?  In an important recent book Steven Smith gives it a name: paganism. Now, this label is, of course, provocative. Professor Smith’s reasons for choosing it, however, go well beyond a mere desire to provoke. What he perceives (rightly in my view) is that contemporary social liberalism (“progressivism’”) reflects certain core (and constitutive) ideas and beliefs—ideas and beliefs that partially defined the traditions of paganism that were dominant in the ancient Mediterranean world and in certain other places up until the point at which they were defeated, though never quite destroyed, by the Jewish sect that came to be known as Christianity.

Of course, some progressives will suppose that Smith is, and I now am, deploying the term “pagan” as an epithet. But we mean something quite specific by the word—we use it to characterize ideas and beliefs that a great many people today, especially those in the ideological vanguard, have in common with people of, for example, pre-Christian Rome. This does not mean that contemporary secular progressivism shares all the ideas and beliefs of ancient Romans (such as belief in gods like Jupiter, Neptune, and Venus), but rather that some of the central ideas and beliefs that distinguish secular progressives from orthodox Christians and Jews—and, one could add, Muslims—today are ideas and beliefs they have in common with the people whose ideas and beliefs Judaism and Christianity challenged in the ancient world.

Secular progressives, no less than people of other faiths, hold cherished, even identity-forming beliefs about what is meaningful, valuable, important, good and bad, right and wrong. They may not believe in God, or a transcendent and personal deity, but certain things are nevertheless sacred to them—things they live for and would be willing to fight and even die for (for example, what they regard as racial justice, LGBT rights, environmental responsibility, etc.). They have faith—and a faith. Just look at the child-preacher Greta Thunberg. But what is it about the secular progressive faith that warrants our labeling it “pagan”? After all, though not theistic, it is certainly not (in any literal sense) polytheistic. Professor Smith explains:

"Pagan religion locates the sacred within this world. In that way, paganism can consecrate the world from within: it is religiosity relative to an immanent sacred. Judaism and Christianity, by contrast, reflect transcendent religiosity; they place the sacred, ultimately, outside the world."

Now, Smith concedes that this characterization oversimplifies things a bit. But the oversimplification is mainly in the description or characterization of Judaism and Christianity, not secular progressivism. The biblical faiths conceive God as transcendent, to be sure, but not in a way that excludes elements of divine immanence. In Jewish and Christian doctrine, a transcendent God sanctifies the world of human affairs by entering into it, while still transcending it. And God’s transcendence means that for the believer this world is not one’s ultimate home—we are, in a sense, “resident aliens.” Smith contrasts Jews and Christians with pagans on precisely this point: “The pagan orientation . . . accepts this world as our home, and does so joyously, exuberantly, and worshipfully.”

Now, Christianity, had it been a religion of pure and exclusive transcendence, might have simply rejected this world and not concerned itself with its affairs. The authorities of pagan Rome might then have left it alone, treating it as one more odd or exotic religion. There were many of these in the Roman empire. But it’s not that kind of faith. So it took an interest in the world’s affairs and developed ideas about such things as authority, obligation, law, justice, and the common good—ideas that challenged pagan ideas and practices in a variety of areas, some of them profoundly important.  A central area was sex.

As Smith notes, within the pagan “matrix of assumptions, the Christian view of sexuality was not only radically alien, it was close to incomprehensible.” This is certainly true historically. But consider that the Christian view of sexuality is today, within the “matrix of assumptions” of secular progressivism, perfectly aptly described as “not only radically alien, but close to incomprehensible.” Consider again the debate over marriage, as just one of many possible examples. The biblical and natural law conception of marriage as conjugal, that is, as the one-flesh union of sexually complementary spouses, is not only “alien” to secular progressives, who understand “marriage” merely as a form of sexual-romantic companionship or domestic partnership, but nearly incomprehensible—except, that is, as what they suppose is bigotry against people who are attracted to and wish to marry (as progressives understand the term) people of their same sex. Or consider the view that non-marital sexual conduct and relationships, including homosexual ones, are inherently immoral. That, too, is regarded by a great many secular progressives as not only unsound, but unreasonable, outrageous, scandalous, even hateful. They can account for it, if at all, only as religious irrationalism, bigotry, or, as many today now claim, a psychopathology.

