Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, July 23, 2017

Father John Jenkins and the 50th Anniversary of the Land O’Lakes Statement: A Response

Land O'Lakes

In a recent article (here) in America Magazine, Rev. John I. Jenkins, C.S.C., president of the University of Notre Dame, celebrates the Land O’Lakes Statement on the occasion of the document’s 50th anniversary.  Formally styled a “Statement on the Nature of the Contemporary Catholic University,” the Land O’Lakes Statement (LOL) is named for a retreat in northern Wisconsin where representatives from eleven Catholic universities (seven American, two Canadian, one from Puerto Rico, and one from Peru) and members of their sponsoring religious communities and two bishops met to discuss, clarify and articulate their understanding of the nature and purpose of a Catholic university.  In practice the statement served as a position paper for the International Federation of Catholic Universities (IFCU) of which Jenkins’ predecessor, Rev. Theodore M. Hesburgh, C.S.C., served as chair.  In 1972, building on LOL, the IFCU published a more lengthy exposition of the same idea, The Catholic University in the Modern World (not available online but in American Catholic Higher Education: Essential Documents, 1967-1990 (Alice Gallin, O.S.U. ed. 1992)).

Both of these documents suffer from serious shortcomings which Fr. Jenkins, to his great credit, acknowledges, and about which I’ll have more to say below.

In the piece, Fr. Jenkins praises LOL as “proclaim[ing] a confident vision for Catholic higher education,” as “envision[ing], rather ambitiously . . . a university whose Catholicism is pervasively present at the heart of its central activities – inquiry, dialogue, teaching and human formation.”

And, in all fairness, the document is rightfully deserving of some praise.

Specifically, Jenkins attempts to set LOL in context – an earlier time when ecclesiastical authorities sometimes intervened in the academic affairs of Catholic universities and colleges. Jenkins refers briefly to the experience of Fr. Ted Hesburgh who led the gathering that resulted in the LOL statement. A fuller account of the incident appears in Hesburgh’s autobiography, God, Country, Notre Dame (pp. 209-213).  In 1954, in the early years of his presidency, the Superior General of the Congregation of the Holy Cross, Rev. Christopher O’Toole, C.S.C., instructed Hesburgh not to publish a book of papers that had been presented at Note Dame, Catholic Church and World Affairs. The book contained a paper by Rev. John Courtney Murray, S.J., commenting on church-state relations, that Alfredo Cardinal Ottaviani, prefect of the Holy Office, wished to suppress.  Hesburgh refused to comply, offering instead his resignation.  He feared that if he followed Ottaviani’s order “Notre Dame would lose all its credibility in the United States, and so would I, if an official in Rome could abrogate our academic freedom with the snap of his fingers” (p. 211).  A compromise of sorts was worked out whereby Notre Dame simply sold the copies of the book already in print and the University did not run a second printing.  Fr. Hesburgh did not resign and as he notes, Fr. Murray’s views were “fully vindicated several years later at Vatican Council II” (p. 212).

In providing this context, Jenkins is, I think, correct to say that such an “egregious intrusion” in the academic life of a Catholic university was part of what Hesburgh and his colleagues had in mind when they met to draft the statement in Wisconsin. And in this respect, LOL is indeed something to celebrate. Ecclesial authorities should not be involved in the day-to-day affairs of running a university.  The local ordinary, let alone a curial prelate in Rome, should not be deciding what questions should be asked, what lines of inquiry are worth pursuing, or what points of view should be open to consideration at a Catholic university.  As Chicago’s late, beloved Cardinal-Archbishop Francis George, O.M.I. (a former university professor and a true scholar) said on many occasions, at a Catholic university no point-of-view is banned from consideration, even those that are inimical to the Catholic faith.  University education is a “great conversation,” and both students and faculty need to have the freedom to converse openly as they seek to discover the truth and understand it fully.

This is not to say that the bishops have no place in a Catholic university, or only a ceremonial relationship.   Still some, like late Rev. Richard McBrien were in favor of nothing more than a symbolic role for bishops: “Bishops should be welcome on a Catholic-university campus.  Give them tickets to ball games. Let them say Mass, bring them to graduation.  Let them sit on stage. But there should be nothing beyond that.”

An alternate vision was offered by Francis George in an address he gave at Georgetown University, where he argued:

[C]larity about the Catholic university’s mission cannot be achieved without going behind university and Church and asking first about the claims of faith.  The normal understanding of faith, any revealed faith, is that it unites us to God. Examining the claims of faith on an academic community identifying itself as Catholic forces us, first of all, to confess what kind of God we believe in and worship.” The God of the Catholic faith is “the Father of Our Lord, Jesus Christ” who is “an actor in human affairs who calls us to see the university and the world and all its works through the eyes of a crucified Savior.

George also noted that religion – like physics and other sciences – makes truth claims.

[B]ut its warrants and rules of evidence are different from those for physics. The truths are always self-referential, but, in Catholic faith, referential to the community and not to isolated individuals who just happen to be within it.  Christ, whom John portrays claiming to be himself the truth, left not a set of personal memoirs nor a training manual but a community with an embryonic governing and teaching and sanctifying structure which Vatican II describes as a hierarchical communion.  A university that worships the Catholic God cannot separate itself from the community of faith, both local and universal.  Therefore, squarely within the Catholic vision of things, central to the life and mission of the ecclesial faith community, is the office of bishop as head of a local or particular Church and teacher of the Catholic faith.  I would respectfully suggest, therefore, that the office of bishop is not a problem in understanding the Catholic mission in higher education; rather, the office of bishop is part of the solution.

In a later address, delivered at Loyola University Chicago, Cardinal George argued that in his Georgetown talk he had not invited himself and other bishops into Catholic universities.  Rather, “the question, I think, should be reversed: How are you in the church, rather than how am I in the university? The adjective Catholic is not a mere extrinsic denomination in any case nor is it the object of definition by any individual or group in a university or elsewhere.  It is rather the possession of the household of faith.”

Thus, contrary to LOL and a number of other documents purporting to define the Catholic university, the authenticity of Catholic identity cannot be brought about by the mere self-affirmation of that identity by a university.  As Cardinal George makes clear, “Catholic” is no mere label, but a substantive identity and lived reality, the content of which belongs to the Church, including the successors of the apostles whose special responsibility is to safeguard that substance in teaching, sanctifying, and governing their local churches.

In the article, Fr. Jenkins makes a number of other points worthy of response.

First, Fr. Jenkins faults the critics of LOL for their “narrowly focused” reading of the document – for focusing on only one sentence and “fail[ing] to read the statement beyond this line.”  The sentence to which he refers appears in the opening paragraph of LOL: “To perform its teaching and research functions effectively the Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself.”  Jenkins adds that it was wrong for critics of LOL to read this statement as “declar[ing] absolute independence from all external authority . . . [an] exemption from all civil as well as ecclesiastical law.”

