April 23, 2014

We're back . . . and Happy Easter!

As MOJ readers noticed (I hope!), Typepad was down for the last few days, due to Some Technical Thing That I Do Not Understand.  It appears to be fixed.  Happy Easter to all!

Posted by Rick Garnett on April 23, 2014 at 09:28 AM in Garnett, Rick | Permalink

April 18, 2014

Smith on "the Jurisprudence of Denigration"

To say "Steven Smith" is to say "must-read".  Check it out.  Here is the abstract:

In his opinion for the Court in United States v. Windsor, Justice Anthony Kennedy asserted that section 3 of the Defense of Marriage Act was unconstitutional because it was enacted from “a bare congressional desire to harm a politically unpopular group,” or from a “purpose...to demean,” “to injure,” and “to disparage.” Kennedy and the Court thereby in essence accused Congress – and, by implication, millions of Americans – of acting from pure malevolence.

Why might distinguished Justices put their names to such an extraordinary accusation? This article explores deficiencies, first, in contemporary constitutional discourse and, second, in contemporary moral discourse. These deficiencies have resulted in a situation in which, in some contexts, the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponents. Windsor is a recent and egregious instance of this discursive pattern, or of what we may call the discourse of denigration.

Also of interest will be MOJ-friend Paul Horwitz's reaction and response to Prof. Smith's piece, at Jotwell.

Posted by Rick Garnett on April 18, 2014 at 09:37 PM in Garnett, Rick | Permalink

Kurt Lash on "Religious Sincerity and the Hobby Lobby Investments"

My friend, Prof. Kurt Lash, shared with me (and gave me permission to post) these thoughts:

Although public attention has turned elsewhere, the Supreme Court continues to mull over the question of Hobby Lobby’s religious objection to the contraceptive mandate in the Affordable Care Act. Perhaps with an eye to influencing the Court’s deliberations, recently a number of Hobby Lobby’s critics have pointed to the company’s 401(k) investment program as calling into question the sincerity of their religious objection.  Among the many stocks included in mutual funds made available to Hobby Lobby employees are those of companies manufacturing contraception products.  To Hobby Lobby’s critics, this not only renders the owners hypocrites, it also undermines their claim that the contraception mandate burdens a sincerely held belief.

 It’s a specious argument, one effectively rebutted by others. In brief, it is the manager of the 401(k) program, not the owners of Hobby Lobby, who select the program’s mutual funds--funds that invest in the stock of hundreds (or thousands) of individual companies.  And it is the employees, not the employers, who choose which fund to invest in.  Even the critics concede that it is not likely Hobby Lobby’s owners knew about the activities of every company in every mutual fund offered as a choice to their employees.  There is nothing in this story, in other words, that calls into question the sincerity of Hobby Lobby’s claim.

 But what about going forward?  If the owners do not take affirmative steps to deny employee access to mutual funds that (sometimes) include companies that manufacture contraceptives, doesn’t this call into question the sincerity of their refusal to authorize contraception coverage as mandated by the ACA?  The question involves drawing a line between religiously permitted and forbidden activity, and determining who gets to draw that line.  Should Congress, in passing legislation like the Religious Freedom Restoration Act, protect the beliefs of religious claimants who may identify moral distinctions that their secular fellow-citizens would not?  And should they do so if the result arguably shifts a burden onto third parties? 

The first time we faced this issue as a country, the answer was emphatically yes.  During the Civil War, Congress debated whether to grant an exemption from the military draft for religious objectors.  The exemption would relieve objectors from service but require a payment of $300 “to be applied to the benefit of the sick and wounded soldiers”—a payment religious objectors had signaled Congress they would accept.  Opponents of the exemption argued that the objectors’ willingness to pay the fee called into question the sincerity of their objection to military service.  Although the $300 would be earmarked for the “sick and wounded,” money was fungible and the payment would free up funds to secure a replacement or to purchase weapons.  

The reply, which carried the day, was that religious exemptions must be viewed from the perspective of the individual’s religious conscience.  According to Sen. Doolittle: 

Gentlemen say [providing that the money go to the use of hospitals] makes no difference; they are just as much supporting the war in this way as if they paid the money directly to procure a substitute and place him in the field with arms in his hands. Perhaps you think so; perhaps I think so; but they do not; they draw a distinction; and in legislation we must regard as facts the prejudices and the religious convictions of a people.  

Nor was the issue one of mere political expediency. According to Thaddeus Stevens, “independent of policy ... justice requires [exemption of the religiously scrupulous.]”  In the end, not only was the amendment modified to include non-Christian denominations that conscientiously opposed bearing arms, but the discretionary wording “may” was replaced with “shall” to make the exemption mandatory. 

