Mirror of Justice

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Wednesday, November 26, 2014

John Witte named Woodruff Professor at Emory

Prof. John Witte is one of the most prolific and important law-and-religion scholars now working, and he has been a wonderful friend and generous mentor to me and to many others.  This news, about his appointment to the very prestigious Woodruff Professorship (an honor he now shares with our own Michael Perry!), is wonderful.   From the press release:

John Witte Jr.—acclaimed teacher, prolific scholar and director of the Center for the Study of Law and Religion—has been named Robert W. Woodruff Professor of Law at Emory University School of Law.

Witte, an internationally recognized legal historian and expert on Christian jurisprudence, marriage and family law, religious liberty and human rights, came to Emory in 1985. He has spent the past 29 years breaking ground in the field of law and religion, while remaining committed to his first calling as a teacher. 

“The Woodruff professors are more than teachers and scholars of distinction; they serve a broad constituency that transcends individual departments and programs,” says Provost Claire Sterk. “As a leading authority on law and religion with an impressive body of scholarship, Professor Witte has earned a place among Emory’s most distinguished faculty.”

Witte has taught more than 5,500 students in courses such as criminal law, constitutional law, legal history, marriage and family law, religious liberty, human rights, and law and religion. Emory Law students have elected him Most Outstanding Professor 12 times. The Black Law Students Association has also elected him Most Outstanding Professor. More than 100 students have published books and articles under his supervision.

Emory University has recognized his teaching with two Crystal Apple Awards, the Emory Williams Distinguished Teaching Award, the Distinguished Faculty Lecture Award and the University Scholar Teacher Award, which was matched by a national award from the United Methodist Church Board of Higher Education.

Witte has delivered more than 350 public lectures around the world and is a regular keynote speaker at academic conferences. He has published 220 articles, 15 journal symposia and 27 monographs and anthologies, with five monographs under contract.

“Professor Witte’s writings and lectures have put him at the forefront of law and religion scholars around the world,” says Dean Robert A. Schapiro. “His work is known and praised by scholars of law, theology, philosophy, ethics, politics and history alike.” . . .

November 26, 2014 in Garnett, Rick | Permalink

Sunday, November 23, 2014

Pastor Johann Christoph Arnold on "God, Sex, and Marriage"

Pastor Johann Christoph Arnold of the Bruderhof cmmunities was among the featured speakers at the recent Colloquium on the Complementarity of Man and Woman in Marriage at the Vatican. Although Pastor Arnold's address did not attract the international publicity of some of the better known speakers, such as Chief Rabbi Lord Jonathan Sacks and Pastor Rick Warren, it was no less wonderful. A special edition of Pastor Arnold's book God, Sex, and Marriage was prepared for the Coloquium and distributed to all participants.  It is a book I highly recommend.  For the special edition, I had the honor of being invited to contribute a short Preface.  Here is the text (with a warning that it is no substitute for reading Pastor Arnold's splendid book!):



There are men and women of extraordinary wisdom and insight who transcend their particular communities and traditions to be teachers of mankind.  Plato was one.  So was St. Augustine.  So were Mahatma Gandhi and Mother Teresa of Calcutta.

Are there no longer such great-souled people?  Do they exist only in the past?

No.  Pope Francis is a teacher of mankind.  So is Chief Rabbi Jonathan Sacks of Great Britain.  So is the author of the small but powerful work you hold in your hands, Pastor Johann Christoph Arnold of the Bruderhof communities.

Pastor Arnold’s wisdom derives from more than just careful reflection on the moral and existential issues he addresses.  It is the fruit of a life lived in a community dedicated to Christ-like simplicity, love, and holiness.  What may strike the reader as unique and uniquely powerful insights are, in truth, the efflorescence of the accumulated wisdom of that very special community—a community of which Pastor Arnold is a spiritual leader and from which he draws strength and vision.

So what is so often the case with great teachers of mankind is true of Pastor Arnold:  It is his rootedness in a particular tradition and community of faith that enables him to offer the larger world a profound illumination—a body of wisdom that transcends every tradition and speaks to people of every community.

In Sex, God, and Marriage, Pastor Arnold shines a powerful light on truths about the dignity, beauty, and joy of properly ordered sexuality—sexuality ordered to the loving and fruitful communion of husband and wife in a permanent and exclusive covenant ordained by a loving and merciful God.  These are ennobling, life-giving, relationship-sustaining truths that have been obscured in recent decades and even centuries by vices ranging from harsh religious legalism to narcissistic me-generation expressive individualism.

The consequences, for all who have eyes to see, could not be clearer:  the normalization of promiscuity, cohabitation, and out-of-wedlock childbearing; the emergence of the divorce culture and societal acquiescence to large-scale family breakdown and fragmentation; a veritable plague of sexually transmitted infections and diseases; the appallingly widespread destruction in the womb of children who were “unplanned” and are “unwanted” products of sexual pleasure-seeking; the objectification of self and others and the broader coarsening of attitudes and sensibilities that is inevitable when people come to regard their own bodies and the bodies of others as instruments for pursuing personal gratification; and the sadness—particularly of the young, who had been told that “sexual freedom,” in the form of liberation from allegedly “outmoded” norms of sexual self-possession and restraint, would usher in the “Age of Aquarius.” Instead, our young men and women have been bequeathed a world of broken hearts and wounded relationships; fragmented families and fatherless children; AIDS and HPV; manipulation and sexual exploitation; abortion.

So where can we find “a more excellent way”?

Pastor Arnold, drawing on the riches of the Christian understanding of the relationships between God and man, man and woman, parents and children, and body and soul, knows that it is not to be found in a return to any form of legalism.  It is, rather, a misunderstanding of sex, God, and marriage to suppose that God established marriage exclusively as a means of procreation and restricted the value and permissibility of sexual congress to those circumstances in which husband and wife are seeking a child.  Likewise, it is a misunderstanding to suppose that God established sexuality for pleasure, but restricted the pursuit of its pleasure to the marital bond.

