Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Wednesday, October 22, 2014

A few minor MOJ reflections on the first feast of St. John Paul II

Today's feast day celebration caught me by surprise. When I think of the man, I think "Pope John Paul II," not "Saint John Paul the Great." He was a man, a great man; and he is a saint. But to think of him as Saint John Paul the Great puts him at too much of a distance from my experience of him from a distance. And I hold on to that experience as a source of grace.


One source of experience was personal. I attended World Youth Day in Denver in August 1993 and was part of the cheering crowd that greeted Pope John Paul II in Mile High Stadium.

Another source of experience has been through his writings, particularly his encyclicals. Three that have been influential are Veritatis Splendor, Evangelium Vitae, and Fides et Ratio.

A third source of experience has been Mirror of Justice. The spirit of Pope John Paul II has inspired many contributions to this blog. (Find them yourself!)


Two John Paul II injunctions that may be particularly appropriate at this time for a blog devoted to the development of Catholic legal theory: Be not afraid! Duc in altum! 


One final thought. The opening sentence of Veritatis Splendor bears some similarities to the well-known opening lines of Gerard Manley Hopkins, S.J.:


The splendour of truth shines forth in all the works of the Creator and, in a special way, in man, created in the image and likeness of God (cf. Gen 1:26). 


The world is charged with the grandeur of God.
It will flame out, like shining from shook foil ...

October 22, 2014 | Permalink

Feast Day of St. John Paul II

Today is the first feast day of one of our newest saints, St. John Paul II.  (And, in a happy coincidence, the wedding anniversary of not one, but two MOJ'ers: me and Rick Garnett.)

To celebrate, here are some relevant links:

"Be not afraid!"

October 22, 2014 in Schiltz, Elizabeth | Permalink

Tuesday, October 21, 2014

Notre Dame Ethics and Culture Conference: Oct 30-Nov 1

The annual fall conference of the Center for Ethics and Culture at Notre Dame is a jewel in the crown of Catholic higher education. This year's conference topic, inspired by Pope Francis, is "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor." Plenary addresses will be given by Nobel Laureate James Heckman (Chicago), Cardinal Gerhard Müller (Prefect of the Congregation for the Doctrine of the Faith), Alasdair MacIntyre (Notre Dame), and John Finnis (Notre Dame and Oxford). A concluding colloquy on whether Catholic social teaching and American capitalism are compatible will include Patrick Deneen, Hadley Arkes, James Mumford, and John Tomasi. A detailed schedule is available here.

October 21, 2014 in Moreland, Michael | Permalink

Monday, October 20, 2014

The Supreme Court of Pennsylvania's messy suspension of Justice McCaffery

By a four to one vote, five out of seven justices on the Supreme Court of Pennsylvania have temporarily suspended one of their own from his judicial duties.  The court's order is here; a concurring statement by the Chief Justice is here; and the dissenting statement is here. An earlier statement of the now-removed justice and an earlier statement of the Chief Justice are here

I have not followed all of the underlying matters closely enough to have confidence in this judgment, but my impression from afar after reviewing the order, the accompanying statements, and press reports is that the Supreme Court of Pennsylvania looks worse after this order than before. Justice Todd's dissenting statement seems sensible. Chief Justice Castille's description of his colleague as a sociopath is discreditable. Judicial ethics is not defined by rules only, but also by virtues such as temperance and judiciousness.

October 20, 2014 in Walsh, Kevin | Permalink

Sunday, October 19, 2014

Susman Godfrey, the Houston subpoenas to nonparty pastors, and the utter ordinariness of burdensome third-party civil discovery

The City of Houston has filed a preliminary response to the motion to quash subpoenas it served on five nonparty pastors seeking discovery, among other things, of these pastors' sermons. Like the mayor's initial "blame it on the pro bono lawyers" defense, the response is hard to credit as anything other than a public relations move. The response removes the word "sermons," but even as amended, Houston's subpoenas are still asking for sermons and for much more.

Consider request number 4: "All communications with members of your congregation regarding HERO or the petition." Now consider the definition of "communications": "[E]very direct or indirect disclosure, receipt, transfer, or exchange of information, inquiry or opinion, however made, whether oral, visual, in writing or otherwise, including without limitation any conversation or discussion by means of letter, note, package, invoice, statement, notice, memorandum, inter-office correspondence, telephone, telegraph, email, telex, telecopies, text message, instant message, cable communicating data processors, or some other electronic or other medium."

There is no hard and fast rule at work here, but generally speaking discovery requests like these begin with the broadest claims and then narrow from there. The word "sermons" was originally in request number 12. By the time the recipient would have arrived at that point, however, it would have been obvious that even coming close to full compliance with these broad requests would take dozens of hours. If you don't believe me, take a look at request number 1 yourself.

