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.

Monday, June 18, 2018

Comey and Moral-Theology Debates

     I'll make this a quick post, without detailed analysis or links to supporting news stories. The Inspector General's Report for DOJ seems to confirm that Jim Comey decided to disregard department rules by commenting in July 2016 on the decision not to prosecute Hillary Clinton. (Having then commented in July, he felt he had to notify Congress in October that the investigation had been  reopened.) Giving him the benefit of the doubt, he decided to disregard the rules because he thought that: (a) there was a leadership void at the top of the Department (Attorney General Lynch's partial withdrawal, although not recusal, from the case); (b) Clinton was going to be elected President; and (c) failing to comment on the decision--and failing to give notice of the (briefly) reopened investigation--would undermine her credibility as president by opening the door for  people to argue that the department had given her favoritism and a whitewash. We now know that Comey substantially erred in predicting the consequences of his acts, and perhaps in analyzing the state of the election in the first place.

      It seems possible for this episode to become an example used in ethics courses, religious (moral-theology) or secular, to explore issues concerning deontological versus consequentialist (or proportionalist) ethics. One major criticism against the latter is that we lack the ability--at least, we overestimate our ability--to predict the consequences of actions. Thus we should stick with rules that reflect either deductions from foundational premises or (in rule-consequentialism) the accumulated wisdom about what consequences will likely follow. Comey's misjudgment, then,could serve as a dramatic example for this argument.

     Of course, that doesn't end the debate about "following the rules." There still may be cases in which the rules must be disregarded, even if Comey was wrong to think this was one of them. Segregation and civil disobedience present a strong example where positive law had to give way to higher-law principles. But I don't know if even Comey claims this was that sort of case (although his book, which I haven't read, is called A Higher Loyalty).

     But this also doesn't end the debate over "rules vs. consequences." There are, of course, many times in which two concrete but conflicting rules both might apply to a situation; we have to decide what the scope of each rule is. Some moral theorists, like R.M. Hare in Moral Thinking, have identified this as the function of consequentialism/utilitarianism: to resolve conflicts between prima facie duties.

     The previous two paragraphs are just ruminations by a non-expert in moral philosophy and moral theology. The main point I wanted to make is that Comey's misjudgment might be used, in ethics/moral-theology education or debates, as a prime example of the problem of uncertainty in predicting consequences. Comey's errors in prediction, and thus in judgment, were very substantial--but I don't think they were so substantial that they keep his actions from being a useful example.

June 18, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, June 16, 2018

"Masterpiece Cakeshop and Protecting Both Sides," at Take Care Blog

Expanding on our previous analysis of Masterpiece Cakeshop at SCOTUS Blog, Doug Laycock and I now have a piece up at the Take Care blog. As many MOJ readers know, the Supreme Court found the state adjudicators had displayed impermissible  "hostility" to the bakers' religious beliefs, as shown by (1) over-the-top statements by commissioners about Phillips' belief and position and (2) the state's differential treatment of three other bakers who were allowed to refuse to make a cake with an anti-same-sex message on it, while Phillips was not allowed to refuse to design a cake celebrating a same-sex wedding.

In our Take Care piece, among other things, we (1) discuss how the Court's use of decision-makers' statements in Masterpiece should/could affect the analysis on Trump's travel ban, with the blatant anti-Muslim statements leading up to it;  (2) answer defenses that have been offered for the different treatment of the two sets of bakers; and (3) defend a broader reading of the leading free exercise cases, Lukumi and Smith--one that goes beyond prohibiting clear animus toward, or targeting of, religion. Here's some of the first point:

Trump’s anti-Muslim hostility was particularly unambiguous; and with a presidential order only one person’s intent is at issue, which makes his statements even more probative than those of an individual on a multi-member body. We do not know if the Court will so rule. The immigration context adds doctrinal complications; and if the majority believes that it should infer bad motive only from statements by adjudicators, not policymakers, an executive order falls in the latter category. But the Court is willing to infer discriminatory motive from legislative statements in race- and sex-discrimination cases under the Equal Protection Clause; it’s hard to see why religious-discrimination cases should be different.

       It is vital in today’s circumstances to condemn official hostility to any religion. In polarized America, too many people show tolerance for conservative Christians but not for Muslims. But that does not justify intolerance the other way; Masterpiece was right to condemn hostility toward Phillips’ traditionalist beliefs.


June 16, 2018 in Berg, Thomas, Current Affairs | Permalink

Monday, June 11, 2018

African-American Evangelicals on the Masterpiece Cake Issue

Here is a worthwhile piece from Kate Shellnutt at Christianity Today with several African-American evangelical leaders giving their perspectives on Masterpiece and other situations of declining service to a same-sex wedding. The leaders quoted negotiate the tension between the importance of nondiscrimination laws in public accommodations and the importance of religious liberty.