On the contrary, it is perfectly reasonable to take the authors’ sweeping language at their word. Autonomy “in the face of authority of whatever kind” is an explicit claim to institutional freedom from all kinds of constraints, whether civil or ecclesial.  In practice, of course, Catholic colleges and universities have been rather inconsistent in upholding this purported absolute standard.  The concessions these institutions have made to outside authorities have been decidedly one-sided, welcoming governmental authorities of many stripes and keeping church authorities at arms length.

Rev. James T. Burtchaell, C.S.C. demonstrated the absurdity of the claim to immunity to external authority in devastating fashion.  In an essay in Crisis Magazine (here), following on the heals of his great book, The Dying of the Light, Burtchaell composed a partial list of the myriad federal agencies to which universities (Catholic and otherwise) submit.  These include the Departments of “State, Justice, Education, Agriculture, Commerce, Defense, Energy, Health and Human Services, Labor, and Veterans Affairs; also the Equal Employment Opportunity Commission, the Environmental Protection Agency, the Library of Congress, the U.S. Patent Office, the National Science Foundation, the National Endowments for the Humanities and for the Arts, the National Institutes of Health, and the Immigration and Naturalization Service.”  Furthermore, the NCAA “feigns to regulate the amount of practice time before the beginning of the academic year, all financial adhesions of varsity athletes, the authenticity of their academic progress, and variances in their class attendance due to events away from campus.”  And the U.S. military “decides what facilities are required by its ROTC programs on campus.”

On the local level “[t]he county health department has regulations governing burials on campus and inspects the dining facilities. The fire inspector regularly prowls the physical plant and growls at code violations.  The building inspectors have to sign off on all construction projects, and the zoning people will claim a say if the campus begins to creep in any direction.  The county prosecutor decides which student misbehavior will be dealt with officially, which unofficially, and which not at all.”

In sum, Burtchaell says, “[t]he vast network of authorities, standards, and policies, of which this cloud of outside entities and personages is only a part, puts into necessary perspective the distracted imagination of the Land O’Lakes claim by the presidents to ‘true autonomy in the face of authority of whatever kind, lay or clerical, external to the academy itself.’”

One might, of course, distinguish different kinds of external authority – on the one hand, the coercive power of the state exercised through law that applies uniformly to all engaged in a given activity, and, on the other hand, external authority that is invited into the university by a voluntary decision.  If a university maintains facilities or engages in building construction, it is and should be subject to local fire inspection ordinances and building safety codes.  But even given this distinction, the Catholic university that subscribes to LOL’s language does not fare well.  No one forces Catholic universities to belong to the NCAA, or to host ROTC programs, or to accept federal grants of money with conditions attached that are “external to the academic community itself.”  There may be strong, even compelling reasons to engage in these kinds of programs and activities.  But unlike the law, in doing so a Catholic university welcomes some outside non-academic authority into the life of the institution.

Thus, contrary to Fr. Jenkins, the critics of LOL have not misread the document.  They have simply pointed out the inconsistency – the gross hypocrisy – of Catholic colleges and universities in claiming freedom from all outside authority.

Second, according to Fr. Jenkins, the critics’ narrow focus on the LOL passage declaring freedom from external authority results in a “failure to recognize the statement’s broad, positive vision” – a vision which he says appears in the second paragraph describing a Catholic university as “a community of learners or a community of scholars, in which Catholicism is perceptibly present and effectively operative.”  Indeed, Fr. Jenkins says that because the authors of LOL were attempting to respond to Vatican II’s Gaudium et Spes, and intended eventually to submit a document for review by the Sacred Congregation for Catholic Education, the document is not “a unilateral declaration of independence from all ecclesial authority.”

Here Fr. Jenkins dismisses longtime Notre Dame historian Philip Gleason who, in his book, Contending With Modernity, described LOL as a “declaration of independence from the hierarchy” (p. 317).  This dismissal is odd, not only because Fr. Jenkins acknowledges Gleason as an “esteemed scholar of American higher education,” but because Gleason was both a product of and contributor to Catholic higher education.  He received his B.A. from the University of Dayton in 1951 and his masters and doctorate from Notre Dame in 1955 and 1960.  He served as a member of the Notre Dame faculty from 1959 until his retirement in 1996.  He experienced Catholic higher education first hand both prior to and following LOL.  Thus, his description of LOL as “a declaration of independence” reflects not only his reading of the text, but this lived experience.

Furthermore, in the passage where Gleason describes LOL as a “declaration of independence” from the Catholic hierarchy, he also answers Fr. Jenkins’ claim that LOL is outstanding for its ringing affirmation of Catholic identity.  As Gleason notes, “[t]he statement would have attracted no notice whatsoever had it done no more than reaffirm those points.  What made Land O’Lakes statement news were its radically novel claims for ‘institutional autonomy and academic freedom.’  Issued against the background of academic crises, theological dissent, student unrest, and change to lay boards of trustees – and coming as it did from a group of prestigious Catholic educators – the Land O’Lakes statement was indeed a declaration of independence from the hierarchy and symbolic turning point” (p. 317).

Although Fr. Jenkins says that the intention of the LOL signatories was to eventually submit a document for review by the Congregation for Catholic Education, one might note that neither LOL nor The Catholic University in the Modern World received approval from Rome.  One might also note that no one suggests that the authors of LOL sought to expel Catholicism from Catholic campuses, or repudiate Catholic identity.  Rather, LOL should be read as the presidents’ affirmation that they wanted their institutions to be -- and to be recognized as -- Catholic – but Catholic on their own terms.  The document regards a university’s affirmation of its own Catholic character as sufficient. (Francis George points out the glaring inadequacy of this view in the passages quoted above).  Tellingly, the document does not set forth any instrument, procedure or institution (juridical or otherwise) that would serve as a standard and guarantee of communion between the university and the wider Church.

Third, the “broad, positive vision” that Fr. Jenkins identifies in LOL is the document’s statement that the Catholic university be a place “in which Catholicism is perceptibly present and effectively operative” and that this is “achieved first of all and distinctively by the presence of scholars in all branches of theology.”  LOL further says that “’[t]o carry out this primary task properly there must be a constant discussion within the university community in which theology confronts all the rest of modern culture and all the areas of intellectual study which it includes.”  For Fr. Jenkins “[t]he authors seem to be saying that what distinguishes Catholic universities and makes Catholicism operatively present in them is that, stirred by robust interdisciplinary conversations with theology and philosophy, the intellectual community is open to and engages with questions of ultimacy that eventually lead them to conversations about God and the good for human beings, individually and collectively.”

In some respects it is odd that the university presidents and other signatories to LOL would in 1967 offer such a central place for theology in the intellectual life of Catholic universities given the fact that they had just witnessed, in the decades immediately prior to the Council, the failed attempt to use Neo-Thomism as an integrating force across disciplines.  Perhaps, the LOL proposal reflects the exuberance and optimism of Catholics immediately following Vatican II (to which Fr. Jenkins elsewhere refers).  If so, although Fr. Jenkins seems to reject the claim that the LOL authors were “naïve,” this would appear to confirm that assessment.