The specific mention of "sermons" was an unforced error that allowed recipients to provide a hook that would draw public attention to the burdensome nonparty discovery requests sent by the city. But getting rid of that one word does not change the substance of the city's requests one bit. They remain as burdensome as they were from the beginning. 

An underreported angle of this whole story thus far is the nature of the legal representation provided to the city. In particular, the Mayor's "blame the pro bono lawyers" response is hard to take seriously when the pro bono lawyers include a lead counsel team from Susman Godfrey, L.L.P. The subpoena request posted by plaintiffs' counsel went out under the signature of a Susman Godfrey associate and two partners. According to Susman Godfrey's website, the more senior partner is "lead counsel for the City of Houston in its lawsuit against a Xerox affiliate for breach of contract, fraud, and other wrongdoing in connection with billing and collection for hundreds of millions of dollars of emergency medical services provided by the City's Fire Department" and also "lead counsel for the City in its multi-hundred million dollar lawsuit against actuarial firm Towers Watson for gross negligence and professional malpractice in connection with benefits under the Houston Firefighters' Relief and Retirement Fund." The other partner is a former EIC of the Texas Law Review and law clerk for Fifth Circuit Judge Jerry Smith, currently serving as "Susman Godfrey's docket partner with responsibility for staffing client engagements across our five offices." These are very capable, experienced lawyers. At least one of them is currently handling litigation involving hundreds of millions of dollars for the city. Whether Mayor Parker was previously aware of the specific wording of specific subpoenas is beside the point.  She knows full well how lawyers like these, with the kinds of practices that they have, would have approached third-party discovery in the City's HERO case. It is therefore not credible for Mayor Parker to put distance between herself and the city's litigation strategy as pursued by Susman Godfrey. The cosmetic and minuscule amendment offered by the city in its preliminary response after Mayor Parker's attention was drawn to these particular subpoenas suggests that the city's overall litigation strategy includes deliberately imposing substantial burdens on the plaintiffs' allies. 

Mayor Parker and the city's lawyers seem to have been frustrated for months by what the city's lead counsel from Susman Godfrey has termed "the public hoopla" surrounding their case. (This characterization, for example, came in an August 2014 press release.) And by the standards of the typical business litigation dispute handled by the firm, this case does seem a bit of a circus on both sides. But the dispute over "sermons" in the subpoenas is itself a sideshow against the utter ordinariness of the burdens that lawyers inflict on nonparties every day through broad civil discovery requests. When everything settles down and the culture-war commentariat moves on, one can only hope that firm judicial management will lessen the burdens imposed by Houston's requests. 



October 19, 2014 in Walsh, Kevin | Permalink

Coeur D'Alene compelled marriage celebration lawsuit a sign of things to come

The City of Coeur D'Alene is a defendant in a federal lawsuit brought by Donald and Evelyn Knapp, a husband-wife team of ordained ministers who perform wedding ceremonies in their family business, The Hitching Post, LLC (also a plaintiff). The City has said that the Knapps' refusal to perform a same-sex marriage ceremony would violate the City's nondiscrimination ordinance. The Knapps contend that the City's threatened punishment of them would violate the First and Fourteenth Amendments and Idaho's Religious Freedom Restoration Act.  

The complaint quotes a deputy city attorney as setting forth the city's stance and explaining how that stance depends on the Ninth Circuit's recent judicial redefinition of marriage in Idaho to require inclusion of same-sex couples:

“For profit wedding chapels are in a position now where last week the ban [on same-sex marriages] would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit… If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.”

It is noteworthy that this deputy city attorney describes the celebration of marriage ceromonies as just another "service," and the Knapps' refusal to celebrate a same-sex marriage ceremony as a refusal to provide services on the basis of sexual orientation. States that have statutorily redefined marriage to be an institution open to same-sex couples have included statutory exemptions for churches and clergy that would not require them to solemnize same-sex unions. Generally speaking, they distinguish between solemnization and other services related to marriage. Because Idaho's marriage redefinition has been accomplished by the judiciary instead of the legislature, the scope of obligations that may be imposed by state law (with which municipal law must typically comply) is unclear. To be sure, it is also unclear whether the Knapps' business--in contrast with the Knapps themselves--would have fallen within a statutory exemption even if there had been one in Idaho. But cases like this highlight the kinds of questions that will arise over the next several years as cities, states, and everyone else negotiates the changes that come from the federal judicial redefinition of marriage.

Eugene Volokh has provided a persuasive analysis concluding that the city's application of its nondiscrimination ordinance to the Knapps and The Hitching Post, LLC would violate the First Amendment's prohibition of compelled speech and the Idaho Religious Freedom Restoration Act. I continue to believe that an initial question in cases like these is whether a refusal to perform marriage premised on one's understanding of what marriage is amounts to discrimination on the basis of sexual orientation so as to violate an anti-discrimination law. This is a question of the relevant municipal, state, or federal anti-discrimination law; here, a question of city law. I think that the city should reconsider its position on the meaning and application of that law. I further think that the city should reconsider its position on both First Amendment and state RFRA grounds. The best outcome very well could be a promise not to prosecute or impose liability under municipal law when doing so would violate federal law or state law, as would be the case here.