There are several lessons here that are important to the current debate.  First of all, the religious exemption from military service during the Civil War was the first true national religious exemption.  The exemption was limited to only religious-based objections and granting the exemption had the effect of making it more likely that a non-believer would be forced to serve and risk life and limb.  Nor did it matter that the same objectors were willing to pay a fee that could be viewed as directly advancing the military effort they refused to join.  If the purpose of the exemption was to protect the religious conscience, the moral lines drawn by that conscience were to be respected as well. 

Should the Supreme Court grant Hobby Lobby an exemption under the Religious Freedom Restoration Act, its decision will echo an earlier and far more serious decision to grant a legislative exemption during a time of war.  Then as now, religious adherents drew moral lines in the sand beyond which they could not go.  The country has long understood that respecting those lines is an essential part of respecting religious freedom.

 Kurt T. Lash

 [Note: for citations to the historical material cited above, see Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. L. Rev. 1106 (1994).]

 

Posted by Rick Garnett on April 18, 2014 at 08:52 PM in Garnett, Rick | Permalink

Yale, "Social Justice", and The Princess Bride

Reading this piece ("Yale's Agony Over Social Justice"), at First Things, made me (of course!) think of this scene, from The Princess Bridge.

Posted by Rick Garnett on April 18, 2014 at 08:31 PM in Garnett, Rick | Permalink

April 16, 2014

"I have already picked up a vast deal of theological knowledge & shall become a great disputant."

In the course of checking on some sources for an article I've been writing on Section 25 of the Judiciary Act of 1789, I had occasion this morning to dip a bit into letters sent by South Carolina's Congressman William Smith to fellow South Carolinian Edward Rutledge. One letter I came across described Smith's participation as a lay delegate to an Episcopal convention in October 1789. It may be of some interest to MOJ readers this Holy Week. Here are a couple of paragraphs:

Yesterday I took my Seat in the Convention, where I have now the Honor of representing the Laity of S. Carolina being the only Layman from our state: we vote by States & no vote can pass unless the Laity concur. Several questions have been [torn] by the Laity's negative, altho the Clergy [were] pretty unanimous. In general the two orders don't perfectly agree--Yesterday we had much debate on the new form of Liturgy & to day was spent in discussing the propriety of inserting in the Creed that J. Christ decended into Hell: the Clergy all voted for it & nearly all the Laity against it, consequently the motion for inserting those words was lost. It was matter of great triumph to us that the reverend gentlemen could not agree among themselves what was the meaning of the words, some contending that he actually went to the place of the damned, vulgarly called Hell, others that he only went to the place of departed spirits & others again that he only went to his grave--finally we made a compromise & agreed that the Minister may use either words, viz.; that he decended into Hell or into the place of departed Spirits.

The Lay Deputies who are most conspicuous are Mr. Hopkinson & Tench Coxe of this place & Mr. Andrews of Virginia. Dr. Smith of this State is President & a very bad one, for he is perpetually interrupting the members & mingling in the Debate--indeed I observe that all the Gentlemen are always out of order: I have already picked up a vast deal of theological knowledge & shall become a great disputant.

Letter of William Smith to Edward Rutledge, Oct. 6, 1789, reprinted in 69 The South Carolina Historical Magazine 1, 25 (1968).

Posted by Kevin C. Walsh on April 16, 2014 at 10:05 PM | Permalink

April 15, 2014

The Spirited Debate About the Role of Government and Religious Liberty Will Continue Well into the Future

According to the pundits, the Republican Party is destined to increase its majority in the House of Representatives and seize control of the Senate in this year’s congressional elections.  In an ironic contrast, many of the same pundits predict that Hillary Clinton will sweep into the White House in two years.

My own prognostications, for what little they are worth, are that (1) Republicans have at best a 50-50 chance of gaining a majority in the Senate this year and (2) Hillary Clinton (assuming she runs) has a much better than 50-50 chance of winning the presidential election in 2016.  While Republicans will gain seats in the Senate this year, jumping up by six more seats (the number necessary to obtain a majority) in a single election cycle remains a daunting task.  And while Hillary Clinton’s current sky-high popularity will inevitably fall back down to earth once she becomes an actual candidate who must appeal to real voters, Republican prospects have not yet demonstrated that they could carry a national electorate.

But whatever the outcome of the 2014 and 2016 elections, don’t pay attention to those commentators who will portend that whichever party prevails will then become dominant while the other party fades into obscurity.  Someone always seems to be asserting that this or that political debate is over, which invariably proves to be wishful thinking by the side that has won a temporary victory.  If Republicans hold the House (as they will), there will be those who proclaim that Democrats are doomed to perpetual minority status in the House.  Don't believe them.  As a counter-example, James Carville insisted last Sunday on This Week that, if they lose the presidency to Hillary Clinton in 2016, the Republican Party will become “extinct.”  Nonsense.