Having said this, I know of no Catholic university – not even Notre Dame – that attempted to implement the vision that Fr. Jenkins describes.  On the contrary, rather than serve as a source of integration, in the years that followed LOL, theology receded back into its own niche within the academy, mimicking other disciplines with the multiplication of sub-specialties so much so that the lack of dialogue across disciplines (e.g. between chemistry and history, or more broadly, between the sciences and liberal arts) could be seen in microcosm in the lack of dialogue between biblical scholars, dogmatic theologians, scholars of ecumenism, and liberation theologians.

What is worse, in a number of institutions, the “Department of Theology” ceased to exist as such, and was renamed or reconstituted as the “Department of Religious Studies.”  In later years, the idea that theology could not serve as an integrating force in Catholic universities was confirmed by the creation of “Catholic Studies” programs. While these programs often served a vital purpose in preserving some Catholic intellectual presence on campus, they also constituted a tacit admission that engagement with the Catholic intellectual tradition was anything but pervasive throughout the university.

Fr. Jenkins acknowledges that the expectation that theologians would “be intellectual leaders across the disciplines” placed “an enormous burden on theologians.”  In retrospect, this was a burden that they were not equipped to carry because, in the post-conciliar era, the content of Catholic theology itself became highly contested.  During this time, professors of theology in Catholic universities across the country openly questioned long-established church teachings on such firmly held beliefs the triune nature of the Godhead, the divinity of Christ, the Virgin Birth, the bodily Resurrection, the Real Presence of Christ in the Eucharist, and the gravely sinful nature of abortion, pre-marital sex, adultery, masturbation, and homosexual acts.  Catholic theology was in disarray. Consequently, theology was hardly in a position to be a leader in Catholic identity when it had trouble knowing itself.

Fourth, although Fr. Jenkins highlights the concern over academic freedom, he fails to identify another, equally important aspect of the context that gave rise to LOL.  He ignores the larger of context in which Catholic colleges and universities were anxious to gain access to new sources of government funding recently made available.  To accomplish this objective, these institutions sought to avoid being labeled “pervasively sectarian.”  As Fr. Burtchaell makes clear in his article Out of the Heartburn of the Church, 25 J. College & Univ. L. 653, 655 (1999), in boldly claiming “true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical,” the signatories to LOL “were assuring their prospective governmental benefactors that they now regarded their bishops and religious superiors as ‘outsiders’ to the work of Catholic education. The civil authorities, of course, were also ‘outsiders,’ but the presidents were thinking how nice it would be to invite them indoors.” Accordingly, the push to define the Catholic university in a new way, as represented by LOL derived not only from a respect for academic freedom and a desire to implement Vatican II, but as a reaction to the financial crisis then confronting Catholic and other private institutions of higher learning.

Fifth, and finally, Fr. Jenkins, to his credit, recognizes the shortcomings of LOL.  He identifies four: (1) the failure of LOL “to appreciate the difficulty of finding scholars to implement the vision”; (2) the “highly specialized” nature of the modern academy and the difficulty of truly interdisciplinary conversation “particularly those that go to the philosophical or theological dimensions of a discipline”; (3) the increasingly secular and even anti-religious outlook of academics; and (4) the failure of LOL “to make any positive suggestion about what the relationship might be between the Catholic university and ecclesiastical authority.”

There is something to be said for each of these. The forth point has already been addressed in part in Francis George’s remarks quoted above. Here I wish to focus on Jenkins’ first point.

Even if one grants that the authors of LOL wanted Catholicism to be “perceptibly present and effectively operative” in Catholic universities, the document offers no practical strategy for realizing this goal.  It says nothing about the importance of recruiting not just nominal Catholics as faculty members, but genuine Catholic intellectuals who will be attracted to the mission of a Catholic university and seek to carry it forward.

By contrast, another document written at Notre Dame a few years later did.  In 1972 Fr. Hesburgh established a Committee on University Priorities (COUPS), chaired by Fr. Burtchaell (then Provost of Notre Dame) which studied all aspects of the University, and in 1973 issued its final report. (The COUPS Report is reprinted in the December 1973 issue of the Notre Dame Magazine).  The COUPS Report states that “[t]he University’s highest and also its most distinctive priority is to understand and to adhere to its evolving Catholic character.”  To fulfill this goal, the Committee recommended “[t]hat the University have a faculty and student affairs staff among whom Catholics predominate.”  Put another way, the report recognized the truth of the adage “Personnel is policy.”  An institution that identifies as both Catholic and intellectual cannot hope to succeed in its mission if it does not have Catholic intellectuals and other sympathetic to the Catholic intellectual tradition engaged in scholarship and teaching.

Some language similar to the COUPS Report – that the number of Catholic faculty at Notre Dame must “predominate” if the University is to sustain her Catholic identity and fulfill her Catholic mission – has been present in each of Notre Dame’s subsequent strategic reports: Priorities and Commitments for Excellence – the PACE Report (1983); Colloquy for the Year 2000 (1993); Notre Dame 2010: Fulfilling the Promise (2003); and A Legacy Expanded: A Strategic Plan for Notre Dame (2013) (available here).  It is worth noting that this language is even stronger than that contained in John Paul II’s Apostolic Constitution Ex Corde Ecclesiae (1990) which says only that “the number of non-Catholic teachers should not be allowed to constitute a majority within the institution, which is and must remain Catholic” (Art. 4, ¶ 4).

Notre Dame’s Catholic identity is not without blemish. (There is some tarnish on the Golden Dome). Nevertheless, today Notre Dame stands out among American Catholic universities as having maintained a robust sense of Catholic identity.  This is undoubtedly due to many factors, but the practical strategy of hiring Catholic academics to carry on the intellectual work of the school (first identified in the COUPS Report) must rank foremost among them.

The necessity of such a strategy is obvious to anyone who would give serious thought to the matter.  Yet it remains controversial.  It remains an uncomfortable truth, precisely because it calls upon the Catholic university to step out of the mainstream of American higher education, and to do so with more than mission statements and verbal nods to the school’s religious heritage.  It requires actions.   And those brave enough to raise this truth, like Rev. William D. Miscamble, C.S.C., have often been treated like a prophet in his hometown (Luke 4:24).

Preserving, nurturing, and enhancing Catholic mission requires intentional acts and deliberate strategies calculated to achieve that goal.  The Catholic mission of the university is not something that will simply take care of itself.  It must be tended to by Catholic intellectuals.  That LOL ignored this truth – and that this omission was repeated again and again in subsequent statements on Catholic higher education, and that it had a deleterious effect on the hiring practices at almost all the nation’s Catholic colleges and universities – is a one of many reasons why the 50th anniversary of the Land O’Lakes statement is not worth celebrating.

