Tuesday, June 30, 2020
I echo Rick's praise for the Supreme Court's decision this morning in Espinoza with congratulations to him and others who have toiled for many years on school choice and religious freedom issues. One thought that occurs to me is to note briefly the important legacy of the late Chief Justice Rehnquist in today's decision (in a majority opinion appropriately written by a former Rehnquist clerk).
One aspect of that legacy is that then-Justice Rehnquist's dissents early in his time on the Court in cases such as Nyquist (1973) and Meek v. Pittenger (1975) criticizing overbearing separationism in First Amendment school funding doctrine have been vindicated, though much of that vindication had already occurred when he was Chief Justice in Agostini v. Felton (1997) and Zelman v. Simmons-Harris (2002). But it was only because the disco-era Establishment Clause separationism of the 1970s and early 1980s has now (rightly) been discarded to permit funding for religious schools in certain types of programs that the issue in Espinoza about no-aid discrimination in state constitutions could be teed up. As Justice Rehnquist wrote in Meek:
The Court apparently believes that the Establishment Clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and '(a)ny interpretation of (the Establishment Clause) and the constitutional values it serves must also take account of the free exercise clause and the values it serves.'" 421 U.S. 349, 395 (1975) (citation omitted).
A second aspect of Chief Justice Rehnquist's legacy in Espinoza is his opinion in Locke v. Davey (2004). In assigning the opinion in Locke to himself, Chief Justice Rehnquist wrote a narrow, almost case-specific holding (a characteristic Rehnquistian move) limited to funding for clergy training or "devotional theology" studies. An opinion in Locke by Justice Stevens (the senior associate justice in the majority) would presumably have given a constitutional imprimatur to no-aid state constitutional provisions (but then perhaps jeopardizing the majority by losing the votes of Rehnquist, O'Connor, and Kennedy). Indeed, Justice Breyer's dissent in Espinoza gestures toward just such a broad reading of Locke v. Davey, though not (in my view) persuasively so...thanks to William Rehnquist.
Thursday, January 30, 2020
As noted by Jon Hannah, the D.C. Circuit has issued its decision in Duquesne v. NLRB regarding jurisdiction over adjunct faculty unionization efforts at religiously-affiliated universities. As I argued some years ago in testimony (here) before a House subcommittee, the D.C. Circuit precedents on this issue are straightforward, and the NLRB's 2014 decision in the Pacific Lutheran case (discussed here) was at odds with those precedents. A bit from Judge Griffith's decision:
This case begins and ends with our decisions in Great Falls and Carroll College. In Great Falls, we established a “bright-line” test for determining whether the NLRA authorizes the Board to exercise jurisdiction in cases involving religious schools and their teachers or faculty. 278 F.3d at 1347. Under this test, the Board lacks jurisdiction if the school (1) holds itself out to the public as a religious institution (i.e., as providing a “religious educational environment”); (2) is non-profit; and (3) is religiously affiliated. Id. at 1343-44. Seven years after Great Falls, we reiterated in Carroll College that this test governs the Board’s jurisdiction, 558 F.3d at 572, 574, and we do so again today. This case involves faculty members and Duquesne satisfies the Great Falls test. The NLRA therefore does not empower the Board to exercise jurisdiction.
Apparently unpersuaded by Great Falls and Carroll College, the Board used its new Pacific Lutheran test to assert jurisdiction over Duquesne. Pacific Lutheran runs afoul of our precedent by claiming jurisdiction in cases that we have placed beyond the Board’s reach. That is, Pacific Lutheran extends the Board’s jurisdiction to cases involving faculty at schools that satisfy the Great Falls test, specifically those schools that (according to the Board) do not hold out the faculty members as playing a specific role in the school’s religious educational environment. Pac. Lutheran, 361 N.L.R.B. at 1410. But our precedent is clear: Great Falls is a bright-line test. If it is satisfied, the school is “altogether exempt from the NLRA,” and “the Board must decline to exercise jurisdiction.” Great Falls, 278 F.3d at 1347; accord Carroll Coll., 558 F.3d at 572, 574-75. The Board may not “dig deeper” by examining whether faculty members play religious or non-religious roles, for “[d]oing so would only risk infringing upon the guarantees of the First Amendment’s Religion Clauses.” Carroll Coll., 558 F.3d at 572. We have no power to revisit this precedent. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc); Am. Hosp. Ass’n v. Price, 867 F.3d 160, 165 (D.C. Cir. 2017).
