Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Thursday, July 30, 2015

A World Without Planned Parenthood

Some short reflections on NRO from myself and many others on a world without Planned Parenthood. Loved this from Frank Beckwith:  

For any culture that abandons the cold, calculating, and contractual premises of modern eugenics — that we are to measure our happiness by how unencumbered we are from the burden of our natural limitations and the dependence of those for whom we did not explicitly choose to care — means that it is a culture moving in the direction of faith, hope, and charity. 


July 30, 2015 | Permalink

Wednesday, July 29, 2015

Implementing Plea Bargaining in Uganda

Pepperdine's Jim Gash has been working closely with the Ugandan Judiciary to develop and implement a system of plea bargaining in Uganda with the hopes of improving their criminal justice system and reducing the number of prisoners sitting in prison awaiting trial (sometimes as long as five years). The idea grew out of a paper two Pepperdine Law students had written for a Ugandan judge while the students were clerking for him several years ago.

I recently had the privilege of accompanying Jim on his 17th trip to Uganda in the last five years. Other participants included current and former prosecutors, public defenders, other lawyers, a current state and a current federal judge, and Pepperdine students who were spending the summer in externships in Uganda and Rwanda. The first week of the trip, I felt like a first year associate as we put in 70 hours or so, including trips to four prisons and one juvenile remand home. At the prisons, we worked in teams of an American attorney, a Ugandan defense attorney (much of the time), Pepperdine students, and Ugandan Christian University students meeting with clients in an attempt to work plea deals. You can read more about the trip and Pepperdine's work in Uganda on Jim blog, Throwing Starfish.

I greatly appreciated Jim's invitation. It was just my third trip to Uganda, and his experience and contacts will greatly enhance the experience of University of Oklahoma law students and alums as we continue our work in northern Uganda with Sr. Rosemary Nyirumbe, St. Monica's Vocational School, and Gulu University.

July 29, 2015 in Scaperlanda, Mike | Permalink

Tuesday, July 28, 2015

Fr. Barron on the Planned Parenthood videos, human dignity, and God

We've talked often, over the years, here at MOJ about the basis or ground for "human dignity."  (And, several of us -- including Michael Perry, Robby George, Tom Berg, and others -- have written important works about this question.)   In this reflection, Fr. Robert Barron (the new Auxiliary for the Archdiocese of Los Angeles!) takes on the "Death of God and the Loss of Human Dignity."  He captures really well, I think, the importance of "moral anthropology," which has been on the front burner for us at MOJ from the very first week.

Here's Fr. Barron:

. . .  In the classical Western perspective, the dignity of the human person is a consequence and function of his or her status as a creature of God. Precisely because the human being is made in the image and likeness of the Creator and destined, finally, for eternal life on high with God, he is a subject of inalienable rights. I use Jefferson’s language from the Declaration of Independence on purpose here, for the great founding father knew that the absolute nature of the rights he was describing follows from their derivation from God: “they are endowed by their Creator with certain unalienable rights…” When God is removed from the picture, human rights rather rapidly evanesce, which can be seen with clarity in both ancient times and modern. For Cicero, Aristotle, and Plato, a cultural elite enjoyed rights, privileges, and dignity, while the vast majority of people were legitimately relegated to inferior status, some even to the condition of slavery. In the totalitarianisms of the last century—marked in every case by an aggressive dismissal of God—untold millions of human beings were treated as little more than vermin.

I realize that many philosophers and social theorists have tried to ground a sense of human dignity in something other than God, but these attempts have all proven fruitless. . . . 

July 28, 2015 in Garnett, Rick | Permalink

Kudos to Sen. Joe Donnelly (D-IN).

Today, at a rally in downtown South Bend, the office of Sen. Joe Donnelly (a graduate of Notre Dame Law School) distributed a letter in which the Democratic Senator (like his Republican colleague, Sen. Coates) called for a full investigation into the recent (and ongoing) revelations regarding Planned Parenthood's practices and funding.  Thank you, Senator.   

July 28, 2015 in Garnett, Rick | Permalink

Ryan Anderson on the challenges to religious freedom

At First Things, Ryan Anderson has posted a short piece summarizing the argument he advances in his new book, Truth Overruled:  The Future of Marriage and Religious Freedom (available here).   Among other things, Anderson identifies succinctly three reasons why religious freedom (correctly understood) is vulnerable at present:  First, "government has changed"; second, "sexual values have changed"; and third, "religious liberty has changed."  

As Michael McConnell, Tom Berg, and John Garvey note in their excellent Law and Religion casebookReligion and the Constitution, it is (paraphrasing) relatively easy to protect and respect religious liberty when everyone agrees about the big questions and when governments don't do very much.  But, as governments do more, and as disagreement with respect to non-trivial matters (including, as Anderson points out, sexual morality) deepen, the occasions for conflict between religious believers and government actions and aims increase.  Add to this mix a diminishing commitment to religious freedom as a fundamental human right -- or, an increasing view that "religious freedom" is a special-interest concern only to people whose views are increasingly out of sync with academic and other elites -- and, well, we've got trouble.  

Anderson's First Things piece concludes with this:

So the three steps that have undone core elements of the American Founding—progressive government and the administrative state, the sexual revolution’s elevation of desire, and the whittling of religious free exercise down to the freedom to worship—all need to be countered. Political organizations, religious and civic organizations, and legal organizations will have to play their roles in empowering the citizenry to reclaim their government and culture. I offer a roadmap for these groups to follow in Truth Overruled.

Without a return to the principles of the American Founding— ordered liberty based on faith and reason, natural rights and morality, limited government and civil society—Americans will continue to face serious and perplexing challenges. The dilemmas faced by bakers and florists and charities and schools are only the beginning.

I am less confident than, it appears, Anderson is that government and culture are likely to be "reclaimed" in a way that will undo the developments that he (correctly, I think) identifies as having made religious freedom vulnerable.  (That said, if everyone were as civil, even-keeled, and charitable in public argument about controversial matters as Anderson is, I might have more confidence.)  Like Anderson, however, I think that the work of organizations like the Becket Fund is and will continue to be crucial, in order to protect space for believers and institutions alike not only to worship and pray privately but also to teach, serve, bear witness, and inspire by example.  

Anderson writes (and I agree) that "[t]rue religious liberty entails the freedom to live consistently with one’s beliefs seven days a week—in the chapel, in the marketplace, and in the public square."  At the same time, I do not think it is likely that, "in the marketplace" (and in public employment) employers, employees, and business organizations whose owners hold traditional beliefs about sexual morality will be accommodated through exemptions from nondiscrimination laws.  As I see it, the live and pressing issue on which religious-freedom advocates should focus, now and going forward, is on the importance of making sure that the government's (and others') many carrots and sticks -- accreditation requirements, licensing standards, public-forum access, public-funds eligibility, television contracts, merchandising agreements, tax exemptions, student-loan-participation rules -- are not used to force religious educational, healthcare, and social-welfare institutions to assimilate, homogenize, or give up their distinct religious character and mission.