Rather, God designed sex to unite a man and woman in a uniquely comprehensive bond—one that extends the unity of hearts and minds that is present in any true friendship into the bodily plane where,  the sexual-reproductive complementarity of husband and wife enables them to, in the words of Scripture, “cleave to one another and become one flesh.”  Sex does indeed belong in marriage, and only in marriage, and marital communion must be open to the beautiful gift of new life; but it is not a mere means—whether to procreation, as great and wonderful a good as that is, or to pleasure.  Marriage, considered precisely as a one-flesh union—a conjugal bond—is an intrinsically valuable (and unique) form of personal communion.  It is inherently fulfilling of a man and woman, as a basic community of persons, to unite in the form of relationship that is ordered to procreation and would naturally be fulfilled by having and rearing children together.  And that is true, even if the blessing of children is not, in the circumstances, possible for them.

And yet, for most couples the gift and joy of children is indeed possible—if only they keep their hearts open to receiving little ones as the fruit and most complete fulfillment of their marital love.  Children should never be regarded as just another lifestyle choice, much less a burden; nor should we treat the care of children as drudgery.  And in caring for children, we must always place the child’s need for love above all else. As Pastor Arnold teaches, among our first duties to children is to preserve childhood itself by, among other things, protecting the innocence of children.

But now I am saying clumsily and in a complicated way what Pastor Arnold says so beautifully and simply.  So I will detain you no longer, gentle reader.  I leave you in the company of a teacher of mankind, a witness to hope, a friend of God.  His words will bless you.  Please let them guide you.


Robert P. George

Princeton University

November 23, 2014 | Permalink | Comments (0)

Great "Christ the King" resources from Fr. Barron

Available here.  I particularly liked this one, about the Cristero War.

November 23, 2014 in Garnett, Rick | Permalink

A short response to Greg Sisk regarding the President's speech and order

Like Greg, I think that a Catholic must be a Catholic before he or she is a partisan and that it is entirely appropriate for leaders to invoke Biblical themes and words in public-policy speeches (although there seems to me to be a clear and tiresome double-standard used by most commentators with respect to such invocations).  And, for what it's worth, I am inclined, at present, to think that the substance of the order is good policy.  We do need, and have needed for a while (as both President Bush and Sen. McCain believed), "comprehensive" and just immigration reform.  

I am not sure I'm on the same page, though, with respect to what I take to be Greg's suggestion that we can characterize the speech as "masterful" or make confident predictions about the President's political goodwill without first coming to some conclusions about the "legality of his executive order."  A well-delivered speech with inspiring content is, it seems to me, praise-worthy if it is delivered in the context of an act that the speech's deliverer believes, in good faith, to be lawful.  But, if delivered to defend an action that the deliverer believes or should know is not legally authorized, then it seems to me that even a speech that is excellent in terms of craft is not praise-worthy.    

Respect for the rule of law -- which, in our context, means respect for the structural features and limits in our Constitution and for the President's obligation, even if he or she is frustrated by Congress's failure to enact the legislation he or she would like to see enacted, to faithfully execute the laws Congress has made -- is, it seems to me, as "Catholic" a principle as is welcoming solidarity with the immigrant and the stranger.  (And again, to be clear, I believe that our immigration policies should be in keeping with this welcoming solidarity.)  

All that said, I do not yet have a firm view on the issue of the order's legality, but I do have serious concerns and questions.  And, I believe that even those of us who approve of the substance of the order should care, a lot, about whether the order really is within the President's constitutional authority.  We should be troubled -- conservatives and liberals, Catholics who embrace the Church's social teachings those of us who support immigration reform, all of us -- by what seems to me to be the widespread attitude that the "power" question does not really matter, as long as we like the policy, and that Congress's failure (or, shouldn't we say, decision not) to act somehow creates power in the Executive.      

November 23, 2014 in Garnett, Rick | Permalink

Christ the King, political theology, and Fr. Miguel Pro.

Today is the Solemnity of Christ the King.  In my experience, preachers in Catholic parishes don't know quite what to do with this Feast.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

So . . . Here is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.

November 23, 2014 in Garnett, Rick | Permalink

Friday, November 21, 2014

Obama's Immigration Speech: Masterful

You shall not oppress or afflict a resident alien, for you were once aliens residing in the land of Egypt. (New American Bible, Exodus 22:20)

As anyone who has visited the Mirror of Justice knows, my political affiliation is Republican, which I believe is consistent with my Catholic values.  But when the two conflict, the principles underlying Catholic teaching must take priority.

So let me give credit where credit is due:  President Obama's speech last night was masterful.

I am not saying that I agree with the wisdom of his exercise of executive authority on this matter.  Nor do I mean here to come down on one or the other side of the debate on the legality of his executive order.

But, setting the means to one side for a moment, the substance and style of President Obama's address to the nation were admirable.  He was conversational, while also being eloquent.  He offered thoughtful points, not merely rhetoric, without dragging on at length (as he is wont to do).  He explained not only what he was doing, but also the many things he was not doing, exemplifying some measure of prudence.

He was generous toward those who disagree with him, not showing any of the petulance that some have perceived in the days since the Democratic defeat in the midterm elections.  He forthrightly addressed the difficult questions, not bypassing them.  He explained his reasoning on those issues, seeking to find a consensus path.  I do recognize that some will respond to the President's action by refusing thereafter to consider legislative immigration reform.  This would be a mistake of both strategy and policy.  There remains much work for the Congress to do on immigration.  President Obama has not preempted that work.  And he will prove, I believe, to be a willing partner in that political process from this point onward.