Sunday, December 29, 2019
For today's Feast of St. Thomas Becket, below is a passage from the conclusion of historian Anne Duggan's very fine 2004 biography (previous posts on Becket's legacy drawing upon Tudor historian John Guy and GK Chesterton are here and here). 2020 will mark 850 years since Becket's martyrdom on December 29, 1170 and 800 years since the translation of his remains from the crypt of Canterbury Cathedral to a shrine on July 7, 1220. See here for information about a series of Becket2020 events and here for an exhibition on Becket at the British Museum opening October 15.
If one picture is worth a thousand words, the depiction of Becket’s murder—with the armour-clad knights brandishing their swords above the unprotected head of the priest—created an unforgettable image, which expressed the tension between religious and secular forces. No commentary was required to interpret the dramatic scene transmitted across Europe in manuscripts or on the reliquaries manufactured in Limoges. Detached from the specifics of the dispute with Henry II, that image became a powerful symbol of ecclesiastical steadfastness in the face of secular excess. In a sense, the image was the message; and the meaning of the message was not lost on Henry VIII, who destroyed the shrine and caused the hated name to be erased from the service books of the English Church; nor was it lost on the controversialists of the post-Reformation era, Catholic, Anglican and Protestant, who responded to the message with praise or censure according to its application to their own outlook.
Many secular heroes are made by single events: Richard I at Acre, Henry V at Agincourt, Nelson at Trafalgar, Wellington at Waterloo, Montgomery at El Alamein. For martyrs, it is the fact of their death in defence of their beliefs that justifies their claim. In Becket’s case, the cause for which he died was ultimately bypassed by history; but it had numerous analogues that could be recognized in very different historical settings. Even in this generation, the murder of Archbishop Oscar Romero of San Salvador in , or of Father Jerzy Popiełuszko in Poland, called up the image of St Thomas of Canterbury, murdered for opposition to a powerful king. Becket’s example, of resistance to an aggressive “public power” and courage in the face of extreme violence, could be appreciated by men and women across the ages.
Anne Duggan, Thomas Becket (2004), 268-69.
Tuesday, September 3, 2019
For interested readers in the Philadelphia area, the distinguished historian of Christianity Robert Louis Wilken will be speaking at Villanova this Thursday (September 5) at 4:00pm about his recent book Liberty in the Things of God: The Christian Origins of Religious Freedom (Yale, 2019). Details here.
Monday, April 1, 2019
For readers in the Philadelphia area: the McCullen Center at Villanova will host its annual symposium on Catholic social thought and law on Tuesday, April 2 at 3:00pm. This year's symposium will focus on my colleague Mary Hirschfeld's exciting new book, Aquinas and the Market: Toward a Humane Economy (Harvard University Press, 2018). Respondents will be Jonathan Klick (Penn Law), Russ Roberts (Hoover Institution and host of "EconTalk"), and Thomas Smith (Villanova). Details here.
Thursday, February 21, 2019
For readers in the Philadelphia area: the McCullen Center at Villanova Law will host Judge Amy Coney Barrett of the US Court of Appeals for the Seventh Circuit for a lecture on "Constitutional Originalism and Continuity" next Monday, February 25 at 3:00pm. Details and registration available at this link.
Monday, January 28, 2019
For this Feast of St. Thomas Aquinas, I am reposting a bit from a homily delivered for this occasion at Blackfriars (Oxford) by my late friend Fr. Herbert McCabe, O.P.:
St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.
Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?
“What is God?” It was the intellectual sanctity of Thomas that he here accepted defeat. Unlike so many theologians before and since, he could in no way answer this most important of questions. Right through his life he accepted this crucifixion of the mind; his whole life was devoted to talking about God, to theology, and yet he was intensely conscious that he knew nothing, that God is the ultimate mystery, that we are peering into the dark. In Christ, he says, we are joined to God as to the utterly unknown. The most we can do is peer in the right direction; and all theology is about doing that. But we can never answer our basic question with any use of language, by any thought. We will understand what is God only when we have been taken even beyond language and thinking, and God brings us to share in his own self-understanding. Thomas was not making a new discovery when, at the end of his life, he said that all his writings seemed like straw. He had lived with this knowledge all the time he was writing.
This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.
God Matters (1987), pp. 236-37.
Saturday, December 29, 2018
Reposting from 2015:
A reflection for today's Feast of Saint Thomas Becket:
Becket was a type of those historic times in which it is really very practical to be impracticable. The quarrel which tore him from his friend's side cannot be appreciated in the light of those legal and constitutional debates which the misfortunes of the seventeenth century have made so much of in more recent history. To convict St. Thomas of illegality and clerical intrigue, when he set the law of the Church against that of the State, is about as adequate as to convict St. Francis of bad heraldry when he said he was the brother of the sun and moon. There may have been heralds stupid enough to say so even in that much more logical age, but it is no sufficient way of dealing with visions or with revolutions. St. Thomas of Canterbury was a great visionary and a great revolutionist, but so far as England was concerned his revolution failed and his vision was not fulfilled. We are therefore told in the text-books little more than that he wrangled with the King about certain regulations; the most crucial being whether "criminous clerks" should be punished by the State or the Church. And this was indeed the chief text of the dispute; but to realise it we must reiterate what is hardest for modern England to understand—the nature of the Catholic Church when it was itself a government, and the permanent sense in which it was itself a revolution.
It is always the first fact that escapes notice; and the first fact about the Church was that it created a machinery of pardon, where the State could only work with a machinery of punishment. It claimed to be a divine detective who helped the criminal to escape by a plea of guilty. It was, therefore, in the very nature of the institution, that when it did punish materially it punished more lightly. If any modern man were put back in the Becket quarrel, his sympathies would certainly be torn in two; for if the King's scheme was the more rational, the Archbishop's was the more humane. And despite the horrors that darkened religious disputes long afterwards, this character was certainly in the bulk the historic character of Church government. It is admitted, for instance, that things like eviction, or the harsh treatment of tenants, was practically unknown wherever the Church was landlord. The principle lingered into more evil days in the form by which the Church authorities handed over culprits to the secular arm to be killed, even for religious offences. In modern romances this is treated as a mere hypocrisy; but the man who treats every human inconsistency as a hypocrisy is himself a hypocrite about his own inconsistencies.
Our world, then, cannot understand St. Thomas, any more than St. Francis, without accepting very simply a flaming and even fantastic charity, by which the great Archbishop undoubtedly stands for the victims of this world, where the wheel of fortune grinds the faces of the poor. He may well have been too idealistic; he wished to protect the Church as a sort of earthly paradise, of which the rules might seem to him as paternal as those of heaven, but might well seem to the King as capricious as those of fairyland. But if the priest was too idealistic, the King was really too practical; it is intrinsically true to say he was too practical to succeed in practice. There re-enters here, and runs, I think, through all English history, the rather indescribable truth I have suggested about the Conqueror; that perhaps he was hardly impersonal enough for a pure despot. The real moral of our mediæval story is, I think, subtly contrary to Carlyle's vision of a stormy strong man to hammer and weld the state like a smith. Our strong men were too strong for us, and too strong for themselves. They were too strong for their own aim of a just and equal monarchy. The smith broke upon the anvil the sword of state that he was hammering for himself. Whether or no this will serve as a key to the very complicated story of our kings and barons, it is the exact posture of Henry II to his rival. He became lawless out of sheer love of law. He also stood, though in a colder and more remote manner, for the whole people against feudal oppression; and if his policy had succeeded in its purity, it would at least have made impossible the privilege and capitalism of later times. But that bodily restlessness which stamped and spurned the furniture was a symbol of him; it was some such thing that prevented him and his heirs from sitting as quietly on their throne as the heirs of St. Louis. He thrust again and again at the tough intangibility of the priests' Utopianism like a man fighting a ghost; he answered transcendental defiances with baser material persecutions; and at last, on a dark and, I think, decisive day in English history, his word sent four feudal murderers into the cloisters of Canterbury, who went there to destroy a traitor and who created a saint.