To the extent that this lawsuit is a sign of things to come, as I think it is, it would be nice if city and state officials could get the limits of anti-discrimination law right in the first instance without the need for judicial involvement. That said, it is a good tactical move to proceed directly to federal court. If one waits for prosecution in state court or to defend in state administrative proceedings, it will be much more difficult to get a federal forum for one's federal claims. 

October 19, 2014 in Walsh, Kevin | Permalink

Saturday, October 18, 2014

Lethal Injection, Politics, and the Future of the Death Penalty -- 10/24 Symposium at University of Richmond

The University of Richmond Law Review has put together a superb symposium that is to take place in just under one week. The topic is "Lethal Injection, Politics, and the Future of the Death Penalty":

America's death penalty is in a tailspin.  That much is clear from headlines about botched executions and untested lethal injection protocols.  In this symposium, we bring together a diverse group of individuals--all experts with a unique viewpoint on the death penalty--to share their expertise and spark a thoughtful, engaging conversation with each other and our audience.  We hope you will join us.

Participants include Stephen Bright, Deborah Denno, Joel Zivot, Eric Berger, Frank Green, Mark Earley, Richard Roper, Corinna Barrett Lain, Stephen Smith, John Douglass, Brandon Garrett, and Richard Dieter. Free and open to the public (with advance registration). 4.5 VA MCLE pending approval. 

Full details available here.

October 18, 2014 | Permalink

Friday, October 17, 2014

The answer to this question is "no"

"Should Religion Be Blamed for the World's Bloodiest Wars?", is the title of this book review in The New Republic.  The review is John Gray's, of Fields of Blood: Religion and the History of Violence, by Karen Armstrong.   Here's a taste:

Consistently surprising and illuminating, Fields of Blood should be read by anyone interested in understanding the interaction of religion with violence in the modern world. Relying on detailed historical analysis, Armstrong argues convincingly against the prevailing idea that religion is uniquely prone to acting violently. She is less sure-footed in her account of secular faith and the violence that has been committed on its behalf. When she refers to the “secularist bias” of modern thinking, she seems to endorse the conventional perception of the modern world as having moved away from religion. Yet the logic of her argument pushes in another direction.

Few movements have been as single-minded in their commitment to modernization as Lenin’s Bolsheviks, and few have been so virulently hostile to mainstream faiths. Yet as Bertrand Russell observed in his forgotten 1920 classic The Practice and Theory of Bolshevism, written after he travelled to Russia and talked with Lenin, Soviet communism was from the beginning as much a religion as a political project. Oddly, though it was a rerun on a vaster scale of the French revolutionary terror that she analyzes so penetratingly, Armstrong says practically nothing about the Soviet experience, or about Maoism. Yet, together with Nazism, these 20th-century state cults plant a question mark over the very idea of secularization. Certainly there has been a decline in the old authority of churches, but that does not mean religion is becoming weaker. Simultaneous with the retreat of the mainstream faiths, there has been a rise of a plethora of political religions and an explosion of fundamentalism, sometimes fused in a single movement. . . .

October 17, 2014 in Garnett, Rick | Permalink

My View About Whether Religious Exemptions Impose Third-Party Harms Is That They Always Do

Professor Amy Sepinwall has posted a paper entitled, "Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake" to SSRN. The paper has a request not to be cited without permission, so of course I won't cite (or quote) any of it, not even its publicly available abstract. I will note, however, that it mentions my name in connection with the view that religious exemptions never impose cognizable harms on third parties.

In order to avoid any confusion about the matter, permit me to make my view plain. Religious accommodations always impose harms on third parties. I have said so repeatedly in my posts on the subject. Sometimes those harms will be legally cognizable, and I have never argued to the contrary. The tricky issues do not concern questions about per se legal cognizability of third party harms. They concern the context in which those harms are assessed as a legal matter, and the standard by which they are assessed. As to that question, it is true that I believe that the existing statutory frameworks of RFRA and RLUIPA incorporate an assessment of third-party harms. Within those statutory frameworks, third party harms may, indeed, sometimes be legally cognizable.

October 17, 2014 in DeGirolami, Marc | Permalink

Religious accommodations and legal pluralism

In this piece, ("Religious accommodation's roots in legal pluralism"), Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme."  She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."

Now, for me, unlike Katherine, to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment.  (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.)  But, put that general matter aside:  Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I do not think it is the case that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority."  In practice, and in most of the arguments for religious accommodation, the conversation happens in terms of interest-balancing, toleration, benevolence, getting-along, etc.  

It is true that -- for some of us, anyway --  the idea that the state's authority is both limited and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception.  But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.  

