Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Wednesday, July 23, 2014

Esbeck on the new Executive Order

At the Cornerstone blog, Prof. Carl Esbeck has a helpful piece ("Differences:  Real and Rhetorical") regarding the President's recent Executive Order having to do with sexual-orientation and gender-identity discrimination by federal contractors.  In it, Esbeck responds to certain claims made by a group of prominent legal academics, in their own letter opposing any religious exemptions in the Order.  Esbeck concludes:

How do we live together as a people despite our deepest differences? The nation’s better practice, historically, was to bracket off religious conscience and thereby stop making religious scruples fair game for partisan debate. America’s unique contribution to government theory was to separate matters of religious conscience from the machinery of politics and the will of the majority. That approach has brought us sectarian peace despite our unprecedented religious pluralism. Why trade in a system that has served this country so well for one that has served others so poorly?

July 23, 2014 in Garnett, Rick | Permalink

Arkes replies to Garnett re: RFRA, Hobby Lobby, etc.

Prof. Hadley Arkes asked me to post the following reply to my recent post, and I am happy to do so:

I’d like to respond to a couple of the concerns that Richard Garnett raises in his post today on my arguments about Hobby Lobby.   I need to recall to him and my other friends that I have been thoroughly sympathetic to the use of RFRA.  What I've argued is that RFRA is apt and useful because it creates, for the religious, that zone in which the government would have to bear a heavier burden of justification when it restricts personal freedom.  The saving grace of RFRA is that it secures, for the religious, the kind of protection that the courts used to offer more fully for many others when the judges were far stricter in testing the justifications for laws that restricted private rights.

But as Garnett rightly says, my own view [is] that the case could have been argued on deeper foundations.  One friend of mine, experienced in litigation on religion, argued that Hobby Lobby could have been argued even more clearly on the Takings Clause.  Richard Epstein and the libertarians would invoke principles of freedom of association in fending off these intrusions into a private family arranging its private business.   Are they wrong for conceiving other ways of arguing the same case?  What I've been pointing out is that these arguments, draw from the principles of a regime of law,  are not diminished moral arguments. For they draw their meaning from the understanding of the "human person," a term given deeper resonance by our religious teaching.   Only those beings we call “moral agents” can impart a moral purpose to inanimate matter;  and so yes, it is no trivial matter to justify the restrictions placed on these kinds  of beings, as they seek, even in prosaic matters, to honor their own understanding of the ways of life rightful for them.  My pitch has been that if we begin from the classic understanding of the moral ground of the law, and the burdens of justification that the government should rightly bear, we will have provided an even former moral grounding for religious freedom.

But I have a question in turn:  Garnett says that he doesn’t agree with my argument against a “right to be wrong,” but he never sets out that argument or actually explains why it is wrong. 

He also cites this passage of mine in which I sought to bring together the strands of the argument that, taken together, would have a powerful effect in striking at the very ground of the law:

I’ve argued … that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Now I’m curious:  Have I not given an accurate account the strands that have actually been woven through these cases?  If I have any of these wrong, I would be glad to find out that I’m wrong. But if those strands are there, as I’ve marked them out here, why would they not be the carrie[r]s of principles quite destructive for the laws?

Forgive me one more point on a question I posed in First Things, and which I haven’t seen addressed yet:   

The Catholic Church doesn’t argue on abortion by appealing to revelation or belief.  It argues in the reasoning of natural law, a combination woven of embryology and principled reasoning.  And so I raised the question of whether the protections here under RFRA would apply to the Catholic businessman, reasoning on the matter in the style of the Church, but not to the businessman who uses precisely the same moral reasoning used by the Church, even while he disclaims any religious affiliation?   As I've pointed out, this was exactly the problem faced by Congress in the Civil Rights Restoration Act of 1988:  Would they give an exemption only to religious hospitals in sparing them the obligation to perform abortions?  Or would they honor also the moral objections of those hospitals that were morally opposed to abortions but had no religious definition?

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Arkes' reply clarifies nicely one of our disagreements.  He says that "the case could have been argued on deeper foundations" and, in response, I say, "no, it could not."  The "Takings" and "freedom of association" arguments that Arkes mentions are, at the present time and given the current legal givens, losing arguments (regardless of how deep their foundations go and regardless of their moral appeal).    

Next, Arkes says "Garnett says that he doesn’t agree with my argument against a 'right to be wrong,' but he never sets out that argument or actually explains why it is wrong."  This is true.  Such an explanation didn't and does not seem (to me) necessary, as it was provided in Ryan Anderson's response to Arkes (and, I think, in Dignitatis Humanae).   

Third, Arkes writes:  

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Once again, I think Arkes has helpfully identified our clear disagreement.  I would "simply" say precisely what Arkes says, above.  The question whether a "coherent moral account" can be given of our current positive-law arrangements regarding religious freedom is an interesting and important one, but that question is (very) different from ones having to do with the arguments to be made in real-world, present-day courts, to judges charged with interpreting and applying not first principles of morality but unsurprisingly imperfect statutes and doctrines.

July 23, 2014 in Garnett, Rick | Permalink

MOJ joins Law Professor Blogs Network

After ten years . . . I am really happy to announce that, as of today, Mirror of Justice is now part of the Law Professor Blogs Network, and I am very grateful to my friend and longtime MOJ supporter and reader, Paul Caron, for inviting us aboard.  I hope MOJ readers like the new "look" and that you'll all continue to check in, and spread the word!

July 23, 2014 in Garnett, Rick | Permalink

Genocide of Christians in Mosul -- and crickets

The Islamic terrorist group ISIS has recently rebranded itself (in Western fashion) as the Islamic State.  We mustn't let this self-promotion lull us into any illusions of legitimacy, however.  This terrorist organization has declared war on the Christians of Mosul.  The Christians in Mosual must convert to Islam, pay vast fines, or be killed -- or, in one last indignity, be robbed (of their crucifixes) as they flee for their lives.  The story is here

Pope Francis has repeatedly condemned this persecution, and the U.N. Secretary General Ban Ki-Moon has declared it a crime against humanity.  What the terrorists known as the Islamic State are accomplishing in Mosul is without a doubt genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide, which was signed in 1948 and took effect in 1951.