July 28, 2015 in Garnett, Rick | Permalink

Monday, July 27, 2015

"Push Within Religions for Gay Marriage Gets Little Attention"

That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times.  The article, by Samuel G. Freedman, will be of great interest to MOJ readers.  Here.

July 27, 2015 in Perry, Michael | Permalink

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016


We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 


Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia


Their topics and bios are at the end of this message.   


Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content.  As Alasdair McIntyre has asked, “Whose Justice?”  During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment.  (We seem now to be experiencing the latter.) 


Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates).  The first theme is a call to do justice and to serve a hurting world.  What do our traditions say about justice to the 21st century?  What are the great injustices and causes of suffering in our world?  How might they be addressed by individuals, religious congregations, NGOs, and governments? 


A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good.  Attempts to help can generate dependence or harm bystanders.  The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems.  Laws can have unintended consequences that do greater harm than good.  We need to make a difference, but to do so wisely.


Please join us for the conversation.  Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work. 


Questions to be addressed might include: 

-           What do our secular and religious traditions teach about justice and its place in the 21st century? 

-           What is the relationship between justice and love?

-           How can the law best be used to promote the ideals of justice.

-           What is social justice and what is its relationship with other forms of justice? 

-           What are the greatest injustices in our world and what can we do about them? 

-           What are the greatest injustices in our neighborhoods and what can we do about them?

-           What are examples of attempts to help the poor which have harmed them?

-           How can attempts to do justice lead to injustice?

-           How might we help those in the greatest need without harming them? 


If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email tojenna.anderson@pepperdine.edu. Proposals should be two pages maximum and should include a short abstract and a bio.  

If you have questions about the substance of the conference, contact Bob Cochranrobert.cochran@pepperdine.edu or Michael Helfandmichael.helfand@pepperdine.edu  For questions about the details of the conference, contact Jenna Anderson jenna.anderson@pepperdine.edu or (310) 506-6978

For information on the conference as it becomes available and to view details of past conferences, see:


The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies. 


All our best,

Bob Cochran & Michael Helfand

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law and

Director, Herbert and Elinor Nootbaar

      Institute on Law, Religion, and Ethics


Michael A. Helfand

Associate Professor of Law and

Associate Director, Glazer Institute for Jewish Studies


Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, California 90263-4611

July 27, 2015 in Garnett, Rick | Permalink

As the Church Discovered the Virtues of Religious Liberty, Eventually the Church will Appreciate the Charisma of Democratic Capitalism

It took long centuries for the Catholic Church, which frequently had aligned itself with State power, to come to a better understanding of the moral and prudential virtues of religious liberty. Developing as an institution during a time of authoritarian and rather primitive societies, the Church understandably accommodated to traditions by which the instruments of the State were used by those in power both to govern and to inculcate the vision of the elites.

In his famous book, We Hold These Truths: Catholic Reflections on the American Proposition, published in 1960 on the eve of the Second Vatican Council, American Jesuit John Courtney Murray offered the success of the unique American experiment in religious liberty as evidence of a new moral truth consistent with the natural law tradition of the Catholic Church.

The Second Vatican Council was greatly influenced by Murray and his observations about religious liberty in the American context. At the close of the Council in 1965, Pope Paul VI promulgated Dignitatis Humanae (The Declaration on Religious Freedom) formally declaring as Catholic teaching that “the right to religious freedom has its foundation in the very dignity of the human person.”

Writing about Murray and the Second Vatican Council, Judge John Noonan observed that “the Declaration on Religious Freedom would not have come into existence without the American contribution and the experiment that began with Madison.” John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom 353 (1998).

The Catholic Church eventually came to appreciate that authoritarian government, especially as to religious freedom rights, created the environment for abuses and ultimately weakened faithfulness.

Likewise, the Church eventually will come to understand that authoritarian government approaches to economics also are rife with opportunities for abuse (crony capitalism, structuring the system to benefit political and economic oligarchies, rent-seeking by favored economic and political actors, etc.) and ultimately undermine prosperity.

But, just as was true with the slow evolution of the Church’s views on religious liberty, the Church will take some time to appreciate in its teaching that democratic capitalism has been the greatest engine for prosperity in the history of the world and creates the free space for moral structures and intermediary institutions, such as the Church.

As Catholic philosopher Michael Novak observed some 35 years ago in his classic work Toward a Theology of the Corporation at 1 (AEI 1981), “[m]ost theologians of the last two hundred years have approached democratic capitalism in a premodern, precapitalist, predemocratic way; or else they have been socialists, usually romantic and utopian rather than empirical.”  Novak was one of the first to deprecate “the anticapitalist bias of the Roman Catholic Church," which has been plagued with “systemic misperceptions about the nature of democratic capitalism.”  Id. at 9-10.

A Church that is rightly and genuinely concerned with the plight of the poor cannot afford to ignore the realities of economics.  In contrast with the static societies of the Middle Ages, during which the Church began to consider the economic moral order, the modern world has seen hundreds of millions lifted out of poverty by the innovation of free market economies during the past century and more.  We would do well to remember the harsh realities of human existence in the precapitalist period, as Novak explains:

Until the rise of democratic capitalism a permanent condition of poverty was seen as a given.  Indeed, in the 1780s four-fifths of all French families spent 90 percent of their income simply buying bread — only bread — to stay alive.  In 1800 fewer than 1,000 people in the whole of Germany had incomes as high as $1,000.  Yet in Great Britain from 1800 to 18509, after the sudden capitalist take-off that had begun in 1780, real wages quadrupled, then quadrupled again between 1850 and 1900.  The world had never seen anything like it.  After World War II dozens of other nations — but not all nations — used the ideas of democratic capitalism to experience even more rapid growth.  (Id. at 23-24.)

By contrast, nations with excessive government intervention into markets during that same post-World War II period discouraged innovation, investment, and growth, leading to economic stagnation. Point to a nation with a history of heavy-handed government interventions into markets, and you will be pointing to a nation that has suffered a (comparative) decline in economic growth.  A prosperous nation can afford to consider how best to allocate wealth, while a poor nation needs to focus on economic growth, which in turn demands relatively free markets.

Consider two contrasting examples:  South Korea as representative of the “economic miracle" in much of Asia.  And Argentina as illustrative of the cronyist interventionst approach by governments in much of Latin America.