We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control.  But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should.   There is nothing -- to use Katherine's word -- particularly "radical" about that.

October 17, 2014 in Garnett, Rick | Permalink

Thursday, October 16, 2014

Bradley, "Religious Liberty at a Crossroads"

My colleague Gerard Bradley has a good essay at Public Discourse, called "Religious Liberty at a Crossroads," in which (among other things) he engages some of the criticisms that have been made of the accommodation-and-exemptions features of our religious-freedom-protection regime.   As he writes, "US religious liberty law is not perfect, but it still deserves our support. Religious exemptions witness to the value of religion as a transcendent good."  Of particular importance, Bradley makes it clear why Christians who understand the Christian faith to be true nevertheless have a (non-relativistic, non-emotivist) reason for defending the religious freedom of non-Christians, including the Muslim prisoner in Holt v. Hobbs.

October 16, 2014 in Garnett, Rick | Permalink

More Questions About Hobby Lobby, Holt v. Hobbs, and the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick notes below, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I've talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court's footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.
First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn't deal with any of that. And so what is really going on is a failure of evidence. That's fine, but that side-steps the issue. I'm less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).
Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which "take no account" of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening "significant" burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.
Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I've said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds). 
Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It might not, because SHTEC theory is focused on non-state third party interests. But if, as I have suggested, the distinction between state interests and third party interests is not really a strong one (Arkansas was itself making arguments on behalf of its prisoners, who are third parties), then SHTEC theory certainly could grant deference to third parties in environments in which the state has greater experise, need for control, etc. If that is right, then it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn't take much more at all for it to win.

October 16, 2014 in DeGirolami, Marc | Permalink

More on the Establishment Clause, "third-party harms", and RFRA

My friends Nelson Tebbe, Micah Schwartzman, and Richard Schragger have a post up at Balkinization in which they discuss the aftermath of Hobby Lobby and the recently argued Holt v. Hobbs.  Among other things, they state that "longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs."  And, they continue, "there are five votes on the Court for the proposition that depriving Hobby Lobby’s employees of contraceptive coverage because of the company’s religious objection violates the Establishment Clause. And that is exactly what is happening right now."

It could be, I suppose, that there would be five votes for that proposition (based on Justice Kennedy's concurring opinion) but, in any event, I continue to disagree with the claim -- a claim that, I realize, other very smart friends of mine accept -- "longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs."  As I wrote, in this short essay, the argument that it would violate the Establishment Clause to accommodate Hobby Lobby (or Notre Dame, or the Little Sisters, etc.) pursuant to RFRA  relies on an overly broad reading of a few relatively short and thinly reasoned opinions, like Estate of Thornton v. Caldor.   This and the other cases relied on do not, in my view, "stand for a broad rule about the impermissibility of costly or cost-shifting accommodations.  And, to the extent that the Establishment Clause does place limits on accommodations that are excessively burdensome to the public or to identifiable nonbeneficiaries, RFRA would seem to incorporate those limits into its standard of review."  And, I added:

[T]here is broad agreement that the Constitution places some limits on the ability of governments to accommodate religious believers and institutions through exemptions from otherwise applicable rules.  An accommodation could be unconstitutional, for example, if it were not "administered neutrally among different faiths." And, again, it is true that in a few cases the Court has treated the burdens that an accommodation would impose on third parties or on the government as relevant to the question whether the accommodation is constitutionally permissible. At the same time, it is worth remembering that any imaginable legislative accommodation will benefit some (i.e., those whose religiously motivated practices are being burdened and from whom that burden is being lifted by the accommodation) more or rather than others. There is no constitutional requirement that the accommodation of religion, "permissive" or "mandatory," be entirely uncomplicated or completely cost-free."

(For a response to my essay, see Andy Koppelman's and Fred Gedick's paper, here.) 

As I see it, Nelson, Rich, and Micah are staking out a claim, and developing what is really a political-morality argument, about what ought to be the case and about how religious objections ought (or ought not) to be accommodated.  It does not seem to me that much in their argument really depends on the Court's authority, or on the binding authority of Caldor, Cutter, etc.  Caldor is just a few pages long, and contains just a few paragraphs of Chief Justice Burger's reasoning, and is devoted mainly to identifying the particular and very unusual features of the challenged law.  As I see it, it tells us very little either about what the Establishment Clause generally means and requires, and even less about the demands of political morality in a pluralistic society.

