Tuesday, September 7, 2021
Monday, September 6, 2021
My friend and colleague, Carter Snead -- whose work is almost certainly familiar to MOJ readers -- has an excellent op-ed in The Washington Post, called "Critics of Texas's Convoluted Abortion Law Have a Point: The Solution is To Overrule Roe v. Wade." A bit:
[W]hy are we now reduced to having a fevered meta-argument about procedural technicalities regarding the jurisdiction of federal courts? In short, it is because Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court.
There is a road back to normalcy. The Supreme Court can put us on it by dismantling its ill-founded abortion law apparatus and freeing the American people to reason together, just like our friends in numerous other countries including England, France, and Germany have been free to do, and enact laws that protect and care properly for women, children (born and unborn) and families in need.
Saturday, August 21, 2021
Ed Condon has this piece, at The Pillar, which includes some (sadly) typically obtuse comments by Cardinal Parolin. To be sure, it is not only the PRC, among political authorities, that purports to demand of Catholics that they be "good citizens" first. Some might say that the PRC and its apologists simply "say the quiet part out loud." And, it is far from obvious what the all-things-considered best way is for the Church to deal with the PRC, and best care for Catholics in China and bear witness to the faith there. I feel confident, though, that Parolin's inclinations and ruminations are not a reliable guide to finding it.
Friday, August 20, 2021
Call for Papers: Governments’ Legal Responses and Judicial Reactions during a Global Pandemic: Litigating Religious Freedom in the Time of COVID-1
Tuesday, August 17, 2021
Tuesday, August 10, 2021
Religious freedom plays a significant role in the American imagination. When asked what it means to be an American, many Americans will refer to freedom and equality, which speaks to our intuitive sense of the equal dignity of all people. But how we think of religious freedom can differ from one person to the next. The ideal of religious freedom may be summarized as “separation of church and state” and “the right to follow my conscience.” Many Americans will often think primarily in terms of human rights. Religion – belief and practice, ritual and worship, and perhaps expression and profession – is considered an object of human rights laws, that is, as something that the laws protect. The leading human rights instruments confirm this entirely reasonable, if not quite complete, way of thinking. For example: “Everyone has the right to freedom of thought, conscience, and religion,” the Universal Declaration of Human Rights (1948) proclaims, and political communities should “strive ... to promote respect for [this right]” and “to secure [its] universal and effective recognition and observance.” Similarly, the European Convention on Human Rights (1950) declares that its signatories resolve to “secure [this right] to everyone within their jurisdiction.” The Constitution of the United States frames the issue in terms of constraints on government. The government may not prevent the free exercise of religion, nor may it establish a religion. In other words, religious liberty is often framed negatively, as “freedom from,” rather than as something more aspirational, as “freedom for.”
But what, exactly, is this religious liberty that needs safeguarding? Despite general agreement that religious liberty is protected by the Constitution, the extent of those protections, and what constitutes true religious liberty at its core, is disputed. . . .
Friday, July 30, 2021
I was honored to file, along with my old friend (and fellow Rehnquist clerk) Chuck Cooper and his ace team from the Cooper & Kirk firm, this amicus brief in the Dobbs case, arguing that (a) Roe was wrong, (b) Casey was wrong, and (c) both should be overrruled. The brief's theme, in a nutshell, is "Rehnquist was right."
Monday, July 26, 2021
The enterprise of protecting religious freedom would be straightforward and simple if all members of a political community agreed about our obligations to God and to each other or if governments did not do very much. In our communities, though, people disagree—sincerely and reasonably—about things that matter. And, governments do a lot. Conflicts, therefore, between some official actions and some religious commitments are inevitable. The law must manage these conflicts, in ways that are predictable and transparent, without denigrating those who dissent from the majorities of the moment or whose aims and aspirations depart from official policy.
Fulton’s clear ruling will not put an end to disagreements between those who endorse an expansive and expanding understanding of the role and reach of anti-discrimination law and those who continue to embrace longstanding teachings regarding marriage, family, and sexuality. To cursorily label as “bigotry” or “discrimination” the determination of persons or groups to act in accord with what they regard as—indeed, what they know to be—the truth is an unworthy strategy for negotiating these disagreements.
Friday, July 2, 2021
After year's of hoarding the Notre Dame Law School library's, I recently bought my own copy of Henrich Rommen's classic The State in Catholic Thought: A Treatise on Political Philosophy. The 2016 edition I purchased (published by Cluny Media) comes with an excellent introduction by Prof. Bruce Frohnen, whose work is probably familiar to MOJ readers. With his permission, I'm posting a little excerpt from that introduction:
Rommen’s task in The State in Catholic Thought is to explain the role the state plays in facilitating ordered pursuit of common goods. The modern nation state in particular too often asserts control over other associations, portraying itself as a single, national "good." This is the path followed by the tyrannies of the twentieth century against which Rommen struggled. Those tyrannies included the totalitarian regimes of Hitler, Stalin, and their ilk. They also included the seemingly more humane regimes of the social democrats, with their utilitarian ethics and hostility toward the higher, more permanent good of the human person. . . .