Continue reading "The Spirited Debate About the Role of Government and Religious Liberty Will Continue Well into the Future"

Posted by Greg Sisk on April 15, 2014 at 09:43 PM in Sisk, Greg | Permalink

Mayor de Blasio Allows Religious Groups Access to Public School Classrooms on Equal Terms

New York City Mayor Bill de Blasio has reversed the New York City Department of Education's policy of exclusion of religious groups that engage in "worship" from the use, on equal terms with other groups, of public school classrooms--a policy that was upheld several times by the Second Circuit as vindicating "interests favored by the Establishment Clause." The Mayor concluded that "[a] faith-based organization has a right like anyone else" to use the public school space.

Posted by Marc DeGirolami on April 15, 2014 at 08:06 PM in DeGirolami, Marc | Permalink

"Diversity and Dishonesty"

Ross Douthat expressed well a point that I've wanted to make, and that I think needs to be made, here.  Paraphrasing Peter Westen, it seems increasingly that the idea of "diversity" -- like "inclusive", or "open-minded", etc., etc. -- is, when it comes to views and opinions (I'm not thinking here about diversity in terms of socioeconomic or ethnic background) is not so much "empty" but entirely substantive and loaded.  He writes:

I am (or try to be) a partisan of pluralism, which requires respecting Mozilla’s right to have a C.E.O. whose politics fit the climate of Silicon Valley, and Brandeis’s right to rescind degrees as it sees fit, and Harvard’s freedom to be essentially a two-worldview community, with a campus shared uneasily by progressives and corporate neoliberals, and a small corner reserved for token reactionary cranks.

But this respect is difficult to maintain when these institutions will not admit that this is what is going on. Instead, we have the pretense of universality — the insistence that the post-Eich Mozilla is open to all ideas, the invocations of the “spirit of free expression” from a school that’s kicking a controversial speaker off the stage.

And with the pretense, increasingly, comes a dismissive attitude toward those institutions — mostly religious — that do acknowledge their own dogmas and commitments, and ask for the freedom to embody them and live them out.

It would be a far, far better thing if Harvard and Brandeis and Mozilla would simply say, explicitly, that they are as ideologically progressive as Notre Dame is Catholic or B. Y.U. is Mormon or Chick-fil-A is evangelical, and that they intend to run their institution according to those lights.

His point, I think, is that institutions (including religious hospitals, schools, social-welfare organizations, etc.) are usually not "neutral" when it comes to matters that connect closely with their charism, mission, character, etc.  Nor should they be, or be expected to be.  But, at the same time, they should pretend otherwise.

Posted by Rick Garnett on April 15, 2014 at 02:33 PM in Garnett, Rick | Permalink

April 14, 2014

The Civil Religion of Machiavelli

This review by Professor Cary Nederman of Professor Maurizio Viroli's Redeeming the Prince: The Meaning of Machiavelli's Masterpiece is very interesting (h/t Matt Lister). I have not read Viroli's book yet (saving it for the summer!), but his reading of Machiavelli--and in particular his interpretation of the famously perplexing Chapter 26 ("Exhortatio ad capessendam Italiam in liberatemque a barbaris vindicandam")--makes a fine textualist case for a kind of civil religion in Machiavelli's work. Here, Machiavelli pleads for an Italian redeemer who--"favorita da Dio e dalla Chiesa" ("favored by God and the Church")--will deliver Italy from its present troubles. The troubles are pretty bad: "sanza capo, sanza ordine, battuta, spogliata, lacera, corsa, e avessi sopportato d'ogni sorte ruina" ("without a head, without order, beaten, denuded, wounded, run down, and having sustained all manner of ruin"). Here's a bit from the review concerning what Machiavelli had in mind concerning the divine agent who would unify Italy and redeem its national promise:

In contrast to most scholars, for whom Chapter 26 cannot be reconciled with the previous body of the text, Viroli insists that Machiavelli's "Exhortation" represents the very crescendo of The Prince. How does Viroli arrive at such an unconventional reading?....His overarching insight, I take it, is that we ought to take Machiavelli at his word when he speaks of religious matters and, in particular, mentions the workings of God. The prevailing tendency, of course, has been to dismiss such references as reflective of either his impiety or his wicked sense of humor. On this important point, I believe Viroli to be largely correct. Scholars have all-too-often filtered their readings of Machiavelli through a set of preconceived notions or impressions of what they assume he was saying, according to his longstanding reputation, rather than what the text actually states. This does not mean that Machiavelli's political thought lacks an underlying agenda, but rather that we must always commence our investigations by taking the words he wrote seriously and at face value....

In particular, Machiavelli's invocation of prophetic wording in Chapter 26, according to Viroli, reflects the overarching purpose of The Prince: the call for a redeemer, presumably Lorenzo de' Medici, to unify Italy in order to remove the foreign elements that have dominated its politics. Machiavelli says that such a redeemer is sanctioned by God, who has rendered the moment propitious for such action. Viroli insists that we must take Machiavelli at his word in this regard, rather than dismissing it as incompatible with the general message of The Prince.