October 16, 2014 in Garnett, Rick | Permalink

Wieseltier on Sierra Leone, Ebola, and God

This piece ("This Room Is the Most God-Forsaken and Man-Forsaken Place on Earth") is gut-wrenching and heart-breaking.  Like so much of what the author does, it is -- putting aside the merits of all the claims -- brilliantly written.  Here's a bit:

The problem is that many victims will not be reached by the mitigations and the meliorations. Relief will come late or not at all. The hideous dying will proceed. And so the question of why the little girl perished cannot remain only a policy question. The death of a child deserves to be regarded as an event of cosmic significance, as a comment on the character of the universe. Gazing at Samuel Aranda’s photograph, how can one not recall Ivan Karamazov? The pandemic casts us into a search not only for causes but also for meanings. Theists can blame God, if they have the guts, since for them God exists, but atheists cannot blame God, since for them God does not exist. (“I hate You, God,” Maurice Bendrix acidly declared at the conclusion of The End of the Affair. “I hate You as though You existed.”) Atheists may blame the belief in God, but it is highly implausible to impute this disaster to the illusions of priests. Theists, who cannot tolerate the view that their God is vicious, will almost certainly invent a greater good in the great evil, and thereby protect their faith from the implications of the destroyed children. Atheists will insist that we ought to be acting practically instead of speculating metaphysically—discussing concrete fixes, not occult entities. But who is against fixes? Many of the heroes in the African charnel house are Christian missionaries. In the way of meaning, then, nobody has much to offer. Atheists ought to be struck dumb and theists ought to shut up. And neither a shaken fist nor a bowed head is a contribution to understanding. . . .

October 16, 2014 in Garnett, Rick | Permalink

Wednesday, October 15, 2014

A disenchanted courtwatcher names the best three or four cases? Not here.

Suppose one were to ask another to name the best three or four decisions that the Supreme Court has ever made, and that the answer is: Brown v. Board of Education, Marbury v. Madison, McCulloch v. Maryland, Gideon v. Wainwright, Baker v. Carr, and Reynold v. Sims. Would it be reasonable for the questioner to conclude that his interlocutor was someone disenchanted with the Supreme Court? I say no. The person providing such an answer obviously retains an enchanted understanding of the Supreme Court. But see Sahil Kapur on Erwin Chemerinsky, discussing "the progressive legal luminary's new book, provocatively titled "The Case Against The Supreme Court." 


October 15, 2014 in Walsh, Kevin | Permalink

On that controversial "relatio" from the Synod on the Family

Here is my take on the relatio released this week at the Extraordinary Synod on the Family:


October 15, 2014 | Permalink

Monday, October 13, 2014

Inazu on "Guidelines for Living in a Pluralist Society"

From Christianity Today.  A bit:

Almost all Americans agree about the background practicalities we need to live as a society. Most of us agree that we need public roads, national defense, fire departments, and the like. We also agree today on many basic features of a democratic society: the right to vote, the right to due process of law, the right to free speech. We disagree—sometimes sharply—about the contours of these rights, but we usually have enough of a baseline to recognize the nature of our disagreement. And importantly, we agree about many basic laws, like those protecting life and property, the payment of taxes, and the operation of courts and prisons.

But all of this common ground tells us surprisingly little about who we are as a people, what our goals should be, or what counts as progress. On these deeper questions, Americans remain a deeply divided and pluralistic people. . . .

I think, as a friendly amendment to Inazu, it is important to keep in mind that "pluralism" is not only "the state of things in which many reasonable people disagree reasonably with others in the political community."  It is also "the state of things in which non-state societies are real and do have and exercise authority, authority that is properly seen as constraining and marking the limits of the political authority." 

October 13, 2014 in Garnett, Rick | Permalink

Calo on "Constructing the Secular"

Here is Zachary Calo's "Constructing the Secular:  Law and Religion Jurisprudence in Europe and in the United States."  Abstract:

This paper compares the law and religious jurisprudence of the U.S. Supreme Court and the European Court of Human Rights across three legal areas: individual religious freedom, institutional religious freedom/freedom of the church, and religious symbols/church-state relations. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. While there remains significant jurisprudential diversity between these two courts and across these different legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern the West. These legal systems will increasingly be defined by their similarities more than their differences.

Like The Man says, "download it while it's hot"!

October 13, 2014 in Garnett, Rick | Permalink

Weigel on Murray's "We Hold These Truths"

Something on the interwebs steered me to this paper, by George Weigel, called "Truths Still Held?  John Courtney Murray's 'American Proposition,' 50 Years Later."  ( Download Weigel on WHTT).  It might usefully be read in connection with the ongoing debate about "radical Catholicism", American liberal constitutionalism, etc.  Here is just a taste:

. . . The bonds of this civic friendship or solidarity in America reinforced that founding consensus that gave philosophical content to Murray’s American Proposition. This consensus was, in Murray’s words, “an ensemble of substantive truths, a structure of basic knowledge, an order of elementary affirmations” that reflect the truths we can and must know by reason about how we ought to live together. No true City, and certainly no true democracy, is possible if everything is in doubt. If there is to be genuine argument, and not just cacophony or the will-to-power, there must be, Murray wrote, “a core of agreement, accord, concurrence, acquiescence,” because only if certain truths are held can there be genuine arguments. Much of modernity, Murray knew, had this exactly backwards, thinking that argument ends when agreement is reached. The opposite is more fundamentally true, in both the sciences and the humanities: real argument is only possible within a pre-existing context of agreement on certain truths. . . .