Yet where is the White House in all of this?  Why has President Obama not condemned *this* genocide?  

President Obama needn't start by calling it what it is, that is, genocide.  He could start by, say, actually acting to enforce the International Religious Freedom Act of 1998.  Yes, yes, I recognize that "religious freedom" doesn't do conceptual justice to genocide, but "religious freedom" doesn't itself do justice to the essence of true religion, yet nearly everyone in the West seems to be on board with "religious freedom," at least nominally.  And so, when will that great champion of "religious freedom," the USCCB, bestir itself to condemn this epochal violation of religious freedom and perhaps even call the Catholics of the United States to prayer and penance in solidarity with their persecuted brothers and sisters in Christ?

The Syrian Catholic Archeparchy in Mosul was burned to the ground the other day as a part of the ongoing purge.  What traces of ancient Christianity will be left in Iraq when U.S. (and other Western) foreign policy has run its course there?  I think the terrorists there know the answer, which no doubt emboldens them still further.    

July 23, 2014 in Brennan, Patrick | Permalink

J. Doig responds to R. George's criticisms of his marriage revisionism

Today at Public Discourse, my Princeton colleague Jameson Doig defends his revisionist understanding of marriage against the criticisms I advanced yesterday in our week-long debate about the nature of marriage. 

http://www.thepublicdiscourse.com/2014/07/13528/

This begins round two of our debate.  Tomorrow, I will respond to Professor Doig's latest effort. Then on Friday we will post a joint essay taking stock of the debate.

July 23, 2014 | Permalink

Tuesday, July 22, 2014

What difference would it have made if "the First Amendment" included explicit textual protection for "conscience" as well as "religion"?

One interesting question that came up during the Q&As following the first set of papers at this year's Annual Law & Religion Roundtable was something like the one set forth in this post's title. My rendition of it puts "the First Amendment" in scare quotes because a full answer to the question requires challenging the nomenclature of "First Amendment." (Indeed, I am not sure that we have properly understood the distorting effects on our understanding of what the first set of constitutional amendments intended to accomplish that result from the fateful decision to tack those amendments on to the end of the document rather than interpolating them into the particular provisions being amended. But that is a topic for some other days.)

To know what difference it might have made to include explicit conscience protection in the Constitution as initially amended, we have to know the form that conscience protection would have taken. Leading candidates would be those included in James Madison's proposals. And that plural is correct: Madison simultaneously proposed two different amendments that included explicit "conscience" protection. 

One of these proposals protected against federal government action while the other protected against state government action. The first was intended for Article I, Section 9: "That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. . . .”). The second would have gone into Article I, Section 10: “Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”

Attention to the different wording and proposed locations of these provisions provokes a couple of thoughts. First, "religious belief" is a distinct concept from "equal rights of conscience." Second, there would be no establishment clause-type limit on accommodations for conscience at either the federal or state level. The reason for no such limit at the federal level is that there was no "establishment clause" other than the prohibition against establishing a "national religion." And the reason for no such limit at the state level is that there was no establishment clause at all for the states.

(Perhaps for the sake of completeness, it is worth noting another proposed amendment that protected a form of conscientious objection but did not use the word "conscience": "[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person.")

July 22, 2014 | Permalink

Hadley Arkes on Hobby Lobby, "belief", and religious freedom: A response

As Mirror of Justice readers probably know, Prof. Hadley Arkes contributed a piece to the June issue of First Things called "Recasting Religious Freedom."  In that piece (and in some others) he expresses (among other things) concern not about the result in the Hobby Lobby case but in the arguments and premises on which (he thinks) many of Hobby Lobby's supporters have relied.  He is worried, for instance, that the arguments pressed by Hobby Lobby's defenders have emphasized the extent to which the contraception-coverage mandate burdens religious "beliefs" and that these defenders have uncritically accepted what he regards as an unsound claim, i.e., that there is a "right to be wrong."  

He returns to this general line of thinking in this piece ("Post-Hobby Lobby Illusions") and this one ("Backing Happily Into Heresy").  And, in these posts, he is responding to (among other things) Ryan Anderson's critique, "The Right to Be Wrong."  Ryan wrote:

. . . Arkes is a friend and mentor of mine. He is a hero of the pro-life cause and has been a bold voice for moral sanity in the academy. When he speaks, and especially when he offers fraternal correction, one must listen and carefully consider what he has to say. Yet in this case, I cannot ultimately follow his lead. . . . 

I agree.  Arkes' First Things piece and the more recent ones to which I have linked are, in my view, mistaken in several respects.  I won't repeat Anderson's arguments -- which I think are compelling -- but will just share a few thoughts in response to Arkes' expressions of concern.

First, Arkes writes:

I’ve argued in these columns that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Here, I think that Arkes is wrong.  It is not the case -- given the relevant real-world givens -- that the Hobby Lobby case "could have been won" using the argument that Arkes suggests, i.e.:  "In a regime of freedom, people have a presumptive claim to all dimensions of their freedom, and the burden lies with the government to offer a 'justification' for restricting that freedom."  Over and again, in the First Things piece and in the others, Arkes seems to be frustrated that Hobby Lobby's lawyers and defenders made the arguments that the relevant pieces of positive law invited -- it's probably fair to say "required" -- them to make.  It could well be that the Religious Freedom Restoration Act does not capture fully or well the real and true foundations of religious freedom, properly understood.  But, nevertheless, the Act is the Act, and for Hobby Lobby to win, Hobby Lobby's lawyers needed to argue -- and would have been foolish not to argue -- that the Act entitled them to win.  

