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.

Saturday, May 9, 2020

Definition of "Minister" Cases and Historical Background

In anticipation of the "ministerial exception" cases being argued on Monday, a reminder about our brief from the St. Thomas Religious Liberty Appellate Clinic, which shows that colonies' narrow definitions of minister, including required education credentials, helped spur founding-era religious-liberty protests by Baptists and others, ultimately contributing to adoption of the First Amendment. There is a little more scholarly detail in this article by my students, Nathaniel Fouch and Erik Money, and me.

Religious-school teachers who have significant functions in teaching religion classes or religious approaches to other subjects, or in planning, leading, or overseeing religious exercises, fit within the proper definition of "minister"--regardless of whether they have a ministerial training or formal title as the 9th Circuit required in these cases. Founding-era religious-liberty objections ran specifically against  credentialing requirements that prevented organizations from extending leadership to laypersons with the gifts and commitment to teach or lead in religious matters.

In his "Appeal to the Public for Religious Liberty" (1773),Isaac Backus, leader of the Massachusetts Baptists, attacked New England colonial laws that required “each parish to settle a minister” but then disqualified teachers who lacked the government’s preferred training: a college degree. The laws, Backus said, violated the principle that God “gives gifts unto men in a sovereign way as seems good unto him." Religious groups, not the civil judiciary, should determine the relevant gifts, talents, and credentials for their teachers and leaders.

May 9, 2020 in Berg, Thomas, Current Affairs | Permalink

Friday, May 8, 2020

Deference and the Common Good

Just a brief note to clarify a point about the relationship between common-good constitutionalism and judicial deference. Implausible as it may seem, there is an assumption floating about that common-good constitutionalism entails that judges should decide everything. This isn’t right; it confuses two distinct issues, one of interpretive method and one of institutional allocation. It is one thing to say that the right interpretive method for all officials, not merely judges, is common-good constitutionalism. (I was explicit that legislators as well as judges ought to interpret constitutional principles in light of the common good). But the allocation, across different officials, of authority to ascertain the content of the common good is a separate question. In other words, the common good may itself suggest that judges should defer to other actors under various circumstances, as when those other actors are engaged in reasonable specifications of legal principles — what the classical tradition calls “determinations.”

In fact, as I argued here, and here, and here, and mentioned in a recent interview, the best interpretation of our constitutional practices is that judges do and should broadly defer to the administrative state, within reasonable boundaries, when legislative and executive officials engage in such specifications. (Yet another question is the allocation of authority between legislators and the executive, also addressed in those works; the same idea of authority to engage in reasonable specification or determination is the key to that question as well). This is why I mentioned, as aspects of common-good constitutionalism, giving rulers authority of sufficient scope to allow them to promote the common good, and judicial respect for the legitimate roles of other public bodies.

May 8, 2020 | Permalink | Comments (0)

Wednesday, May 6, 2020

Supreme Court likely to agree with schools in closely watched religious freedom cases

On May 11, the Supreme Court of the United States will hear oral arguments, using its new telephonic procedure, in two closely watched religious freedom cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, on whether courts can hear employee discrimination cases brought by teachers at Catholic schools.

Both “very important” cases involve the First Amendment right of religious institutions, including schools, to select their own leaders, teachers and ministers, and the justices are likely to agree with the schools, according to Notre Dame Law SchoolProfessor Richard Garnett, director of the University of Notre Dame’s Program on Church, State & Society.

Full story.

May 6, 2020 | Permalink

Oral Argument this Morning in Little Sisters of the Poor Act II: A RFRA Runs Through It

The Supreme Court will hear oral argument this morning in the consolidated cases of The Little Sisters of the Poor Saints. Peter and Paul Home v. Pennsylvania and United States v. Pennsylvania. I am cautiously optimistic that a Court majority will ultimately endorse some version of the interpretation of RFRA advanced by Michael Stokes Paulsen twenty-five years ago in A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249 (1995). I teamed up with him and a group of excellent attorneys here in Richmond (John P. O'Herron, John D. Adams, and Brian D. Schmalzbach) to submit a brief amici curiae applying "A RFRA Runs Through It" to this case. In something of a preview for oral argument, I discussed some of the key issues in the case with Marc DeGirolami and Mark Movsesian in a Legal Spirits podcast