I continue to find a lot to like in We Hold These Truths, and in Murray's work, stance, and approach generally (especially regarding the church/state/society nexus) -- notwithstanding the fact that I find a lot to like in the more critical writings of Brad Gregory, Alasdair MacIntyre, Patrick Deneen, etc.  At the same time, I definitely and increasingly share what I took to be Weigel's worry that "the third truth within [Murray's American Proposition] – that the state exists to serve society, which is ontologically and historically antecedent to the state – has become attenuated in its grip on our public culture." 

October 13, 2014 in Garnett, Rick | Permalink

Sunday, October 12, 2014

It never hurts to talk about good news . . . ACE at Notre Dame

My own view is that we are in challenging times for Catholic institutions and the challenge -- but also the need and the importance -- will only grow.  At Distinctly Catholic, Michael Sean Winters has a really good piece up, talking about Notre Dame's Alliance for Catholic Education (A.C.E.) program (for which the brilliant and talented Prof. Nicole Stelle Garnett works, in addition to her Notre Dame Law School gig).   Also, here is a piece I did ("Treasure A.C.E.") on the program, about 5 years ago.  MSW's post opens with this:

On Monday mornings, the staff and faculty associated with Notre Dame’s Alliance for Catholic Education (ACE) gather in a small chapel on the ground floor of Visitation Hall for Mass. This past Monday, Father Timothy Scully, CSC, who started ACE in 1993, was the celebrant when I joined the group for the Mass. The service is simple: guests, including myself, are welcomed, an introductory hymn (2 verses, very RC), a short homily, a song at communion. The passing of the peace takes awhile as these colleagues embrace each other at the beginning of their work week. Afterwards, I threaten to report the group to the Congregation for Divine Worship because I am not sure the passing of the peace was as somber as the CDW thinks it should be. After Mass, everyone heads upstairs for a breakfast together before heading off to their offices to set about their work.

And, what precisely is that work? In shorthand, some people think that ACE is trying to save Catholic parochial schools, the educational equivalent of an architectural preservation firm. This could not be more wrong. During a morning of meetings with different staff members it becomes clear that the group has no interest in maintaining the Church’s nineteenth century infrastructure for its own sake: They are passionate about educating today’s young people in schools that are not surviving but flourishing. . . .

October 12, 2014 in Garnett, Rick | Permalink

Friday, October 10, 2014

Children's Rights Advocates Recognized

    Today the Nobel Prize Committee awarded the Nobel Peace Prize to Kailash Satyarthi and Malala Yousafzay. The awards convey several distinct messages worthy of consideration.

    First, they underscore the reality that so many children in our world, particularly girls, live in quite grave circumstances. Not only are they not afforded basic human dignity, but often they are seen as commodities and property. Indeed, the world cannot be "at peace" when such a disconnect exists between the inherent dignity of the person and institutions such as child labor and exploitation. Second, the awards again focuses the world on the significant problem of child trafficking and oppression of girls. In a world which has seemingly forgotten that over 200 Nigerian girls were kidnapped and likely sold into sexual servitude 179 days ago, a reminder of the plight of these girls is needed. This awards highlight child labor and child trafficking as very real and entrenched problems.

    In many ways these awards remind me of the 1979 Nobel Peace Price awarded to Mother Teresa "for work undertaken in the struggle to overcome poverty and distress, which also constitutes a threat to peace." These 2014 awards continue to reflect that peace is threatened and elusive when children live in conditions of objectification and oppression. That awareness is the good news. The bad news is that we stated these things back in 1979... and yet we have not seemed to be able to improve the future for these children.

Perhaps the insight Mother Teresa offered at her acceptance speech could be useful to us today. Below are some excerpts, but the full speech can be found here.  


... He was that little unborn child, was the first messenger of peace. He recognised the Prince of Peace, he recognised that Christ has come to bring the good news for you and for me. And as if that was not enough - it was not enough to become a man - he died on the cross to show that greater love, and he died for you and for me and for that leper and for that man dying of hunger and that naked person lying in the street not only of Calcutta, but of Africa, and New York, and London, and Oslo - and insisted that we love one another as he loves each one of us. And we read that in the Gospel very clearly - love as I have loved you - as I love you - as the Father has loved me, I love you - and the harder the Father loved him, he gave him to us, and how much we love one another, we, too, must give each other until it hurts. It is not enough for us to say: I love God, but I do not love my neighbour. St. John says you are a liar if you say you love God and you don't love your neighbour. How can you love God whom you do not see, if you do not love your neighbour whom you see, whom you touch, with whom you live. And so this is very important for us to realise that love, to be true, has to hurt. It hurt Jesus to love us, it hurt him. And to make sure we remember his great love he made himself the bread of life to satisfy our hunger for his love. Our hunger for God, because we have been created for that love. We have been created in his image.

