Saturday, February 17, 2018
Princeton University, where I have had the privilege of teaching for more than thirty-two years, recently received a black eye in the media when Anthropology professor Lawrence Rosen cancelled his course "Cultural Freedoms: Hate Speech, Blasphemy, and Pornography" after several students were offended by his saying--purely and unmistakably for bona fide pedagogical purposes--a racially derogatory word. Here's an update from Reason magazine on the matter.
I stress that Professor Rosen's mentioning of the word, which he did several times (as he had done in previous classes on culture and free speech with no adverse reaction), was pedagogical. No one was in any doubt about that. No one could possibly have been in any doubt about it. The idea that Lawrence Rosen, whom I have known since I arrived at Princeton in 1985, is a racist is beyond risible. He is a person of decency and upright character in every way. There isn't the slightest trace of animus in the man. He treats all of his colleagues and students with respect. As it happens, he is also one of the Princeton's most brilliant and eminent social scientists. He is MacArthur genius award winner, among countless other distinctions. It is painful for me personally, as I know it must be in even greater degree for him, to see his name dragged through the mud for allegedly (as some media misleadingly put it) "using a racial slur."
It is important for people to know another thing about the incident. Princeton did not pressure or even ask or encourage Professor Rosen to cancel his class. No pressure was placed on him by colleagues or administrative officials of the Department or the University. Princeton's president, Christopher Eisgruber, strongly defended Professor Rosen against the smears to which he was subjected and expressly and forcefully supported his right to use the words he deemed necessary and suitable to accomplish his pedagogical mission in teaching about hate speech and related issues. The same is true of Professor Carolyn Rouse who chairs Princeton's Department of Anthropology. Neither President Eisgruber nor Professor Rouse deserves to be counted among those college and university administrators around the country who have brought shame on themselves and their institutions by caving in to demands for speech policing and the curtailment of academic freedom. Quite the contrary. Both deserve high praise for standing up for freedom of expression on campus and other core academic values.
Why did Professor Rosen elect to cancel his course? I do not know the whole story, but I do know that he made the decision in light of his judgment that cancellation was in the interests of the students who had enrolled in the course. I do not know how that could be, but I haven't the slightest doubt that this was in fact Professor Rosen's sincere judgment and motivation. He is not a coward and would never yield to intimidation tactics. I know that some students who privately told Professor Rosen they wanted the course to continue were too afraid to speak out publicly. Evidently they feared being defamed as "racists" or "bigots." That makes me sad. As Professor Rosen told his students, the surest way to lose freedom is to remain silent in the face of efforts to squash it.
February 17, 2018 | Permalink
Thursday, February 15, 2018
My colleague, Mark Movsesian, and I are pleased and honored to announce the fourth biennial (how many years is that?) Colloquium in Law and Religion, to be hosted at St. John's in fall 2018. This seminar invites leading law and religion scholars and judges to share their work in law and religion before a small audience of students and faculty. Here is the slate of speakers:
September 17: Professor Robert Louis Wilken (University of Virginia, Emeritus)
October 1: Professor Philip Hamburger (Columbia Law School)
October 15: Professor John Inazu (Washington U. St. Louis School of Law)
October 29: Professor Micah Schwartzman (University of Virginia School of Law)
November 12: The Honorable Diane S. Sykes (U.S. Court of Appeals for the Seventh Circuit)
November 26: Professor Vincent Phillip Muñoz (University of Notre Dame)
To read more about past colloquia, please see these links:
Wednesday, February 14, 2018
We can't serve dishes made with quick-melting Ched-O-Bit any more, so I'll be running out later today to pick up some tomato soup instead. No need to wait, though to enjoy Amy Welborn's "Gallery of Regrettable Lenten Food."
A taste of the advertising copy: "Is Lent a Problem? 'No!' ... says Chef Ernest Cuony of New York's Fashionable Hotel Barclay. 'You've shown me, Mrs. America, that it's not necessary to sacrifice deliciousness and flavor in order to 'toe the mark' during Lent. As a matter of fact, your pure, wholesome, delicate-flavored WESSON OIL gives--how you say it?--'oomph' to even every-day dishes.'"