And President Obama spoke from the heart and reflected well on the American character.  His closing with Scripture -- the passage reminding the people of Israel to be generous with those who are strangers in the land for they were once strangers in a foreign land -- was right on the mark and should strike to the heart of every person of faith.  (I am saddened that some conservatives, I hope in the heat of the moment, have suggested that quoting the Bible was somehow out of bounds.  Recalling what Jesus told his disciples when they complained that some people not of their group were doing works in his name, we should celebrate when others send forth the Word of God.  Mark 9:38-40:  Jesus:  "For whoever is not against us is for us.").  I've set out above the passage from Exodus that President Obama used, from the New American Bible frequently used by Catholics.

But please, and I say this especially to my fellow Republicans who are understandably dubious about President Obama's policies and motivations, don't take my word for it.  Invest the very few minutes necessary to listen to the speech in its entirety and do so with an open heart before making a judgment.  For convenience, I link directly to it below:


November 21, 2014 in Sisk, Greg | Permalink

The interpretive significance of the Constitution's positivity in a classical natural law jurisprudence

At The Originalism Blog, a recent post by Mike Rappaport distinguishes among "three main arguments for originalism" and explores a hybrid approach "that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law."

The three main arguments for originalism Rappaport identifies are: "1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law)." Later in the post, Rappaport links "the positivist theory" to a theory that relies on a "rule of recognition." This linkage makes clear that the third kind of argument in Rappaport's taxonomy really is "positivism" rather than simply about the original meaning of the Constitution being positive law. This distinction is important because positivism need not be the only game in town when it comes to jurisprudential frameworks for (1) understanding the Constitution as positive law, or (2) underwriting a positive-law-based argument for some form of constitutional originalism. 

In particular, it seems to me that classical natural law jurisprudence has the potential to provide a powerful set of arguments for something like what Steve Sachs has recently (and aptly) called "original-law originalism." To be clear, I do not contend that classical natural law jurisprudence on its own does (or can) prescribe anything nearly as specific as, say, original-law originalism. The idea instead is that classical natural law jurisprudence may be able to explain the kind of positive law that the Constitution is in a way that supports original-law originalism as a jurisprudentially superior approach to rival theories of constitutional interpretation. 

This post is but a stab at a start. Whether to continue this inquiry and how far to take it will depend on how well arguments that I have not yet worked out actually do work out. (For earlier analysis and discussion of some issues that I may touch on, see this exchange between Robert George and James Fleming published in 2001 in the Fordham Law Review: George essay, Fleming critique, George reply, Fleming surreply, additional comments by George).

A good place to begin is classical natural law theory's account of the law's authority. Finnis writes:

Natural law theory's central strategy for explaining the law's authority points to the under-determinacy (far short of sheer indeterminacy) of most if not all of practical reason's requirements in the field of open-ended (not merely technological) self-determination by individuals and societies. Indeed, the more benevolent and intelligent people are, the more they will come up with good but incompatible (non-compossible) schemes of social coordination (including always the 'negative' coordination of mutual forbearances) at the political level--property, currency, defence, legal procedure, and so forth. Unanimity on the merits of particular schemes being thus practically unavailable, but coordination around some scheme(s) being required for common good (justice, peace, welfare), these good people have sufficient reason to acknowledge authority, that is, an accepted and acceptable procedure for selecting particular schemes of coordination with which, once they are so selected, each member of the community is morally obligated to cooperate precisely because they have been selected--that is, precisely as legally obligatory for the morally decent conscience. (CWJF IV.5.114-14)

Situating the Constitution of the United States within this account, the moral obligatoriness of the Constitution takes the form of legal obligation to cooperate with the Constitution as the posited scheme of coordination for serving the common good.

(Note: References to the Collected Works of John Finnis will take the form "CWJF Volume.Chapter.Page(s).)

November 21, 2014 in Walsh, Kevin | Permalink

Programming note: Religious freedom and pluralism at Princeton

In a few days, I'll be joining what looks to be a fascinating group of scholars at Princeton's Program in Law and Public Affairs for a conference called "Religions, Rights, and Institutions."   I'm presenting on a panel called "Secular Carve-outs in a Religious World; Religious Carve-outs in a Secular World."  I expect to be challenged by several of the papers, including Mary Ann Case's "Why 'Live-And-Let-Live' Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights" and Larry Sager's "Why Churches Can Discriminate".  Stay tuned!

November 21, 2014 in Garnett, Rick | Permalink

Jody Bottum on the new heresies and shunning

A perceptive essay, here, at The Weekly Standard.   Bottum observes (among other things) that the movement from "religious" to "spiritual" to secular has not -- far from it -- erased the impulse to cast out the heretic.  A taste:

Our social and political life is awash in unconsciously held Christian ideas broken from the theology that gave them meaning, and it’s hungry for the identification of sinners—the better to prove the virtue of the accusers and, perhaps especially, to demonstrate the sociopolitical power of the accusers. Moreover, in our curious transformation from an honor culture into a full-fledged fame culture over the past century, we have only recently discovered that fame proves just as fragile as honor ever was, a discovery hurried along by the lightning speed of the Internet. Twitter and Facebook may or may not be able to make someone famous, but they can certainly make someone infamous in the blink of an eye. And because sinners’ apologies never receive the same publicity as their sins, the Internet both casts its targets from the temple and leaves them out there, lost among the profanities.

November 21, 2014 in Garnett, Rick | Permalink

An important religious-freedom ruling in Germany

According to this report, "the German Federal Constitutional Court (Bundesverfassungsgericht) has upheld the right of churches and other religious institutions to request their employees to abide by their religious and moral ethos. The case concerned a doctor working at a church-owned hospital who was fired after he got divorced."  