In opposition to [social democrats’] false vision of a neutral state, Rommen offers the just social order. Too often confused with statism and even pursued as a kind of social democracy with confessional window-dressing, the state envisioned by Rommen is, in accordance with Catholic teaching, an accommodating structure serving man’s natural ends. The state, on this view, works to bring together society’s various communities to reason together and seek common understanding and pursue common ends. It promotes rules ordering their relations with justice, respect for self-government, and attention to the common good.
Get your copy today!
Saturday, June 26, 2021
My former student and research assistant, Caleb Acker, has written up some comments on the recent Fulton case, and graciously permitted me to share them:
Fulton Paves the Way for “Most-Favored-Organization” Approach to Free Exercise
In his dissenting opinion to the Court’s denial of the application for injunctive relief in Calvary Chapel Dayton Valley v. Sisolak, Justice Kavanaugh explicitly endorsed Doug Laycock’s “most-favored nation status” approach to Free Exercise. See Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50. In international multilateral treaty-making, a most-favored-nation clause requires one WTO member to accord to every other member the privileges that the member grants to its most-favored nation. Even though each nation retains discretion to favor certain nations as it pleases, it is required by law not to disfavor other nations concerning the same privileges.
Justice Kavanaugh based this First Amendment framework in the “system of individual exemptions” exception to Smith (“the Exception”) established in that case, where a law that requires a decisionmaker to make an “evaluation of the particular justification” for religious conduct triggers strict scrutiny. See Lukumi, 508 U.S. at 537. In cases that “divvy up organizations into a favored or exempt category and a disfavored or non-exempt category,” Justice Kavanaugh argues, Sherbert-Smith requires judges to ask if the law creates a favored or exempt class of organizations and, if so, if religious organizations fall outside that class. In Sherbert, Thomas, and Hobbie, regimes that required government bodies to determine on an individual basis whether religious reasons constituted “no fault” or “good cause” faced strict scrutiny. In other words, the decisionmaker should be required to treat any religious exemption-seeker as favorably as the secular exemption-seeker under Smith.
Josh Blackman has noted the major weakness of Justice Kavanaugh’s approach: its seeming travel beyond the boundaries of Smith’s language. See the extremely helpful Blackman, The ‘Essential’ Free Exercise Clause, 44 Harv. J.L. & Pub. Pol’y 637, 692–95. Blackman understands Justice Scalia to be making no “broad pronouncement about Free Exercise Clause jurisprudence” and to be speaking “about a specific aspect of unemployment compensation.” Id. at 693. By Blackman’s writing earlier this year, the Supreme Court had not expanded the Exception to other contexts, but lower courts (Third, Sixth, and Tenth Circuits) had. Put simply, to Blackman, Justice Kavanaugh’s Most-Favored-Organization approach sounds good, but it is limited to unemployment compensation.
That is, it was limited, until Fulton, where the Court completely unbounded Sherbert-Smith’s Exception, endorsing the expansion to all contexts already undertaken by the lower courts. Just read the Court’s unlimited language: “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it invites the government to decide which reasons for not complying with the policy are worthy of solicitude.” Fulton, slip op., at 10 (cleaned up). That’s any government mechanism (whatever exactly that will mean), not just an unemployment benefits system. The main holding of Fulton simply made this expansion. “Like the good cause provision in Sherbert, [the Philadelphia policy] incorporates a system of individual exemptions.” Id. at 7.
Going forward, lower courts should completely adopt Justice Kavanaugh’s suggested Calvary Chapel approach through the language of Fulton. That is, if lower courts are confused at how exactly to apply Fulton to their own cases, Justice Kavanaugh’s dissent may be a guiding light of specificity. As he is wont to do, the Justice was certainly trying to give that very kind of guidance in his opinion, equipping judges with a two-step approach. Lower courts should ask whether a policy separates organizations into favored and disfavored categories for exemptions. If so, that obviously creates a “formal mechanism for granting exceptions,” rendering any such policy not generally applicable under Fulton. State governments would then need a compelling interest to refuse to treat religious organizations as Most-Favored Organizations under that policy.
For example, let’s apply Fulton to the Nevada regulations at issue in Calvary Chapel. The governor’s orders divvied up organizations into favored and disfavored organizations through differing population caps. The policy is a formal mechanism allowing higher caps for certain secular organizations while forcing lower caps for certain religious organizations. Governor Sisolak certainly decided which reasons for less regulation were “worthy of solicitude”: economic ones. (Religious reasons were not considered so worthy). Secular organizations were, essentially, given exemptions from the strict 50-person attendance cap levied against churches. Favored = Exempt. The policy was a system of individualized exemptions under Fulton.
As administrative states grow at all levels of government, religious organizations will continue to face state and local governments that place them in disfavored categories (including in ways devised explicitly to get around Fulton). Future claimants, in my view, would be wise to use Justice Kavanaugh’s Most-Favored-Organization approach through Fulton’s language. Favored means exempt, and any formal mechanism for granting exemptions—categorizing organizations as favored—triggers strict scrutiny.