July 23, 2017 | Permalink

Thursday, July 20, 2017

USCCB Guidelines for Celebration of Sacraments with Persons with Disabilities

The USCCB recently approved updated "Guidelines for the Celebration of the Sacraments with Persons with Disabilities", available here.  As the Bishops note "Catholics with disabilities, as well as those who minister to or with them, often point out that pastoral practice with regard to the celebration of the sacraments varies greatly from diocese to diocese, even from parish to parish.  . . The inconsistencies in pastoral practice often arise from distinct yet overlapping causes. Some result from a misunderstanding about the nature of disabilities. Others arise from an uncertainty about the appropriate application of church law toward persons with disabilities. Others are born out of fear, misunderstanding, or unfamiliarity. Still others seem to be the result of the real or perceived limitations of a parish’s or diocese’s available resources."

These Guidelines should help address much of these uncertainties, with specific advice with respect to all the sacraments.  The general guidance flows from the following principles:

1. All human beings are equal in dignity in the sight of God. Moreover, by reason of their Baptism, all Catholics also share the same divine calling.

2. Catholics with disabilities have a right to participate in the sacraments as fully as other members of the local ecclesial community. “Sacred ministers cannot deny the sacraments to those who seek them at appropriate times, are properly disposed, and are not prohibited by law from receiving them.”

3. Parish sacramental celebrations should be accessible to persons with disabilities and open to their full, active, and conscious participation, according to their capacity. Pastoral ministers should not presume to know the needs of persons with disabilities, but should rather—before all else—consult with them or their advocates before making determinations about the accessibility of a parish’s facilities and the availability of its programs, policies, and ministries. Full accessibility should be the goal for every parish, and these adaptations are to be an ordinary part of the liturgical life of the parish.

This is an excellent resource for parishes with questions about how to share parish life with all parishioners, and for parents dealing with uncertainty about sacramental preparation for their children with disabilities. 

July 20, 2017 in Science | Permalink

Some Good Analysis of the Issues raised by the Charlie Gard case

Melissa Moschella, Assistant Professor of Medical Ethics at Columbia University, wrote an excellent analysis of the competing interests of the doctors, the courts, and the parents of 11-month old Charlie Gard, who was born with a rare genetic disease known as mitochondrial depletion syndrome.  The hospital in England where Charlie is being treated wants to withdraw his life support, while his parents want to take up the offer of an American specialist at Columbia University in New York to try some experimental treatment.  The High Court in Britain first refused the parents permission to do so, and is now reconsidering the matter.  More recently, Melissa offered some interesting thoughts about the propriety of having Charlie's court-appointed guardian ad litem being represented in court by a lawyer who is actively involved in an organization closely aligned with Dignity in Dying, an advocacy group for assisted suicide.

July 20, 2017 in Schiltz, Elizabeth | Permalink

Wednesday, July 19, 2017

Hittinger on the "Three Necessary Societies"

This is self-recommending:  Russell Hittinger on the "Three Necessary Societies."  A bit:

Leo issued no Syllabus of Errors. Instead, he asked a question that was at once more philosophical and more practical: How do we civilize this situation? What is our proposal for social order? What can we work with in social matters, and how do we measure what’s been lost and what might be regained? He remarked: “Nothing is more useful than to look upon the world as it really is.” The paradigm of Catholic social teaching formulated by Leo resisted the temptation to utopianism, so seldom resisted elsewhere in the nineteenth and twentieth centuries. The Leonine paradigm for social analysis was simple and sturdy. It was a neo-­Aristotelean effort to put the “spirits” of the age into perennial wineskins.

July 19, 2017 in Garnett, Rick | Permalink

Moyn on human rights, dignity, populism, and the state

This First Things essay by Samuel Moyn -- "Restraining Populism" -- will be of interest to many MOJ readers and touches on questions that have come up often here at MOJ.  A bit:

It was in this context that de Valera settled upon human dignity as a foundational principle, one that preserved the essential element of liberal social norms, which is to protect the human person from being absorbed by—and abused by—the power of the state.

In effect, de Valera was implementing into Irish law the broader shift in Catholic thinking. Although initially hopeful about the possibilities of cooperation with fascism, Pope Pius XI came to see the exaggerated power of the state, whether motivated by communism or fascism, as a threat. In his broadside against Nazi pressure on the Catholic Church in the late 1930s, Mit Brennender Sorge, Pius XI denounced actions that violate “every human right and dignity.”

July 19, 2017 in Garnett, Rick | Permalink

An important (but not *quite* right) ministerial-exception decision

The Court of Appeals for the Second Circuit has handed down its opinion in the Fratello case, which involved a sex-discrimination and retaliation lawsuit filed by the former principal of a Catholic school.  The Court (correctly) concluded that her claims were barred, given the Supreme Court's Hosanna-Tabor decision.  "Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission."  (Along with our own Tom Berg and several other religious-freedom scholars, I filed an amicus brief in support of the school.)  The happy warriors at The Becket Fund have a detailed page on the case, here.

I should confess to being just a bit disappointed -- perhaps it's just wounded and unwarranted pride -- by a footnote in the opinion.  Discussing the basis for the ministerial exception, the Court said this:

Any autonomy that religious groups have over their internal affairs is premised on the ʺvoluntaryʺ decisions of individuals to engage in ʺreligious activity.ʺ  Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1403 (1981) (noting that ʺ[t]he [Supreme] Court has repeatedly stated that all who join a church do so with the implied consent to [the churchʹs] government, to which they are bound to submitʺ (internal quotation marks omitted)).  Indeed, ʺwhat might be called institutional or church autonomy is ultimately derived from individual rights.ʺ  Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. 917, 920 (2013); see also id. at 957‐59 (noting that the conception of a ʺchurch as a voluntary associationʺ of individual conscience can be traced to the philosopher John Locke (citing John Locke, A LETTER CONCERNING TOLERATION 28 (James H. Tully ed., 1983) (1629))); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 378 (2002) (ʺBy the late eighteenth century, some version of Lockeʹs basic view of the nature of liberty of conscience had been formally embraced by nearly every politically active American writing on the subject of religion and the state.ʺ).

Although I like and admire Profs. Schragger and Schwartzman, I'm inclined to be for "religious institutionalism" and have a different view about the nature and origins of religious groups' "autonomy."  See, e.g., this and this.  Sigh.  Not even a "But see ..." cite.  All is vanity . . .

July 19, 2017 in Garnett, Rick | Permalink

Friday, July 14, 2017

Victor Hugo's Portrait of a Bishop

Today is Bastille Day, and it would not be right to let it go unhonored here at Mirror of Justice. Here is my contribution: Hugo's Tomb
something from that titan of France now well ensconced in the Pantheon, Victor Hugo. If you do not know Les Miserables (the novel, of course, not the musical), you must give it a try. It's a rare and true pleasure to read.