November 21, 2014 in Garnett, Rick | Permalink

Matthew Rose on "Tayloring Christianity"

Charles Taylor is rightly regarded as one of the great philosophers of the age, Catholic (as he happens to be) or not. I much admired his 1992 tome Sources of the Self and regard some of his earlier papers as essential contributions to contemporary political and social theory (see, eg, the paper "Atomism" in volume 2 of his Philosophical Papers). But I found his widely renowned and commented upon A Secular Age (2009) frustratingly diffuse. I also had a hunch that the cultural diagnosis (and remedy) of my former teacher Alasdair MacIntyre was more acute but couldn't quite put my finger on the differences between Taylor and MacIntyre. Along comes my friend Matthew Rose with this splendid essay at First Things on Taylor. Here is an excerpt from Rose's conclusion, but read the whole thing to appreciate the range of his deep and critical engagement with Taylor:

The failure here is not that Taylor sets aside the authority of dogma and discourages us from entering more deeply into the wisdom of the Christian past. That’s something we’re all familiar with, not just in our secular culture that can do without the Church’s teaching, thank you, but in our own thinking as well. Taylor rightly describes our experience of modern faith as riven with contingency. Those committed to the Church have lots of interior ways to set aside the authority of dogma, even as we affirm it.

No, the failure is much greater and potentially more debilitating. By assimilating a secular way of believing with the essential content of Christian faith, A Secular Age sanctifies and makes absolute precisely what we should regard as contingent—the age in which we live. This is not to say that much of what Taylor writes about the ways secularity has altered our culture and our sense of self is wrong and should not shape academic debates. His descriptions of the secular age are compelling and deserve the wide discussion they have inspired.

But if it is true that we have reached the end of an era and now live in a secular age, it will be even more important for Christians to know what has been lost and why. This Taylor will not and perhaps cannot teach us. Instead, he makes secularism invincible to the radical criticism it most needs. Like all Hegelians, Taylor is an apologist for the present, a theologian of the secular status quo.

Alasdair MacIntyre also diagnosed our culture as fatigued by the mutual antagonisms of rival traditions. MacIntyre, however, maintained a chastened confidence in the power of human reason to guide us toward the perfected understanding that is the end of all inquiry. Our confusions and disagreements, he wrote in his Gifford Lectures, “can be a prologue not only to rational debate, but to that kind of debate from which one party can emerge as ­undoubtedly rationally superior.”

MacIntyre combated the prejudice, uncritically affirmed by Taylor, that secular modernity is a historical dispensation from which there is no intellectual escape. He called his work a “radical renovation” of classical traditions of thought. Its most important consequence has been a growing confidence that the work of human reason can be undertaken in a context broader than that of modernity.

We would do well to listen to Taylor, but apprentice ourselves to MacIntyre. For Christians in a post-Christian culture will need to think in terms of the most expansive of all temporal horizons—a time, bounded by the beginning and the end of God’s holy purposes, that Augustine, writing at the end of another ­epoch, called the saeculum.  


November 21, 2014 in Moreland, Michael | Permalink

Wednesday, November 19, 2014

Mumford on the Notre Dame Center for Ethics and Culture's Conference on Poverty

I am late posting about this, but the recent conference at the Notre Dame Center for Ethics and Culture, "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor," was a superb event that reflected the best thinking from a range of disciplines on the issue of poverty. The keynote addresses by Nobel Laureate James Hickman, Alasdair MacIntyre, John Finnis, and Gerhard Cardinal Müller were rich in insights from economics, philosophy, and theology, as were the breakout sessions. I can do no better than this summary from James Mumford (University of Virginia Institute for Advanced Studies in Culture). A bit from Mumford's conclusion:

One lasting impression of Notre Dame’s “Your Light Will Rise” conference was the way that Catholic social teaching—from Leo XIII’s famous encyclical Rerum Novarum (1891) onwards—defies the left-right axis. Thus, in interview Cardinal Gerhard Müller, the prefect of the Vatican Congregation for the Doctrine of the Faith, could on one hand speak of the necessity of “facing head-on the effects of a system that places profit at its center,” while on the other emphasizing that Pope Francis’s conception of poverty “[goes well] beyond a merely economic conception of poverty.” For his part, Patrick Deneen, the political thinker who shone in the debate that closed the conference, came at capitalism from a conservative standpoint, lamenting, among other things the loss of tradition and the anonymity of markets.

This defiance of the left-right axis, so clearly on view in Notre Dame last week, suggests not only why Catholic social thought has so much further to run. It also suggests why, given how fed up a growing part of the electorate is with the level of political polarization, Catholic social thought should be increasingly heard.

November 19, 2014 in Moreland, Michael | Permalink

Being Worthy of the Dead

Today is the anniversary of Abraham Lincoln's "Gettysburg Address," delivered on this date in 1863. The address is short and most people have a dim recollection of the first few words of it. But on reading it again, I was reminded of one of its central messages--that the dead, and their efforts and sacrifices, consecrate and even redeem the living, if the living attend to and pursue the projects of the dead. The living must be dedicated to the projects of the dead, and must aspire to be worthy of the dead. A rather unfashionable message indeed in our own time:

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

November 19, 2014 in DeGirolami, Marc | Permalink

Tuesday, November 18, 2014

Animus-based invalidation of really old man-woman marriage laws

I guess I should have been reading blog posts instead of law review articles. A little earlier today, Dale Carpenter published a Volokh Conspiracy post criticizing one part of Judge Sutton's rational basis analysis in DeBoer v. SnyderThe first link in that post is to an earlier VC post by Professor Carpenter about a district court decision holding unconstitutional a Michigan law prohibiting localities from extending benefits to employees' same-sex domestic partners. And that earlier post includes a discussion about the scope of animus-based arguments against legal definitions of marriage as the union of one man and one woman. After identifying five factors for an animus analysis (textual, contextual, procedural, effectual, and pretextual) and contending that they show the unconstitutionality of the state constitutional amendments that "constitutionalized marital definitions of the first time," Professor Carpenter turns to the marriage statutes that preceded these amendments. He writes: 

Even the remaining exclusion of same-sex couples from marriage reflected in longstanding state statutes may be vulnerable to animus attacks based on the other objective factors noted above. It can hardly escape notice that states have consciously and steadfastly refused to include same-sex couples in their marriage statutes, in addition to specifically excluding them through anti-SSM state constitutional amendments and through state "mini-DOMAs" that deny all recognition to married same-sex couples from out of state. A failure to include, as well as an affirmative act to exclude, may also reflect animus against a class. That is at least a question the Supreme Court may now consider.