Next, in "Backing Happily into Heresies" (here), Arkes appears to be arguing that Gregory Holt should lose his RLUIPA case (which the Supreme Court will hear next Term).  (Disclosure:  I signed an amicus brief supporting Holt, who is represented by Prof. Doug Laycock.)  When "we" argue that Mr. Holt's religiously motivated desire to wear a beard is one that current, valid, governing positive law recognizes and protects, we are -- Arkes says -- "walking in a haze, celebrating along the way, and backing happily into heresies, political and religious."  Specifically, we are mistakenly buying into the idea that "we cannot judge the content of beliefs, or test them by the standards of reason we bring to anything else."

But, again:  There is a piece of duly enacted legislation, RLUIPA, the meaning and implication of which is at issue in the Holt case.  And, according to that legislation, it is not a mistake, but is rather clearly and obviously the right thing to do, to put aside the business of judging the "content" of or otherwise "test[ing]" the truth or Holt's religious beliefs.  What matters is whether or not the challenged official action substantially burdens a sincerely held religious belief and, if so, whether that burden is adequately (within the meaning of RFRA) justified.  

Now, I imagine that there is a connection, or significant overlap, between (a) egregiously and dangerously misguided religious beliefs and (b) religious beliefs that the government is justified in burdening.  But, again, I do not understand why Arkes seems to be insisting that lawyers with a job to do should do something else.  (I also think it is wrong -- and contrary to Dignitatis Humanae -- to contend, as Arkes appears to contend, that the right to religious freedom does not include the right to hold and -- within the limits imposed by public order and the common good -- express and act upon religious convictions that are unreasonable or untrue.)

July 22, 2014 in Garnett, Rick | Permalink

Henry Garnet, S.J., the sacrament of confession . . . and Louisiana

This piece, "Uncle Same Eavesdropping Outside the Confessional," by Aaron Taylor, at First Things, is well worth a read.  Discussing a current controversy in Louisiana, Taylor explains why "[c]ompelling Catholic priests to violate the confessional is not only bad for the Catholic Church, but bad for America."  And . . . he gets to invoke Fr. Henry Garnet's martyrdom along the way.  

July 22, 2014 in Garnett, Rick | Permalink

Inazu on religious freedom, antidiscrimination law, and pluralism

John Inazu has a very good piece up at Christianity Today, "Religious Freedom v. LGBT Rights?  It's More Complicated."  In a nutshell:

First, we must understand the history from which they emerge. Second, we must understand the legal, social, and political dimensions of the current landscape. Third, and finally, we must recognize that arguments that seem intuitive from within Christian communities will increasingly not make sense to the growing numbers of Americans who are outside the Christian tradition.

After sharing several predictions -- including the troubling "Fewer people will value religious freedom" -- Inazu develops the following point:

If I am correct about these three predictions, then arguments rooted in religious exceptionalism will see diminishing returns. There is, however, a different argument that appeals to a different set of values. It's the argument of pluralism: the idea that, in a society that lacks a shared vision of a deeply held common good, we can and must live with deep difference among groups and their beliefs, values, and identities. The pluralist argument is not clothed in the language of religious liberty, but it extends to religious groups and institutions. And Christians who take it seriously can model it not only for their own interests but also on behalf of their friends and neighbors.

Pluralism rests on three interrelated aspirations: tolerance, humility, and patience. . . .

. . .The argument for pluralism and the aspirations of tolerance, humility, and patience are fully consistent with a faithful Christian witness. And in this age, they are also far likelier to resonate than arguments for religious exceptionalism. The claim of religious exceptionalism is that only believers should benefit from special protections, and often at the cost of those who don't share their faith commitments. The claim of pluralism is that all members of society should benefit from its protections. . . .

Inazu's claim about the declining "resonance" of "religious exceptionalism" arguments is, I suspect, accurate as a descriptive matter.  And yet . . . religion is special, and our Constitution, laws, and traditions treat it as special.  Stay tuned.

July 22, 2014 in Garnett, Rick | Permalink

Monday, July 21, 2014

My Round One reply Jameson Doig on the nature of marriage

This morning I posted Jameson Doig's opening salvo in the debate on marriage that he and I are conducting this week at Public Discourse.  Here is my reply:

http://www.thepublicdiscourse.com/2014/07/13526/

Each of us was given 2500 words for our opening contributions. On Wednesday, Professor Doig will reply to my reply.  On Thursday, I will complete round two with a reply to his reply to me.  For this round, each of us will have 1500 words.  On Friday, we will post a joint essay reviewing our debate.

For interested readers who have not yet read Professor Doig's opening contribution, here is the link. (Since I am replying to him, it makes sense to read his contribution first.)

http://www.thepublicdiscourse.com/2014/07/13501/


July 21, 2014 | Permalink

Review of Steve Smith's Rise and Decline of American Religious Freedom

I've got a review of Steve's book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

July 21, 2014 in DeGirolami, Marc | Permalink

Debating Marriage at Public Discourse

This week, Public Discourse, the on-line journal of the Witherspoon Institute edited by the redoubtable Ryan Anderson, will be featuring a debate on the nature of marriage between me and my longtime Princeton colleague Jameson Doig. Professor Doig's opening salvo appears today:

http://www.thepublicdiscourse.com/2014/07/13501/

I reply tomorrow, followed by Professor Doig's reply to my reply on Wednesday and my reply to his reply to my reply to him on Thursday. On Friday, we will post a joint statement summing up our points of agreement and disagreement and commenting on the state of the debate about marriage more broadly.

July 21, 2014 | Permalink

Sunday, July 20, 2014

How the Turn Against Religious Exemptions Will Likely Set Back ENDA

In The Atlantic, Molly Ball describes how some advocates for gay rights fear that the intensifying opposition to religious exemptions among other proponents will push back the passage of the Employment Non-Discrimination Act, the major piece of gay-rights legislation in Congress. Legislation with protective accommodations remains an essential strategy for giving respect to both sides in a genuinely pluralistic society.