Monday, February 12, 2018
Fr. Drew Christiansen, S.J., has this piece in America, defending "the Holy See’s possible rapprochement with the China’s Communist government on the appointment of bishops." I'm among those who has expressed grave reservations about such a move and I continue to regard the attitudes expressed by its defenders as quite naive. To be clear: to harbor and express such reservations is not to throw in with those who criticize in various ways the papacy of Pope Francis. This is a particular decision, I think, and I'm addressing it in particular -- though it is consonant with some recent and strikingly foolish statements made by a particular bishop to the effect that China is a world leader in implementing Catholic Social Teaching. It most certainly is not.
Fr. Christiansen's piece is worth reading, but one of his several suggested defenses strikes me as quite weak:
Anti-communist Catholicism: Time for aggiornamento? It has been 55 years since St. John XXIII’s encyclical “Pacem in Terris”(“Peace on Earth”). At the time of its publication, the letter’s most controversial affirmation was its opening to dialogue with political parties of the left, including the Italian Communists. Pope John himself penned the line that distinguished between adherents of an errant ideology and the ideology (Marxism) itself. “Pacem in Terris” cleared the way for a new relationship with the Communist governments of Eastern Europe and the re-establishment of the Catholic Church in the East. But even with shifts in the policies of the People’s Republic, that opening to Communists has not been accepted by intransigent elements of the underground church. Might it not be time to apply John’s teaching to relations with the Chinese government? Why should China be an exception to world Catholicism’s aggiornamento in church-state and political relations?
This is a fuzzy misuse of Pacem in Terris and relies excessively on "communism" as an abstract. Now, I would insist that any "rethinking" of Catholic opposition to communism, both as an ideology and as a lived regime, would be a mistake. "Communism," as it has been instantiated in regimes around the world, is antithetical to Christianity. Put that aside for now. Here, the "shifts in the policies of the People's Republic" that might be relevant are not identified here. Any "shifts" that might warrant a warming on the Church's part are dramatically outweighed by the continuation (and, in some instances, the worsening) of censorship, confiscation, disenfranchisement, and persecution.
The issue is not whether or not "aggiornamento" with something called "communism", or with some people called "communists", is warranted in the abstract. The issue is the reality that the PRC is not, in fact, a "People's Republic" -- no one should use that term without scare-quotes -- but is instead a repressive, secular dictatorship -- skyscrapers and billionaires notwithstanding.
Sunday, February 11, 2018
In the New York Times, Ross Douthat has a column that argues straightforwardly that we should "ban" hard-core pornography. Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material (see, e.g., Miller v. California), it seems to be the view that, practically speaking -- because of the ubiquity of and ease of accessing online pornography -- pornography is both unregulated and unregulatable (by the government).
My view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school ACLU-type libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses. I hold this view not because I think it is compelled by the First (or the Fourteenth) Amendment's original public meaning but because, all things considered, I think it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that is permitted and speech that is not.
I admit, though, that I'm not entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech"). Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me." Obviously, this is not true. Speech does cause "harms," to others, to the community, and to the moral ecosystem. What's more, there is no reason to think that these harms are distributed in an equitable way or, say, borne by those who benefit the most from a libertarian speech regime. Still, my well-grounded confidence that the power to regulate speech would be abused -- e.g., that rules against "hate speech" or "unsafe speech" or "harassment" will be used to suppress "conservative", "traditional", or otherwise insufficiently right-side-of-history views on various matters -- makes me reluctant to depart from the near-absolutist position.
And yet: Pornography is harmful -- and Douthat identifies some of these harms -- and it is immoral (despite what some woke and liberated sophisticates want to tell us) to produce or to consume it. The scathing piece that Douthat wrote after Hugh Hefner's death, responding to some of the ridiculous posthumous accolades, was spot on. (He was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.") It's increasingly difficult for me not to agree that it should be regulated more than it is -- certainly, it should be marginalized, shamed, and disapproved more than it is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion would not be as elusive as my fellow near-absolutists warn.