G.K. Chesterton, A Short History of England (1917), 76-79.
Wednesday, August 22, 2018
The McCullen Center at Villanova (which I direct) will host two lectures this fall, in addition to other events. Next Tuesday, August 28 (the Feast of St. Augustine, as it happens), we will inaugurate an occasional lecture series on Law and the Augustinian Tradition with a visit from John Witte of Emory University speaking on "From Gospel to Law: Martin Luther's Reformation of Law, Politics, and Society." Details here (including CLE credit for lawyers). And looking ahead, on October 30 at 3:00pm Nicole Stelle Garnett of Notre Dame Law School will deliver the 42nd annual Giannella Lecture (details to come).
Monday, August 6, 2018
Pope John Paul II's mighty encyclical letter Veritatis Splendor was released on this date in 1993, and while it is probably best known in moral theology for its rejection of proportionalism (at ¶¶ 79-83: "circumstances or intentions can never transform an act intrinsically evil by virtue of its object into an act 'subjectively' good or defensible as a choice") there are a host of other vital aspects to the document. Here is a rich paragraph from an article by Alasdair MacIntyre, "How Can We Learn What Veritatis Splendor Has to Teach?," 58 The Thomist 171 (1994):
Yet as Catholics we have to listen first to what a very different set of voices have to say to us, those inspired and authoritative voices which declare the Word of God concerning those same moral matters about which our own culture speaks to us so vociferously and about which we have arrived at our own philosophical conclusions. Part of what we have to learn, or rather to relearn, from Veritatis Splendor is that, at least so far as the fundamental and central precepts of the moral law are concerned, the truths about those precepts declared to us by God through Moses and the prophets, in the revelation by Jesus Christ of the New Law and in the teaching of the Catholic Church, culminating in this very encyclical, are no other than the truths to which we have already assented as rational persons, or rather to which we would have assented, if we had not been frustrated in so doing by our own cultural, intellectual, and moral errors and deformations. Yet the encyclical also teaches us that what we encounter in Jesus Christ is immeasurably more than this. We also have to learn of our forgiveness and our redemption and of the transformation made possible in our acknowledgment of law when we come to understand it in the light afforded by Jesus Christ. Nonetheless the law declared to us by God in revelation is the same law as that which we recognize in the moral requirements imposed by our own human practical understanding and reasoning, when they are in good order. So that when we become able to hear and to respond to what Jesus Christ has to say to us, we do not have to leave behind or discard anything that we had genuinely learned concerning the moral law through reasoning. Grace often corrects, as well as completes, what we have so far taken to be conclusions of reason, but, when grace does so correct us, it is always because we have in some way failed as reasoners. And therefore Veritatis Splendor, just because it is true to this biblical teaching, will be grotesquely misunderstood if it is understood as an act of coercive imposition by an external authority, rather than an invitation to become more thoughtful and more perceptive. It does indeed speak in the name of an authority external to us, God, but that to which it invites us--that to which He invites us--is in part an act of moral and rational self-recognition. And Veritatis Splendor as a work of philosophy does itself exhibit just that moral and rational awareness to which as an encyclical it invites its readers.