It may perhaps come as a surprise that the first book of Les Miserables, "A Just Man," is almost entirely devoted to describing a bishop--Bishop Bienvenu Myriel. It may be even more surprising that this portrait, by that grand homme de la patrie, is not merely flattering but reverential. Yes, Hugo saves many sharp elbows for the clerisy. Yes, he has a rather pantheistic conception of Christianity. But it seems churlish today to dwell on these matters. And it should not go unnoticed that this masterpiece of the French Revolution and post-Revolutionary France leads its charge in praise of a cleric--a good and just man. It is, in its way, a deeply religious novel.

Here is something toward the end of the Book 1, Chapter 14 ("What He Thought"). Happy Bastille Day.

Human meditation has no limits. At its own risk and peril, it analyzes and digs deep into its own bedazzlement. One might almost say, that by a sort of splendid reaction, it dazzles nature; the mysterious world which surrounds us renders back what it has received; it is probable that the contemplators are contemplated. However that may be, there are on earth men who—are they men?—perceive distinctly at the verge of the horizons of reverie the heights of the absolute, and who have the terrible vision of the infinite mountain. Monseigneur Bienvenu was not one of these men; Monseigneur Welcome was not a genius. He would have feared those sublimities whence some very great men even, like Swedenborg and Pascal, have slipped into insanity. Certainly, these powerful reveries have their moral utility, and by these arduous paths one approaches to ideal perfection. As for him, he took the path which shortens,—the Gospel’s.

He did not attempt to impart to his chasuble the folds of Elijah’s mantle; he projected no ray of future upon the dark groundswell of events; he did not see to condense in flame the light of things; he had nothing of the prophet and nothing of the magician about him. This humble soul loved, and that was all.

That he carried prayer to the pitch of a superhuman aspiration is probable: but one can no more pray too much than one can love too much; and if it is a heresy to pray beyond the texts, Saint Theresa and Saint Jerome would be heretics.

He inclined towards all that groans and all that expiates. The universe appeared to him like an immense malady; everywhere he felt fever, everywhere he heard the sound of suffering, and, without seeking to solve the enigma, he strove to dress the wound. The terrible spectacle of created things developed tenderness in him; he was occupied only in finding for himself, and in inspiring others with the best way to compassionate and relieve. That which exists was for this good and rare priest a permanent subject of sadness which sought consolation.

There are men who toil at extracting gold; he toiled at the extraction of pity. Universal misery was his mine. The sadness which reigned everywhere was but an excuse for unfailing kindness. Love each other; he declared this to be complete, desired nothing further, and that was the whole of his doctrine. One day, that man who believed himself to be a “philosopher,” the senator who has already been alluded to, said to the Bishop: “Just survey the spectacle of the world: all war against all; the strongest has the most wit. Your love each other is nonsense.”—“Well,” replied Monseigneur Bienvenu, without contesting the point, “if it is nonsense, the soul should shut itself up in it, as the pearl in the oyster.” Thus he shut himself up, he lived there, he was absolutely satisfied with it, leaving on one side the prodigious questions which attract and terrify, the fathomless perspectives of abstraction, the precipices of metaphysics—all those profundities which converge, for the apostle in God, for the atheist in nothingness; destiny, good and evil, the way of being against being, the conscience of man, the thoughtful somnambulism of the animal, the transformation in death, the recapitulation of existences which the tomb contains, the incomprehensible grafting of successive loves on the persistent I, the essence, the substance, the Nile, and the Ens, the soul, nature, liberty, necessity; perpendicular problems, sinister obscurities, where lean the gigantic archangels of the human mind; formidable abysses, which Lucretius, Manou, Saint Paul, Dante, contemplate with eyes flashing lightning, which seems by its steady gaze on the infinite to cause stars to blaze forth there.

Monseigneur Bienvenu was simply a man who took note of the exterior of mysterious questions without scrutinizing them, and without troubling his own mind with them, and who cherished in his own soul a grave respect for darkness.

July 14, 2017 in DeGirolami, Marc | Permalink

Tuesday, July 11, 2017

Two Items: Horwitz on Positive Pluralism; Podcast on OT2016

Just a couple of items to flag for readers.

First, have a read of Paul Horwitz's well crafted review of John Inazu's book, Confident Pluralism. I was particularly interested to see Paul's steps toward a defense of the positive virtue of pluralism (as opposed simply to its observation as a social fact to be managed). This is, at least for me, a difficult step to take with respect to pluralism: in my own work, I incline much more toward the "fact of pluralism" side of things. But Paul and, of course, John, are making the case with their usual panache.

Second, my colleague Mark Movsesian and I have recorded a podcast wrapping up 3 major law and religion cases either decided by the Supreme Court or on for decision next fall. Hope you have a listen.

July 11, 2017 in DeGirolami, Marc | Permalink

Monday, July 10, 2017

Letters on State RFRAs: Archive Here at MOJ

Over the last few years, in the controversies over various proposed state religious freedom restoration acts (state RFRAs), a group of scholars supportive of RFRAs in general have written memo-type letters to state legislatures. Given the often simplistic and distorted public debate, the letters' main purpose has been to set the record straight on what RFRAs are likely to do: their main effect would be to protect classic religious minorities in a wide variety of circumstances, far more than the handful of instances involving small-vendor objectors to weddings etc. (on which the precedents indicate the RFRA results would be uncertain).

Those letters are archived here at MOJ. To go directly to the post collecting the letters, click here. You can also find them now by clicking on the "Resources" link at the top of the MOJ page (then, on the Resources page, look under "Links"). 

The letter signatories do not always support the particular RFRA-related legislative proposal being considered; for example, some signatories to 2014 Arizona letter took no position on the amendments to the preexisting Arizona RFRA that triggered that controversy. (It also seems worth mentioning, given the context of the controversies, that the signatories have always included supporters of same-sex marriage, including yours truly, as well as skeptics or opponents.)

Hopefully this archive will be a useful resource for scholars, advocates, and decision makers of varying views.

July 10, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, July 4, 2017

Reflections on Freedom in Contemporary Society

Like our colleague, Rob, this Fourth of July caused me to reflect on what it means to celebrate our nation. While we can all say we treasure freedom, I often feel as though that word is an abstract term for many of us. Indeed, most Americans are fortunate to have been born into a state of freedom - in the sense that we are not actual slaves.  Therefore,  when we say we are "thankful for our freedom," do we really have any sense of what it is like to not be free?  I am not sure that someone from my generation who is not in the military can really can imagine a true threat to our free lives in the same way an American who survived Pearl Harbor or the Cuban missile crisis can.  When we see those bumper stickers that say "freedom is not free," do we really understand laying down our lives in order to live outside of a totalitarian regime, end enslavement, or allow others to escape oppression?  I suspect, again with the exception of our veterans of the longest war, not.  I think most of us would be perplexed in identifying what role we play in creating the freedom that we enjoy.

But the truth is we play a significant role in achieving or denying freedom.  If we define freedom more broadly to include more than freedom from totalitarian government or the institutution of slavery, but consistent with the TVPA's definition of modern slavery- we see we have a role to play in ending it as significant as the minutmemen of 18th century New England.  