South_Korea_on_the_globe_(Japan_centered).svgA half-century ago, South Korea experienced a level of poverty like that in the poorest nations of Asia and Africa.

A century ago, Argentina was “one of the world’s wealthiest countries, with a standard of living on part with that of the US.”  Michael Boskin, Why does Chile prosper while neighbouring Agentina flounders?, The Guardian, Nov. 22, 2013.  

Let’s compare the trajectories of these countries, with different economic policies.  In 1950, Argentina was a wealthy country, with per capita GDP of $6164 — far above South Korea’s of only $1185.  By 2010, Argentina had grown only to $13,468, while South Korea’s had jumped to $30,079.  The annual growth rate in Argentina over those 60 years barely broke 1 percent, while South Korea enjoyed a growth rate above 5.5 percent.  Christopher D. Piros & Jerald E. Pinto, Economics for Investment Decision Makers 629 (Wiley 2013).

Despite beginning this period as a poor and war-torn nation, South Korea by adopting largely (but not completely unregulated) free markets has become an advanced society with a leading economy. Argentina_on_the_globe_(all_claims_hatched)_(Chile_centered).svg

Despite beginning the period as a wealthy country, Argentina through political instability, excessive spending and debt, and repeated government intervention in markets has fallen steadily downward.  At its worst point a little more than a decade ago, 60 percent of the population of Argentina was below the poverty line.  On the Heritage Foundation “Economic Freedom Index,” Argentina ranks 169 out of 178 nations. 

Many factors — culture, political arrangements, monetary policy, natural resources, educational investment — play a role in a nation’s economic progress (or lack thereof).  But economic freedom remains indispenable.  Of course, no nation permits entirely free markets.  A stable legal system governed by the rule of law which holds people to account for agreements and punishes abuse is also essential.  Antitrust laws to prevent monopolies are standard.  Labor rights should be added to the mix.  And reasonable rate of taxation is necessary to build infrastructure and ensure educational opportunity.  In fact, contrary to the conventional wisdom in many Church circles, the number, extent, comprehensiveness, and intrusiveness of current governmental regulations and market controls imposed on economic entities in the developed world, national and international, is striking.  In sum, a thoroughly free market does not exist in this country.

The question is the right balance between free markets to allow creativity, innovation, and growth, and legal security to keep order in markets and prevent abuses.  The same is true in balancing the virtue of religious liberty against the imperative needs of a society.  And we cannot begin to find that balance without first appreciating the charisma of democratic capitalism.

Fortunately, Saint John Paul II already has jump-started the movement of Church moral teaching on economics beyond pre-modern assumptions:

If by “capitalism” is meant an economic system which recognizes the fundamental and positive role of business, the market, private property and the resulting responsibility for the means of production, as well as free human creativity in the economic sector, then the answer is certainly in the affirmative, even though it would perhaps be more appropriate to speak of a “business economy,” “market economy” or simply “free economy.” But if by “capitalism” is meant a system in which freedom in the economic sector is not circumscribed within a strong juridical framework which places it at the service of human freedom in its totality, and which sees it as a particular aspect of that freedom, the core of which is ethical and religious, then the reply is certainly negative. (Centesimus Annus, para. 42.)

Progress seldom proceeds in a straight-line.  As that progress moves haltingly forward in the future, Saint John Paul II’s vision will ascend again.

July 27, 2015 in Sisk, Greg | Permalink

"De Descriptione Temporum"

As I think I've mentioned before here at MOJ, I loved and was really shaped in my thinking by C.S. Lewis's The Discarded Image.   And, some of my favorite parts of the new (excellent) biography of "The Inklings" -- The Fellowshipby Philip and Carol Zaleski -- were about that book's theses.  Along the way, I encountered for the first time the inaugural lecture that Lewis gave when he was appointed to his chair at Cambridge University.  It's called "De Descriptione Temporum" (sometimes also called "The Great Divide"), and it's well worth a read.  Among other things, Lewis takes on the labels we use, and the premises those labels reflect, for describing historical periods, ages, and epochs ("The Dark Ages," for example).  And, he suggests provocatively that there has been a modern "un-Christianing" that has separated us, sharply, from the literary and other traditions of "the west."  Here's the conclusion:

And now for the claim: which sounds arrogant but, I hope, is not really so. I have said that the vast 
change which separates you from Old Western has been gradual and is not even now complete. Wide 
as the chasm is, those who are native to different sides of it can still meet; are meeting in this room. 
This is quite normal at times of great change. The correspondence of Henry More 13 and Descartes is 
an amusing example; one would think the two men were writing in different centuries. And here 
comes the rub. I myself belong far more to that Old Western order than to yours. I am going to claim 
that this, which in one way is a disqualification for my task, is yet in another a qualification. The 
disqualification is obvious. You don't want to be lectured on Neanderthal Man by a Neanderthaler, still 
less on dinosaurs by a dinosaur. And yet, is that the whole story? If a live dinosaur dragged its slow 
length into the laboratory, would we not all look back as we fled? What a chance to know at last how 
it really moved and looked and smelled and what noises it made! And if the Neanderthaler could talk, 
then, though his lecturing technique might leave much to be desired, should we not almost certainly 
learn from him some things about him which the best modem anthropologist could never have told us? 
He would tell us without knowing he was telling. One thing I know: I would give a great deal to hear 
any ancient Athenian, even a stupid one, talking about Greek tragedy. He would know in his bones so 
much that we seek in vain. At any moment some chance phrase might, unknown to him, show us 
where modem scholarship had been on the wrong track for years. Ladies and gentlemen, I stand 
before you somewhat as that Athenian might stand. I read as a native texts that you must read as 
foreigners. You see why I said that the claim was not really arrogant; who can be proud of speaking 
fluently his mother tongue or knowing his way about his father's house? It is my settled conviction 
that in order to read Old Western literature aright you must suspend most of the responses and unlearn 
most of the habits you have acquired in reading modem literature. And because this is the judgement 
of a native, I claim that, even if the defence of my conviction is weak, the fact of my conviction is a 
historical datum to which you should give full weight. That way, where I fail as a critic, I may yet be 
useful as a specimen. I would even dare to go further. Speaking not only for myself but for all other 
Old Western men whom you may meet, I would say, use your specimens while you can. There are not 
going to be many more dinosaurs.

July 27, 2015 in Garnett, Rick | Permalink

Great news from North Carolina

The state's Supreme Court has upheld North Carolina's school-choice program.  It is just too bad that the Court split on party lines, 4-3, and that the 3 dissenting justices embraced (as a matter of state constitutional law) the unsound no-aid separationism that so distorted Establishment Clause caselaw between Everson and Mueller / Witters / Zobrest / Agostini / Zelman.   