Polls by Pew, quoted in the article, show black Protestants support same-sex marriage a little more than white evangelicals do (44 versus 35 percent), and are substantially below the level of support of Americans overall (44 versus 62 percent). But on the matter of "requiring businesses to serve same-sex couples," black Protestants are way above white evangelicals (46 percent to 22 percent) and close to Americans overall (46 to 49 percent). As always, you have to look at how the questions are phrased; the kind of limited exemption for an expressive service to a wedding is different, and may garner more support, than a hypothesized claim to "refuse to serve same-sex couples." (Of course, those distinctions might matter to everyone, not just black people; so the point about black evangelicals emphasizing nondiscrimination holds.)

There's no representative position in the article--the views vary. But here are a few thought-provoking comments from Justin Giboney, founder of the AND Campaign ("Biblical Values, Social Justice"):

        It’s not surprising that black Protestants are more likely to believe vendors should serve same-sex weddings than their white counterparts. We might agree theologically, but historically speaking, we have little reason to believe the concerns aren’t pretext for prejudicial impulses. There’s very simply a lack of trust, and it’s better to err on the side of caution than to be complicit in furthering bad faith and un-Christlike endeavors....

        That said, the biblical love and service imperative is coupled with truth-telling and a responsibility to honor what God has deemed good.... Thus, a pastor—or a baker—who’s been asked to participate in a wedding ceremony should be able to refuse if compelled by religious conscience; however, services generally should not be declined outside of very limited circumstances.

June 11, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, June 9, 2018

Masterpiece Comment

I've been preoccupied, since the Masterpiece Cakeshop ruling came down, writing about the decision and also finalizing a book manuscript for submission to the publisher on an entirely different subject (gene patents). Tardily, let me note that Doug Laycock and I posted an analysis of Masterpiece earlier this week on the SCOTUS Blog. A bit:


     There is a practical holding and an ideal holding [in Masterpiece]. The practical holding is that the unequal treatment of Phillips and the protected bakers is evidence of unconstitutional hostility. Conscientious objectors embroiled in litigation will have to send testers to smoke out uneven enforcement of anti-discrimination law. We expect that states are unwilling to require socially liberal vendors to produce goods with conservative religious messages they find offensive or against their conscience. If that is so, then those states cannot require religiously conservative vendors to produce goods in violation of their conscience.

     The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.

     But a requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.

     Those manipulations began in the state’s briefs and in the concurring and dissenting opinions.... 

June 9, 2018 in Berg, Thomas, Current Affairs | Permalink

Wednesday, May 23, 2018

"Vocation, Expressive Conduct, and Religious Liberty"

Although I haven't read it carefully, this student note looks like a useful addition to the literature on free-exercise exemptions in the commercial sphere. Although it appears to settle on some of the same considerations as previous articles to delineate some such exemptions as proper while setting limits on their scope, it does so through the (worthwhile) introduction of the concept of religious "vocation" in one's business.

Recent scholarship on religious liberty claims, perhaps following the lead of litigants raising claims for religious exemptions in the wake of Obergefell, has largely focused on arguments that certain forms of business activity are “expressive conduct” that government cannot compel. This Note aims to shift the focus of the debate, by arguing that the expressive conduct line of argument distracts from the real collision these cases involve, between two kinds of identity that are both worthy of protection. This Note's argument is twofold. First, it invokes the concept of vocation, understood as a religious obligation or set of obligations regarding work-related conduct, to suggest that, for many, how one acts in one's work is a key part of one's religious identity. Second, it argues that the concept of vocation can, and does, impose meaningful limits on the availability of exemptions from anti-discrimination laws, mitigating the fear that allowing such exemptions will eviscerate the law's ability to protect against discrimination.

May 23, 2018 in Berg, Thomas, Current Affairs | Permalink

Wednesday, May 9, 2018

"Why American Politics are a Nightmare for Catholic Universities," featuring Garnett et al.

Our own Rick Garnett is quoted in this pretty even-handed piece in The Atlantic about the challenges Catholic universities face in having political figures speak at major events like commencement: from Obama at Notre Dame to Betsy DeVos this year at Ave Maria University. Since Catholicism cuts across the political parties' platforms, any such invitation is likely to trigger strong criticism from some significant number of people: 

There are unclear areas in what Catholicism recommends—for example, the Church holds that members should care for the poor, but what that means in practice is debated—that make it hard to associate the religion with one party exclusively. [True, although I'd say it's more that each party has, in different ways, moved away from some important aspect(s) of Catholic social teaching.--TB] But the rigidity of polarized American politics isn’t accommodating of a cafeteria-line approach to political positions: There’s no taking a little from one party, a little from another, and a little from a third. It’s all or nothing. That often means that if someone picks a side in one policy, he or she will be criticized for aligning with the broader agenda of that side.