If animus-based invalidation extends to encompass statutory definitions from the late-eighteenth and early-nineteenth century, then the remedial question asked in my prior post has an easy answer. The remedy for animus-based invalidation of state constitutional amendments defining marriage as the union of one man and one woman cannot be a return to the status quo ante because that status quo was also unconstitutional.

This expansive understanding of animus seems to present problems of its own. For example, Professor Carpenter describes animus analysis as a type of purpose-based constitutional test. But it would not have been possible to form the purpose to exclude same-sex couples from marriage at least until it was possible to conceive of marriage as potentially including same-sex unions. That may be why Professor Carpenter focuses on conscious and steadfast refusal to expand marriage definitions, which in turn would seem to raise a state action problem. In any event, I wanted to link to Professor Carpenter's posts because they contained one answer to the question asked in my last post.

November 18, 2014 in Walsh, Kevin | Permalink

Why isn't the remedy following from animus-based invalidation of more recent marriage laws return to the status quo ante?

Judicial holdings of unconstitutionality come in various shapes and sizes. And the shape and size of the judicial remedy following from an unconstitutionality holding depends in significant part on the substantive constitutional law that specifies the precise nature of the constitutional problem identified. These are uncontroversial commonplaces.

There is often room for controversy, though, over just how the relationship between right and remedy should be specified in particular cases. One aspect of Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder that has not received as much attention as it should is his discussion of the limited remedy that would follow from invalidation of relatively recent state constitutional amendments regarding marriage on the ground that they were enacted out of anti-gay animus. This discussion comes at the end of Part II.D of his opinion, right in the analytical middle of his examination of the constitutionality of man-woman marriage definitions. (The analysis of animus-based invalidation is in the fourth of seven sections in Part II.) But the groundwork for the argument appears in Part I, where he discusses the genealogy of current marriage law in each of the four states whose definitions of marriage were at issue.

Michigan, Kentucky, Ohio, and Tennesse each defined marriage as the union of one man and one woman well before same-sex marriage was contemplated in any state. Each of these four states also enacted a constitutional amendment locking in the man-woman definition in the first decade of the twenty-first century. Sutton contends that the argument for animus-based invalidation is limited to these constitutional amendments, and that accepting that theory of invalidation would simply return each state's marriage law to the pre-amendment status quo: 

Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman--definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States' other marital laws on state constitutional grounds. No one filed such a challenge here, however.

This argument sounds right to me. But perhaps I misunderstand the scope of the argument for animus-based invalidation. If heteronormativity equals animus, for instance, then the argument for invalidation runs all the way down and back. But if a "go-slow" rationale for maintaining the pre-Goodridge status quo could defeat an animus argument against a state's more recent marriage amendment, as Dale Carpenter has suggested might be the case (see fn. 31) while also suggesting there may be other constitutional problems apart from animus, then codification of the heteronormative status quo in the late eighteenth or early nineteenth century is probably not vulnerable to an animus-based attack either. Hence the title of this post: Why isn't the remedy for animus-based invalidation of more recent marriage laws return to the status quo ante?

November 18, 2014 in Walsh, Kevin | Permalink

Monday, November 17, 2014

Vatican Colloquium on the Complementarity of Man and Woman in Marriage

It was an extraordinary day at the Vatican Colloquium on the Complementarity of Man and Woman in Marriage.  Pope Francis adddressed what he called the "crisis" in marriage and declared that children have a right to a family with a mother and a father.  The point was then stressed by Cardinal Gerhard Muller, Prefect of the Congregation for the Doctrine of the Faith in his address.  Pastor Christoph Arnold of the Bruderhof communities followed with a passionate defense of marriage against contemporary currents of thought that trivialize it or reduce it to something concerned mainly with the satisfactions of adults, and not with the need for children to have the care and influences of mothers and fathers in the marital bond. Rabbi Lord Jonathan Sacks then offered a brilliant account of the development of the idea of marriage as a conjugal union of sexually complementary spouses and a critique of ideologies that weaken the marriage culture, with devastating effects on the weakest and most vulnerable members of society, especially children and the poor.  His remarks were given a lengthy standing ovation. Sister Prudence Allen followed with a tightly argued philosophical defense of complementarity.  And that was just the program for the morning! We also heard moving and insightful presentations from Nigerian Anglican Archbishop Nicholas Okoh (on why African Christians will not yield to liberal individualist and relativistic ideas about marriage and sexual morality), Dr. Rasoul Rasoulipour (offering an Islamic defense of marriage as a male-female union), and the Venerable Niso Takeuchi (giving us a Japanese Buddhist perspective). Dr. Harshad Sanghrajka represented the Jain tradition and Dr. Janna Matlary, the former Secretary of State of Norway, provided an assessment of the cultural and political challenges facing those of us in the West who are determined to defend marriage as a conjugal union and rebuild the marriage culture.  Tomorrow we will hear from Pastor Rick Warren, Dr. Russell Moore of the Southern Baptist Convention, and Dr. Jacqueline Rivers, among others.