That supposed "general message" helps us to grasp the sense in which Machiavelli may be characterized as a realist for Viroli. Specifically, Viroli asserts that Machiavelli adopts the stance of a "realist with imagination." By this he means that Machiavelli perfectly well understood the situation of Italy as it existed in his own day; this is his "realist" dimension. Yet he posits that Machiavelli was also engaged in an imaginative way to change such reality by promoting a savior, a redeemer, capable of instituting the reforms necessary to transform the realities of his day. On Viroli's account, Machiavelli pursued this agenda by mythologizing the great men of bygone times as well as some of his contemporaries. Thus, he mythologizes the redeemers whom he lauds in Chapters 6 and 26 -- such as Moses, Cyrus and Theseus -- as well as recent political figures such as Caterina Sforza and (especially) Cesare Borgia, both of whom he had encountered during his days in the Florentine civil service. Their deeds are transformed by him without regard to their actual behavior, for which Machiavelli has no use. Machiavelli's realism, then, is not confined to an effort to analyze and explain political events and personalities, past and present, in the manner of a political scientist. Rather, he renders his favored subjects larger than life, with the purpose of exhorting the redeemer to aim at their example, even if he falls short.

Posted by Marc DeGirolami on April 14, 2014 at 12:41 PM in DeGirolami, Marc | Permalink

"Micro-Christendoms"

At First Things, Peter Leithart has a very interesting essay on "micro-Christendoms" called "Rebuilding in the Ruins."  Here is the conclusion:

. . . As the Yoderites and Hauerwasites have been telling us for some time, Christendom is dead. The religious right was its last, long susperation. Though there are millions of Christians in the U.S. and Europe, Christian faith no longer provides the moral compass, the sacred symbolism, or the telos for Western institutions. America’s Protestant establishment has collapsed. Neither evangelical Protestants nor Catholics nor a coalition of the two are poised to replace it. Christian America was real, but, whatever its great virtues and great flaws, it is gone, and the slightly frantic experiments have failed to revive the corpse. It’s past time to issue a death certificate.

That’s a sobering conclusion, and it’s tempting for Christians to slink back to our churches. For innovative, visionary pastors and civic leaders, though, there are hundreds of realistic, locally based, ecumenically charged opportunities to foster experiments in Christian social and political renewal.

Christendom is dead! Long live the micro-Christendoms!

Thoughts?

Posted by Rick Garnett on April 14, 2014 at 11:35 AM in Garnett, Rick | Permalink

April 13, 2014

Corey Reviews The Tragedy of Religious Freedom

Over at The University Bookman, Professor Elizabeth Corey (Baylor, political science) has a very generous review of The Tragedy of Religious Freedom

If you do not know Professor Corey's work (the latter noted here by Lisa Schiltz), you should check it out.

Posted by Marc DeGirolami on April 13, 2014 at 02:48 PM in DeGirolami, Marc | Permalink

April 11, 2014

Law Professors' Feb. Letter on the Arizona RFRA Amendments

The furor of the last couple months concerning various religious-freedom-related bills (wise ones and unwise ones) has died down a bit. But questions about the meaning and effects of state reiigious freedom restoration acts (RFRAs) will recur. Thus it seems worthwhile, for future reference, to post here the February 25 letter to Arizona Gov. Jan Brewer from 11 religious-liberty scholars--including three MOJers--clarifying the nature of the proposed amendments to the Arizona state RFRA in the face of a pubilc debate that increasingly (and wrongly) has threatened to tar RFRAs in general as "anti-gay" bills.

Posted by Thomas Berg on April 11, 2014 at 06:46 PM in Berg, Thomas | Permalink

Greek, Latin, and more Latin

Want to be a lawyer? It appears that the study of the classical languages has instrumental as well as intrinsic virtues.

Posted by Marc DeGirolami on April 11, 2014 at 06:59 AM in DeGirolami, Marc | Permalink

April 09, 2014

Hot Pursuit, Deliberate Speed: God and Law Man

Shon Hopwood, author of Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, has a testimony essay at Christianity Today: "God's Hot Pursuit of an Armed Bank Robber." 

The essay opens: "It didn't take a moment of genius introspection to realize that doing life my way had led to nothing but disaster and destruction. It was the summer of 2009, and I had just completed an almost 11-year sentence in federal prison for my role in five bank robberies I had committed as a foolish young man."

The story that follows is so improbable that it would make for lousy fiction if it were not true. But it makes for spirit-affirming real-life testimony. 

The essay concludes: "Through it all, from the amazing to the mundane, God loved us. Through it all, God has given us a purpose. For me that purpose revolves around repentance, loving my wife and children, sharing the grace I've been given, and using my legal knowledge to assist those who cannot afford a decent attorney. Looking back over the course of my life, I can see that although I rarely returned the favor, God hotly pursued me."