At the very least: Shouldn't every Catholic university employ (in ways consistent with researchers' academic freedom) filters and the like to at least complicate their undergraduates' dorm-room access to material that, the Church has always known and the world is increasingly appreciated, undermines their development, relationships, and flourishing?
SUMMARY OF ARGUMENT
The Catholic bishops of the United States have long and consistently supported the right of workers to organize for purposes of collective bargaining. Because this right is substantially weakened by so-called “right-to-work” laws, many bishops—in their dioceses, through their state conferences, and through their national conference—have opposed or cast doubt on such laws, and no U.S. bishop has expressed support for them.
Petitioner invites this Court to constitutionalize the “right-to-work” position—instantly, without exception, for all fifty states, almost irreversibly—in the public sector. Petitioner’s proposed rationale for this dramatic move appears designed to lay the foundation for a still more dramatic one: constitutionalizing, in a subsequent case, the “right-to-work” rule in the private sector as well. The Court should decline this invitation. It should leave constitutional space for the public policy position supported for so long by so many bishops and bishopled institutions, rather than declare still another such position outside the bounds of what policymakers are permitted to implement by law. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (definition of marriage); Roe v. Wade, 410 U.S. 113 (1973) (prohibition of abortion). By its decision in this case, the Court should not only preserve that room for debate as to the public-sector context now, but avoid any threats to it in the private-sector context in the future.
[You can download the USCCB's amicus brief at this link:
Saturday, February 10, 2018
Story here. As a result, Bishop Ronald Fabbro
said he has decided that the Diocese of London will not apply for or accept any money from the Canada Summer Job Grants program. The program has funded an estimated 70,000 summer jobs for secondary school or college students, granting organizations the money for positions like camp counselors or landscapers. London-area organizations alone received nearly $4 million through the program last year.
This heavy-handed move by the Trudeau government seems to go beyond the kind of "compliance with nondiscrimination rules" conditions that are increasingly being tied to public funds, contracts, grants, and licenses in the United States. I'm reminded of the "law of merited impossibility" . . . .
Friday, February 9, 2018
Jay Webber is smart, talented, and conservative - and he's just announced he's in the race to capture the US House seat vacated Republican Rodney Frelinghuysen. Jay, a Harvard Law grad and devoted husband and father of seven, has served his district in the State House for the last ten years. He's a wonderful man and a dear friend.
Pay attention to this race - pray for him, and send monetary support if you can: firstname.lastname@example.org.
The Abigail Adams Institute, founded in 2014 to serve the Harvard intellectual community, is hosting two intensive seminars for advanced undergraduates, graduate students, and select professionals again this summer. Application deadline is March 15, 2018.
The first seminar, July 22-August 4, is The American Proposition.
The idea of American exceptionalism continues to be seen as somehow linked with the advent of American statehood. How are we to account for this connection? What are the roots of American political identity? Of American national identity? Have subsequent American developments fundamentally transformed the nature of the country, or is our destiny as a people working itself out in accord with our beginning? The writings of Alexis de Tocqueville, Orestes Brownson and Fr. John Courtney Murray offer the starting points in our exploration of the continuities and changes of these and other charged terms through American and global history.
Faculty: Thomas D'Andrea, University of Cambridge; James Nolan, Williams College; and Danilo Petranovich, Director of AAI.
The second seminar, August 5-11, is Capital and the Good Life.
Capital: what is it, how is it created, and what kind of purpose does, can, or should capital serve? What is capital's relationship to work and to the notion of productivity? How does it influence our ideas of progress? In what ways does it order our society and government? The seminar looks at a variety of perspectives on capital creation, acquisition, and use. Our approach to capital and capitalism will be less from a strictly economic and more from a philosophical perspective. Featuring the thought of Adam Smith, Anne Robert Jacques Turgot, Karl Marx, Friedrich Hayek, Karl Polanyi, Ludwig Lachmann, Thomas Piketty, and Robert Skidelsky.