This point was brought home earlier this week by Pope Francis who reminded us that so much hunger and poverty is cause by the "indifference of many and the selfishness of the few."   While we think of actively supporting an unjust government or the institution of state sanctioned slavery as the only ways in which we remove freedom from others, we are wrong. Our indifference can have the same effect. In a world with an estimated 21 million people working in conditions of forced labor, we must recognize that more people are enslaved today than at any other time in history - including at the height of the Trans-Atlantic slave trade. We also know through research that poverty and hunger are major causes of modern day slavery - operating as factors that push people into conditions of forced labor or sex trafficking. 

Therefore, every time we ignore or are indifferent to the hunger and poverty of others, we are encouraging modern day slavery. On this  Fourth of July, the Holy Father's words implore is to do more than eat hot dogs and apple pie and appreciate our freedom. Rather, they call us to appreciate our role as consumers or bystanders who, through our indifference, contribute to slavery of others. In the words of Pope Francis, "All of us realize that the intention to provide everyone with his or her daily bread is not enough. Rather, there is a need to recognize that all have a right to it...." Therefore, perhaps we can celebrate this freedom by - as consumers and bystanders - working to eliminate the enslavement of others and truly appreciate freedom in a new way. 

July 4, 2017 in Leary, Mary G. | Permalink

Catholic Convocation: Joy of the Gospel

The Catholic Convocation just ended with Mass celebrated by Cardinal DiNardo and words from the Nuncio, who was present throughout. As a follow-up to Rick's post, it was a true joy to be with 3500 fellow Catholics at this event convened by the Bishops. In addition to Rick's panel, Helen Alvare (MOJ alum) gave wonderful remarks on the complementarity of women and men and the need for that complementarity to be present throughout the Church. MOJ friend, John Garvey gave a wonderful talk for the need for the renewal of the Catholic Intellectual life on our college campuses. Bishop Barron must have been listening. This morning, in a moving talk, Bishop Barron said "I hate a dumbed down Catholicism."

The word that kept coming up in my mind throughout the Convocation was "accompaniment." Radical missionary disciples must be present in this broken world by accompanying others, especially those on the various peripheries, on this journey through life, meeting them where they are and helping them experience the infinite mercy that is saving us. Bishop Cheri of New Orleans reminded us a) that "we are all sinners! This does not prevent the witness of Christ and His mercy from shining through us." and b) he expressed the urgency in this call, "we must be living epistles" because "we might be the only book someone reads." Supreme Knight Carl Anderson mentioned a perfect example in the art of accompaniment in the life of Fr. Stanley Rother who will be beautified in Oklahoma City on Sept. 23 in a Mass open to all.

July 4, 2017 in Scaperlanda, Mike | Permalink

Monday, July 3, 2017

The Catholic Convocation: "The Joy of the Gospel in America"

Along with fellow MOJ-er Michael Scaperlanda (and a few thousand of our closest friends), I had the pleasure of attending and participating in the USCCB-hosted Convocation down in Orlando this weekend.  The theme for the 3 day event -- which gathered together a wide range of clergy, bishops, lay leaders, teachers, diocesan workers, etc. -- was "The Joy of the Gospel in America."  Here is the website.  I participated on a "breakout" panel -- one of dozens -- on church-state relations.  A number of the keynote talks, masses, homilies, etc. were recorded (and are still being recorded) -- I'd encourage MOJ readers to check it out!

July 3, 2017 in Garnett, Rick | Permalink

Singer on Religion & Discrimination

Harvard law prof Joseph Singer has posted an article titled, Property and Sovereignty Imbricated: Why Religion is Not an Excuse to Discriminate in Public Accommodations.  He argues that "public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect."  From the conclusion:

Property may limit sovereignty, but it can only do so through normative judgments about the legitimate scope of property claims. Sovereignty may define property, but in a free and democratic society it can only do so legitimately by ensuring that free and equal persons are neither attacked nor abandoned in the street with money in their hands.

As such, those who oppose SSM are free not to celebrate same-sex marriages, free not to accept LGBTQ persons as equal members in their churches, free to speak their minds, etc., but "such freedoms end at the market's edge."

First, if you only have time to read one article by Professor Singer this holiday weekend, read his earlier paper, Normative Methods for Lawyers, which is an insightful and important analysis of legal education.  It has been required reading for every 1L student at St. Thomas since it was published.

Second, while I have only skimmed his new paper, I think he's focusing on the less interesting question (how can we justify public accommodation laws in the face of religious liberty objections?) instead of what I believe is a more pressing one: how should we craft public accommodation laws in light of our deep religious and moral pluralism?  Should we draw a distinction between a provider turning away LGBTQ persons from purchasing "off the rack" goods or services and a provider refusing to contribute customized, creative services to the celebration of a relationship to which they object?  For example, what does the relationship between property and sovereignty teach us about the law's appropriate treatment of Barronelle Stuzman? 

July 3, 2017 in Vischer, Rob | Permalink

Sunday, July 2, 2017

The Justice Gap: a nation heading in the wrong direction

As we celebrate our nation this week, it's a good time to take stock of areas in which we have more work to do to measure up to our founding ideals. The Legal Services Corporation recently released a report on “the justice gap” in our country, underscoring the scandalous failure to provide meaningful resources to meet the legal needs of low-income Americans (i.e., those living at or below 125% of the federal poverty level). Among the most striking estimates:

  • 86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help;
  •  71% of low-income households experienced at least one civil legal problem, including 97% of households with victims of domestic violence or sexual assault, 80% of households with kids under 18, and 80% of households with disabled persons;
  • Courts are flooded with unrepresented litigants, even in high-stakes cases -- in New York state courts, for example, 98% of tenants in eviction cases and 95% of parents in child support cases were unrepresented.

Instead of making forward progress, we face an uphill battle even to maintain the status quo.  Last week, the House subcommittee responsible for LSC funding proposed a 24% cut to the agency, which is, sadly, an improvement from the White House's proposal to eliminate the LSC entirely.  We can do better.

July 2, 2017 in Vischer, Rob | Permalink

Thursday, June 29, 2017

History repeats itself. Or, an implication of a state-established church?

From Sweden:  

Sweden's Prime Minister says no priest working for the Church of Sweden should be allowed to refuse to wed same-sex couples. . . .  

Löfven, who is not religious himself, said the state church should an "open democratic church...that stands for equal rights of all people. People who love each other, regardless of their sex, should have the same right to marriage."
He favors changes in church law that would make a willingness to perform same-sex weddings a requirement for ordination.
Are there any John Fishers in waiting in Sweden, I wonder?

June 29, 2017 in Garnett, Rick | Permalink

Monday, June 26, 2017

More on Trinity Lutheran: Responses to Rick and Marc

     Thanks to Rick and Marc for the good additional thoughts on Trinity Lutheran.