Mr. Hopwood's choice of legal metaphor is apt. The doctrine of hot pursuit in criminal law authorizes the police to chase someone into an area where there would otherwise be a reasonable expectation of privacy, in order to apprehend him, if the police have probable cause to believe that he committed a serious crime.

Mr. Hopwood's testimony is about a God who keeps up the chase, who never relents. It brings to mind another famous legal phrase, "deliberate speed." The source for this phrase, deliberately ambiguous as used in Brown II, may have been Francis Thompson's "Hound of Heaven," in which it means something entirely different from what it was taken to mean in implementing Brown. (Interestingly, the phrase "with all deliberate speed" appears to have been put in Brown II at Felix Frankfurter's urging, although he credited Holmes with the phrase. Holmes, in turn, said he derived it from English chancery practice. But Frankfurter could not find any such source.)

(HT: Fulton Sheen--"The two great dramas of life are the soul in pursuit of God and God in pursuit of the soul." Whenever I think of The Hound of Heaven, I can hear Archbishop Sheen's voice reciting it. If anyone knows of a link to an online version of Sheen reciting verses from the poem, I would be most grateful to learn of it. For now, here's RIchard Burton's recitation.)

Posted by Kevin C. Walsh on April 9, 2014 at 10:52 PM in Walsh, Kevin | Permalink

April 07, 2014

The three-part structure of RFRA's operative provision and the timing of the government's RFRA violations in Hobby Lobby & Conestoga Wood Specialties

I had occasion yesterday evening to revisit RFRA's primary operative provision, 42 U.S.C. § 2000bb-1 (included below). In reviewing its text, I was struck yet again by the way in which the statute's provision of a claim for judicial relief is a backstop of sorts to the primary way in which RFRA is to operate. Litigation under RFRA occurs only after the government has violated its rule against unjustified burdens on the exericse of religion. By the time that a claim for judicial relief has been sought, the statutory violation should have already happened: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c) (emphasis added).

This feature of RFRA raises the interesting question of when the gvoernment's violation of RFRA took place for Hobby Lobby and Conestoga Wood Specialties. This is not a question I've seen addressed anywhere, but the best candidate seems to be when the government's intent to apply the mandate to these companies regardless of their religion-based objection was sufficiently definite and imminent to ground a claim for declaratory and injunctive relief. The precise date is not apparent to me, but if I were trying to track it down, I would look for the time at which the government adopted its since-then-firm (but soon-to-be-invalidated) position that for-profit corporations are categorically unable to seek relief from the contraceptives mandate under RFRA. 

(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.


(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

42 U.S.C. § 2000bb-1

Posted by Kevin C. Walsh on April 7, 2014 at 08:38 PM | Permalink

April 06, 2014

Carozza, "Religious freedom is a human right . . . for family businesses, too"

An excellent piece, here, by my friend and colleague, Paolo Carozza (who is, among other thinks, Director of Notre Dame's Kellogg Institute): 

The Becket Fund for Religious Liberty, which is representing Hobby Lobby and the Green family, has made a number of strong arguments explaining why the government’s extreme position runs afoul of federal civil rights law and the First Amendment. But it not only violates our own laws, it also directly contradicts the most basic principles of international human rights.  As I and many other professors of international law explained in a “friend of the court” brief we submitted to the Supreme Court, international legal norms, and the legal norms of constitutional democracies in Europe and elsewhere, affirm that the exercise of religious liberty has an inherently collective and public character. They reject the notion that there can be no corporate religious freedom and that religious liberty ends where family businesses begin. The government’s position puts us completely at odds with these universally accepted understandings of religious liberty.

Indeed, the federal government’s position runs directly counter to global trends that we ought to welcome. As we point out in our submission to the Supreme Court, other nations and international bodies increasingly emphasize that businesses should not be focused exclusively on profit, but on the real human costs to society of their operations. Corporate social responsibility means that a global business must not have an “every man for himself” attitude, but should instead act in accordance with conscience, taking into account how its actions affect others. Yet in the Hobby Lobby case the government is saying not just that a business doesn’t have a conscience, but that its owners can’t be allowed to run it in accordance with their conscience. That morally laissez-faire approach is a recipe for social disaster, which is why every human rights body in the world to address the issue has pleaded for, not rejected, greater corporate social responsibility.

Posted by Rick Garnett on April 6, 2014 at 01:23 PM in Garnett, Rick | Permalink

April 04, 2014

Virginia Catholic Conference Brief in Virginia Same-Sex Marriage Case

The Virginia Catholic Conference, together with the Center for Constitutional Jurisprudence, has filed an amici curiae brief in the United States Court of Appeals for the Fourth Circuit to defend Virginia's constitutional and statutory definition of marriage. The brief is available here, together with a press statement.