Faculty: James Bernard Murphy, Dartmouth College; Plamen Nedeltchev, Cisco Systems; Leonidas Zelmanovitz, Liberty Fund.
Full Disclosure: I'm a Research Fellow at the Institute while at Harvard Law.
I have an op-ed in today's Minneapolis Star-Tribune using the Dodge Super Bowl ad brouhaha as an opportunity to reflect on other aspects of Martin Luther King Jr.'s legacy that may be fading from view:
Dr. King’s faith was inseparable from his public witness. King was a Christian leader, and there is no point in trying to separate him, or any aspect of his public leadership, from his faith. King’s moral framework was not a vague, platitude-driven appeal to feel-good sentiments. He did not run from, nor water down, who he was or what he believed. Instead, he relied on the full power and scope of his own faith tradition to distill the essence of a foundational truth about the human condition. He focused on the restoration of relationships – on what he referred to as “the beloved community” – appealing to a widely accessible moral vision that was not dependent on any particular religious revelation or ideological agenda. It was a basic reminder not to ignore what we know about ourselves: we are social creatures who are accountable to the demands of love and justice.
You can read the whole thing here.
Thursday, February 8, 2018
Here. A bit:
Catholic social doctrine is built on four foundational principles: the inviolable dignity and value of every human person, the responsibility of all to exercise their rights in ways that contribute to the common good, the importance of social pluralism and civil society (and thus the rejection of totalitarianism), and the imperative of solidarity (the virtue of civic friendship that binds free societies together). Those principles helped shape the revolution of conscience that preceded and helped make possible the political revolution of 1989 in Central and Eastern Europe. Those principles were also in play in the democratic transformations of Latin America and East Asia in the latter decades of the 20th century. Those principles remain the core of the social doctrine of the Church today.
And in 2018, those principles are systematically denied, in both theory and practice, by the People’s Republic of China.
Wednesday, February 7, 2018
A few days ago, in New York, I had the pleasure and privilege of participating -- along with several other MOJ-ers -- in a (efficient and well-organized!) conference on the new Foundation casebook - "Christian Legal Thought: Cases and Materials" -- edited by our own Patrick Brennan and MOJ-friend Prof. Bill Brewbaker. I hope law professors all over the country use the book, and offer the course. And, I hope other MOJ-ers will weigh in.
My own remarks focused (predictably) on the centrality to "Christian Legal Thought" of moral anthropology, a theme that, I am pleased to report, figures prominently in the casebook.
The first panel featured Angela Carmella (Seton Hall), Michael Moreland (Villanova), and David Skeel (Penn). Angela's remarks focused on one of her own areas of expertise, i.e., church-state relations, and on the question whether there is a distinctively Christian account of those relations. Michael expounded on the often-misunderstood but crucially important idea of "subsidiarity." He clarified its content and explained its roots. And, David Skeel reflected, riffing on the "we've come a long way, baby" slogan, on changes in the landscape since the publication almost 20 years ago of the McConnell, Cochran, and Carmella volume, "Christian Perspectives on Legal Thought."
The second panel featured Randy Beck (Georgia), Patrick Brennan (Villanova), and some other guy (me). Randy reflected instructively on his own experiences teaching a Christian Legal Thought course. I threw out some Cormac McCarthy-invoking thoughts on the relevance of "who are we and why are we here?" questions for law. Finally, Patrick pulled together the various strands, responded to a range of points, and was effusively grateful. (We all prayed for Bill Brewbaker, who was not able to be present, because of a family emergency.)
I'm grateful to St. John's, and to my colleagues -- especially Marc DeGirolami and Mark Movsesian, and the great group of St. John's students! -- for an enjoyable, illuminating, and affirming time!
I have a review of Patrick Deneen's book, Why Liberalism Failed, at the Liberty Fund blog. A bit:
[L]aw is liberalism’s most potent instrument. Law plays a legitimating role in many political regimes, but it performs unique work in Deneen’s account of the liberal state.