November 17, 2014 | Permalink | Comments (0)

Thoughts about a Catholic university's curriculum

Here are some comments that I emailed in, in response to a request by the University of Notre Dame's Core Curriculum Review Committee.  They connect with and echo things that various MOJ-ers have said and thought about over the years, and I thought they might be of interest:
[It] seems to me that the University of Notre Dame, given its aspiration and its vocation to be the world's great Catholic research university, should be proud, and not afraid, to affirm that there are indeed things that a student who graduates from a great Catholic research university should know.  It seems that, in some quarters, it is thought unfashionable, nostalgic, or reactionary to insist that there really are things -- propositions, names, dates, facts, arguments, hypotheses, etc. -- that an educated person should know, and should know as *true.*  We cannot think critically and well, after all, if we don't know enough to know what we should be thinking critically about.  The move at many universities, including the ones I attended, away from "core" curricula and courses to all-elective programs is often defended as liberating, but I think this move, if taken too far, is a mistake.  A Catholic research university, even one with students as gifted and accomplished as ours, should still embrace proudly the responsibility to make sure our graduates not only know how to do certain things but also *know* certain things.  And, as Richard Brodhead (the past President of my own alma mater) suggested, Notre Dame should not worry too much about doing what other top-tier research universities are doing, at least when it comes to questions about the relationship between the University's interesting and distinctive -- and interesting *because* distinctive -- character, on the one hand, and its decisions about the curricular content and moral formation, on the other.  We already have a Princeton and a Duke (and an Ohio State and an Illinois), and others like them, but there's really only one Notre Dame.   
What those things are is, of course, a question the Committee is considering and answering that question is difficult.  My point here is just that, in my view, a university like ours should have a Core Curriculum and it should care, at least to some extent, about the content of what is actually conveyed in required or requirement-satisfying courses, and not just those courses' general area (e.g., "history", or "philosophy").  If we are not willing to attend, at least to some extent, to the content of, say, the courses that satisfy the Theology, Philosophy, and History requirements, then it is arguably more difficult to justify the requirements themselves.  It is important not just that our graduates have taken a "history" course, but that they be conversant -- at the level we want citizen-leaders to be conversant -- with the basic outline of American history and of (speaking very broadly) the story of the West.  It is worth saying, I think, not just that students should take two courses in "theology," but also to say that students will be familiar with the teachings, history, traditions, and sacred texts of Christianity.  This is not because our mission is to do remedial catechesis, but because part of our proposal to the broader society, as a Catholic research university, is that Christianity is not only true, but also worth knowing about.
I realize that this way of thinking about the questions might sound a little dated.  We talk now more in terms of "competencies" and, to be sure, there are many such competencies that we want to help form in our graduates.  My suggestion here is simply that the competencies and skills should not crowd out or substitute for the content; it is important that a student know how to think critically about a text like "The Brothers Karamazov" (or the Gospel of Mark) but it is no less important that they know about, have read, (texts like) "The Brothers Karamazov" (or the Gospel of Mark).

November 17, 2014 in Garnett, Rick | Permalink

Bainbridge on CST and Usury

Prof. Bainbridge is providing nice updates and reports from the "Catholic Social Thought and the Law" seminar he's teaching.  (Lucky UCLA students!).  Here's one on "Usury."  Check it out!

November 17, 2014 in Garnett, Rick | Permalink

A new position of interest

Mirror of Justice is not a jobs-postings site, but I thought this one might be of special and particular interest:

The Catholic Benefits Association (CBA) has had substantial success in providing a means for Catholic employers to provide health care coverage consistent with Catholic values.  It and its subsidiary, the Catholic Insurance Company (CIC), are searching for their first Chief Executive Officer.  With almost 700 member employers providing healthcare coverage for their 70,000 covered employees, the CBA and CIC seek a Catholic person who can build and manage a team dedicated to providing quality, competitively-priced, morally-compliant health care benefits for Catholic employers.   In addition to excellent leadership, marketing, and management skills, the successful candidate should also have substantial experience working with employer health plans, health benefits analysis, or group health insurance.  He or she should have a heart for the Catholic Benefit Association’s mission explained atwww.lifeaffirmingcare.com.  Those interested in applying should contact Joan Rennekamp atjrennekamp@lrrlaw.com or 719-386-3009.

November 17, 2014 in Garnett, Rick | Permalink

Pope Francis's powerful statement on the sanctity of life

Is here (HT:  Robert Imbelli at dotCommonweal).  A bit:

Fidelity to the Gospel of life and respect for life as a gift from God sometimes require choices that are courageous and go against the current, which in particular circumstances, may become points of conscientious objection. And this fidelity entails many social consequences. We are living in a time of experimentation with life. But a bad experiment. Making children rather than accepting them as a gift, as I said. Playing with life. Be careful, because this is a sin against the Creator: against God the Creator, who created things this way. When so many times in my life as a priest I have heard objections: “But tell me, why the Church is opposed to abortion, for example? Is it a religious problem?” No, no. It is not a religious problem. “Is it a philosophical problem?” No, it is not a philosophical problem. It’s a scientific problem, because there is a human life there, and it is not lawful to take out a human life to solve a problem. “But no, modern thought…” But, listen, in ancient thought and modern thought, the word “kill” means the same thing. The same evaluation applies to euthanasia: we all know that with so many old people, in this culture of waste, there is this hidden euthanasia. But there is also the other. And this is to say to God, “No, I will accomplish the end of life, as I will.” A sin against God the Creator! Think hard about this.

November 17, 2014 in Garnett, Rick | Permalink

John Allen's interview with Cardinal George

Over at Crux, John Allen has a wide-ranging and interesting interview up with Chicago's Cardinal George.  Among other things: 

He spurns the entire left/right dichotomy, calling it “destructive of the Church’s mission and her life.”