Posted by Kevin C. Walsh on April 4, 2014 at 01:12 PM | Permalink

More Establishment Clause Bloat from the Second Circuit

The United States Court of Appeals for the Second Circuit has issued its latest decision in Bronx Household of Faith v. Board of Education of the City of New York. For lots of background on the case, which involves equal access to a limited public forum–public school classrooms–after hours for a religious organization that engages in, among other things, “worship,” there are several posts on the case in the MOJ archives. See also this post. The court found for the City, with a dissent by Judge Walker.

Writing for the panel majority, Judge Leval framed the case in these terms:

This appeal raises the question whether the Board of Education of The City of New York (the “Board”), in making the City’s school facilities available outside of school hours for use by outside users and subsidizing such use, may, in furtherance of interests favored by the Establishment Clause of the First Amendment, refuse to permit the holding of religious worship services.

The trouble ought to be evident already. What exactly are “interests favored by the Establishment Clause”? Are they the same as interests the violation of which would be unconstitutional? That can't be right. If they were such interests, then it would be unconstitutional for the City to permit Bronx Household of Faith to use its facilities. But it isn’t unconstitutional for the City to do so. So what are these “interests”? How is the City acting consistently with “its constitutional duties” here? What “constitutional duties”? The City has no “constitutional duties” to exclude this organization.

After resurrecting the hoary distinction between “expression” and “conduct” (never mind that the Free Exercise Clause protects “exercise”), the court continues:

the Hialeah ordinances [in the Lukumi Babalu case] were motivated by the city council’s disapproval of the targeted religious practice. The Board has no such motivation. There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services. Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion. This difference is of crucial importance in determining the reach of Lukumi’s reasoning that a burdensome regulation focused on a religious practice is constitutionally suspect and therefore subject to strict scrutiny. This reasoning makes perfect sense when the regulation’s focus on religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a particular religion or religious practice). On the other hand, it makes no sense when the regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in complying with the Establishment Clause….The Establishment Clause prohibits government from engaging in conduct that would constitute an establishment of religion, such as endorsing, or seeming to endorse, a religion. It is only to the extent that governmental conduct affects religion that the restrictive force of the Religion Clauses is operative. Accordingly, rules and policies designed to keep a governmental entity in conformity with its obligations under the Religion Clauses must of necessity focus on religious subject matter.  If the focus is not religious, the Religion Clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.

(12-13, emphasis added). I see. So a municipality can exclude religious people and organizations from access on equal terms to a limited public forum such as a public school classroom if including them would constitute not only “endorsing” religion but also “seeming to endorse” religion.

What does it mean to “seem to endorse religion”? I’m reminded of triple inchoate crimes in criminal law, like attempting to attempt to solicit somebody to commit a crime. What government exclusion of religion would be impermissible under a standard that protects an interest against appearing or seeming to favor religion? The court says that it would not be constitutionally impermissible for the government to issue the following rules: “This city shall not adopt any rule or practice that constitutes an improper burden on the free exercise of religion, or that constitutes an establishment of religion.” Or, “No school or teacher shall compel any student to participate in religious exercises, or seek to persuade any student to alter his or her religious beliefs.” I don’t understand the point of these examples. Of course those rules would be permissible. Those rules reflect what the Religion Clauses actually prohibit, not what they “appear” or “seem” to prohibit.

There are other debatable features of the majority opinion, including the extension of Locke v. Davey, which involved state subsidies, to this limited public forum case. More to the point, however, appearance of endorsement is not the standard under the Establishment Clause as misguidedly interpreted by the Supreme Court even since the Allegheny case. But as I have explained before, the endorsement test, with its emphasis on hurt feelings, offenses taken (and given), and the delicacy of the perception of personal sensibilities is at least partly to blame for what is an “inevitable” and deeply regrettable bloating of the Establishment Clause.

Posted by Marc DeGirolami on April 4, 2014 at 10:05 AM in DeGirolami, Marc | Permalink

The Progress of Defenestration

 

Following up on our friend and good colleague Robert George’s contribution addressing the firing of the Mozilla Chairman, Brendan Eich, for exercising his Constitutionally protected rights to the detriment of no one, I would like to offer a simple complementary follow-up today to reawaken the responsibility of public duties held by Catholics and all people of good will. History informs us of our duties in public life.

In the law, history plays a prominent role as it does in so many other human enterprises. Members of society in general, and this includes Catholics, must keep in mind the lessons of the past so that the same mistakes and tragedies will not be repeated in the present day. In 1947, Christopher Dawson (about whom I have written before) discussed the issue of Catholics (and, I think, all people of good will) and the dangers of their remaining passive in the face of public duty. As he said, “they prove false to their own temporal mission, since they leave the world and the society of which they form a part to perish.” There is growing evidence that over the years we Catholics and other people of good will have trusted our leaders, neighbors, and fellow workers with their agendas about the nature of public life and have failed to respond out of right and duty. A part of this evidence is that the teachings of the Church that advance the common good and therefore the commonweal are no longer not only not welcome but not permitted. Timidity rather than embracing the counsel of Sacred Scripture, “be not afraid,” describes us accurately. The Eich firing is an illustration of the totalitarian juggernaut which indecorously brands him “anti-gay” when, in fact, he made a contribution to a particular political cause joining the ranks of many other fellow Americans who concluded that Proposition 8 was a cause they wished to support out of right and duty as citizens.