Legal liberalism is the device that replaces non-liberal social structures and institutions—the very structures and institutions that once sustained it—and establishes itself as the exclusive fount of authority. Legal liberalism substitutes informal relationships derived from non-liberal institutions with administrative directives and centralized controls, whether of the surveillance state, the Title IX bureaucrat, or the carceral network. Legal liberalism elevates the Constitution to the status of sacral cultural object, in the process consecrating the legal state: new citizens and officeholders swear an oath not to the nation, but to the Constitution and the law. Legal liberalism trumpets the ceaseless progression of individual freedoms and rights, even as its laws generate and consolidate greater power, wealth, and control in the state. Legal liberalism’s contemporary master right, as announced by its oracles—to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—requires a correspondingly enormous and engulfing positive law and regulatory armamentarium. Legal liberalism is predisposed toward cosmopolitanism, globalism, and internationalism, and against local custom, culture, and tradition. And it seems to me that Deneen would take legal liberalism’s educational hubs—the elite American law schools—as archetypes of the sorts of pathologies afflicting institutions of higher learning.
Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.
Yet even those within the legal liberal establishment who are inclined to hear him out might doubt that Deneen has shown that legal liberalism has “failed,” or that its weaknesses are so pervasive as to suggest imminent regime collapse. In the first place, legal liberalism, and the society that it has supported and been supported by, have generated vast economic wealth. To be sure, the allocation of that wealth has been, to put it gently, uneven. But its resources are nevertheless formidable. Second, legal liberalism has made several great social and political advances possible. It has helped to ameliorate, if not correct, certain profound injustices affecting various marginalized groups and it has expanded social and economic opportunity. These are genuine contributions. Deneen rapidly acknowledges this point early on, but the balance of the book does not demonstrate that the political and legal framework of liberalism either is an abject failure or has reached the point of breakdown.
What Deneen has shown, and to great effect, are a series of dynamics internal to the claims, logic, and aspirations of liberalism that produce extremely serious problems. Yet of all the variations of liberalism discussed in the book, legal liberalism is perhaps least likely to adapt to overcome these difficulties because of its deep investments in maintaining its own position. Deneen might welcome this resistance as the beginning of the end, since it would confirm a piece of the book’s thesis. But if the end is coming, legal liberalism’s tail is likely to be a long one.
Okay, not quite. But the November 1955 edition of American Bar Association Journal brought together Thomas Aquinas, Dwight Eisenhower, and Earl Warren. The Angelic Doctor graced the cover while Eisenhower and Warren contributed speeches commemorating the 200th birthday of John Marshall. Here's the cover, along with the table of contents and links to Eisenhower's speech and Warren's speech:
February 7, 2018 | Permalink
Tuesday, February 6, 2018
China's secularist dictatorship is . . . the best vehicle for implementing Catholic Social Thought? Stupid.
It's being reported that Bishop Marcelo Sánchez Sorondo said recently that (among other things) "those who are best implementing the social doctrine of the Church are the Chinese . . . You do not have shantytowns, you do not have drugs, young people do not take drugs . . . [T]he economy does not dominate politics, as happens in the United States, something Americans themselves would say.”
This is incredibly ignorant and foolish. No, my point is not that it's foolish to see, say, democratic socialism as a sometimes effective vehicle for some aspects of the Church's social teachings, nor is it to deny the observation that China is, in some respects, different from what it was during John Paul II's pontificate, nor is it that the Church's social teachings are perfectly operationalized in democratic-market economies. But . . . China? Shame on him. It is impossible to take seriously a Vatican office ("Pontifical Academy of Social Sciences") that propagates this kind of silliness -- actually, "silliness" isn't strong enough. It's repulsive.
Let's put aside the dumb and easily falsifiable claim about "shantytowns" or about China acting for "the good of the planet"; put aside too, for now, the facts about abortion, capital punishment, censorship, lawlessness, etc. The Church's social teachings rest, foundationally, on a moral anthropology and a social ontology that are completely incompatible with either Chinese communism or "socialism with Chinese characteristics."