As the historian Kyle Harper notes in a recent book on the transformation of beliefs about sexuality and morality in the ancient world, sexuality “came to mark the great divide between Christians and the world.” Christian ideas, rooted in Jewish thought, about sexual norms (rejecting fornication, adultery even by men, homosexual acts, pornographic displays, and so forth) were revolutionary; and the pagan establishment was no more welcoming of revolutionaries—even nonviolent ones—than any other establishment is. So paganism could not, and did not, tolerate the Christians—even when Christianity was far too weak to pose any real challenge to political authority. It was not that Roman authorities refused to allow minority religions of any kind in the empire; those that could co-exist with the dominant paganism were allowed to do just that. But the Romans always found the Jews to be troublesome, and they perceived Christianity—a convert-seeking religion—when it came along as a grave threat. And Christian ideas about sex (and, in consequence, about Roman sexual practices) figured significantly in that perception. They feared that Christianity would, in Steven Smith’s evocative phrase, “turn the lights out on the party.” And that, of course, is what Christianity eventually did.

But in our own time the lights have been turned back on and the party is going again. In the 1940s, Alfred Kinsey convinced a lot of people that sexual satisfaction is a human need—that psychological health and wholeness generally require frequent regular sexual activity, which may be inside or outside of marriage, and that Judaeo-Christian norms of sexual morality, when embraced, result in stilted, even twisted, personalities. In the 1950s, Hugh Hefner persuaded people that pornography was, or could be, innocent fun and that the “Playboy philosophy” of sexual indulgence was the way for up-to-date, sophisticated people to lead their lives. The “gay rights” or “LGBT” movement has made the affirmation of homosexual conduct and relationships the “civil rights cause” of our day. Dissent is not permitted. Claims to religious freedom are dismissed as mere excuses for discrimination. “Bake the cake, you bigot!”

Christians, observant Jews, and other traditional religious believers have been knocked back on their heels. Reversing the sexual revolution (despite the growing evidence of its baleful social consequences, especially for children) seems nearly inconceivable. Few believe that its forward march can be paused or even meaningfully slowed down. The vast majority of Christians think that the most they can hope for in this new epoch of pagan ascendancy are some protections for their own liberty to lead their lives as they see fit, in conformity with their faith, and not to be forced to facilitate or participate in activities that they cannot in good conscience condone. Progressives say, after all, that they are all for individual autonomy and liberty. In pushing the redefinition of marriage, they insisted that all they were seeking was “live and let live.” Of course, that claim has already proven to be, if I may borrow a phrase from Hillary Clinton, “no longer operative.” Many Christians and other believers despair even of the possibility of protecting their children from being indoctrinated into the beliefs of the governing elite, the new ruling class (or what perhaps might better be described as the old, but re-paganized, ruling class). They believe we have entered a new Diocletian age. They not unreasonably suppose that it is precisely this reality that is being signaled when progressive intellectuals, such as Mark Tushnet of Harvard Law School, say things like this:

"The culture war is over; they lost, we won. . . .  Taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won."

So there you are. The neo-pagans are in no mood to be “accommodating.” Christians and others who dissent from progressive orthodoxy can expect “the hard line approach.” We are to be treated like the defeated Germans and Japanese after World War II.

For faithful Catholics and our allies in dissent from neo-pagan orthodoxy, then, the question is “what is to be done?” How should we respond to the “hard-line” approach—an approach that will indeed be, and in fact is being, implemented by people who want to ensure that we never again get near the light switch and that we are properly punished for having switched off the lights to the party in the first place?

Some Catholics and other religious folk, including some entire denominations, have already taken the path of capitulation and acquiescence. They maintain the visible forms of faith while yielding its moral substance. They have made themselves the “useful idiots” of neo-paganism (to borrow Stalin’s famous characterization of the anti-anti-Communist liberals of his time). Obviously that is not an option for serious believers. So what do we do?