The law is a part of politics and public life in our society, but there is also mounting substantiation that not all views are welcome in public debate concerning the progress of law and legal regimes; moreover, there is clear indication that some views will be stamped out because they stand in reasoned opposition to the views held by others. In the current political and evolving legal climate that is taking our nation and our world in a dangerous direction, Dawson has further wisdom that serves as a catalyst to reawaken our public duty. Although he was speaking principally of developments in the academy of the late 1950s, his words apply to public life (including politics and law) as well:

[I]f Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in the Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them. We are still living internally on the capital of the past and externally on the existence of a vague atmosphere of religious tolerance which has already lost its justification in contemporary secular ideology. It is a precarious situation which cannot be expected to endure indefinitely, and we ought to make the most of it while it lasts.

Totalitarian juggernauts are malevolent, but they have a powerful will and they can prevail, even if only for a time, and eradicate any and all opposing views. This is why it is all the more important for all people of good will today, including faithful Catholics who believe and live what Christ’s Church teaches, to take seriously the thought of Edmund Burke that for evil to prevail in the world, all that is necessary is for good people to do nothing.

 

RJA sj

Posted by Robert John Araujo, SJ on April 4, 2014 at 08:00 AM in Araujo, Robert | Permalink

April 03, 2014

What the defenestration of Brendan Eich portends

Mozilla has now made its employment policy clear.

No Catholics need apply.

Or Evangelical Christians.

Or Eastern Orthodox.

Or Orthodox Jews.

Or Mormons.

Or Muslims.

Unless, that is, you are the "right kind" of Catholic, Evangelical, Eastern Orthodox Christian, observant Jew, Mormon, or Muslim, namely, the kind who believes your religious or philosophical tradition is wrong about the nature of marriage as the conjugal union of husband and wife, and the view now dominant among secular elites is correct. In that case, Mozilla will consider you morally worthy to work for them. Or maybe you can work for them even if you do happen to believe (or should I say "believe") your faith's teaching---so long as you keep your mouth shut about it:  "Don't ask, don't tell."

You are disqualified from employment, however, if you reveal your alleged "bigotry" and "cause pain" by stating your convictions.  And you are certainly disqualified if you do anything to advance the historic understanding of marriage as a conjugal union in the public square. You see, that's what Mozilla CEO Brendan Eich was discovered to have done---he made a contribution of $1000 to the successful effort to defend marriage in California in 2008. Like the majority of California voters, he thought it best for the state to retain its conjugal marriage law. Recently that historical fact came to light. And in less than a week Eich was gone.

You can bet its not just Mozilla. Now that's the bullies have Eich's head as a trophy on their wall, they will put the heat on every other corporation and major employer. They will pressure them to refuse employment to those who decline to conform their views to the new orthodoxy. And you can also bet that it won't end with same-sex marriage. Next, it will be support for the pro-life cause that will be treated as moral turpitude in the same way that support for marriage is treated. Do you believe in protecting unborn babies from being slain in the womb? Why then "you are a misogynist. You are a hater of women. You are a bigot. We can't have a person like you working for our company."  And there will be other political and moral issues, too, that will be treated as litmus tests for eligibility for employment. The defenestration of Eich by people at Mozilla for dissenting from the new orthodoxy on marriage is just the beginning.

Catholics, Evangelicals, Orthodox Christians, Mormons, observant Jews, Muslims, and others had better stand together and face down the bullies, and they had better do it now, or else they will be resigning themselves and their families to a very unhappy status in this society. A very unhappy status indeed. When tactics of intimidation succeed, their success ensures that they will be used more and more often in more and more contexts to serve more and more causes.  And standing up to intimidation will become more and more difficult. And more and more costly. And more and more dangerous.

Posted by Robert George on April 3, 2014 at 11:38 PM | Permalink | Comments (0)

"Once we decide, there is no more hope."

Der Spiegel is running an interview with Justice Sotomayor keyed to the publication of the German version of My Beloved World (aka Meine Geliebte Welt)The interview concludes with some reflections on difficulties associated with having the final word on matters that are important to society. Because the Court's decisions are "final," it is hard for Justices in the majority to know that "there's a loser," "another side who is going to feel something negative about what has happened." And, the interview concludes, "[o]nce we decide, there is no more hope."

Perhaps something was lost in translation.

Surely the Supreme Court's supremacy does not extend to the elimination of hope. After all, spe salvi facti sumus; and that hope does not depend on the views of five out of nine.

