Friday, June 19, 2020
Angela Carmella (Seton Hall Law School), known to many here at MOJ, has posted the above-titled article on SSRN (forthcoming in the Kansas Law Review). Angela is always thoughtful, and I appreciate her subject matter here for its challenge to the assumption that religious-exemption claims are a thing for conservatives to assert and progressives to oppose. Part of the abstract:
This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives.
The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.
Catholic bishops in Costa Rica, with the backing of the Evangelical Alliance, are against a proposed reform of the constitution removing Catholicism as the official state religion.
Christian leaders in the Central American country argue that the move is fueled by anti-Catholic bias and would actually erode the religious freedom currently enjoyed nationwide.
According to the latest census, over 70 percent of the population of five million describe themselves as Christian, with Catholics representing just over 50 percent of the country’s total population.
Full article at Crux.
June 19, 2020 | Permalink
Wednesday, June 17, 2020
Religious liberty is the first freedom articulated in the U.S. Bill of Rights, and Pope Francis has said it “remains one of America’s most precious possessions,” adding that “all are called to be vigilant … to preserve and defend that freedom from everything that would threaten or compromise it.”
With the receipt of a transformational gift from Matt and Lindsay Moroun and family, Notre Dame Law School will put its rich tradition of religious liberty scholarship into practice by creating the Notre Dame Religious Liberty Clinic.
The Law School also has appointed Stephanie Barclay as an associate professor to teach and generate scholarship related to the initiative as well as help launch the groundbreaking clinic that will train future Notre Dame lawyers to defend religious freedom by pursuing claims in trial courts as well as appeals up to and including the U.S. Supreme Court.
Training Notre Dame lawyers how to protect religious liberty is central to the missions of both the law school and broader University.
“The freedom of people of faith and religious institutions from government intervention is one of the founding pillars of our nation, and that freedom has helped create a more compassionate society and a vibrant democracy,” said Rev. John I. Jenkins, C.S.C., Notre Dame’s president. “Notre Dame, a leading university that proudly maintains its founding mission as a Catholic university, must be the leader in the national dialogue to reaffirm our country’s historic respect for and commitment to freedom of conscience and the defense of religious liberty.”
The clinic will be the cornerstone of the broader Religious Liberty Initiative advanced by G. Marcus Cole, the Joseph A. Matson Dean of the Law School.
“Without freedom of conscience — to believe, and then to live our lives as our beliefs require us — nothing else matters,” Cole said. “This is why the Religious Liberty Clinic is so vital to me. I am deeply grateful to the incredibly generous donors who have enabled Notre Dame Law School to be — as it should be — at the forefront of defending religious freedom for all.”
Barclay joins the law school from the faculty of Brigham Young University’s J. Reuben Clark Law School. She is also of counsel for the Becket Fund for Religious Liberty. A First Amendment scholar, she researches and writes about the role different democratic institutions play in protecting minority rights, particularly at the intersection of free speech and religious exercise.
“I am absolutely thrilled for Stephanie Barclay to join our faculty and launch our Religious Liberty Initiative,” Cole said. “She is an exceptional scholar and teacher, and one of the nation’s leading advocates for religious freedom, and as such, ideal to lead this effort.”
Prior to joining BYU’s law faculty, Barclay clerked for Judge N. Randy Smith on the U.S. Court of Appeals for the 9th Circuit, was an associate in the Washington, D.C., firm Covington & Burling and was legal counsel for Becket. She twice has been named a Rising Star by the Super Lawyers ratings service.
“Joining Notre Dame Law School’s remarkable community of scholars is a tremendous honor,” Barclay said. “I am also profoundly grateful for the opportunity to participate in an initiative focused on equipping the next generation of lawyers to defend the vital right that is religious liberty.”
Following the 2020-21 academic year, Barclay will take a one-year leave to clerk for U.S. Supreme Court Justice Neil Gorsuch.
Story by Dennis Brown at Notre Dame News.