Often the question is posed as “flight or fight?” I’ve never been completely clear about what Rod Dreher, whom I admire, has in mind by the “Benedict Option.” He has described it as a “strategic retreat,” but also says that it doesn’t mean that we should not stay involved in the world. I certainly agree that we need to stay involved in the world—we have an obligation as believers to bear faithful witness to the values and principles we know are integral to justice and human flourishing—but I don’t see what we should be retreating from, even strategically. And to what--or where—could we retreat? To our families, religious communities, civil society associations? That won’t work. They’ll hunt us down and dismantle our institutions. Beto O’Rourke, in his characteristically charmingly hapless way, let the cat out of the bag on that point in a recent Democratic presidential debate, and none of his rivals contradicted him in any serious way. They are determined that our children or at least our grandchildren will think the way they think, not the way we think; so permitting us to retreat to the functional equivalent of the monasteries where we can quietly tend the gardens of our own families, and transmit to our children our own values, is not an option for them. Again, remember that we are to be treated like the defeated Japanese and Germans after World War II.

So flight, really, is not an option; we have no choice but to fight. And it is, and will continue to be, hard. There will be casualties.  Lots of them. As I observed when I spoke in this city at the Annual Catholic Prayer Breakfast a few years ago, the cost of discipleship is a heavy cost—and it has only gotten, and will get heavier. The days of comfortable Catholicism are over. We are back in the position of our forebears in imperial Rome. If we are true to our faith—if we are true to ourselves—then we are quite literally intolerable, as far as the Mark Tushnets and Beto O’Rourkes are concerned. And they are legion. And they hold massive cultural, political, and economic power.

So the question and challenge we face is simply this, can we muster the courage to be faithful, to boldly bear witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power? Are we willing, if necessary, to pay the costs—the heavy costs--of discipleship? Of course, without God’s help, nothing of this kind would be possible? Yet we have it on the authority of Christ himself that God’s grace is superabundant. No one who asks for the courage to bear faithful witness will be denied it. No one who is prepared to take up his cross and follow Jesus will find the burden too great to bear. So, shall we flee from the battle? No. Quite the opposite. Onward, Christian soldiers.

October 26, 2019 | Permalink

Wednesday, October 23, 2019

Cardinal says synod seeks to give women greater role in Church governance

Catholic bishops are not fully utilizing Church law to maximize the role of women in decision making capacities, Indian Cardinal Oswald Gracias of Mumbai said on Wednesday. Full article at Crux.

October 23, 2019 | Permalink

Friday, October 18, 2019

Book Chapter "Life Patents, Religion, and Justice: A Summary of Themes"

Yesterday I blogged about our shortly-forthcoming edited book of essays, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. I've now posted on SSRN my chapter, which concludes the book with a summary of the essays and the themes. Here's a bit from the abstract:

This book gathers religious, secular moral, legal, and sociopolitical perspectives in one place. It aims to be a resource so lawyers, policy activists, and policymakers in patent debates might better understand what religious perspectives have to offer, and so religious thinkers and leaders might better understand biotech patents and thus have more to offer. The chapters include Christian, Jewish, and Muslim perspectives on bioethics and law--and both American and European perspectives on the limits of patentable material. The chapters explore various considerations: the importance of patents to innovation, the limitations on patenting of naturally occurring products and processes, the potential limits on patents stemming from distributive concerns, and the place of patents in international trade and development debates.

Three themes, summarized here, emerge from the balance of the chapters. First, patents on life call for evaluation under criteria of morality and social justice. Second, religious thought can contribute to (without dominating) such evaluations. Finally, however, for religious thought to contribute effectively, it must be more informed and sophisticated than it has been, about both patent law and biotechnology. The chapters aim to provide such knowledge.

This final chapter gives a good sense, I think, of what the rest of the book covers. 