July 27, 2015 in Garnett, Rick | Permalink

"Is Ecology Haunted"?

This reflection, by Doug Sikkema, on the new encyclical was, for me, helpful and illuminating.   It draws on C.S. Lewis, Dante, Charles Taylor, Wendell Berry . . .  .  Check it out.  A bit:

So today we live within what Taylor calls the “immanent frame,” a world reduced to naturalist explanations, increasingly closed off to the transcendent. And whether we're aware of it or not (and whether we're religious or not), this frame has shaped much ecological thought in our secular age. This means environmentalists,especially Christian environmentalists, don't get to hop on to the subtraction-narrative bandwagon, lamenting everything we've lost since the fifteenth century—as if dysentery were something to get nostalgic over. We have to admit that disenchanting the world allowed for the possibility of major breakthroughs in applied science (particularly modern medicine) that have improved life. We also have to recognize that the flattening of the world allowed for a really robust look at life on the x-axis.

Yet while we might be grateful for the growing body of scientific knowledge accumulated within the scope of the immanent frame, there are still troubling consequences when we lose sight of the y-axis. As we become increasingly buffered from even the possibility that “something” might transcend our sensible world, we have a much more difficult time really believing that humans are not justanother type of animal and the world is not just a place of inert, material resources for us to use up in any way we can.

Laudato Si': Recovering Ecology's Y-Axis

In Laudato Si', Pope Francis attempts something Wendell Berry in his fiction, Annie Dillard in her essays, and even Christian Wiman in his poetry have all attempted in the past decades: to recover the y-axis within ecological thought.

July 27, 2015 in Garnett, Rick | Permalink

The NYT on the current abortion controversy

This piece might be as close at the NYT can come to covering an abortion-related controversy in a way that does not merely repeat the talking points and agenda items of the abortion-rights lobby.  A bit:

But anti-abortion activists say their new efforts are forcing their opponents to defend their own words and beliefs on the issue in a way they had not had to before.

“It’s very difficult to deliver a message that people don’t basically believe,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, a group that funds anti-abortion candidates. “We’re the source of the information, so they think we’re biased.” But in this case, she added, “it’s coming from them, not us.”

Abortion opponents hope the videos will provoke people to consider the humanity of the unborn, much like discussing ultrasounds can — albeit in a much more jarring and graphic way. Ms. Conway, the Republican pollster, calls this a “shock the conscience, warm the heart” approach.

On the other hand, the piece also employs, chillingly, an abortion-related euphemism that was new, even to me:  "The group also says it knows that Mr. Daleiden or his colleagues were admitted into a clinic area that processes tissue after abortions, and it believes they may have obtained footage of that as well."  "[A] clinic area that processes tissue . . . ".  God help us.

July 27, 2015 in Garnett, Rick | Permalink

On "Sectarian Schools" Clauses and Religious Neutrality

Congratulations to Tom and St. Thomas's religious liberty clinic on the decision from North Carolina. Tom writes below that "the plaintiffs' problem on the religion question was that there was no North Carolina anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them)."

I have a short essay discussing, in part, a recent case from a state with just such a clause--Colorado--whose supreme court rejected a voucher program on the ground that any aid--direct or indirect--would violate the clause. Just a small quibble: I do not think that such clauses are rightly characterized as "anti-establishment provisions." They are something quite different. I use the essay to reflect more broadly about what they are, what purpose they serve and were intended to serve historically, and broader questions that they raise about claims of "religious neutrality" by the state toward matters educational--public or private. 

July 27, 2015 in DeGirolami, Marc | Permalink

NC's School Choice Program Upheld

I'm happy to report that the North Carolina Supreme Court has upheld the state's school choice program against state constitutional challenges. (The main case is Hart v. State; a second ruling, Richardson v. State, relies on Hart.) The program provides scholarships to low-income students to use at the private school of their choice, religious or secular. The plaintiffs brought a variety of challenges, which boiled down to three arguments:

(1) The state cannot fund private schools at all. (E.g., the plaintiffs said, the clause requiring the state to maintain a "uniform system of schools" means that funded schools must be uniformly public.) The court answered that the uniformity clause only applies to policies within the public school system and does not prohibit the state from funding other educational opportunities. This is the opposite result from the one the Florida Supreme Court reached in 2006 in striking down that state's program under a similar "uniform education" provision (Bush v. Holmes).

(2) The state failed to include sufficient safeguards for the educational quality of schools participating in the program. This allegedly violates, e.g., the requirements that legislation serve a public purpose, and as well as the state's duty to "maintain the right of the people to the privilege of education"). The court responded that since some (most?) private schools were educationally adequate, claims of inadequacy were not the basis for a facial challenge to the program. (This reasoning might suggest there could be an as-applied challenge to a particular school's inadequacy, although the court isn't entirely clear on that.)

(3) Finally, the plaintiffs said, the program authorized the participation of schools that discriminate on the basis of religion, in violation of the provision that no person shall "be subjected to discrimination by the State because of race, color, religion, or national origin." The court held that the plaintiffs--state taxpayers--lacked standing to bring this claim because they did not claim they had been personally subjected to discrimination (e.g. denied employment or admission by a school on grounds of religion).

     Basically, the  plaintiffs' problem on the religion question was that there was no North Carolina  anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them). So the plaintiffs tried to shoehorn their objection to religious schools into the provision prohibiting state discrimination based on religion. But the round peg didn't fit the square hole: they hadn't been discriminated against just because they were taxpayers, and moreover their equation of discrimination by the school with discrimination by the state misstates Con Law 101 principles about state action.  [UPDATE: I struck out "anti-establishment" above because, as Marc points out, the 19th-century Blaine-type restrictions on aid to "sectarian" schools can certainly be seen as doing something quite different from promoting pluralism as anti-establishment provisions do. I didn't mean to weigh in here on that issue--although I basically agree with Marc on it.] 

     The religious liberty clinic I supervise at St. Thomas, together with the Christian Legal Society,  filed a brief for several amici on the merits of the religious-discrimination claim. We emphasized that a religious school's employment and admissions decisions on ground of religion involve a constitutionally protected right to form a community based on religious ideals, and that the state could legitimately preserve that while also supporting the education those schools provide. (We also pointed out the basic state-action error.) The court didn't reach these arguments.

A passage in the court's discussion of the "public purpose" doctrine sums up the basic message of this decision:

Although the scholarships at issue here are available only to families of modest means, and therefore inure to the benefit of the eligible students in the first instance, and to the designated nonpublic schools in the second, the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.