     Rick rightly says that the fact that church daycare admitted students of different faiths was not relevant to the Court's free exercise holding. It makes little sense as a matter of constitutional doctrine to say that the church has constitutional status of religious equality but loses that status as a constitutional matter if it does what a church does, like choose members or employees based on its faith. On the other hand, I think it would get a little trickier (under precedent, that is) if the state adopted a regulation saying that all recipients of the funding must obey rules of nondiscrimination based on religion. The Court in Christian Legal Society v. Martinez treated that as a neutral, generally applicable rule and upheld it. Now, Martinez was a terrible decision--among other things because so-called "religious discrimination" by a religious group is simply an act defining the group around its mission in the way that all mission-oriented groups do. That reality is not changed merely because a state passes a regulation calling it impermissible discrimination. Nevertheless Martinez is out there and--like other regulatory conditions on access to benefits--will probably be the major sort of issue going forward, as I suggested in part 2 of my first post.

     Marc asks why the arguments about the animus behind Blaine Amendments didn't figure in the Trinity opinion. One answer is that the arguments were not very strong concerning Missouri Article I, section 7, the exclusion of churches, the provision to which the state pointed. Exclusion of churches from funding predates the Catholic-Protestant controversies (including Blaine) by decades--unlike exclusion of religious schooling, which was intimately bound up with mid-19th-century anti-Catholicism and Protestant-oriented public school policies.  Moreover, claims of "animus" (and similar claims like "gerrymandering" or "intentional targeting") end up being stronger or weaker according to the degree of disproportionate effect on the allegedly targeted group. (Say what you want about the Trump travel ban, its restriction falls almost entirely on Muslims; no one has ever claimed Trump's anti-Muslim campaign statements would invalidate the order in the absence of this strong discriminatory effect.) Missouri's exclusion of churches may have been enacted during the anti-Catholic period around the Blaine Amendment, but it hit Protestants too because, well, they have churches--while the exclusion of K-12 schools (especially of "sectarian" schools) hit almost solely Catholics and very few Protestants. As such, the Blaine/animus arguments did not resonate particularly well in Trinity and were a minor part of the church's briefing. What resonated far more was the simple wrongness of disqualifying a church, whose playground serves kids whose interests matter as much as any other kids.' But I suspect that Blaine arguments will remain central in cases like Douglas County (see their amicus brief here) from Colorado, whose 1876 provision focused on "sectarian" schools. (I assume Douglas County will be GVRed, the Colorado courts on remand will continue to reject the Blaine and other arguments, and they'll all come back to the Supreme Court in a year or two.)

June 26, 2017 in Berg, Thomas, Current Affairs | Permalink

More on Trinity Lutheran

I have very little to add to Marc's and Tom's helpful reflections on today's Trinity Lutheran case.  Like Marc, I'm struck by the complete irrelevance to the Court's reasoning of the Blaine Amendments' anti-Catholic history, context, and purpose (for more on that, see, e.g., this).  I wonder what (if anything) this silence means for the "animus" argument in the context of the "Travel Ban" litigation?   

I do think it is worth noting -- primarily by way of a response to a suggestion made by Melissa Rogers in this news story -- that nothing in the case turned on the fact that Trinity Lutheran's pre-school (quoting the Chief Justice's opinion) "admits students of any religion."  That is, contrary to the argument in this amicus brief, it would not be the case that allowing a church-run daycare that did prefer co-religionists to participate in an evenhanded, secular-purpose program like the one at issue somehow constitutes government subsidization of (invidious) "discrimination." 

June 26, 2017 in Garnett, Rick | Permalink

Where are the "Blaine Amendments"? Where is the "Animus" Inquiry?

Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.

For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:

Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” 

Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature. 

But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.

June 26, 2017 in DeGirolami, Marc | Permalink

Strong Win in Trinity Lutheran, but with Important Issues Left Open

The Court has ruled, 7-2, that the state of Missouri violated the Free Exercise Clause when it disqualified Trinity Lutheran Church, because it was a church, from a general program under which it could have applied to receive state funds to purchase recycled tires and resurface its playground. The Court held that "[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.... [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."

A few initial thoughts:

1. It's a strong win for equal participation of religion, and free religious choice, in government benefits. For one thing, this is the first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding. Rosenberger (1995) involved a university program of funding student organizations to engage in speech; the Court there held that the particular program created a limited public forum for speech, from which religious viewpoints could not be excluded. The Court has refused--and still does--to treat government funding programs for substantive policy purposes (education scholarships, K-12 vouchers, etc.) as creating forums for speech. So this case, relying on the Free Exercise Clause, is an important step in preventing states from singling out religious schools for exclusion from school-choice programs. Most previous decisions had merely allowed equal inclusion of religious entities/persons; Trinity requires it.

      It's also strong because the vote is 7-2 and includes Kagan and Breyer (although the latter concurred in the judgment only). The once-dominant strict separationist position that barred aid broadly to religious organizations, especially to houses of worship, is represented only by Sotomayor and Ginsburg. Trinity gives further confirmation of the sea change that has happened in aid cases over the last 30 years: a strong tide away from no-aid separationism and toward equal participation in aid programs--which I think, on the whole, also serves the values of choice and freedom in matters of religion.

      Finally, the majority narrowly reads Locke v. Davey (2004), which approved (7-2 the other way!) the exclusion of "devotional theology" students from a broad program of state-funded college scholarships. The broad readings of Davey--that denial of funding is simply not a burden on religion--are now decisively rejected. Instead, the Court emphasized that the denial there was based on a particular use of funds (for pursuing a degree in devotional theology) and that Davey had many ways of including religious elements in his state-funded education: he "could use his scholarship to attend a religious college," includnig a "pervasively religious" college, "and take devotional theology courses there," as long as he didn't pursue a major. Davey might now be narrowed to its facts; it may only involve exclusions of clergy education (which the Court discussed a lot in the Davey opinion); at the very least it is a much smaller obstacle now to suits challenging the exclusion of religious institutions or their students from generally available aid programs. 

2. In important ways, the state-religion issues have bypassed the aid cases. It's important that there is now such a strong consensus against broad exclusions of religious institutions from government aid. But since about 2010, the action in religious liberty cases has shifted to conflicts between government regulation and religious conscience or identity, as exemplified in the cases over same-sex marriage (cert granted today in the Masterpiece Cakeshop case), the Obama HHS contraception mandate, and exclusions of student religious groups that requires standards of belief or conduct for their leaders (CLS v. Martinez, 2010). If religious groups or individuals can participate in benefit programs on equal terms, but those terms regularly include general conditions that conflict with their religious convictions or identity, then not much has changed in practice. So the location of the fights between traditionalist religious organizations and their more secular, separationist, or progressive counterparts has shifted to another part of the battlefield. Trinity has something to say about those fights to the extent they involve government benefits: the decisions rests on the proposition that "the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,'” meaning that application of, say, nondiscrimination laws to deny a religious organization benefits (like tax-exempt status) does create a free exercise burden. But the main questions in those fights--such as whether the government's regulation is generally applicable or (if RFRA is involved) serves a "compelling interest"--are different from those in Trinity.