Richard Garnett, a professor at Notre Dame who writes about freedom of speech and religion, put it like this: “It’s going to be a rare politician [who is] going to line up with the catechism on all fronts.” So, predictably, when a political figure is invited to speak at a Catholic event, it is going to be divisive. “It’s almost always going to be true given American politics and the way our parties divide up,” he said.

The answer is probably, as others have suggested, to stay away from politicians for a while and invite people doing good things in other walks of life. After all, there's not a lot to hold up as exemplary in the national political parties right now.

May 9, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, May 8, 2018

Democrats for Life Student Scholarship Essay Contest

Information and further links here. Deadline is June 20. The winner will be invited to read the winning essay at DFLA's annual conference, July 20-22, in Denver.


For Students age 16 to 26.

Prizes $2500, $1000, and $500.

Runs 15 March to 20 June 2018.

Welcomes Any [or No] Party Affiliation, Any [or No] Political Stance.

Here’s the prompt:

Please Forward, SnapChat, Facebook, Instagram, Twitter, Pinterest, Tumblr, WhatsApp, etc. to those you think interested. Click here to learn more.

May 8, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, May 1, 2018

Berman Award for Law & Religion Scholarship: Call for Nominations

Call for Nominations:

Harold Berman Award for Excellence in Scholarship

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at nt277 at cornell-dot-edu by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

May 1, 2018 in Berg, Thomas | Permalink

The Costs of Invalidating the Housing-Allowance Exclusion

In Gaylor v. Mnuchin, the Seventh Circuit is reviewing a district judge's ruling that the Establishment Clause invalidates section 107(2) of the IRS Code, the provision that allows ministers/clergy (of all faiths) to exclude an employer-provided housing allowance from income for federal tax purposes. (Section 107(1), which allows exclusion of the value of an employer-provided parsonage, is not challenged.)  Becket, which represents clergy intervening in the case to defend the provision, has a case page on its website. A brief summary of the argument on the merits in Becket's opening brief (at 6):

Section 107(2) takes the longstanding convenience-of-the-employer doctrine, which [excludes employer-provided housing from income if the employee--religious or secular--uses it for the employer's convenience], and applies it to ministers in a way that reduces entanglement and discrimination. [From TB: It reduces entanglement in the sense that otherwise the IRS would have to make religiously sensitive inquiries inquire into what constitutes meaningful use of the minister's home for the church. And it reduces discrimination in the sense that limiting the exclusion only to church-provided parsonage favors those churches that are old, established, or wealthy enough to have an existing parsonage or be able to make a down payment on a new one.]

Several amicus briefs filed support the government and the clergy-intervenors. Our Religious Liberty Appellate Clinic at St. Thomas helped draft a brief laying out the serious consequences for ministers and churches if 107(2) is invalidated. Using a variety of national surveys, we document these conclusions (from our summary of argument, pp. 3-4):

      A. Housing allowances excludable under § 107(2) are deeply embedded in our national life—that is, widely used in ministerial compensation structures. [Citing the "deeply embedded" standard from the Court's approval of tax exemptions in the Walz case.] Figures in studies indicate that anywhere from 61 to 81 percent of congregations rely on housing allowances (as opposed to church-owned parsonages) to give their ministers housing benefits.

      B. Invalidating § 107(2) would significantly disrupt the activities of ministers and congregations that have relied on the provision. The effects are evident in simple hypothetical examples involving a congregation of around the median-size budget, which is a modest $85,000. Solo ministers in that range receiving the median base salary—a modest $35,000—and a median housing allowance could see their federal tax liability nearly triple. To keep their ministers or preserve their financial stability, congregations would have to offset the added tax liability, including increased state income taxes. And the added compensation to accomplish that offset must significantly exceed the added taxes, since the new compensation is itself subject to federal and state income tax and federal self-employment tax. Calculating these effects in a simple hypothetical for a median-sized congregation shows how disruptive the invalidation of § 107(2) would be for congregations that have little cushion to absorb the effects.

We also present evidence that invalidating 107(2) "would disproportionately harm smaller congregations and those that must rely on a housing allowance as a means of structuring clergy compensation," and that it "would especially retired ministers and those nearing retirement."

St. Thomas 3L student Kacie Phillips (about to graduate!) did outstanding work on the review of studies and on the initial drafting of the brief.

May 1, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Friday, April 27, 2018

Why a Legislative Chamber Should Not Have an Official Chaplain

Here. (Whether it ultimately turns out that Fr. Conroy's dismissal as House chaplain was for political/theological reasons or because of "pastoral care" shortcomings.)

Rotating prayers before legislative proceedings are a separate question (Town of Greece). We might or might not think those are an acceptable even-handed accommodation or acknowledgment of religion. But putting one person in this post, and then fighting over whether his/her performance or views are acceptable, is ridiculous.

April 27, 2018 in Berg, Thomas, Current Affairs | Permalink