July 27, 2015 in Berg, Thomas | Permalink

Friday, July 24, 2015

Before entering the public square, prepare yourself for spiritual combat

Former Oklahoma State Representative, Rebecca Hamilton (a pro-life Democrat), hits it out of the ballpark in giving advice to anyone wishing to engage in pro-life work. It really applies to anyone desiring to make a difference in the public square.

The beginning of indifference to the wiles of greed, power, sex, flattery, lies and manipulation that you will find in the political arena is humility, and the beginning of true humility is understanding that you are saved by grace and that is none of yourself. It is all from Him. 

If you are an instrument — if you are His instrument — He will use you to save lives. You will do good. But if you cling to your own understanding and try to serve the dual masters of your own desires and His will, you will do well, and that only for yourself. 

 Once you have let God put you through the spiritual boot camp of facing your sins, you will be ready for maintenance. My own recipe when I was in office was to pray the Rosary every day, go to Mass as often as I could, go to confession every week — although this can be problematic with some priests, so you may have to go monthly if your pastor gets upset by weekly confessions — and read the Bible every day. I usually read the Bible through in a year and a half. 

There are other ways to keep yourself in spiritual shape. I have since found that just sitting with Jesus in the Eucharist is a wonderfully healing experience." 

Read more: http://www.ncregister.com/blog/rhamilton/ask-the-holy-spirit-to-put-your-through-spiritual-bootcamp/#ixzz3gqjNU6eb

July 24, 2015 in Scaperlanda, Mike | Permalink

Thursday, July 23, 2015

The Holy See on "the aging century"

I suspect that many of us are personally confronting the challenges of caring for aging parents.  A recent intervention by the Permanent Observer Mission of the Holy See to the UN's working group on aging cited Pope Francis' recent poignant comment on this topic:  "“it’s brutal to see how the elderly are thrown away… No one dares to say it openly, but it’s done!”  It's scary to see one's own personal situation as part of a worldwide trend -- rather like recognizing your own contributions to the global environmental situation described in Laudato si. 

The description of the problem in the Holy See's intervention describes an impending global crisis as significant as the environmental one, one that ought to be getting more attention that it typically does:

In the West, data tell us that the current century is the aging century: children are diminishing, the elderly are increasing. Currently 700 million people, or 10 per cent of the world’s population, are above 60 years of age. By 2050, it is estimated that this number will double, reaching 20 per cent of the global population.(2)  This increasing imbalance is a great challenge for contemporary society. For example, this puts increased pressure on healthcare and social protection systems. Given these figures, my delegation would like to draw particular attention to the needs of elderly women who are often excluded or neglected.

Therefore, as the number of older people increases along with the rise in average life expectancy, it will become increasingly important to promote an attitude of acceptance and appreciation of the elderly and to integrate them better in society. My delegation would like to reiterate that the ideal is still for the elderly to remain within the family, with the guarantee of effective social assistance for the greater needs which age or illness entail.

July 23, 2015 in Schiltz, Elizabeth | Permalink

“As in the Camino, so in marriage, so in life.”

As we look for ways to strengthen marriage in the United States, my daughter, Michelle Scaperlanda McWay, has an excellent article in Verily, entitled "What I Learned About Marriage by Hiking the Camino with My Husband"

July 23, 2015 in Scaperlanda, Mike | Permalink

"Is Polygamy Next?" as an argument for how not to answer that very question?

Earlier this week, Will Baude had an op-ed at the New York Times: "Is Polygamy Next?" Most of the reactions I've seen have read the op-ed as an advocacy piece for recognition of the constitutionally protected right to marry as including polygamous marriage.

That reading is plausible, if one thinks the author accepts the Obergefell way of deciding on the boundaries of constitutional rights. If new understandings of marriage mean new understandings of the constitutionally protected right to marry, then we may come to recognize that right as including polygamous marriage; all it takes is a change in the understanding of marriage. That is the gist of Baude's account of why a right to polygamy may be coming down the pike. Most of the op-ed attacks attempts to limit Obergefell to monogamous marriage as flimsy and likely to collapse as "today's showstopping objections" may "come to seem trivial decades later." 

But Baude is an originalist, and he thinks others ought to be originalists as well--or at least it has seemed to me. Baude doesn't come out and say that Obergefell is wrong in result. But Justice Kennedy's opinion for the Court in that case now stands as a landmark case that he needs to navigate around if he is to hold to the belief that originalism is our law. And that method may be the real target of his op-ed.

Consider Baude's conclusion: "[W]e should recognize that once we abandon the rigid constraints of history, we cannot be sure that we know where the future will take us." Is Baude saying that those who believe marriage should be monogamous should be prepared to discard that understanding out of humility toward our possible future selves and our possible future understanding, such that it would be appropriate to recognize that future understanding as constitutionally protected (either now or at some point in the future when public opinion changes)? Or is Baude criticizing those who believe that we should change our present understanding of our past constitutional commitments on the basis of a new (and non-humble) belief in a morally superior understanding of marriage? I don't know. Surely there are other alternatives as well. But it would be surprising to find an originalist arguing for a constitutional right to polygamy.


July 23, 2015 | Permalink

Tuesday, July 21, 2015

Thanking God for a Daughter's "Premoition"

Last night — the last night of our Montana vacation — the three of us decided to take a drive to a nearby mountain lake, hidden in a valley and surrounded by rocky cliffs.  The drive was longer than expected, much of it on gravel roads, but we persevered.  The arrival was spectacular as Tally Lake became visible through the trees.  The the deepest lake in all of Montana was a dark blue in contrast with the gray rock rising up on all sides.

On the way back toward Whitefish, our daughter, Katie, home from Notre Dame for the summer, asked about the danger of hitting a deer while driving along these mountain roads.  My wife, Mindy, having grown up in Montana, and I, having lived there for several years, assured her that we had driven on these kinds of roads innumerable times without incident.

Katie persisted, saying she had a bad feeling.  Mostly to mollify her, I agreed to keep our speed low.  Even when we got back on to paved county highway, I kept the accelerator to around 25 miles per hour, though the posted speed limit was much higher.

Not more than ten to fifteen minutes after Katie expressed her disquiet — a flash of brown fur and a thud!  A deer had jumped right in front of the car.  And even with our slower speed and my instinctive slamming on the brakes, we hit the animal dead center. Slide1

None of us were injured — indeed, by virtue of the slow speed and my immediate braking, we barely felt the impact.  The deer collision had damaged the bumper, but the hood, windshield,  and engine were undamaged.