July 20, 2014 in Berg, Thomas | Permalink

Some Memories of Dan Markel

I am crushed by the news of Dan's death. I got to know Dan pretty well over the last five years, espcially since Dan began to spend a good chunk of his time in New York. We both write in criminal law theory (Dan more, and better, than I), we have collaborated together on a book project about retributivism, and I participated from time to time in the criminal law theory workshop that he put together up here. He was always organizing, building, and bringing together. He was an impresario as well as a fine scholar. But when he was here in New York, we'd often find time to get breakfast alone together--just the two of us, whether down in Brooklyn (his preference) or in Manhattan (mine). Our last breakfast was in late June.

Dan was one of the leading lights of the new retributivism that sprang to life in the late 1980s and 1990s. This new retributivism often takes some of its inspiration from the work of Herbert Morris as well as the political liberalism of Rawls. There are many versions of retributivism, but Dan's built particularly on the Morrisonian foundation to conceive what he called 'the confrontational conception of retributivism.' Together and in conversation with such formidable minds as R.A. Duff and others, Dan conceived retributivism in condemnatory but also deeply humane and offender-centric terms. Retributive punishment was justified in part because in condemning the offender, it communicated respect for the offender's autonomous choices. What was key in his conception was the communication of condemnation with the intent that the recipient of the condemnation understand that condemnation (even if the recipient rejected it), and that the communication is performed in such a way that the recipient can make sense of it through his free will. You may notice a number of assumptions, including a robust notion of free will, which exist in such a conception of punishment. Dan always defended the free will of the offender fiercely against attacks coming from deterministic angles. And he defended the "intrinsic goodness" of retributivist punishment, provided that one was beginning from the situation of a society in which laws vindicated by such punishment were reasonable and democratically enacted. He was fond of quoting C.S. Lewis's observation that retribution "plants the flag of truth within the fortress of a rebel soul." Yet retributivist punishment in Dan's view of it was limited: it was a specifically political communication by the state to an offender who was a worthy interlocutor.

For many years, Dan was engaged in profitable exchanges, debates, and defenses of his communicative conception of retributivism. Some challenged his conception on the basis of conceptions of punishment dependent on the suffering of the offender. Some brought new and interesting consequentialist critiques of the CCR. Some challenged Dan's conception of retributivism as political rather than more comprehensively moral. For myself, I have always been more of a fellow traveler with respect to Dan's retributivist project than some. I found his views very appealing. But I often pressed Dan about the difference between expressivism and his CCR, and we had many long and vigorous discussions about precisely where expressivism ends and the sort of communication that he was interested in begins. Against my attacks, he was tenacious in his view that the two were qualitiatively different. The last time we had breakfast, we batted the question around for what must have been at least the 10th time. It was such fun.

Always he was extremely gracious to me and a very important person for my own scholarly development. The very first conference I ever organized--"The Retributivist Tradition and Its Future"--was co-organized by Dan. I half-joked that perhaps the conference should have been called "The Retributivist Tradition *Is* Its Future." He joked back by offering, "The Retributivist Tradition and Its Totally Different Future." Dan was the first person I ever asked to write a promotion letter on my behalf. I believe that my letter was the first such letter he had ever written. When he had a draft, he showed it to me before submitting it because, he said, "intellectual friendship is more important than the niceties of procedure." He urged me to write more in criminal law theory. I urged him to do more in law and religion. And he did do some work in that area as well. Perhaps he would have done more.

I will miss him very much.

July 20, 2014 in DeGirolami, Marc | Permalink

Saturday, July 19, 2014

Dan Markel, RIP

Like so many others, I was devastated to hear the news this afternoon that Dan Markel had suddenly and tragically died. The notice from PrawfsBlawg (which he created) is here. Dan and I were summer associates together in 2001 in the Washington office of O'Melveny & Myers and have been friends ever since. He was a gifted scholar and teacher, of course, but more importantly he was a loyal friend who brought a community together wherever he went. I treasure the time we had together last summer hiking in Colorado and the gatherings at AALS and elsewhere of Dan's many friends. I grieve most for Dan's two little boys and pray for their consolation, somehow. Requiescat in pace.

July 19, 2014 in Moreland, Michael | Permalink

The Tragic Shooting Down of a Civilian Passenger Airliner

A civilian passenger plane carrying 290 passengers — men, women, and children — was shot out of the sky by an anti-aircraft missile.  The downed flight was a commercial airliner flying a route that had been approved by international aviation authorities.

All 290 passengers on the airliner died.  As the news broke, heart-breaking photos of the wreckage soon appeared in the international news media — horrific pictures of dozens of bodies of people of all ages, along with debris of personal effects.

No, I am not here describing this week’s tragic incident in Ukraine involving Malaysian Airlines Flight 17 and killing 298 people.  Instead, I am recalling the 1988 shooting down of Iran Air Flight 655 by the U.S.S. Vincennes, which resulted in a nearly identical loss of life.  Iran Air Flight 655 carrying 290 passengers had departed from Bandar Abbas International Airport and was traveling to Dubai when it was shot down by an American naval missile system over the Persian Gulf.

Iranair655shootdown

To be sure, there are differences between the 1988 Iran Air 655 incident and this week’s Malaysian Airlines Flight 17 incident.  The U.S.S. Vincennes had been attacked in the Persian Gulf by Iranian gunboats and was engaged in combat when the radar system picked up an aircraft coming toward the ship from Iran.  Notwithstanding the exigent circumstances, however, the difference between a slow-moving Airbus and a supersonic military fighter jet should have been apparent, and the radar crew failed to recognize that the Iran Air flight was climbing at the time and not on an attack path.  The United States did take immediate responsibility for the downing of the Iran Air flight and paid compensation to the families of the victims (although the federal government successfully invoked sovereign immunity to defeat tort lawsuits filed in United States courts on behalf of the survivors).