Monday, February 5, 2018
Call for submissions: 2018 Prize for Outstanding Scholarship in Catholic Social Thought and Int'l Human Rights
Notre Dame Law School's Journal of Comparative and International Law and the University's Center for Civil and Human Rights are teaming up to award a prize for Outstanding Scholarship in Catholic Social Thought and Human Rights. More information is available here.
Friday, February 2, 2018
H.E. Mateusz Morawiecki
Republic of Poland
Al. Ujazdowskie 1/3
February 2, 2018
I write as a friend of Poland and as someone who was deeply honored to receive from the Republic of Poland in 2010 at a ceremony in Warsaw the Odznake Honorowa za Zaslugi dla Ochrony Praw Czlowieka in recognition of my work in defense of human rights.
I wish to express my concern about proposed legislation that could restrict or have the effect of discouraging historical scholarship and freedom of speech concerning the Shoah and the death camps that the Third Reich placed on Polish soil.
I understand and, of course, share the legitimate concern of your government not to have Poland and the Polish people, who so nobly resisted the Nazis and who suffered so greatly under their tyranny, falsely accused of crimes they did not commit. Millions of non-Jewish Poles and others were murdered along with Polish Jews and Jews of other nationalities in the Shoah. No one’s victimization and suffering must be forgotten or minimized. And it is to the credit and glory of Poland and the Polish people that so many Poles are among the rescuers and resisters who are honored as “Righteous among the Gentiles” at Yad Vashem.
I'm sure you will agree, however, that it is also important for the truth to be told about the willing complicity of some non-Jews, including some who were Polish, in anti-Semitic acts, denunciations, and even the operation of the death camps. The freedom to tell the whole truth about the Shoah must be recognized and treated as sacrosanct. This unavoidably means tolerating some abuses of freedom of speech by people who will say things that are false and even unjust. To use the force of criminal law to prevent such abuses from ever occurring would inevitably have a chilling effect on historical debate and scholarship.
Please do not take my plain speaking on this issue to mean that I am presuming to lecture my Polish friends or assume a position of moral superiority. I am not. As an American, I recognize that along with many acts of virtue and heroism in my own nation’s history—acts for which Americans are justly proud—there are also horrible injustices and other evils that stain our nation’s conscience, including injustices in which some illustrious Americans whom we venerate for other reasons were personally implicated. We continue to this day to struggle, for example, with our history of slavery and racial injustice, a struggle deepened by the fact that some of our Founding Fathers (including George Washington, Thomas Jefferson, and James Madison) owned slaves.
I understand, appreciate, and share your government’s objection to the phrase “Polish death camps” as a description of the killing factories placed by the Third Reich on Polish soil. The phrase is all-too-easily interpreted as suggesting that Poland and the Polish people established and operated the camps. That is false and slanderous. Objecting to it is reasonable and setting the historical record straight is necessary. But it is critically important that freedom of speech be respected and that no legislation be put into place that could impede robust discussion and debate about the Shoah, including discussion of anti-Semitism and collaboration in Poland and elsewhere.
I commend your government for your willingness to open a dialogue with the government of Israel on this matter. I am confident that goodwill on both sides can produce an outcome that honors the interest shared by decent people of all nationalities and faiths in ensuring fairness and truth in the telling of the story of the Shoah.
Robert P. George
McCormick Professor of Jurisprudence
February 2, 2018 | Permalink
Thursday, February 1, 2018
Another episode in religious liberty and contraceptives mandates --- indifference in Virginia's Senate
There's a long-running dispute about which reason is worse for why people sometimes get the law wrong: stupidity or willfulness. That does not exhaust the possibilities, though. And I recently encountered a third explanation while at a meeting of the Virginia Senate Committee on Commerce and Labor. That third explanation is indifference.
I spent almost five hours Monday afternoon waiting to testify for two minutes against a state-level contraceptives mandate with no religious exemption. My basic points were: (1) this bill would invite religious liberty litigation that the Commonwealth would lose; and (2) there is no evidence (according to the Guttmacher Institute) that the federal contraceptive mandate has altered the rate of contraceptive use or mix of contraceptives used. The proposed law isn't just a solution in search of a problem (because of its failure to advance a government interest), but a problem in search of a problem (because of its invasion of religious liberty).