“For us, the category that matters is true/false,” he said. “I reject the whole liberal/conservative deformation of the character of our lives. If you’re limited to that … then somehow or other you’ve betrayed your vocation as a bishop and a priest.”

Other highlights of the interview:

  • George denies being a culture warrior, and says he “deeply resents” suggestions he’s not as passionate about social justice and the poor as his successor.

In the Spring of 2007, I taught a course on "Catholic Social Thought and the Law," and Cardinal George was generous enough to join the class for a session and for dinner.  He is now, as Allen puts it, "fighting for his life" against cancer, and I hope we all are praying for him.   I was also struck by this:

From my perspective, I’ve seen myself for a long time as engaging culture. Engagement is not warfare. I know that’s less dramatic to say, and people like to have drama, but calling it ‘war’ deforms what I’m about. It really denigrates my motivation, and I resent that. I’m not trying to beat anybody up at all; I’m trying to proclaim the truth of the Gospel, which I have an obligation to do. Maybe there are times I could it more skillfully, or in a way that seems less abrasive. Of course, there are some people who think it’s abrasive as soon as you say, ‘I disagree with you.’ There’s not much I can do about that.

Read the whole thing!

November 17, 2014 in Garnett, Rick | Permalink

Saturday, November 15, 2014

Common Law Constitutionalism: The Meaning of Establishment Circa 1800 in Two State Courts

In this post, I speculated about the possibility that the meaning of "establishment" might be illuminated by the English experience of the term before the Constitution's drafting. The idea would be to understand "establishment" not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.  

Our Center board member and my friend, Don Drakeman, helpfully points me to a different kind of common law evidence--uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

November 15, 2014 in DeGirolami, Marc | Permalink

A Deal for Dahlia Lithwick

Dahlia Lithwick has written a column with a very odd fundamental claim:

[H]aving covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good....

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained....

A Supreme Court built this way is going to have blind spots. But right-wing legal and political groups—who are much better at the confirmation game than their equivalents on the left—have added a final criteria that ensures the Court leans strongly in their favor. They have succeeded in setting the definition of the consummate judge: a humble, objective, nearly mechanical umpire who merely calls “balls and strikes,” in Roberts’s insincere but politically deft phrasing. This lets conservatives sell nominees who are far more conservative than liberal nominees are liberal. A Democratic-appointed justice makes the short list by having her heart in the right place, but will be disqualified for heeding it too much.

Lithwick is hardly the first to observe that the Justices all attended elite law schools or that the Court is "cloistered" by comparison with past Supreme Courts. A majority of the members of the current Court--5--were, as Lithwick notes, for a time professors and deans at such law schools. 

I'll make Lithwick a deal: in about 10 years' time (right about the time where we might, perhaps, be getting some retirements, that is), we'll all--left, right and center--make a concerted effort to get some lawyers "from the heartland" nominated by the President and confirmed by the Senate. Or we'll do that for "war veterans," a category of Justice that Lithwick says she'd like to see on the Court. Or perhaps we'll just do it for lawyers from non-elite schools--solid, strong schools like St. John's University School of Law, with the kind of smart and highly capable lawyers whom I am privileged to teach (including in Constitutional  Law!), and who have rich and rewarding lives in legal practice of various kinds. We could call it "the Progressive Court-Packing Plan" or "the Heart-Is-In-The-Right-Place Plan" or "the Real Life Plan." The cardinal rule of the Real Life Plan Deal is: no graduates of elite law schools; and absolutely, positively, never, ever, ever any law school professors.

Unlike Lithwick, I'm quite unsure just what sort of ideological mix we'd get on the Court by following the Real Life Plan. But I'll take that bet.

November 15, 2014 in DeGirolami, Marc | Permalink

Friday, November 14, 2014

And Still Another Post on Yates: The Criminal Statute Interpretation Case That Proves to be Bigger on the Inside Than on the Outside (the Tardis Case)


A couple of days ago, Kevin Walsh said that, after listening to the Supreme Court oral argument in Yates v. United States, he was tempering his prediction that the criminal defendant-petitioner in that case would lose unanimously.  At the end of the post, Kevin kindly suggested that Rick Garnett (who participated in an amicus brief in support of the petitioner) and I (who posted about Yates earlier here) might have the better of interpretive prediction this time around.

To tell you the truth, I’m not sure what the final outcome will be in Yates.  And, while I do come down on the petitioner’s side, I also don’t think that Yates on its peculiar facts presents the most important questions about how to read and apply the extraordinarily-broad obstruction of justice statute invoked here.

However it plays out in this case, I share Kevin’s reaction that the exchanges at the oral argument were remarkable.  The uneasiness expressed by several Justices about the breathtaking scope of this criminal statute may foreshadow what will come in later cases.  And those remarks suggest an increasing wariness on the Court toward federal prosecutors and over-charging, as well as growing concern about the proliferation, expansion, and severity of federal criminal statutes.

But I’ve jumped into the middle of the story.  So let me start at the beginning.

Below the fold, I will briefly sketch out the background to and issue presented in the Yates case, which is presently pending before the Supreme Court.

Then I'll explain how the arguably small and simple Yates case became the entry-point to these broader issues at the oral argument.  In the hope that you will keep reading below the fold, I offer here the Tardis teaser about the Yates case being bigger on the inside than the outside.

And once you’ve read some samples of the exchanges at the oral argument in Yates, I believe you’ll be sufficiently intrigued to continue with the discussion of these pressing issues — and to listen to the audio of this rather entertaining oral argument.

Finally, to put the deeper and more troubling issues about this broad obstruction of justice statute into a real-world context, I'll offer a hypothetical about a lawyer and a client who wishes to turn away from a life of sin.