June 17, 2020 | Permalink
Mark Hoipkemier -- whom I had the privilege of teaching when he was doing doctoral work at Notre Dame -- has an essay at Public Discourse called "Where (Not) to Begin with the Common Good." Here's the summary:
The common good is the flourishing of a community qua community. Every community is built around a common end, which is simply that it excel, in justice, as whatever kind of emergently real community it is. The common good is primarily a practical idea, but if our starting point is too practical we are apt to miss the challenge that the common good poses to the modern political imaginary. On the other hand, a starting point that is too metaphysical will fail to engage the real questions of common life.
The piece is a bit challenging/chastening for me, because I have often cited and find appealing a formulation of "the common good" that Hoipkemier says is, well, wrong, i.e., the one from Gaudium et Spes: “[T]he sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” (On the other hand, here is a different Public Discourse essay, by our own Robby George, which embraces this formulation.)
I'd welcome others' thoughts . . .
Tuesday, June 16, 2020
Senator Hawley’s speech is worth listening to. One quote MOJ readers might find interesting: “It represents the end of the conservative legal movement, or the conservative legal project, as we know it.”
June 16, 2020 | Permalink
The majority and dissenting opinions in the Title VII cases (Bostock and its companion cases) handed down yesterday provide a dizzying slew of dueling hypotheticals, but in fact the mistake inherent in Neil Gorsuch’s majority opinion is quite fundamental and can be captured in general terms. And the mistake dooms his reasoning precisely as a matter of textualism, not purposivism or policy.
To describe the error as succinctly as possible: Justice Gorsuch supposes that discriminating based on orientation or gender identity always entails discrimination based on sex, because orientation and gender identity vary with sex. But discrimination in the sense relevant to this part of Title VII concerns intent. And as a moment’s reflection shows, one’s intent—as well as any underlying beliefs and attitudes—can fix on feature X of a situation and not feature Y, even when X always comes with Y. (To put this firmly established point in technical terms: intentions, beliefs, and attitudes create what philosophers call "opaque" contexts.)
So an employer can be motivated by an intent—and associated beliefs or attitudes—concerning people of a certain orientation (or self-identification, or pattern of conduct), without relying on any intent, belief, or attitude concerning people of a particular sex (even though orientation turns on sex). And again, it’s these motivations—intentions, beliefs, and attitudes—that are essential to “discrimination against” individuals “because of” sex, as confirmed by Justice Bret Kavanaugh’s analysis of the ordinary meaning of that phrase taken as a whole, and Professor James Phillips' recent study relying on linguistic principles and systematic data. As Phillips summarizes the point, the operative language of Title VII, read in light of established linguistic principles and enactment-era data, requires differential treatment based on “unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular—whether the beliefs be outright misconceptions or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy."
Again, Kavanaugh's and Phillips' analyses show that this reading is superior precisely as a faithful reading of the text. And as Professor Phillips’ replies to critics confirm (here and here), this reading also fits the reasoning of all the Court’s Title VII precedents—until yesterday. Yesterday's decisions contradict this faithful textualist reading of Title VII for a simple reason: an employer motivated by an intent, belief, or attitude about people engaging in certain forms of sexual conduct, for example, needn’t have any motivation (intent, belief, or attitude) at all that is specifically about, say, women (individually or as a group).
June 16, 2020 | Permalink
Monday, June 15, 2020
I've spent much of today and this evening reading and re-reading the opinions in Bostock v. Clayton County. I respect Neil Gorsuch, whose nomination and confirmation I outspokenly supported, and I want to understand his position and reasoning. There is, however, no way to avoid the conclusion that the argument he bought is sophistical and the position he endorsed is untenable. Sam Alito’s opening sentence in dissent is devastatingly accurate: “There is only one word for what the Court has done today: legislation.”
The legislation handed down by the Court will have far-reaching consequences, including the eventual destruction of all-women’s sports. As I tell my students, and constantly remind myself, "remember, when you sign on to a proposition you are signing on to all it logically presupposes and entails." It's very well to say, "thus and so matter is not before the Court and we haven't had the benefit of adversarial briefing and argument," but that does not cancel the mercilessness of logic. Reasonable people of goodwill can and do disagree about whether the logical and therefore foreseeable consequences of this piece of judicial legislation are good or bad, desirable or undesirable; but whether one favors or opposes legislation designed to produce those consequences, one should condemn the decision precisely because it is legislation. The Court has not applied the law as written; it has re-written the law.