But, at the end of each sad day, nearly 300 innocent men, women, and children died horribly because an insufficiently trained military unit acted rashly on the basis of limited information.  Each was the result of an atrocious error by an irresponsible military force.  The captain of another U.S. ship present at the time in the Persian Gulf said that the shooting down of Iran Air 655 “marked the horrifying climax” to a pattern of over-aggressive behavior by the commandor of the Vincennes.

Importantly, the lesson is not a new one and this week's tragic loss of Malaysian Airlines Flight 17 shows that it has not yet been learned around the world.  Nor was the Iran Air 655 tragedy in 1988 the only other such episode.  In 2001, Ukraine military shot down a Russian passenger plane, and in 1983, a Soviet fighter jet destroyed Korean Airlines Flight 007.

We need not make the error of characterizing the Malaysian Airlines Flight 17 episode as “terrorism” to insist that those responsible be held accountable for this episode and that use of military force must be carefully constrained to protect civilians.  A “terrorist” deliberately targets civilian populations to provoke fear and chaos in the populace.  The intercepted communications between Russian military advisors and pro-Russian separatists in eastern Ukraine make plain that they thought they were shooting down a Ukrainan military transport plane and were shocked to discover that the downed plane was a civilian aircraft, wondering aloud why a civilian airliner was flying in a war zone.  Nonetheless, we can rightly deplore this episode as involving criminal negligence—perhaps even the level of recklessness that would qualify as manslaughter under Anglo-American definition of homicide.

A responsible nation should never entrust a military system capable of such mass destruction of innocent life to other than a carefully trained team of regular military professionals and even then should insist that every precaution be in place and hesitancy demanded before such a system is employed.  Given that the American military has not repeated that episode in the last quarter-century, that immediate lesson may have been learned in the aftermath of the U.S.S. Vincennes.  Today, Russia should immediately withdraw such weapons systems from the rag-tag bunch of militias and criminal gangs that Russia has incited to violence in eastern Ukraine.

We live in a broken world.  A violent response to frustrations, even if purportedly limited, too often explodes into far greater atrocities and much greater loss of life than anyone intended at the outset.  Those of us who believe that international responsibilities do sometimes call for use of American military force nonetheless should be sobered by an episode such as this and be reminded that our own military too has made such unconscionable mistakes in the past.

Let us all continue to pray for a world in which not only innocents traveling high in the skies but all people may know peace and personal safety. And let us today hold in our hearts and prayers the victims of Malaysian Airlines Flight 17 and their families, including Sacred Heart Sister Philomene Tiernan, a member of the staff at Kincoppal-Rose Bay School, a Catholic girls' school in Sydney who lost her life on that flight, while remembering as well the souls lost 25 years ago in the Persian Gulf on Iran Air 655.

July 19, 2014 in Sisk, Greg | Permalink

New York Times Columnist: Hobby Lobby Majority is Like Boko Haram

Really, I mean it.

It's tough to keep pace with the monumental, colossal stupidity these days about this case. It would be a full-time job to respond to all of the garbage, and who's got the energy or inclination for that? This poor man aligns the Hobby Lobby Supreme Court majority with ISIS and Boko Haram. The unifying thread--both are anti-American:

The most horrific of the religion-inspired zealots may be Boko Haram in Nigeria. As is well known thanks to a feel-good and largely useless Twitter campaign, 250 girls were kidnapped by these gangsters for the crime of attending school. Boko Haram’s God tells them to sell the girls into slavery....

Violent Buddhist mobs (yes, it sounds oxymoronic) are responsible for a spate of recent attacks against Muslims in Myanmar and Sri Lanka, leaving more than 200 dead and close to 150,000 homeless. The clashes prompted the Dalai Lama to make an urgent appeal to end the bloodshed. “Buddha preaches love and compassion,” he said.

The problem is that people of faith often become fanatics of faith. Reason and force are useless against aspiring martyrs.

In the United States, God is on the currency. By brilliant design, though, he is not mentioned in the Constitution. The founders were explicit: This country would never formally align God with one political party, or allow someone to use religion to ignore civil laws. At least that was the intent. In this summer of the violent God, five justices on the Supreme Court seem to feel otherwise.

"The founders" certainly were not "explicit" in the Constitution about the points that Egan makes. "Explicit" means "clearly stated." Where are the points Egan makes about the Constitution clearly stated? What "intent" does he refer to? There is lots of evidence that at least some of "the founders" actually would recognize that religion sometimes can provide grounds for viable and cognizable objections to civil laws. Nothing in the Constitution prohibits such a recognition. And I daresay that "the founders" would rise up in unison to shout down the abject fool who lumped together organizations that kidnap, torture, and kill people with a court of law that, agree or disagree with its decision, does its best to interpret the law. There are many times when I disagree with the Supreme Court's decisions as to fundamental questions. But I recognize that those are legal disagreements. Cannot Egan do the same? In what way did "five members of the Supreme Court" align themselves with a "violent God" by ruling as they did, rather than simply issue a decision with which Egan disagrees?

I do regret posting this sort of irritated item right after Kevin's admirable post. But where is there to go with such talk? What is there left to say?

July 19, 2014 in DeGirolami, Marc | Permalink

Friday, July 18, 2014

Dinner with opposing counsel, the Annual Law & Religion Roundtable, and the Libertas workshop on religious freedom

The St. Thomas More Society in Richmond held a belated celebration of our patron's feast day (June 22) this morning. Bishop DiLorenzo celebrated Mass and we had a nice breakfast together afterwards. Among other benefits, this provided the opportunity to catch up with a former student who is practicing in Richmond and enjoying it. We ended up talking a bit about professionalism and about his generally (but not uniformly) positive experience in dealing with opposing counsel. He relayed what he had heard recently about the practice of a greatly respected lawyer at the beginning of cases. This lawyer (a litigator) makes it a practice at the outset of a big case of extending a dinner invitation to opposing counsel (expenses paid by the inviter if acceptable to invitee) at the place of opposing counsel's choice, with the only condition being that they not discuss the case. The idea is that it is easier to treat each other with respect and professionalism if we know each other as human beings and not just as opposing counsel.