Continue reading

November 14, 2014 in Sisk, Greg | Permalink

SSM & S5MT -- two objections answered and six federalism scholars questioned

I’ve argued previously that one can reason back from Congress’s lack of power to enact legislation requiring states to provide marriage for same-sex couples to the conclusion that Section 1 of the Fourteenth Amendment does not require states to provide marriage for same-sex couples. The argument is straightforward in form. If Section 1 of the Fourteenth Amendment requires states to provide marriage for same-sex couples, then Section 5 provides Congress with power to enact legislation compelling states to satisfy that requirement. But because Congress lacks such power under Section 5, Section 1 must not impose such a requirement.
This is a Section 5 modus tollens argument: If P, then Q; not Q; therefore, not P.
This is not a typical form of argument about the meaning of the Fourteenth Amendment. The interdependence of Section 1 and Section 5 is widely recognized, but this modus tollens argument breaks into the circle in an unusual spot. It uses the lack of congressional power to argue for the absence of a constitutional right. The argument usually runs the other way; one takes the presence or absence of a Section 1 right as a premise and uses that to draw a conclusion about the presence or absence of derivative congressional power under Section 5.
Is the usual way the only permissible way? Is there something wrong, as a matter of constitutional law, with arguing from the absence of Section 5 power to the absence of Section 1 right?
Two potential objections to Section 5 modus tollens come to mind.
One is that congressional power under Section 5 to enforce a Section 1 right is contingent on prior judicial recognition of such a right. 
This judicial pre-recognition requirement would be odd as a matter of original meaning given the evident congress-empowering function of Section 5. It would also extend beyond the requirements of current doctrine as I understand them. True, Boerne v. Flores requires congruence and proportionality between Section 5 legislation and the requirements of Section 1 as previously set forth by the Supreme Court. And given Baker v. Nelson, federal legislation that required states to provide same-sex marriage might be doomed under Boerne if enacted today. But if the Supreme Court simply had not spoken one way or the other on a constitutional right to same-sex marriage, I’m not aware of a doctrinal requirement that Congress would have to wait for explicit judicial recognition of such a right under Section 1 before enacting legislation to enforce it under Section 5.  The understanding of Section 1 underlying such legislation would be subject to displacement by a contrary judicial understanding of the requirements of Section 1 (something like a hypothetical Baker v. Nelson II (2015)). But the risk of invalidation because Congress predicts incorrectly what the Court would hold should not deprive Congress of the ability to predict. After all, maybe Congress and the Court will agree. If Congress had statutorily required states to provide interracial marriage the year before Loving v. Virginia, for example, that legislation would have and should have been valid even though enacted before the Supreme Court had explicitly confirmed the unconstitutionality of state prohibitions of interracial marriage.
A second potential objection to Section 5 modus tollens is that the legal validity of the premise about lack of congressional power simply cannot be known with the requisite legal certainty given legal uncertainty about the existence of a Section 1 right from which the existence of such Section 5 power could be derived. As long as this uncertainty persists, the assertion that “there is no Section 1 right because there is no Section 5 power” can always be met with the counter-assertion that “there is Section 5 power because there is a Section 1 right.”
This objection seems mistaken. If Section 1 right and Section 5 power stand or fall together, there is no reason in principle to think that we cannot eliminate legal uncertainty about one through legal certainty about the other. For example, we can know that Congress lacks power to eliminate equal representation of the states in the Senate. From that, we can infer that Section 1 does not provide an individual right to equal personal representation in the United States Senate. And we can be confident about the absence of such a Section 1 right even though one can generate plausible arguments for the existence of such a right from existing constitutional doctrine. 
What, if anything, can we know about Section 5 power without knowing one way or the other whether a Section 1 right exists? One place to start may a brief filed by a group of federalism scholars in United States v. Windsor. This brief expressed agnosticism about the existence of a constitutional right to same-sex marriage under the Equal Protection Clause. (I assume the scholars were similarly agnostic about the existence of such a right under the Due Process Clause or the Privileges or Immunities Clause as well, but this is not stated explicitly in the brief.) And the focus of the brief is on Congress’s enumerated powers, by which the scholars meant enumerated in Article I. The statements in the brief should therefore not be taken as assertions about the scope of congressional power under Section 5 of the Fourteenth Amendment. But in considering some of these statements about the absence of congressional power to define marriage, a question for those scholars and their lawyers is: Why not extend these claims to Section 5 as well? 
 Here are some statements from their brief about congressional power to define marriage:
‘[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.’ Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). … Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.
The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do.
[T]he federal government lacks constitutional authority to determine marital status in a blanket way.
In divisive social controversies like the debate over same-sex marriage, federalism lets each State and its citizens decide how to proceed, largely free of national pressure.
State-by-state policy diversity also facilitates experimentation, which can help resolve divisive questions reflecting deep-seated individual views about rights.
Only states can confer and define marital status under their police powers.
This Court has frequently, and recently, echoed that determining family status remains a State power.
DOMA … interferes with the States’ exercise of their reserved power to define marriage for their own purposes.
These statements support the claim that Congress lacks authority to require States to adopt a particular definition of marriage, such as one that recognizes same-sex unions as marriages. To be clear, though, the brief cautions: “Any State’s choice remains subject, of course, to the Fourteenth Amendment’s constraints, and we do not argue that state sovereignty provides any reason to narrowly construe the Equal Protection Clause. But unless equal protection requires recognition of same-sex marriage, the Constitution best protects liberty of same-sex marriage’s proponents and opponents by guaranteeing each State the right to decide for itself.” Given this reservation, it would not be inconsistent for one of these scholars to affirm Section 5 power for Congress to require states to provide marriage to same-sex couples. But why not interpret the Equal Protection Clause in light of the Constitution’s reservation of authority to the states to define marriage? 

November 14, 2014 in Walsh, Kevin | Permalink