                                                                            *    *    *


There is so much suffering, so much hatred, so much misery, and we with our prayer, with our sacrifice are beginning at home. Love begins at home, and it is not how much we do, but how much love we put in the action that we do. It is to God Almighty - how much we do it does not matter, because He is infinite, but how much love we put in that action. How much we do to Him in the person that we are serving.

                                                                                        * * *

And so here I am talking with you - I want you to find the poor here, right in your own home first. And begin love there. Be that good news to your own people. And find out about your next-door neighbour - do you know who they are? I had the most extraordinary experience with a Hindu family who had eight children. A gentleman came to our house and said: Mother Teresa, there is a family with eight children, they had not eaten for so long - do something. So I took some rice and I went there immediately. And I saw the children - their eyes shinning with hunger - I don't know if you have ever seen hunger. But I have seen it very often. And she took the rice, she divided the rice, and she went out. When she came back I asked her - where did you go, what did you do? And she gave me a very simple answer: They are hungry also. What struck me most was that she knew - and who are they, a Muslim family - and she knew. I didn't bring more rice that evening because I wanted them to enjoy the joy of sharing. But there were those children, radiating joy, sharing the joy with their mother because she had the love to give. And you see this is where love begins - at home.

                                                                        * * *

 Because today there is so much suffering - and I feel that the passion of Christ is being relived all over again - are we there to share that passion, to share that suffering of people. Around the world, not only in the poor countries, but I found the poverty of the West so much more difficult to remove. When I pick up a person from the street, hungry, I give him a plate of rice, a piece of bread, I have satisfied. I have removed that hunger. But a person that is shut out, that feels unwanted, unloved, terrified, the person that has been thrown out from society - that poverty is so hurtable and so much, and I find that very difficult. Our Sisters are working amongst that kind of people in the West. So you must pray for us that we may be able to be that good news, but we cannot do that without you, you have to do that here in your country. You must come to know the poor, maybe our people here have material things, everything, but I think that if we all look into our own homes, how difficult we find it sometimes to smile at each, other, and that the smile is the beginning of love.

                                                                                    * * *

I never forget some time ago about fourteen professors came from the United States from different universities. And they came to Calcutta to our house. Then we were talking about that they had been to the home for the dying. We have a home for the dying in Calcutta, where we have picked up more than 36,000 people only from the streets of Calcutta, and out of that big number more than 18,000 have died a beautiful death. They have just gone home to God; and they came to our house and we talked of love, of compassion, and then one of them asked me: Say, Mother, please tell us something that we will remember, and I said to them: Smile at each other, make time for each other in your family. Smile at each other. And then another one asked me: Are you married, and I said: Yes, and I find it sometimes very difficult to smile at Jesus because he can be very demanding sometimes.




October 10, 2014 in Leary, Mary G. | Permalink

The Passing of "Big John" Colwell

For I was in prison and you visited me.  (Matthew 25:36)

A couple of months ago, I posted two messages (here and here) about prisoner rights cases that had been won in the U.S. Court of Appeals for the Ninth Circuit through our Appellate Clinic at the University of St. Thomas, working in partnership with the University of Arkansas Federal Appellate Litigation Project.

One of those cases, Colwell v. Bannister (decision here), was handled primarily by our Arkansas partners.  The case involved a prisoner who had suffered for a decade from blindness in one eye due to a cataract, which could easily be removed by surgery.  The Nevada prison refused to approve cataract surgery despite the recommendations of his doctors.

In a published opinion, the Court of Appeals reversed the District Court’s grant of summary judgment to the Nevada Department of Corrections. In words that speak eloquently to the fundamental dignity of all persons, including our neighbors held in prison, the Ninth Circuit held “that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference.”

Shortly after the Colwell opinion was issued in August, the University of Arkansas appellate team received a letter from “Big John” Colwell saying, “I cannot express how much I appreciate you and your team.  I’m proud that you chose to represent me and went way beyond my expectations.”  Mr. Colwell also praised the information and attentive communications they had maintained with him.  He went on to say that he learned of his victory in the Ninth Circuit even before a letter arrived from the Arkansas team or they were allowed to make a telephone call into the prison.  A corrections officer had stopped to congratulate Mr. Colwell and told him that his story was in the Nevada newspapers that day.

Inside the legal academy, I know this kind of appreciation from clients who were well-served by faithful lawyers is a regular part of the experience of our colleagues who teach in clinical programs, as well as many others in law schools who do pro bono work for the disadvantaged.  So this episode might otherwise go without further mention, beyond the satisfaction taken by those of us involved with the case.