I hope readers interested in the "Catholic legal theory" project will give the volume a look--and suggest it to your academic libraries! First, take a look at it yourself. Second, pass the word to others who work, or have interests, in any of the areas of public moral theology, human life and dignity, technology, social justice, and development and human rights ("preferential option for the poor" etc). A few reasons why this topic may be of wide interest:

       1) The vast majority of the chapters in the book are very accessible to non-scientists. It's meant to explain basic patent concepts, and genetic technologies, to religious thinkers (and explain religious ethics to patent lawyers and scientists). Patent law can get complicated, but at its base it has a quite comprehensible logic.

       2) As I've argued in a previous paper on "intellectual property (IP) and the preferential option for the poor," IP laws, including patent, are by nature a kind of qualified (tho still valuable) property right that has parallels to Catholic approaches to property. IP is designed with social and common-good purposes in mind: encouraging innovation through exclusivity, while maintaining others' access through limits on exclusivity. Catholic thought on property tends to have a similar structure.

       3) Partly because IP rights fit with the Catholic model of qualified and instrumental property rights, and partly because patents have affected poor people in developing nations, the Catholic Church has actually had quite a lot to say about them--albeit not in a systematic way. The Vatican has defended the right of indigenous people to control over and fair reward for the genetic resources, the claim of people in poverty to have access to essential medicines (including, for purposes of this book, "biologic" drugs produced from living organisms), and the claim of farmers to retain autonomy over genetically modified seeds in the face of licensing practices by companies holding patents on the seeds. This collection aims, among other things, (a) to make the Church's positions better known to policymakers in the field and (b) help Catholic thinkers integrate the important topic of IP into their understanding of Catholic social thought principles.

       4) Because of the richness of Catholic social doctrines  in this area, and because of the role of Catholic institutes in the project, we have several different Catholic contributors. Some focus very much on the development-and-poverty implications of patents on and access to biotechnologies. Others focus on the bioethical issues involved in giving humans ownership over materials or processes that are relatively close to "natural [God-created] phenomena." In any event, while the chapters contain considerable religious diversity in the chapters, they also contain a set of Catholic : essays that are rich, deep, and diverse. IP is now central to the economy and society, and not just in the biotech area. These essays will help people think through how Catholic thought applies to the "new form of ownership" that Saint John Paul II identified in Centesimus Annus (para. 32) as increasingly fundamental: "know-how, technology, and skill."

October 18, 2019 in Berg, Thomas, Books, Current Affairs, Religion | Permalink

Thursday, October 17, 2019

"Patents on Life" Book (Religious, Legal, and Other Views) Coming Soon

Coming in the next few days and weeks from Cambridge University Press: 

Patents on Life_Cover

The book contains 16 interdisciplinary essays (law, theology, ethics, politics, business) on biotechnology patents and issues of justice. A bit from the description at Amazon (see also the Cambridge Press page here): 

This volume brings together a unique collection of legal, religious, ethical, and political perspectives to bear on debates concerning biotechnology patents, or 'patents on life'. ... Even after many years and court decisions, important contested issues remain concerning ownership of and rewards from biotechnology -- from human genetic material to genetically engineered plants – and regarding the scope of moral or social-justice limitations on patents or licensing practices. This book explores a range of related issues, including questions concerning morality and patentability, biotechnology and human dignity, and what constitute fair rewards from genetic resources.

The issues the book addresses appear regularly in the news: gene-sequence patents and their effect on biomedical innovation and costs, "biopiracy" of developing-nation resources and its effect on indigenous peoples, genetically modified crops and their effect on farmers and farming practices, biologic-drug patents, gene-editing (CRISPR) technology patents.

This book responds to the fact that such issues concerning biotechnology ownership, patents, etc., have received considerable secular ethical (as well as political and economic) analysis--but relatively little theological/ethical analysis by religious traditions, leaders, and thinkers. There is plenty of religious bioethics, including on new genetic technologies, but relatively little of it addresses ownership, patents, and so forth. The Vatican has actually been a fairly active voice (emphasizing a moderate view of patent rights, their role in innovation, but also the need to temper them to ensure access for the poor and fair rewards to indigenous peoples)--but the Church's role is not as well known as it should be.