Posted by Kevin C. Walsh on April 3, 2014 at 11:02 PM | Permalink

"Be Not Afraid"

"Be not afraid!"  These were the words with which the heroic soon-to-be St. Pope John Paul II opened his pontificate.  It is an encouraging challenge, and one that -- to me, anyway -- seems very timely.  

Yesterday was the anniversary of his death.  I remember, very clearly, that I was sitting in an auditorium at Indiana University, participating in a conference on the legacy and work of Chief Justice William Rehnquist, when someone interrupted to share the news that the Pope had passed away.  He was, and remains, a hero of mine.

A number of MOJ bloggers contributed reflections on the legacy -- jurisprudential, theological, philosophical, political, etc. -- of Pope John Paul II.  They might be worth re-reading this week (here, here, and here).  And (or), it's really tough to beat Redemptor hominis (here).

Posted by Rick Garnett on April 3, 2014 at 09:16 AM in Garnett, Rick | Permalink

Harvard conference on "Religious Accommodation in the Age of Civil Rights"

Starting tonight, and continuing through Saturday morning, a number of legal scholars -- including our own Tom Berg and I -- will be presenting at a conference, at Harvard Law School, called "Religious Accommodation in the Age of Civil Rights."  Here's the conference blurb:

Current controversies over marriage equality, antidiscrimination law, and the Affordable Care Act’s contraceptive mandate have raised conflicts between religious claims, on one hand, and LGBT equality and women’s rights, on the other. The conference seeks to deepen our understanding of the competing claims by bringing together nationally recognized scholars in the fields of sexuality, gender, and law and religion. 

I am hoping (and praying) for a civil and respectful set of conversations, unclouded and untainted by the unfair and uncharitable characterizations and accusations that have, unfortunately, seemed to dominate discussions about religious exemptions, public-accommodations laws, RFRA, etc., in recent weeks. 

Posted by Rick Garnett on April 3, 2014 at 08:58 AM in Garnett, Rick | Permalink

April 02, 2014

How many Supreme Court Justices "invest annually" in companies or funds that "directly support the production of drugs that always cause abortions"?

Over at dotCommonweal, Grant Gallicho has a post titled "On abortion, Hobby Lobby looking wobbly." Gallicho comments on a Mother Jones report by Molly Redden: "Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers." The source of Hobby Lobby's alleged hypocrisy is its retirement plan's investments in mutual funds whose holdings include Teva Pharmaceuticals, Pfizer, Bayer, AstraZeneca, and Forest Laboratories. According to Redden, these companies manufacture drugs or devices that Hobby Lobby objects to providing coverage of in the insurance offered to its employees. 

Suggesting that Hobby Lobby is insincere in its objections to facilitating the use of abortifacient drugs and devices, Gallicho suggests that "the cooperation is more direct" through these mutual fund investments than through no-copay insurance coverage. These mutual-fund investments, Gallicho asserts, "brin[g] Hobby Lobby significantly closer to the evil in question than would any premium payments that could allow employees to use contraceptive services."

I would be surprised if many shared Gallicho's assessment of moral culpability. Is an employer more morally culpable for contributing to cigarette smoking because (a) its retirement plan owns mutual funds that own shares in Altria, or (b) it purchases an employee benefits plan that includes vouchers for Marlboros at no additional cost to its employees?

Gallicho asks: "What might last week's oral arguments [in Hobby Lobby's case] have sounded like had this been reported earlier?" He is unsure. But I think it's safe to say that the arguments would have either proceeded exactly as they did or have gone slightly worse for the government.

Unlike Gallicho, the government has not challenged Hobby Lobby's sincerity. And more to the point of Gallicho's question, it is highly unlikely that the Justices would share Gallicho's assessment of comparative moral culpability. From their financial disclosures, it seems the only Justices who would be free of moral taint for the activities of companies whose shares are owned by mutual funds owned by the Justices would be Justices Kennedy, Thomas, and Sotomayor. (This is based on their 2010 disclosures, which are the most recent available at Oyez.) The other six Justices all own or have recently owned shares of mutual funds. And it is safe to assume that some of those mutual funds, particularly the broadly diversified funds, own shares in the same pharmaceutical companies that the mutual funds offered to Hobby Lobby's employees do Hobby Lobby does. Moral or theological merits of the argument aside, it would be bad lawyering to argue that these Justices bear some moral culpability for the actions of these companies because they "inves[t] annually [in funds that own shares of companies that] directly suppor[t] the production of drugs that always cause abortions." 

[Update: Edited for clarity.]

Posted by Kevin C. Walsh on April 2, 2014 at 10:03 AM in Walsh, Kevin | Permalink

Podcast on Sebelius v. Hobby Lobby

My colleague Mark Movsesian and I discuss some of the background of the case and the oral argument, with a few predictions at the end, in this podcast.

Posted by Marc DeGirolami on April 2, 2014 at 09:51 AM in DeGirolami, Marc | Permalink