But I take the time to relate this particular story because the impact we were able to make on the life on this man, giving him a sense of dignity well beyond the success in the appeal, was brought home powerfully to me last week.  Shortly after we got the word that the Ninth Circuit had denied Nevada’s petition for rehearing en banc, we learned that Mr. Colwell had passed away in his prison cell.

Mr. Colwell’s last contacts with the world outside of prison walls were his communications with University of Arkansas Professor Dustin Buehler and students (now graduates) Lauren Eldridge and Mason Boling, who had been his counsel in this matter.  Although Mr. Colwell now will never receive the full medical treatment to which he was entitled as a human being, he did know that his rights had been vindicated.  The justice system had confirmed that he did matter.

When we agreed to take on Mr. Colwell’s case in our pro bono clinic work, he had already lost in two venues.  The prison had denied him cataract surgery, despite his requests through the prison grievance system, and the District Court had granted summary judgment against his request to be treated for blindness in that eye.  Without the diligent work, attention to detail, command of the case-law, mastery of the factual record, and powerful briefs and arguments presented by the University of Arkansas team, that loss would have been the final word on his plea for help.  Thank God that it was not and that he lived to hear the final word.  As Dustin Buehler reminds us, “Lawyering can be such a powerful tool in the hands of those who are passionate enough and dedicated enough to use our craft for good.  Let us never forget that.”

As Lauren Eldridge said so eloquently after the passing of “Big John,” to his representatives, he was not a criminal confined to a cell, but a victim:  “We saw him for who he was at the time we came into his life and did what we could to help him.”  Big John Colwell’s epitaph should read, as he often would say to his appellate counsel, “I don't know the law, but I know what's right.”

October 10, 2014 in Sisk, Greg | Permalink

Podcast on Holt v. Hobbs

My colleague Mark Movsesian and I have recorded a podcast on Holt v. Hobbs, the "prison beard case" argued at the Supreme Court earlier this week. We consider some of the briefing, the oral argument, and even some of the third-party-harms theory of the Establishment Clause that I discussed earlier. We conclude with some predictions. It's about 26 minutes long--come on over and have a listen.

October 10, 2014 in DeGirolami, Marc | Permalink

Unlikely Allies

Two women in two publication outlets representing what one would assume to be diametrically opposing world views recently both decried the same sad fact:  that 90% of fetuses diagnosed with Down Syndrome in the country are aborted.   Check it out.  See the post by Ki’tay Davidson, blogger on the Black Girl Dangerous Blog (describing its mission: as "to, in as many ways possible, amplify the voices, experiences and expressions of queer and trans* people of color"), entitled "Angry About the White Lesbians Suing for Having a Black Child:  You're Missing Something".  (Thanks to a former student, Bethany Jennings, for bringing it to my attention.)  Then see the post by Denise Hunnell on ZENIT (describing itself as "an international, non-profit news agency staffed by a team of professionals and volunteers who are convinced that the extraordinary wisdom of the Pontiff and the Catholic Church can nourish hope, and assist all of humanity to find truth, justice and beauty"), entitled, "Down Syndrome Does Not Make Life Disposable:  Why is Disdain Becoming More Acceptable?".

Is a consensus emerging?


October 10, 2014 in Schiltz, Elizabeth | Permalink

The mainstreaming of porn

As the father of three daughters concerned about how their future husbands are being formed by our culture, I notice the mainstreaming of pornography. This week "Porn Hub" put up a giant ad in Times Square, further signaling porn consumption as an accepted -- even expected -- dimension of modern life.  The ad was the winning selection from more than 3000 entries in a contest designed to identify a "SFW" marketing campaign for a service that is decidedly "NSFW." An anti-pornography site posted marked-up versions of some of the entries, redesigning them to show the real costs inflicted by pornography use.  What struck me most were the reactions to the anti-pornography site, with commentators 1) asking how these Puritans could be so uptight about something that is "harmless" and that "everyone" uses? and 2) from those who agree that porn use is not harmless, criticizing the site for trying to shame pornography users (not by naming them, mind you, just by condemning the use of porn), and that the better tactic is to express sympathy for, and offer support to, porn users.

Two responses: 1) Porn is not harmless, and there is increasing evidence of its destructive nature that is accessible even to the non-"Bible thumping" crowd.  2) Offering support is important, but consumers of porn need to understand the potential harms before support is even relevant or possible.  Our society has largely turned a blind eye to the rise of pornography.  We are not in a place where a conversation about turning away from porn can find wide traction; first we need to reengage the reasons why the consumption of porn used to be shameful.

When I lived in NYC, I once called the City to complain about an extremely inappropriate (in my view) Calvin Klein billboard that had just been put up in the middle of Manhattan.  The operator spent ten minutes trying to identify a category in which to place my complaint -- there was no category for indecency, inappropriate advertisements, etc.  Finally she gave up and transferred me to the local precinct of the police department.  Ten years later, are we losing our capacity to recognize a basis for complaining about porn?

October 10, 2014 in Vischer, Rob | Permalink