The premise of this book is that the great religious traditions and their leaders and thinkers can speak to those issues but haven’t addressed or studied them much. They need to understand the basics of patent law and policy better. Conversely, the many lawyers, policymakers, and activists engaged in moral debates over biotech patents and the creation and distribution of technologies haven't appreciated the contributions that religious thought can make. They need to understand religious social thought better. 

This book, with its multidisciplinary contents, is a one-stop, readable resource for all of the groups above.

Please tell your libraries to buy the book! And--just in time for holiday gift-giving--you can pre-order it at Amazon in Kindle (delivery Oct. 24) or hardcover (available December) versions.

The book also reflects both US and European approaches to the patentability of genetic material and the role of moral considerations in granting patents, both topics that involve interesting trans-Atlantic contrasts and comparisons. And it also reflects multiple religious approaches: Catholic, Jewish, Muslim, and Protestant (both evangelical and mainline).

Continue reading

October 17, 2019 in Berg, Thomas, Books, Current Affairs, Religion | Permalink

Tuesday, October 15, 2019

China’s Relentless Persecution of the Uighur Population

This recent article in Foreign Policy tells the story of a young woman and her family’s plight in Xinjiang.

China’s treatment of religious minorities continues to violate basic human rights, and the state’s response to its own people and the international community is simply that “most people” in re-education camps have been released.  Yet, stories like this one are all too common.

October 15, 2019 | Permalink

Donald Verrilli — Prophet of the Modern Age

Way back when, in April 2015, during the oral argument for Obergefell v. Hodges (transcript here; see also here) Justice Alito, probed what he thought might be the implications of the Court’s recognizing a constitutional right for same-sex couples to marry, noting that in Bob Jones University v. United States "the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating."

With this prior decision in mind, Justice Alito asked Solicitor General Donald Verrilli: "So would the same apply to a university or a college if it opposed same-sex marriage?"  Verrilli at first sought to avoid the question, but then responded with some unscripted candor: "You know, I—I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue.  I—I don't deny that.  I don't deny that, Justice Alito.  It is—it is going to be an issue."

This should have been enough to warn anyone about what was coming down the road.  Still, to be warned is one thing, but to hear one's fears confirmed in blunt terms by those seeking the nation’s highest office is something else.

At CNN's Equality Town Hall (which, showing the objectivity and neutrality of a modern American news network, CNN co-hosted with the Human Rights Campaign) on Thursday night, CNN's Don Lemon asked presidential candidate Beto O'Rouke (transcript here) "Do you think religious institutions, like colleges, churches, charities, should they lose their tax-exempt status if they oppose same-sex marriage?"

Beto O'Rouke

"Yes" said O'Rouke emphatically, without skipping a beat.  He then went on to elaborate: "There can be no reward, no benefit, no tax break for any one, any institution, any organization in America that denies the full human rights, and the full civil rights of every single one of us.  And so as president we're going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans."

O’Rouke was not asked to explain, nor did he volunteer an explanation as to how it is that a church that does not recognize same-sex marriage is “infringing” upon the rights of anyone.  Isn’t it the case that the church (that does not marry same-sex couples) and the same-sex couple (who are married or seeking marriage) are each exercising their respective rights to live as they see fit?  Under O’Rouke’s bizarre understanding of “infringement” wouldn’t a newspaper editorial page “infringe” upon the rights of someone who held the opposite point-of-view by refusing to publish that person’s opinion?

This is, of course, far beyond what we were promised legal recognition of same-sex marriage was all about.  We were told that legal recognition of same-sex marriage would enshrine an ethic of tolerance and equality, a norm of live-and-let-live which would leave people free to live their own distinctive lives by embracing their different conceptions of the good.  O’Rouke’s promise to use tax policy to pick and choose among religions – favoring those that approve of same-sex marriage and disfavoring those that do not – shows that tolerance is not the end-game.  The goal is affirmation.  And those who refuse to affirm same-sex marriage as a social good will be targeted for negative treatment by the coercive power of the state.   