Even the deer may have survived the incident.  As I was slamming on the brakes, the doe’s legs were swept out from under her by the bumper and her side struck the grill-area of the front of the car.  She then fell out into the road and rolled to the side into the ditch.  I initially feared a gruesome scene of a badly injured animal flopping around in the ditch.  But, after just a second or two, the doe regained her feet and ran quickly into the surrounding woods.  As I examined the damage on the car, there was no blood.  To be sure, it is possible that the deer suffered fatal internal injuries.  But I’d like to think the deer, perhaps with a cracked rib or two, managed to get through the encounter.

I am so very grateful that I acquiesced to my daughter’s misgivings — and that she expressed them.  It could have been disastrous had I continued along the road as I otherwise was inclined, probably slightly exceeding the speed limit.  Had we struck the deer at such higher speed, the animal very likely would have bounced up on to the hood and perhaps into the windshield, with a grave risk of serious injury to the two of us riding in the front.

We’re all familiar with the Woody Allen quip saying that 80 or 90 percent of life is just showing up.  I tend to think showing up is not enough.  One also has to also be paying attention.  Today I am very grateful that we paid attention to our daughter.  I’d like to think that, by doing so, we were listening to the voice of God speaking through her to warn us of the approaching danger.

Obviously this was not the most enjoyable way to end an otherwise wonderful summer vacation.  But a dented bumper can be repaired.  And the family is fine.  Thank God.


July 21, 2015 in Sisk, Greg | Permalink

Monday, July 20, 2015

Schneck on PP, the 20-Week Ban, and Support for Pregnant Women

At U.S. Catholic, Steve Schneck laments how the outrage over the Planned Parenthood video will likely devolve into familiar abortion politics, leaving little or nothing done legislatively about--for example--ending late-term abortions where the child could well be viable and, "many agree[,] feels  pain." He describes the proposal from Democrats for Life about how to move forward, on the late-term ban that currently has no prospects in the Senate:

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, [Kristen] Day  and [Charlie] Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life.

(Disclosure: Schneck and I are both board members of DFLA.)

The U.S. is extreme among the Western industrial nations in how little we restrict abortion (Western European prohibitions kick in after three or four months). We are also the only OECD nation that does not guarantee some paid maternity leave. This moment presents another opportunity to take a different approach.

By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf
By connecting the Fetal Pain Bill with perinatal help for crisis pregnancies, with support for women otherwise unable to afford their pregnancy, or with a nationwide policy for paid maternity leave, Day  and Camosy’s proposal weaves together the strands of what the church calls “the consistent ethic of life” in ways that make it easier for America to choose life. - See more at: http://www.uscatholic.org/blog/201507/planned-parenthood%E2%80%99s-video-can-we-ever-get-beyond-banality-abortion-politics-30251#sthash.uGsAeJlS.iWrulYH2.dpuf

July 20, 2015 in Berg, Thomas | Permalink

Sunday, July 19, 2015

"An Obvious Moral Horror"

Sometimes the clarifying lens of the law helps to sharpen the analysis. Sometimes the fog of the law obscures.

So it is with the attention given to the disturbing uncover video of Deborah Nucatola, Planned Parenthood's Senior Director of Medical Services, swilling wine and eating salad as she dispassionately spoke about obliterating the skull and destroying the lower extremities of unborn babies while carefully preserving the internal organs for medical research. 

 The mainstream news media quickly shifted the question to whether the legal line had been crossed from non-profit use of abortion remains for research to selling human body parts for profit. Those who had released the video were accused of editing it to make it appear that Ms. Nucatola was setting prices for profit rather than simply recovering the expenses of distributing the tissues (which is not illegal).

While the legality of Planned Parenthood's activities under current statutes is not unimportant, to focus on that point is truly to miss the what is most important. The gut-wrenching power of the video — what makes this revelation such an important event in the history of abortion in the United States — lies in its depiction of the callous attitudes of the abortion industry. Here the words of Planned Parenthood's leader of medical services speak for themselves:

“We’ve been very good at getting heart, lung, liver. So I’m not gonna crush that part. I’m going to basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”

Not willing to be so distracted, Heather Wilhelm sums it up well:

“Abortion, when you’re forced to acknowledge the reality of it, is an obvious moral horror. It involves killing little humans, many with lungs and hearts—not just ’clumps’ of ’tissue’—and it happens every day.”

Seldom does a single event occur that can so dramatically move public opinion by shining the light into darkness. The pro-life movement must ensure that, even as the news media loses interest, this video is replayed again and again for every audience.

July 19, 2015 in Sisk, Greg | Permalink

"End of an Illusion"

The other day, America re-ran this piece, "End of an Illusion," which originally appeared in June of 1973, a few months after Roe v. Wade.   It's definitely (still) timely.  Take a look.

July 19, 2015 in Garnett, Rick | Permalink

Friday, July 17, 2015

Reese on Laycock on religious liberty

Fr. Thomas Reese has this piece, at NCR, about the views and work of Prof. Doug Laycock regarding the current religious-liberty landscape.   I'm not sure the title of the piece captures the range of what Laycock is saying -- he is quite clear-eyed about the fact that religious liberty's vulnerable status has to do with a lot of things besides "bishops' strategy" and most of the piece focuses on what sure looks to me like the intransigence and aggressiveness of religious-freedom's opponents -- but put that aside.  The piece is worth reading to get a good sense of Laycock's position.  (I've been working with him on a few legislative proposals, and believe that he is one of the most important, and admirably fair and liberal, persons in the public square.)  

One thing that comes out in the piece is Laycock's view that "conservatives'" opposition to the "sexual revolution" is contributing to the waning support for religious liberty among "liberals."  This raises a tricky challenge, though, because -- I would think, and I would assume Fr. Reese would agree -- Christians ("conservative" or "liberal") don't have much of an alternative to opposing -- at least in terms of our teaching, formation, and witness -- a whole lot of what comes under the heading of the "sexual revolution."  The extent to which this opposition should or can be expressed in positive law is another matter but, increasingly, it seems as though the opposition itself is something that it has now become the mission of a certain understanding of political liberalism to push aside.

July 17, 2015 in Garnett, Rick | Permalink

Thursday, July 16, 2015

CLS Panel: The Salient Characteristics of Obergefell v. Hodges

Below is the presentation that I delivered for the panel on Obergefell v. Hodges hosted by the Christian Legal Society on July 1st in Chicago.  I had intended to post this last week but neglected to do so.  I previously posted the second part of the presentation concerning the challenges to religious liberty that Obergefell will likely pose here.


Thank you very much for inviting me to be here and participate on this panel, this initial exposition of the Obergefell opinion, an opinion that will, undoubtedly, be the subject of many books and symposia, and countless law review articles in the years to come.  In my remarks I plan to offer a brief overview of the holding of the case followed by four observations that directly concern the opinion’s reasoning and methodology.