On a personal note, the unusual circumstances of today's telephonic oral arguments bring me back to the somber, sad circumstances of oral argument in the first Little Sisters of the Poor case at the Supreme Court. That argument took place March 23, 2016, approximately six weeks after Justice Scalia's February 13 death. His absence hovered over the proceedings. Curiously enough, the primary effect of Justice Scalia's absence was to transform a likely 5-4 win for the religious nonprofits into an 8-0 punt back to the lower courts. 

On another personal note, I cannot help but think of the juxtaposition of the austere legalism of Supreme Court oral arguments with the gritty fight against COVID-19 that is happening right now in the Little Sisters' homes for the elderly poor across the country. Let us pray for the residents, the staff, and the Sisters. May the Holy Spirit accompany them and bring them peace and happiness.

-- "What happiness for us, to be a Little Sister of the Poor! Making the poor happy is everything …” (St. Jeanne Jugan)

May 6, 2020 in Walsh, Kevin | Permalink

Tuesday, May 5, 2020

Recent developments in Lighthouse Fellowship Church v. Northam, a fast-moving challenge to the application of Virginia's ban on gatherings over 10

National media recently began reporting on Lighthouse Fellowship Church v. Northam (E.D. Va.) after the U.S. Department of Justice filed a statement of interest supporting the church's challenge to the application of Governor Northam's orders banning gatherings of more than ten persons. The issue will be fully joined on Thursday, when Virginia will file its first detailed response. I'm still working my way through the filings, which should be of interest to anyone thinking hard about the way the issues raised by Marc's recent post about equality and church-closure issues. Here's a quick timeline with links:

April 5: Chesapeake Police issue criminal summons against Pastor Kevin Wilson in connection with 16-person worship service at Fellowship Baptist Church (seating capacity > 290 persons).

April 24: Fellowship Baptist Church files a complaint and motion for TRO and PI in Eastern District of Virginia.

May 1: Judge Wright Allen denies motion for TRO and preliminary injunction with 33-page opinion and order. 

May 2: Fellowship Baptist Church files a motion for emergency injunction pending appeal.

May 3: Department of Justice files a Statement of Interest supporting Fellowship Baptist Church's motion for injunction pending appeal.

May 3: Virginia files notice of intent to respond by Thursday, May 7.

May 4: Judge Wright Allen takes motion for emergency injunction under advisement. Orders Virginia to respond by Thursday, May 7.

May 5, 2020 in Walsh, Kevin | Permalink

Monday, May 4, 2020

Little Sisters of the Poor dragged back to the Supreme Court

It’s the case of the never-ending case.

This Wednesday, the Little Sisters of the Poor will be back at the Supreme Court after nearly 10 years of litigation over whether or not the group is required to include contraceptives in its healthcare plans. The group has already been to the court once over the same issue, which the court threw back to the states, and the Trump administration attempted to put it to rest in 2018. But after Pennsylvania and New Jersey sued President Trump for executive overreach, the Little Sisters are facing round two.


May 4, 2020 | Permalink

Sunday, May 3, 2020

Making students think ...

I find in teaching my Civil Liberties course that students generally sympathize with the Amish community in the case of Yoder v. Wisconsin. They tend to think the case--interpreting the Free Exercise Clause of the First Amendment to require conduct exemptions from truancy laws to enable Amish families to end the formal schooling of their children before high school--was rightly decided. When they then encounter the case of Employment Division of Oregon v. Smith, which undermines the theoretical basis of Yoder and severely limits its scope and precedential value, they are usually sure that Justice Scalia and those joining him in the majority were wrong. They think the constitutional standard, at least for religious minority communities such as the Amish, is that conduct exemptions from neutral laws of general applicability are required unless the laws can be shown to be necessary (and narrowly tailored) to advance a "compelling" state interest.

At the same time, most students these days are sympathetic to the LGBT movement and its beliefs and goals. While there are certainly some dissenters--even some who are courageous enough to express their dissent--students tend to arrive at the university with these sympathies and then have them reinforced in myriad ways.