The insight behind this practice is on my mind as I reflect on the Annual Law & Religion Roundtable (previously discussed by Rick and Michael Moreland) and the Libertas workshop on religious freedom (previously discussed by Marc and Michael Scaperlanda). For me, a valuable aspect of both conferences was the opportunity to get to know law professors and others with an interest in law and religion on a more personal level. I am grateful for the substantive engagement, analysis, and insight, as well. But personal interactions supply something that no amount of reading and writing and solitary thinking can. 

Some of those I met or had the opportunity to renew acquaintance with are people with whom I have disagreed, presently disagree, or will at some point in the future disagree, maybe even deeply, on substantive matters of law and political morality; I hope our time together had something of the effect aimed for by the wise lawyer who dines with opposing counsel at the outset of an engagement. There were also some old friends and other fellow travelers; it was good to reconnect in person. And others fit in neither category, such that the best part was meeting for the first time.

There were different kinds of ideological diversity at each gathering. The differences at ALRR were more ideological than disciplinary, while the differences at Libertas were more disciplinary than ideological. At both there was a kind of unease and sense that things are not going very well, though the reasons why varied among participants. I hope to say more about the content of what was discussed, which was often rich and challenging. For the moment, however, I will stick with expressing gratitude to the organizers of and participants in both gatherings--particularly the organizers. I hope that organizers and participants alike find future gatherings worthwhile, notwithstanding the strong polarizing forces at work and currents of distrust seemingly causing separation and distance. 

July 18, 2014 in Walsh, Kevin | Permalink

Richard Land, "The Culture Warrior in Winter"

The National Journal profiles/interviews Richard Land, who was formerly head of the Southern Baptist ethics and policy shop in DC and a leader among social-conservative activists.  It's a very interesting exploration of Land's career and the uncertain future for conservative evangelicals in the social/political sphere.

July 18, 2014 in Berg, Thomas | Permalink

Reflection on Religious Liberty and the Freedom of the Church

I learned much at the Libertas Workshop on religious liberty at Villanova and am grateful to Michael, Marc, Zach, and the other participants for an engaging three days.

Chapter 9 of John Courtney Murray’s “We Hold These Truths” has given me much food for thought. I have heard it said that the United States through Murray’s work gave the Church its modern understanding of religious liberty expressed formally in Dignitatis Humanae. But Murray, at least the Murray of Chapter 9, seems deeply skeptical of the American understanding of religious liberty. At one point, he writes: “Modernity rejected the freedom of the Church, in the twofold sense explained, as the armature of man's spiritual freedom and as a structural principle of a free society.” In other words, free society requires not merely freedom of individual consciences but freedom of the institutional church. In fact, freedom of conscience depends on and is formed within the cradle of the church, which must be free to define and shape its own destiny.

This raises several questions for me. 1) Did the Catholic Church adopt an American understanding of religious liberty in Dignitatis Humanae or did it learn from the American experience while developing its own distinctive understanding? 2) To what extent is freedom of the church possible in a religious pluralistic nation such as ours? 3) Is freedom of the church inconsistent with an American/Protestant understanding of churches as voluntary associations? 4) Is the level of dissent within the Catholic Church today due – at least in part – to the cultural acceptance even within the church of an atomized freedom of conscience weakly tethered if at all to the Church operating in its freedom? 5) Should the bishops exercise their teaching authority within the Church to clearly articulate where the American concept of religious freedom convergences and diverges from the Church’s self-understanding? 

July 18, 2014 in Scaperlanda, Mike | Permalink

The Necessity of Legal Sacralization?

One of the topics of a Libertas Project session concerned the maxim, “Christianity is part of the common Napoleonlaw.” There is a fascinating debate between Thomas Jefferson and Joseph Story (both in their unofficial capacities) about the maxim, much of which concerns the accuracy of the translation from the French of the phrase, ancien scripture, as used by a fifteenth century judge named Sir John Prisot (Chief Justice of Common Pleas, as far as I have been able to determine). You can see the debate worked out in this fine volume edited by Professors Daniel Dreisbach and Mark David Hall. The maxim was invoked in 19th century American judicial decisions concerning violations of anti-blasphemy laws as well as Sunday closing laws. But what did the phrase mean, and when did it go out of usage, and why?

In a superb article, When Christianity Was Part of the Common Law, Professor Stuart Banner explores the use and the decline of the maxim. It seems to have been used relatively frequently in judicial decisions of the 19th century, far less frequently in the early 20th, and by mid-century have gone out of usage entirely. Indeed, the last use of the maxim that Banner records is in a 1955 Pennsylvania state court decision that I assign my students in criminal law–Commonwealth v. Mochan–involving a prosecution for “persistent, lewd, immoral, and filthy” phone calls. Banner concludes that the maxim had almost no tangible legal effect on the substance of the 19th century blasphemy and Sunday closing law prosecutions. Those cases were about disturbing the peace in general, not about specific injuries done to Christianity that the law could remedy.

Does this mean that the maxim was functionally useless. Not at all. The maxim did not go to the substance of law, but to its nature. And the fact that the maxim falls out of use in the early twentieth century has as much or more to do with our changing conception of the common law as it does with our changing views about religion. The common law in the older view had an existence independent of the particular statements of judges: it was founded on sources much broader than the positive commands of authorized government functionaries. Those sources, which included Christian sources, sacralized the common law; they rendered it greater and deeper than positive law. One can see this view in a nineteenth century Pennsylvania blasphemy case, Updegraph v. Commonwealth, in which the court said of the common law: “It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law.”