3. The decision is strong, but it scope is uncertain. Trinity says that the state cannot deny aid on the ground of the recipient's religious status, character, or identity; the remaining question is whether it can deny aid on the ground that it will be used for religious purposes (this is the ground of some of the state exclusions, although not others). If religious uses can still be singled out for exclusion, then states will still be able to deny K-12 vouchers to religious education, since a voucher inevitably covers the religious element of schooling.

      Trinity leaves this question open. Footnote 3 in the majority opinion expressly does so. Justices Thomas and Gorsuch did not join that footnote, so it reflects only four votes rather than six. But Justice Breyer, in concurring in the judgment, also said he was deciding only the question of exclusion from public health and safety benefits and was "leav[ing questions concerning] other kinds of public benefits for another day." (And he thinks that including religious schools in K-12 vouchers actually is forbidden; see his dissent in Zelman (2002).) Plus the two dissenters, Sotomayor and Ginsburg, presumably will not vote to extend Trinity to forbid exclusions based on religious use rather than religious status.

      That leaves Thomas and Gorsuch, who each wrote concurrences (and joined each other's) suggesting that they would strike down the singling out of religious uses for exclusion. Thomas noted, approvingly, that the majority opinion seemed to confine Locke v. Davey to the very narrow context of "ministerial training." Gorsuch likewise suggests Davey is limited to ministerial training, but his opinion is more extensive and, like other separate opinions he wrote this term, announces he will make his intellectual and rhetorical marks on the Court:

[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? ... Often enough the same facts can be described both ways....

      Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward belief (or status).... I don’t see why it should matter
whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.

      For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke v. Davey....  [C]an it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion’s claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here.

      Thomas and Gorsuch are only two votes, so the question whether states can single out religious uses for exclusion remains open. But Trinity nevertheless sends a clear signal: the Court will treat exclusions of religion from general benefits program with far more skepticism than the deference given in Davey. And if it takes the next step, striking down exclusions of religious uses, Gorsuch's attack on the status-conduct distinction will provide at least a section of the road map.

June 26, 2017 in Berg, Thomas, Current Affairs | Permalink

Friday, June 23, 2017

Justice Declaration

Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform.  With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed."  The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards.  You can read the "Justice Declaration" here.

June 23, 2017 in Vischer, Rob | Permalink

Thursday, June 22, 2017

The Rage of Henry VIII


A short note on the feast-day of the martyr-saints John Fisher and Thomas More: I believe that the spiritual biography of Henry VIII has yet to be written, and may never be. There are a number of good secular and political biographies, and those are important and worthy. To understand the deep tap-roots of Henry's part in the English reformation, however, would in my view require a treatment of his spiritual degeneration. Perhaps syphilis and kingship and the Tudor character explain it all. Perhaps, however, something worse was at work.

Consider the nature of Henry's rage. When Paul III made Bishop John Fisher a Cardinal, seeking to protect him -- what decent Christian would lay hands on a Prince of the Church? -- the effect was the opposite of the intention. As the Catholic Encyclopedia recounts, "Henry forbade the Cardinal's hat to be brought into England, declaring that he would send the head to Rome instead." Who, or perhaps I should say what, could speak with such flippancy and relish of beheading a venerable priest? Who or what is so wicked and yet so childish?

Another example: I remember vividly a tour of Christchurch Priory in Dorset, the former domain of the Countess of Salisbury, a peeress in her own right, relative of kings and the last of the great Plantagenets. She is perhaps better known to Catholics as the Blessed Margaret Pole, gruesomely martyred by Henry in the Tower for refusing to abjure her son, Cardinal Reginald Pole, the last Catholic Archbishop of Canterbury. (I do not say "for the crime of refusing to abjure" because Henry in his urgency bypassed regular judicial procedure). The Countess was seventy years old, was hacked to death, and was buried in the Tower graveyard because Henry refused to allow her to be buried in her own chantry chapel at Christchurch Priory. Who or what could be so bitterly vengeful against an old lady, whose great fault was to be a faithful and loving mother?

Indeed, our tour guide at Christchurch Priory showed us the Countess' partially despoiled chantry chapel, and recounted -- English localities have very long memories indeed -- that Henry's men had come with specific orders to deface the decorations within the chapel, even the ones not visible from the ground. (The tale is confirmed by a letter from the King's Commissioner). Who or what would care to deface what is visible only to God? "What rough beast, its hour come round at last..."

The spiritual biography of Henry, then, would have to comprehend the nature and source of the malevolent rage that consumed him. A model might be Patricia Snow's explanation for the cold gleeful fury at the heart of Hilary Mantel -- and the Culprit might well turn out to be the same in both cases.


June 22, 2017 | Permalink

Tuesday, June 20, 2017

Prof. Philip Hamburger on the Blaine Amendments and Anti-Catholic Prejudice

Over at First Things, Prof. Philip Hamburger lays out the history, context, and meaning of the so-called Blaine Amendments and their relevance to the pending Trinity Lutheran case.  Here's a bit:

In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.

This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.

If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.

June 20, 2017 in Garnett, Rick | Permalink

Monday, June 19, 2017

The Freedom of Speech at SCOTUS today

It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech.  Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses.   Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. 

As many Prawfs readers will know, groups of law professors weighed in on both sides of the case (see, e.g., here and here).

June 19, 2017 in Garnett, Rick | Permalink

Friday, June 16, 2017

Fast-Tracking ACA Reform

I'm not sure what the most effective response to the dearth of civil, respectful political debate in our country is, but I certainly don't think the answer is to quelch all dialogue.  But that seems to be exactly what the Republican leadership in the Senate is doing with its response to the House's American Health Care Act.  As this Washington Post article reports, Senator McConnell has invoked the fast-track procedure that will bring the bill right to the floor for a vote, without any committee hearings.  The bill itself is being negotiated in private, with the expectation that it would be released within 24 hours of a vote, leaving nobody who might want to undertake a thoughtful examination of these important issues with any time to do so.  I don't pretend to understand all the details of the complexities of the ACA or its reform, but I am seeing desperate appeals from disability advocacy groups (like this from the National Down Syndrome Congress, and this from The Arc), describing the devastating effect the changes to Medicaid currently in the House bill, and likely to be in the Senate bill, will have on services to people with disabilities.  If you don't have a family member with a disability, have you heard anything at all about this aspect of ACA reform?

This really isn't any way to run a country, is it?

June 16, 2017 in Schiltz, Elizabeth | Permalink

Monday, June 12, 2017

Why the anti-Sharia movement is (at least in the U.S.) anti-Muslim

I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim.  An excerpt:

The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.


The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)


These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.

Feedback, as always, is welcome.

June 12, 2017 in Vischer, Rob | Permalink