Unfortunately, O’Rouke was not alone in this radical approach to the use of state power to punish wrong-think and to ensure actions compliant with the new understanding of sexuality.

Cory Booker (transcript here), another Democratic presidential candidate at the Town Hall, was asked: “Do you think religious education institutions should lose their tax-exempt status if they oppose LGBTQ rights?”

Cory Booker

Booker responded: “Whether you’re a school and – or providing healthcare for folks, whether you are a – bakery, you cannot discriminate fundamentally no.” When pressed whether this meant the withdrawal of tax-exempt status Booker said: “I will press this issue and I’m not – I’m not saying because I know this is a long legal battle and I’m not dodging your question.  I’m saying that fundamentally discrimination is discrimination.  And if you are using your – your – your position to try to discriminate others, there must be consequences to that.  And I will make sure to hold them accountable using the DOJ or whatever investigatory authority.  You cannot discriminate . . . . I’m going to make sure that I hold them accountable.  And if it means losing your tax status – but I’m telling you private – private organizations that do not have tax, there has to be consequences for discrimination.”

Booker’s statements are of course overwrought, and not well thought through (which is not surprising from a politician, but which is surprising from someone we are told is an intellectual).  “Discrimination” denotes a number of different kinds of acts, some of which are benign, even laudable (such as discriminating between different wines to find the best vintage, or between different viruses to find a cure), and some of which are unjust (such as refusing to do business with a person because of his or her race).   “Discrimination” is a part of what every religion does.  There are believers and unbelievers, co-religionists and people who subscribe to another faith or no faith at all, and in various ways religions tend to treat these different people differently.  Simply put, not all acts of “discrimination” are the same.  While some are constitutionally repugnant, others are constitutionally protected.

Booker did not explain what being held “accountable” would entail, nor did he specify the “consequences” (other than to allude to tax-exempt status) that would befall religious schools that did not embrace same-sex marriage, but the threat was clear: Get in line and learn to affirm same-sex marriage or you will pay a price.

Senator Booker also responded to a question from a young woman who said she attended an all-girls Catholic high school in New Jersey where students were not allowed to form an LGBTQ club or Gay-Straight alliance.  She also noted that a neighboring Catholic high school had fired a female teacher after she married another woman.  She then asked Booker “How would you address the at times juxtaposing issues of religious freedom and LGBTQ rights?”

Booker responded as follows: “I cannot allow [sic] as a leader that people are going to use religion as a justification for discrimination.  I can respect your religious freedoms but also protect people from discrimination.”  Booker went on to say that the country needs laws like the Equality Act “which set parameters where people are not allowed to discriminate.”

Booker attributes a noxious motive to the Catholic schools involved in the question. In his mind, they are not acting in good faith in support of their sincerely held religious beliefs—a doctrine of sexual morality that the Church has professed since apostolic times. They are instead only using religion as a kind of mask behind which lurks a deplorable anti-LGBTQ animus.  

Booker apparently thinks that it is the province of government to determine what a Catholic school is “allowed” to do in living out its religious mission.  He does not think that a Catholic school is free not to hire or retain a teacher even though the teacher’s actions contradict the teaching that the school is attempting to impart to its students and proclaim to society as a whole.  According to this logic, the government could require the World Wildlife Fund to hire a job applicant even though that person, in his spare time, likes to go on safari and hunt big game in Africa.

As the U.S. Conference of Catholic Bishops has warned (here), under the Equality Act “[p]rivate schools could . . . be required to hire or retain people whose speech or conduct violates tenets of the school’s faith.  This limits the ability of a religious group to enculturate its religious views.”  The USCCB acknowledges that the “ministerial exception” may provide some protection for religious schools, but that the contours of this doctrine are “evolving.”