Briefly put, in Obergefell, the Court held that “same-sex couples may now exercise the fundamental right to marry” (Slip Op. at 22; id. at 12) and that this result is compelled by the Fourteenth Amendment to the Constitution.  Justice Kennedy, the author of the opinion, reached this result by redefining what marriage is, contrary to the definition adopted by the majority of states, and until 1993 uniformly the law of the land in all fifty states. For those who oppose this result – this redefinition of marriage now enshrined in our Constitution – it is hard to imagine how Obergefell could have been any worse given that the Court’s holding ostensibly stands upon the twin rationales of substantive due process and equal protection.

Perhaps the opinion would have been even worse had Kennedy engaged in the same vitriol found in the same-sex marriage decisions of state and lower federal courts disparaging the views of defenders of traditional marriage as “irrational” and full of “animus” for gays and lesbians.  Indeed, compared with Kennedy’s own opinion in U.S. v. Windsor, striking down the federal Defense of Marriage Act, Obergefell is downright restrained.  In Windsor Kennedy described the law in question as “designed to injure” same-sex couples, “a bare congressional desire to harm a politically unpopular group,” a law designed to “impose a disadvantage . . . and so a stigma” on same-sex couples, to “degrade or demean” them.  That language is largely absent in Obergefell.  While Obergefell does say that laws defining marriage as a relationship between one man and one woman have the effect of “demean[ing] or stigmatiz[ing]” gays and lesbians through exclusion (p. 19), the opinion does not directly attribute a desire harm gays and lesbians to supporters of traditional marriage.  Indeed, Kennedy says that the traditional view of marriage is held “in good faith by reasonable and sincere people” (p. 4) and that neither such people “nor their beliefs are disparaged here” (p. 19).  Chief Justice Roberts rightfully doubts whether Kennedy’s description of marriage laws can be squared with Kennedy’s intention not to accuse proponents of traditional marriage of animus towards gays and lesbians (p. 28).  Still, in this one minor respect, the majority opinion could have been worse.  At the same time, nothing prevents the proponents of Obergefell from accusing its opponents of hate and irrationality – something already witnessed in the last few days.

(1)  The first observation I wish to offer about Obergefell is how un-law-like it is.   Indeed, Obergefell reads not so much like a judicial opinion – setting forth what the law provides and how this law connects to the facts of the case – as it does a discourse about how the world ought to be – a discourse that at times sounds as if it was lifted from the pages of a psychological journal or tract on self-fulfillment, or as Justice Scalia says with some disdain in dissent, a “fortune cookie” (p. 8, n. 22).  Perhaps the opinion would have been worse if the majority had actually made more of an attempt to craft a legal opinion, because then it would be more plausible for its supporters to defend the decision as a legitimate exercise of the Court’s authority – of what Chief Justice Marshall described in Marbury v. Madison as “the province and duty” of the Court “to say what the law is.”

But the opinion doesn’t read that way.  Rather, as Scalia remarks, Obergefell is “an opinion lacking even a thin veneer of law” (p. 4).  Unlike other equal protection and substantive due process cases the Court doesn’t wrestle with the question of the appropriate level of scrutiny to apply and why.  Although Kennedy purports to ground the majority’s conclusion in the Equal Protection Clause, he eschews traditional equal protection clause analysis.  He does not define gays and lesbians as a “suspect class” such that laws singling out such a class are subject to “strict scrutiny” (although the federal government argued for the adoption of such a position in the case).  Nor does Kennedy say whether either “intermediate scrutiny” or “rational basis” review applies to the case at hand.  In ignoring the legal framework of the Court’s own construction, the opinion reads less like an example of judicial reasoning and more like an exercise in normative discourse untethered to law.

With respect to substantive due process, the opinion avoids even the use of the term “substantive due process,” opting instead for the more innocuous sounding expression “fundamental rights.”  But make no mistake – the bulk of the Court’s decision is founded on substantive due process, not the extension of an already existent fundamental right, but the invention of a right – the redefinition of marriage – so that it extends to same-sex couples.  This is the Court majority functioning as a super-legislature composed of nine unelected lawmakers, not constrained by tradition or history, but only their own “reasoned judgment” (p. 10).  This is the latest and most dramatic example of what Raoul Berger termed “government by judiciary.”

I confess that in reading the opinion what first came to mind was John Hart Ely’s famous criticism of Roe v. Wade -- that Roe was not bad constitutional law “because it is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920, 947 (1973).  Roe was instead an invention conjured by Justice Blackmun.  Justice Kennedy has authored a similar creation – one that, like Roe has virtually no connection to the text, structure, or history of the Constitution, and only the most tenuous connection to the Court’s precedents concerning marriage (about which I will have more to say in a moment).  Indeed, the connection between the holding in Obergefell and the text of the Constitution is so weak that Kennedy’s “argument” from text proceeds by way of proxy – with Kennedy substituting the word “dignity” for that of “liberty.” Thus, reading the opinion brings to mind Justice White’s indictment of Roe as “an exercise of raw judicial power,” Doe v. Bolton, 410 U.S. at 222.

(2)  Second, with respect to the methodology employed, the Obergefell court overtly rejected the cautious approach to substantive due process set forth by the Court in Washington v. Glucksberg.  In Glucksberg the Court held that “liberty” under the Due Process Clause should be understood to protect only those rights “deeply rooted in the Nation’s history and tradition.”  In rejecting this approach Kennedy frees substantive due process from any constraining principle.  It cannot be tamed – or will be tamed only by the fiat of those who wield the power in question. 

Given its conclusion, the opinion cannot help but be a-historical, a point that Alito underscores in dissent (p. 3).  Indeed, the majority opinion gives no pretense to being firmly rooted in the history and traditions of the nation.  It acknowledges history – without exploring it in any great detail, let alone discerning its meaning – only in order to dismiss it.  This dismissal is not overt as this would undermine the legitimacy of the opinion – but it does so in substance.

Thus, after briefly recounting the history of marriage and its central role in civilization the Court tips its hand that it will not be confined by history: “That history is the beginning of these cases” (p. 4).  The history of marriage, the Court assures us, has been “one of both continuity and change” (p. 6).  History reveals “new insights” (p. 7) about marriage as “new dimensions of freedom become apparent to new generations” (p. 7).  We don’t “always see [injustice] in our own times” (p. 11).  Liberty may have meant one thing in the past, but we gain “new insight” and “we learn its meaning” with the passage of time (p. 11).  As the Court says in its most candid remark on this point: “History and tradition guide and discipline th[e] inquiry [of identifying the fundamental right to marry] but do not set its outer boundaries” citing Lawrence v. Texas, (p. 11) a case in no way bounded by history.  While the Court acknowledges that its prior decisions involving marriage – Loving, Zablocki, and Turner – “presumed a relationship involving opposite-sex partners” (p. 11), insofar as they contained this quality they were the product of an earlier and unenlightened age – the prejudice of yesteryear: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part” (p. 11-12).  Later Kennedy remarks that “rights come not from ancient sources alone.  They arise too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era” (p. 18-19).