What Edmund Burke saw as the political, legal, and constitutional value of establishment is quite similar to the functions that the maxim served in 19th century America. These both were ways in which law was sacralized. The idea was to remind officials that they are subject to a greater power, and that this greater power is founded on and drawn from sources of transcendence outside the law (see also Town of Greece v. Galloway, as I explained here). In the context of the exercise of judicial power, the sacralizing function of the maxim was to reject the claim that judicial will is all that exists. Just as, in Burke’s view, disestablishment destroys the sacralizing power of law, so, too, does the rejection of the maxim desacralize law in the American experience. Here is Banner:

Where the common law has this sort of existence independent of the statements of judges, it can include systems of thought otherwise external to the legal system without causing any tension. If the common law can be found in our architecture, in our dreams, in our manner of speech—and especially in our prerational judgments as to right and wrong—then there is nothing mystical about the notion that the common law incorporates Christianity.

This view of the common law simply died out. We no longer believe that judges discover the common law. We believe that they, and they alone, make it. When judges render a decision, that decision is not–as the old view had it–”the best evidence of the common law” but not itself the common law. The common law just is the judicial will. If judges recognize the doctrines of Christianity as part of the common law, they are making Christianity the law. That is exactly a reason that the maxim would raise Establishment Clause complaints today where in the past it would raise none.

And yet I wonder what fills the void in place of the sacralizing meta-doctrine that Christianity is part of the common law. There are two possibilities. The first is that the modern state is no longer in need of sacralization or consecration at all. We just know better today. This seems to be the view taken by Banner at the conclusion of his piece.

But a second possibility is very different. It posits that all states—and certainly all modern states whose ambit of power is large and ever-increasing—depend on sacralizing credos and maxims. If the maxim that Christianity is part of the common law is dead, other credos reflected in new maxims inevitably must take its place. No state, and especially no state whose jurisdiction is expanding into realms traditionally overseen by other social powers—can long survive without the consecration of its law.

July 18, 2014 in DeGirolami, Marc | Permalink

Thursday, July 17, 2014

Some Notes on the Libertas Project's Religious Freedom Workshop

I am just back from passing a wonderful few days of fellowship and reflection at the Libertas Project's workshop on religious freedom, hosted by the gracious and erudite Michael Moreland at Villanova Law School and sponsored by the generous Templeton Foundation. Together with other MOJ denizens Kevin Walsh and Michael Scaperlanda, I had the pleasure of talking together with a terrific group of learned political theorists, historians, theologians, and law professors about various issues--old and new--concerning the historical trajectory and current condition of the right of religious freedom.

Zak Calo and I had the privilege of moderating the seven sessions of the workshop. And the three of us--Michael, Zak, and I--worked together to assemble a panoramic set of readings to direct the group's attentions and reflections:

  • Chapters from Brad Gregory's The Unintended Reformation and Mark Lilla's The Stillborn God kicked things off
  • A historical session on Burke, the relationship of establishment and regimes of religious toleration, and the intellectual history of the maxim, "Christianity is part of the common law"
  • A session that included readings by Murray and Niebuhr set against United States v. Seeger
  • A session that considered Pope Benedict XVI's Regensburg Address, Micah Schwartzman's article about the moral justifiability of religion's special constitutional protection, and Town of Greece v. Galloway
  • And finally a few sessions devoted to Steve Smith's recent book, The Rise and Decline of American Religious Freedom, with applications to and speculations about various contemporary controversies

In all it was an extremely successful and productive event bringing together a broad range of disciplinary expertise and insight. I'll have a bit more to say about some of the more particular subjects that interested me, but for now just want to congratulate Michael on organizing this excellent conference.

July 17, 2014 in DeGirolami, Marc | Permalink

"The inferiority of a Jesuit education"

Would any educated person today care whether someone was educated by Jesuits?  Harvard used to refuse Catholics *because* of their Catholic education. Good for Harvard, in a way.  

July 17, 2014 in Brennan, Patrick | Permalink

Monday, July 14, 2014

Idolatry of the Corporate Form?: A Response to Rev. John Whitney, S.J.

 

AMDG

It used to be the case that members of the Society of Jesus could be expected to offer their opinions about the issues of the day in the pages of America Magazine in a thoughtful and restrained manner in accord with their apostolic purpose: to strive for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine—all done to serve the Lord under the Roman Pontiff.   Not so in the age of the blogger/priest/activist as evidenced by a recent post at the America website by John D. Whitney, S.J. (here) criticizing the Supreme Court’s recent decision in Burwell v. Hobby Lobby.  From what I can tell, Fr. Whitney is neither a lawyer nor a political scientist.  (Certainly his comments on Hobby Lobby do not reflect the thoughtfulness that ought to come with this kind of professional training).  Of course, one does not need to possess these kinds of formal credentials in order to comment on a Supreme Court opinion, but to do so intelligently one’s work must be invested with the rigor that the subject demands. When, in addition, one is also a member of the Society of Jesus, this responsibility is intensified by the objective of serving the Church consistent with the purpose of the Society.

Sadly, these qualities are absent from Fr. Whitney’s remarks, and these absences lead him to offer a conclusion that can aptly be described as over-the-top.  For Whitney the Hobby Lobby decision “ascribe[s] to a corporation the basic rights of a human being” and this is “a type of idolatry” and “the ultimate effect of decisions such as Hobby Lobby and Citizens United” is to not only “grant disproportionate rights to the owners of corporations, but also to eradicate the distinction which raises the human person above a merely legal creation.”

The first indication that Fr. Whitney has not really invested his post with the serious thought that the subject matter requires is his casual assumption that the drugs and medical services at issue in the case were merely contraceptive in effect and not genuinely destructive of nascent human life.  He does so in a backhanded fashion through use of the subjunctive: “Even if one opposes the contraceptive methods [sic] which are the source of the Hobby Lobby case – believing they are not contraceptive at all but the cause of early term abortion . . . .”