Don Verrilli prophesized the future, and here it is.

But it doesn't take the gift of prophecy to predict the Babylonian captivity when the Babylonians are telling you to your face that captivity awaits.

October 15, 2019 | Permalink

Monday, October 14, 2019

A Recipe for Overruling Roe v. Wade 3/

In a couple of posts last week, I began to introduce a three-ingredient recipe for overruling Roe v. Wade. The first post identified the three ingredients: Prenatal Equal Protection, Judicial Incapacity, and Catholic Guilt. The second post discussed Prenatal Equal Protection. This post continues by discussing the ingredient of Judicial Incapacity.

Consideration of this ingredient begins with what Peter Westen has labeled "The Empty Idea of Equality." By "equality," Westen means the basic principles that "people who are alike should be treated alike" and "people who are unalike should be treated unalike." When we ask how people should be treated, the question then becomes in what respects they are like and what respects they are unalike. Some of the ways in which people are unalike matter in considering how they are to be treated.

In his article, Westen sought to establish that statements of equality entail and collapse into simpler statements of rights, and that transforming the simpler statements of rights into statements of equality is unnecessarily complicated and engenders confusion. One need not accept all the particulars of Westen's use of rights to appreciate the force of his claim that equality is a formal concept, a way of stating moral and legal propositions whose substance derives from more fundamental judgments.

Once we recognize that "person" as used in the Fourteenth Amendment is not limited to postnatal human beings, we next have to determine what it means for a state to provide to unborn persons within its jurisdiction "the equal protection of the laws." At a minimum, this means not treating the unborn as non-persons. But it does not mean treating them identically to the born in all respects. Nor does it mean categorically prohibiting the intentional taking of their lives. As self-defense against lethal violence is a justification more generally in the law, a state does not run afoul of its equal protection duty through declining to criminalize or by providing an affirmative defense for abortions performed to save the life of the mother. 

What about other types of limitations on the reach of criminal abortion laws? Right now, a two-drug combination can be used to induce medication abortions. This two-drug combination is approved by the FDA , with certain limitations, through ten weeks of pregnancy. Suppose a state decides not to criminalize medication abortion because of enforcement- and privacy-related concerns. Would this amount to a denial of the equal protection of the laws to unborn persons ten weeks and under? In one sense, yes, and in another sense, no. The answer depends on whether the reasons the state has for structuring its laws the way that it has are good enough reasons. And an appeal to the formal ideal of equality will not help in answering that question.

It could provide a baseline of sorts, a presumption that the difference in location between born and unborn persons is not itself a justification for differential treatment. But once we move beyond that baseline and allow for the potential relevance of factors such as enforcement-related concerns, maternal-safety concerns, and so on, any doctrinal implementation of the equal protection of the laws by judges should be informed by their very limited capacity for making judgments of this sort. That is why the default standard for judicial review of legislative classifications is rational basis review.

Both proponents and opponents of acknowledging the Fourteenth Amendment of personhood have often assumed that this acknowledgment would have obvious consequences for the substantive content of the law--either that all abortion must be criminalized with rules equivalent to those governing infanticide (because of personhood plus equal protection or personhood plus right to life) or that all questions about abortion are simply a matter of state policy judgment as modified by judicial overlay through substantive due process for mothers (because the Fourteenth Amendment does not protect the unborn as persons). But even if we stop treating the unborn as constitutional zeroes when it comes to personhood, there is ample room for a variety of reasonable legislative judgments about abortion regulation compatible with recognition of the personhood of the unborn.

This recognition would rule out some of the most radical state-law regimes that authorize the taking of unborn life all the way through pregnancy based on the unreviewed decision of one physician and one mother for any reason. And this recognition would also require a reorientation of the law that requires a justification for differential protection of the laws for the born and unborn. But this reorientation would not change the judicial incapacity for making value judgments on the relative weights of justifications that underlies rational basis as the doctrinal default in this area.

October 14, 2019 in Walsh, Kevin | Permalink