The bottom line that emerges is a kind of disdain for history, for what has gone before: Yesterday is the past and today is a new day in which we clearly know better.  History is not something to be seriously studied.  It is something to be made by those who live in the here and now. 

(3)  Third, the heart of the petitioners’ concern – the interest which the Court deems to be worthy of the robust protection of both substantive due process and equal protection – is their interest in self-esteem, and personal “fulfillment” (pp. 3, 17, 28) which cannot be attained absent government affirmation and public approval.  That is, the petitioners seek not only to exercise a protected liberty to which they are entitled, but to have their exercise of liberty enjoy a certain public status (hence the change in terminology from "liberty" to "dignity").  Without the enjoyment of this status they will be “demeaned.” 

Thus, for the majority the right to marry “dignifies couples who ‘wish to define themselves by their commitment to each other’”; it responds to the “universal fear of loneliness” and “offers hope of companionship and understanding of assurance that while both still live there will be someone to care for the other” (p. 14); it helps “achieve the full promise of liberty” (p. 14); it gives “recognition and legal structure” to a relationship so that children can “understand the integrity and closeness of their own family and its concord with other families in their community” (p. 15); and without this recognition the children of same-sex couples would “suffer the stigma of knowing their families are somehow lesser” (p. 15).

This comes through in page after page of the opinion, such that the responses celebrating the decision echoed a common theme: “We are affirmed!  We are celebrated!” with the subtext being “You – Evangelical rubes, Catholic homophobes, and Christian haters – cannot think less of us.  Our relationships are on equal footings.  The State has made it so!”

Thus, notwithstanding the Court’s brief mention of the material aspects of marriage, it is marriage’s expressive qualities that dominate the opinion – the expression not simply of the parties’ commitment to one another (which may be achieved wholly through private ordering), but the State’s acknowledgement of and commitment to support the union.  Thus, as Thomas notes in dissent, the petitioners “want to receive the State’s imprimatur on their marriages” (p. 10) – something that private ordering cannot attain.

(4)  Fourth, and finally, the Court offers a truncated theory of marriage that it pieces together in patchwork fashion, from a selective reading of the Court’s prior decisions concerning marriage and sexuality. 

Drawing on Griswold, Lawrence, Loving, Zablocki, and Turner the Court identifies what it says are the four “essential attributes” of the right to marry (p. 12).  These four principles or attributes are: (i) that “personal choice regarding marriage” is “inherent in the concept of individual autonomy” (p. 12); (ii) that “the right to marry is fundamental because it supports a two-person union unlike any other in importance to the committed individuals (p. 13); (iii) that the right to marriage “safeguards children and families” such that its meaning draws upon the “related rights of childrearing, procreation, and education” (p. 14); (iv) that “marriage is a keystone of our social order” (p. 16).

These four somewhat abstract principles are all selected with the goal in mind of stating what marriage is in a way that same-sex couples fit comfortably within it, so that denying them the right to marry seems not only unjust but nonsensical.

Of course, Justice Kennedy is able to reach this conclusion only by ignoring what is central to the authority he cites.  For example, in discussing the second of the four principles Kennedy cites Griswold v. Connecticut (p. 13) for the proposition "that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." In this, he seems utterly oblivious to the quality of the marital relationship at issue in Griswold that makes the commitment so important and so "unlike any other," namely, the capacity to produce a child, a quality obviously lacking in all same-sex relations.  Because he is oblivious to this fact he does not trouble himself with the question of why the State recognized marriage as a legal institution in the first instance, and why this legal recognition was limited to the conjugal union of husband and wife.

What Justice Kennedy fails to do is to be fully candid with the American public by articulating what marriage now is given his selection of these four principles.  Stated concretely, under Kennedy’s approach “marriage” is now a genderless institution the public (legal) purpose of which is to serve as a platform for personal expression, the pursuit of individual fulfillment, and the feeling of possessing “dignity” through State recognition.  Although marriage may be the familial arrangement wherein children are raised, the State must be officially indifferent to the composition of such a childrearing union.  Indeed, it can have no legitimate interest in preferring a male-female union over a same-sex union such that the absence of a mother or a father doesn’t matter.  A child may have a mother and a father, or two mothers or two fathers.  For the State, there is no ideal arrangement.  The presence of both a mother and a father is wholly optional (albeit, not an option that the child gets to select).

Candidly stating this result would be a critical step in any intellectually honest opinion reaching the same conclusion as Obergefell that had any hope of persuading those not already committed to the result of “marriage equality” as a political matter.  Sadly, this step is conspicuously absent from Kennedy’s opinion and its absence renders Obergefell a tragic decision – a colossal intellectual failure of enormous proportions.

July 16, 2015 | Permalink

Wednesday, July 15, 2015

An erroneous allegation of an "erroneous claim of anti-Catholic discrimination"

Prof. Robert Goldstein (UCLA) has posted a paper, "The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination."  In my view, there is a lot in the paper that is valuable and insightful.  For example, Prof. Goldstein emphasizes the "structural" dimension of our no-establishment rule and also the importance of broadening the religious-freedom narrative to include 19th century church-state conflicts in Europe.   Where the piece goes wrong, in my view -- that is, its "erroneous claim" -- is in endorsing the argument that it is wrong to emphasize the importance of anti-Catholicism in the development of Establishment Clause doctrine, or in the school-funding and Blaine Amendment controversies, because what some of us (me, for example:  here and here) call anti-Catholicism is really just a manifestation of "a popular constitutional commitment to liberal democracy; that commitment involved opposition to the goals of the ultramontane Church, which linked its establishment and authority as the one true church to its anti-liberal and anti-democratic politics."  But, anti-Catholicism preceded, by a lot, Mirari Vos, and pre-dated, by a lot, 19th century American reactions to, say, the 19th century popes' struggles during the Risorgimento (or the Lateran Accords with Mussolini).  And, the efforts in the piece to defend Justice Hugo Black and author Paul Blanshard's American Freedom and Catholic Power from anti-Catholicism charges strike me as strange and, certainly, unsuccessful.  

All that said, the closing section includes a long discussion of Dignitatis Humanae (happy birthday!) and John Courtney Murray, which is always a nice thing to see in a law review!

July 15, 2015 in Garnett, Rick | Permalink