Shortly before the bill's sponsor presented the bill to the Committee on Commerce and Labor, a substitute bill was introduced. This one had a sort-of exemption for "religious employers," but the definition of "religious employer" was the narrow four-part definition that turned out to be inadequate even in the view of the Obama Administration at the federal level. If the bill had passed, we would still have seen the same litigation play out as at the federal level (although primarily under Virginia's religious freedom law rather than RFRA).
The bill's sponsor, Senator McClellan, contended that the point of the bill was simply to codify what was in federal law. I believe this contention was sincere. But Senator McClellan was wrong.
The scope of religious freedom protection from the federal contraceptives mandate has been a flashpoint of controversy over the last five years. And the result of that controversy has been expansion of the exemption for religious employers over time. Some of this expansion was voluntary; other aspects came as the result of litigation and the presidential election. Yet this state bill would have codified as a matter of state law a definition of "religious employer" that would have resulted in losing lawsuits for the Commonwealth.
The committee carried the bill over to next year, effectively killing it for this year. But that came with a swipe against churches by one of the senators and a paean to contraceptive coverage by another.
The waters are choppy out there. True, if this law had passed, the fees from successful litigation would have been enough for some jet skis (and then some). But far better for the bill not to have passed. The resulting litigation would have been further evidence for my recent observation about religious liberty litigation these days: "If you're litigating, you're losing."
February 1, 2018 | Permalink
Monday, January 29, 2018
Story here. As Walter Olson notes,
The Ontario bar association has adopted a rule under which all lawyers “must prepare and submit a personal ‘Statement of Principles’ attesting that we value and promote equality, diversity and inclusion,” according to Bruce Pardy in the National Post, who says it’s a bad idea. . . .
But the U.S. is not so far behind. In 2016 the ABA adopted Model Rule 8.4 (g), which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” . . .
The “Test Acts” were a series of enactments in England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.
This is a troubling development, and lawyers (in both Canada and the United States) should resist it. I agree with Eugene Volokh regarding the First Amendment problems with the ABA's Model Rule. The concern, obviously, doesn't have to do with whether or not lawyers should be committed to "equality" in some sense but rather with the fact that, in contemporary discussions, both "equality, diversity, and inclusion" and "discrimination" are used in imprecise and ideologically and/or religiously loaded ways. Stay tuned . . .
As I proposed in my very first MOJ post, nearly 14 years (!) ago, and as I've contended in a few articles over the years (e.g., here and here), answering pretty much all questions about legal institutions and doctrines requires, in the end, engaging with big questions of moral anthropology, e.g., what does it mean to be a person and why does it matter that one is a person? What is the nature, and what is the destiny, of the person? These questions were, of course, at the very heart of the work and pontificate of Pope St. John Paul II. I wrote once:
“Are human beings different from meat?” A recent book review opens with the complaint
that this is “[a]n example of the worst type of modern philosophical question”; a question that, “[f]or
those among us who have never been invited into Socratic dialogue by, say, a porterhouse, . . . is
dumb in ways rarely thought possible before.”2
The reviewer is right, of course—the question is
“dumb.” Then again, we might wonder if this “worst kind” question is really all that different from
the Psalmist’s own: “Lord, what is man . . . that thou makest account of him?” (Psalms 143:3) The
question, it turns out, is both perennial and profound: “What is man, and why and how does it
Well, here comes news from China about the (alleged) cloning of a monkey in China, prompting the headline, "How can we be special if we're just a bundle of cells?" How, indeed?