The Bostock ruling (further) politicizes the judiciary and undermines the very thing courts exist to uphold: the Rule of Law. It will destroy what faith remains in the moral and intellectual integrity of our courts. It also vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding "progressive" strategy of imposing a substantive moral-political agenda through the courts by appointing "originalist" and "textualist" judges is hopeless. Conservatives, Professor Vermeule famously argued, need to shift to their own version of liberal legal theorist Ronald Dworkin’s “moral reading” of the Constitution and laws to advance a socially conservative moral and political vision. Who is to gainsay him now? One might say--I have myself said, repeatedly, in my criticisms of my teacher Professor Dworkin--"The so-called moral reading can only function as a pretext for legislating from the bench. It abandons the idea of law and the ideal of the Rule of Law, erasing the distinction between adjudication and legislation, law and politics." But that observation (which I continue to believe is true) either from increasingly warranted cynicism or sincere conviction (or a bit of both) will be met with the rejoinder: "The idea and ideal were abandoned long ago. Have you only just noticed? It may be sad, but it's all-too-true. To continue trying to shore them up is a fool's errand. It could only work when both sides in a political or ideological struggle play by the rules. But nearly all Democrat-appointed judges and half the Republican-appointed judges refuse to play by them—always to the advantage of secular progressive ideology and in furtherance of its goals. It's a different game now. For conservatives to suppose otherwise is for them to adopt the pathetic and degrading role of the Washington Generals: showing up every night at a rigged game to be the losers."
Some people are questioning Justice Gorsuch's good faith and saying that he betrayed the conservative movement and the Republican Party. These, I think, are misguided claims. Judges and justices, whether nominated and confirmed by Republicans or Democrats, whether supported by conservatives or liberals, owe their supporters and their party precisely (and nothing more than) what they owe everyone else, namely, a faithful application of the Constitution and laws as written. The tragedy of Bostock is that, despite Justice Gorsuch's desire to practice an authentic textualism, he failed to provide that, just as previous Republican appointees Sandra Day O'Connor, Anthony Kennedy, and David Souter so often--and often spectacularly--failed to provide it. Such failures always wound the Rule of Law. Coming on top of so many other cases in recent decades, this one may finally discredit it in the eyes of many who have struggled to retain their faith in it.
June 15, 2020 | Permalink
Thursday, June 11, 2020
From the third of his Barsetshire Novels, "Dr. Thorne." Of possible use in Professional Responsibility when the subject of "professionalism" and its many senses arises.
Then also, Dr. Thorne, though a graduated physician, though entitled beyond all dispute to call himself a doctor, according to all the laws of the colleges, made it known to the East Barsetshire world, very soon after he had seated himself at Greshamsbury, that his rate of pay was to be seven-and-sixpence a visit within a circuit of five miles, with a proportionately increased charge at proportionately increased distances. Now there was something so low, mean, unprofessional, and democratic in this; so, at least, said the children of Aesculapius gathered together in conclave at Barchester. In the first place, it showed that this Thorne was always thinking of his money, like an apothecary, as he was; whereas it would have behoved him, as a physician, had he had the feelings of a physician under his hat, to have regarded his own pursuits in a purely philosophical spirit, and to have taken any gain which might have accrued as an accidental adjunct to his station in life. A physician should take his fee without letting his left hand know what his right hand was doing; it should be taken without a thought, without a look, without a move of the facial muscles; the true physician should hardly be aware that the last friendly grasp of the hand had been made more precious by the touch of gold. Whereas, that fellow Thorne would lug out half a crown from his breeches pocket and give it in change for a ten-shilling piece. And then it was clear that this man had no appreciation of the dignity of a learned profession. He might constantly be seen compounding medicines in the shop, at the left hand of his front door; not making experiments philosophically in materia medica for the benefit of coming ages – which, if he did, he would have done in the seclusion of his study, far from profane eyes – but positively putting together common powders for rural bowels, or spreading vulgar ointments for agricultural ailments.