So this suggests to me, as a professor--someone whose professional and moral obligation is to provoke students to think about civil liberties questions and not just rely on their feelings and sympathies--a (hypothetical) question along the lines of the one I am posting here. (It is a question I set for the final exam in the course a few years ago.)

Diltz v. Solanco Board of Education

     Ezra Diltz is a member of the Amish community in the Township of Solanco, which is in Lancaster County, Pennsylvania.  The particular Amish community of which he is a member allows its children to be educated in the local public schools all the way through to high school graduation.  The Amish students then take up their lives as Amish men and women engaged in dairy farming and various crafts.  This particular group of Amish has never sought any sort of exemption from the law requiring the education of children through their sixteenth birthdays.

     Mr. Diltz and his wife have eight children, six of whom have already graduated from high school and are working the land the Amish have farmed for generations.  Their youngest two are a sophomore and junior at the local high school.  Mr. Diltz has never had a problem with the education his children have received in the public schools, but in the past few years he has become increasingly concerned with what he views as the homosexual and transgender propaganda that permeates the curriculum.  Teachers and assembly speakers frequently speak of same-sex partnerships and transgender identity as things to be affirmed and treated as valid lifestyle choices, and on several occasions teachers and speakers have spoken of moral and religious opposition to these things as “bigotry” and “hate.”  No teacher or speaker in many years has spoken in defense of traditional Judaeo-Christian beliefs about marriage and sexual morality, and requests by Amish parents for the school to bring in Ryan Anderson or someone like him to explain and defend moral precepts more in line with their faith have been flatly rejected by the school’s administration.  “Our task,” school principal Herbert Villard wrote in reply to one request, “is to teach children to be open-minded and inclusive; it is not to expose them to out-of-date ideas that fuel prejudice, discrimination, and exclusion.”

     After failing to persuade school officials of the need to give what he called “a fair hearing” to alternatives to the viewpoint that is dominant in the school, and concerned that the result was the indoctrination of Amish children in an ideology that is hostile to their faith, Mr. Diltz convinced his Amish community of the need to withdraw their children from the school system at the high-school level.  Advised that the Commonwealth of Pennsylvania has no version of Religious Freedom Restoration Act [which is not true but to be assumed in this problem] but confident in the enduring strength of Wisconsin v. Yoder, Diltz files suit in state court seeking an exemption from the matriculation requirement at the high-school level, the violation of which is punishable as a criminal matter.  (Mr. Diltz has in fact been fined for removing his two children from the high school.) The trial court denies the exemption, and the appellate court and state supreme court affirm this denial, holding that the Commonwealth has a compelling interest in educating students to be accepting of same-sex sexual relationships and transgender identity.

    Pennsylvania and Mr. Diltz have stipulated that the Amish community is too small to support a private school and that parents themselves lack sufficient education to home school their children in a way that would meet the state’s educational standards for home schooled children.  If Diltz prevails in the litigation, the Amish children will not continue with formal education, but will remain at home with their parents working and learning in their family businesses.

     The United States Supreme Court has granted certiorari. You are the law clerk to Justice Owen Roberts, III, and he has asked you to prepare a memorandum analyzing the case.  Justice Roberts is respectful of precedent, but is always willing to consider departing from it when he believes previous decisions were incorrect as a matter of constitutional law. Where he relies on controversial precedents, he believes it his duty to say why he believes the precedent should be reaffirmed.

May 3, 2020 | Permalink

Understanding Cornel West

In an article published in the Wall Street Journal a few weeks ago, Martin Peretz attributed to Cornel West the view that every social encounter can be reduced to identity and power. Having not only read Professor West's writings, but also having taught with him at Princeton and discussed social, moral, and political issues with him countless times, both publicly and privately, I can say with certainty that this understanding of  his views is a misunderstanding--a gross misunderstanding. So I sent a letter correcting Mr. Peretz to the WSJ. I've been waiting for it to be published, but it is now clear that the editors have decided not to publish it. So I am posting my letter here:

There is a form of leftism that “reduces every social encounter to identity and power,” but Martin Peretz (April 15, 2020, “Bookshelf”) is wrong in attributing that form to Cornel West.  In fact, West’s deeply-held Christian faith, and his devotion to non-reductionist thinkers from Plato and St. Augustine to Martin Buber, Dorothy Day, and Abraham Joshua Heschel, precludes his embracing it. Although he does not hesitate to criticize what he regards as the unjust distribution or use of political and economic power, he is a critic, not a proponent, of the idea that human relationships are inevitably and decisively shaped by power--or identity. He is no disciple of Marx or Foucault. -- Robert P. George, Princeton University

Cornel West is a rich, complex, and fascinating thinker--one that people across the political and ideological spectrum can learn from. He is also a widely misunderstood figure. His critics, and sometimes even his allies, mistakenly think he is a conventional sort of leftist. He is certainly a man of the left. But he is certainly not conventional.

An example: West (like his left-wing Harvard colleague and teaching partner Roberto Unger) utterly rejects the "progressive view of history" that has been leftist orthodoxy at least since the time of Marx and which is conventional leftist thinking today. How many times have you heard Barack Obama, for example, claim that people who disagree with him about this or that issue are on "the wrong side of history"? How often have you heard other progressives invoke the "judgment" of history, as if history possessed deific powers to decide, and even define, what is good and bad, right and wrong, just and unjust? West has no patience with this nonsense. He has no belief--in fact he rejects the belief--that history inevitably (or even likely) moves in the direction of greater justice, equality, freedom, respect for human dignity, or anything of the kind. And yet sometimes--as with the case of a television interviewer I saw a while back talking with West on a left-leaning news and opinion show--people assume that, as a leftist, he must believe it.

Why doesn't he believe it? Well, West's rejection of historical determinism, like his rejection of materialism and his rejection of the reduction of all social relations to identity and power, are grounded in his Christian commitments. This distinguishes him not only from secular progressives but also from many self-identified religious (including Christian) progressives who, whatever their personal devotional practices and self-identification, have abandoned the substance of Christian faith in favor of precisely the views of human nature, the human good, human dignity, human destiny, and history that divide secular progressivism, at the root, from Christianity. West is a socialist--though one that allows more room for the private sector and for civil society than is typical among contemporary socialists--but not a Marxist, not even an inchoate Marxist (or neo-Marxist), as many self-described "Christian socialists" are. Marx's materialism, historicism, and reduction of social relations to the class struggle ("identity and power"), as well, of course, as his atheism, are rejected, not embraced, by Cornel West. 

May 3, 2020 | Permalink

Henry Garnet, S.J., RIP

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 


Father Henry Garnett

May 3, 2020 in Garnett, Rick | Permalink

Saturday, May 2, 2020

The rejection and unmasking of an uncreated order of values, together with "management technique at the service of the strongest"

In his essay, The Dead End of the Left: Augusto Del Noce’s Critique of Modern Politics, Carlo Lancelloti describes Del Noce's intervention into a debate between two well-known Catholic intellectuals of the time, one a representative of the "right" and another of the "left." Lancelloti includes an extended quotation from Del Noce, which I reproduce here not so much for the specific purposes that Del Noce or Lancelloti had in their writings, but because it arrestingly captures what has been happening at elite and not-so-elite universities in the United States for at least the last few decades:

If by “right” we mean faithfulness to the spirit of tradition, meaning the tradition that talks about an uncreated order of values, which are grasped though intellectual intuition and are independent of any arbitrary will, not even the divine one; and if by “left” we mean, on the contrary, the rejection not merely of certain historical superstructures but of those very values, which are “unmasked” to show their true nature as oppressive ideologies, imposed by the dominant classes in order to protect themselves, well, then it seems that in no other historical period has the left advanced so dramatically as during the last quarter of a century…. And yet, one has to say that Domenach is right: if by “right” we mean “management technique at the service of the strongest,” regardless of what ideologies are used to justify this management, we have to say that its victory has never been so complete, because it has been able to turn completely the culture of the left into its own tool.

May 2, 2020 in Walsh, Kevin | Permalink