Here, thanks to the University Bookman site, is William Borman's review of Andrew Willard Jones's book, Before Church and State: A Study of Social Order in the Sacramental Kingdom of St. Louis IX. Fascinating stuff. A bit:
The thesis of Jones’s book is simple: everything that we thought we knew about the Middle Ages is fundamentally mistaken, and the study of the Middle Ages in modern times has frequently, indeed almost always, amounted to the study of modern preconceptions and prejudices about the past. . . . The main obstacle to our understanding of the medieval world, indeed, appears to be our understanding of our own world, and our routine application of modern conceptions to a past in which they do not belong. We have ignored or discarded the concepts proper to our area of study. Instead of looking at the microbe through the microscope, we have effectively been studying the lens.
Many examples of Jones’s thesis are provided, with much detail. Here are a few: “secularism” did not exist; the distinction between “temporal” and “spiritual,” or between “church” and “state,” did not exist; peace in temporal matters was peace in spiritual matters, and vice versa; the “state” itself did not exist, nor did “sovereignty,” nor “law”; “violence” is not a necessary characteristic of society but a disrupter of it, for society is peace; and governance is not determined, as Weber thought, by a “monopoly on force.” . . .
Check it out.
Friday, January 26, 2018
The Institute for Religious Liberty at Thomas More College hosted a three-speaker event earlier this week on the topic "Religious Liberty at a Crossroads: Legal Perspectives." The speakers were me, Fred Gedicks, and Ilya Shapiro.
Thomas More College is the liberal arts college of the Diocese of Covington (Kentucky). Prior to the evening talk, I had the opportunity to explore the campus. The architectural highlight is Mary, Seat of Wisdom Chapel, which occupies the geographical center of campus.
The opening claim in my talk was that it is important to keep legal perspectives on religious liberty in perspective. A legal perspective is neither the only nor the most important perspective for thinking about religious liberty. It is more important to think about what religious liberty is for, and to use our civic freedom to exercise our religion.
As for the legal perspective itself, my primary theme was: "If you're litigating, you're losing." This is true of normal people and institutions. You end up in court because something has broken down and you find yourself in court opposite somebody else. If you're in as a defendant, someone has brought legal action against you. And if you're in as a plaintiff, it's because you failed to get the protection you seek in some other way.
It's not great being in a lawsuit, even as a plaintiff. You have to deal with lawyers. And even if you win, you might still end up worse off than if you never had to file. That's a particular risk of religious liberty litigation because it is so easy to get framed by ideological adversaries as seeking special rules of "the normal law doesn't apply to us" sort. A better way to think about these cases is as the normal consequence of a general commitment to religious liberty as it interacts with other legal requirements. But the "special rules" framing has been more prevalent.
Another feature of recent religious liberty cases comes into view when thinking about the limits of "if you're litigating, you're losing." This is generally _not_ true of "movement litigation." In "movement litigation," you're litigating to move the law in a certain direction. If you win, you've moved the law. And if you lose, you haven't moved the law but hopefully the law is no worse than it was (though there is a risk of this happening).
Religious liberty can sometimes operate as movement litigation. But the contraceptives mandate cases were not of this sort. The cases were preservative rather than transformative.
Although some of the cases are still pending, the religious liberty claimants have largely prevailed. But while we've "won" for now, that doesn't mean we aren't losing more generally. The mandate was very aggressive, and the sources of that aggression remain.
Thursday, January 25, 2018
Don't miss this moving Washington Post story describing the courtroom testimony of former gymnast Rachael Denhollander: "She helped bring down Larry Nassar. At his sentencing for sex crimes, she spoke about her faith."
She was the first, in 2016, to accuse Nassar of sexual abuse, back in 2000 when she was 14 and he was the sports physician at Michigan State University. On the stand, she spoke to Nassar of the biblical description of the final judgment “where all of God’s wrath and eternal terror is poured out on men like you.”
She continued: “Should you ever reach the point of truly facing what you have done, the guilt will be crushing. And that is what makes the gospel of Christ so sweet. Because it extends grace and hope and mercy where none should be found. And it will be there for you. I pray you experience the soul-crushing weight of guilt so you may someday experience true repentance and true forgiveness from God, which you need far more than forgiveness from me — though I extend that to you as well.”
There's more. Check out the whole story. How fitting that this testimony be reported on the Feast of the Conversion of St. Paul.