I've been thinking about Yuval Levin's most recent book, A Time to Build, during the last few weeks, especially as just (albeit very risky) protests too often have been hijacked by those who would not build but destroy.
Levin's book is a robust defense of institutions: "durable forms of our common life...frameworks and structures of what we do together." If it wasn't clear when the book was published just months ago, it is crystal clear today: American institutions at every level are crumbling.
His claim -- illustrated over chapters on Congress, journalism and the professions, academia, social media, and the family and church -- is that our formative institutions have been deformed into organizations used for individual performative self-expression. This wordplay repeated throughout the book makes for a memorable thesis and one that seems perfectly true to our time.
We trust institutions when they routinely perform certain social functions integral to their very purpose -- as when police protect lives rather than brutally take them. But we also rely on institutions to intentionally shape the people within them to live according that purpose. Institutions mold individuals -- or they fail to be what they are. But today we too often deny that individuals are even in need of such molding.
To see institutions as platforms for performance is to deny them their role as molds of character, and by extension to deny our very need for such formation. Our culture now often does deny that need. Both the libertarian and progressive ideals of freedom assume a human person already fully formed requiring only liberation from oppression of various sorts....
The vision of the human person underlying these assumptions is loaded with very high expectations of the individual, but it therefore makes only modest demands of institutions. Left to himself, the individual can exercise his capacities and pursue the good; our institutions need only to enable him -- if not, indeed, to display and promote him.
But this vision has always been opposed in our traditions by a far more skeptical view, which assumes that a person begins imperfect and unformed -- not to say fallen....It assumes that each of us is born deficient but capable of moral improvement, that such improvement happens soul by soul, and so cannot be circumvented by social or political transformation, and that this improvement -- the formation of character and virtue -- is the foremost work of our society in every generation. To fail to engage in it is to regress to pre-civilizational barbarism. This work is the essential, defining purpose of our institutions, which must therefore be fundamentally formative....
Many Americans are not lucky enough to have the benefit of a flourishing family or the opportunity for rewarding work or an uplifting education or a thriving community or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings.
Let's get to work.
Reversing a precedent set by the Obama-era National Labor Relations Board, President Trump’s appointed board on Wednesday said it doesn’t have jurisdiction over faculty members at religious colleges and universities.
The decision, concerning Bethany College, a Lutheran liberal arts institution in Kansas, heartened some religious education groups and First Amendment hawks who believe that the NLRB, a government entity, should have no say in how religiously affiliated campuses are run. Full article at Inside Higher Ed.
Personally, I am glad to see the NLRB refuse jurisdiction here and to allow religiously affiliated colleges and universities to make decisions when it comes to adjunct or part-time employment. As mentioned in the article, this decision “might be the catalyst for an informed discussion among individuals and institutions of goodwill to create a non-NLRB procedure and process.” This should be a time, especially for Catholic colleges and universities, to address the complexities that come with adjunct teaching. As Catholic Social Teaching tells us, it’s unjust to exploit someone’s labor or not consider what a living wage might be. However, we must consider that institutions of higher education often seek adjunct teaching from professionals already gainfully employed who are interested in teaching an occasional course. There are other circumstances where someone might wish to serve as an adjunct instructor but not seek or require full time employment, such as retirement or semi-retirement. The instances where individuals take on multiple adjunct courses at once and then try to assert rights to full time benefits or to unionize strike me as being built on dishonesty and a faulty foundation for both the employee and the employer. With nearly two hundred Catholic institutions of higher learning in the U.S., we should strive for a model where people are compensated fairly for their labor, and also defend the rights of the institutions themselves to make personnel decisions like any other religious organization. It seems to me, as someone who has attended four Catholic universities and worked in Catholic higher education for over a decade, that the smaller schools relying heavily on adjunct labor need to be more creative. This probably means creating more lecturer type teaching positions that pay a decent wage and make the people in those positions feel valued and part of the campus community.
June 11, 2020 | Permalink