The Court demurred on the issue of whether the four methods to which Hobby Lobby objected – the drugs Ella and Plan B, and the Copper IUD and the IUD with progestin – were abortifacient in nature as the resolution of this factual question was not necessary to the Court’s analysis in applying RFRA.  Although the proponents of these various methods have argued that they are not abortifacient in nature (here), had Fr. Whitney bothered to investigate the matter he would have discovered that the bulk of scientific evidence indicates that the methods at issue in the case can operate in an abortifacient fashion. (See the article here citing to the specific scientific literature).  That is, while some of these methods may work to prevent the creation of a human embryo by preventing ovulation, they are also known to cause the destruction of human embryos that have already formed through the meeting of sperm and ova.  They can work to bring about the demise of the human embryo by preventing uterine implantation, or causing the expulsion of the embryo following implantation by preventing maturation of the uterine endometrium.

Why Fr. Whitney would uncritically repeat (even if only in a backhanded fashion) the talking points of those who both oppose religious liberty and support the culture of death is a mystery, but it cannot be attributed to a careful reading of the available scientific literature.

The bulk of Fr. Whitney’s post focuses on his quite uncontroversial claim that corporations are “legal fictions created to protect individuals from liability and risk.”  Of course this general description applies whether the entity is for-profit or not-for-profit. Whitney says that protecting individuals from liability and risk is designed “to encourage investment and economic development” when in fact this feature of the corporate form goes beyond business entities oriented toward for-profit investment. 

Here it is worth recalling that local churches (dioceses), religious institutes (orders of vowed religious) as well as hospitals, universities and charitable organizations that operate under church-sponsorship are organized as corporations.  This is something that Fr. Whitney surely knows since the Oregon Province of the Society of Jesus is a corporation (an Oregon domestic non-profit religious corporation) that he headed for six years as provincial superior.  Indeed, the Oregon Province is a corporation under civil law and an ecclesiastical entity and juridic person under canon law. 

Whitney says that, as creatures of the state, the rights of corporations were historically “determined by the legislature” but that these rights “were not seen as intrinsic.”  He contrasts the Lockean understanding of rights as a matter of public contract (which make rights a matter of prudence “contingent on the perceived needs of the group”) with the Catholic tradition according to which “fundamental rights are not granted by the state nor by the majority but by God.”  From this perspective rights enable men and women to fulfill God’s call and “pursue the good life of communion and justice.”  Whitney’s concern is that “granting the rights of citizens to corporate structures . . . means that the owners are somehow given disproportionate power, and the rights of those with wealth supersede the rights of those without.”  Indeed, he fears that this gives the owners of corporations “a double-dose of rights” and that this places “their rights over and above the rights of employees and ordinary citizens.”  He says that the effect of the Court’s decision is to give a “fictional entity the authority to make moral decisions on behalf of natural persons.”

Several things could be said in response to this.

(1) First, Hobby Lobby is very much in keeping with the recognition of corporate entities as creatures of the state whose rights are subject to legislative control.  Indeed, the Hobby Lobby decision is an exercise in statutory interpretation in which the Court concluded that, by its own terms, RFRA applies to “persons” and that Congress intended the term to include not only individuals (i.e., natural persons) but entities such as corporations, partnerships and associations, which are legal persons.  Congress is of course free to amend the statute if it so chooses, and some Democratic members of Congress have already proposed doing so.

(2) Fr. Whitney refers to the status of corporations as “legal fictions” and as “fictional entities.”  This description is undoubtedly true insofar as such entities are not flesh-and-blood human beings.  A corporation does enjoy a kind of legal personality, however, and this is a “fiction” insofar as it is not a natural person, but it is and remains a legal person that has many of the rights and obligations under the law that natural persons possess.

But the rhetoric of “legal fiction” should not obscure the underlying reality.  Corporations, partnerships, associations and other organizations are entities constituted by individuals.  Whether a for-profit corporation like Hobby Lobby or a not-for-profit corporation like the Oregon Province of the Society of Jesus, these entities are collections of persons.  Indeed, operating under Christian inspiration, a business can be a genuine community of persons dedicated to the common goal of the business venture.  It is very much a part of the Catholic tradition, and the Catholic understanding of how a well-ordered society ought to be structured, that individuals and groups have the freedom to come together to form “intermediate organizations” including businesses engaged in the provision of goods and services.

Moreover, corporations may reflect moral values in how they conduct their affairs – whether in implementing certain “green” practices as the Hobby Lobby majority noted (Slip Op. at 23), hiring for “diversity,” or refusing to do business with companies overseas that employ child labor.  Through the conscience of its owners and managers a corporation can reflect moral and religious values in how it does business.

As such, the corporate form and other organizational arrangements (e.g. partnerships, unions, associations, dioceses, and religious institutes) are merely the legal conventions available within our legal system that enable individuals to exercise their legal rights – including their God-given natural right to religious freedom – when they enter into the marketplace and civil society.  “Freedom of religion” is much broader than the “freedom of worship” that the Obama administration has championed before the Supreme Court.  It is not limited to prayer, rituals, and Sabbath observance.  It is the freedom to go out into the world – including the marketplace – where one’s faith is lived, where one can witness that faith to others.  It includes the right to have and live a vocation – not in the narrow sense of ordained ministry but in the copious understanding of Vatican II.  (One can see these principles at work in the Oregon Province’s own plan for reorganization available on its website (here) wherein it claims rights and obligations under the civil law).

Here it is worth recalling that the Council urged all Christians to live out the call to holiness, “to strive to discharge their earthly duties conscientiously and in response to the Gospel spirit” (Gaudium et Spes ¶ 43).  It decried the “false opposition between professional and social activities on the one part, and religious life on the other” (Id.).  Indeed, Vatican II taught that “[t]he split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age” (Id.). 

It was, said the Council, a grave mistake for people to “think that religion consists in acts of worship alone and in the discharge of certain moral obligations” or to “imagine [that men and women] can plunge themselves into earthly affairs in such a way as to imply that these are altogether divorced from the religious life” (Id.).

Thus, the Council taught that in living out the Christian vocation in various walks of life, lay men and women “are not only bound to penetrate the world with a Christian spirit.  They are also called to be witnesses to Christ in all things in the midst of human society” (Id.). The Council urged that “[i]n the exercise of their earthly activities” Christians can “gather their humane, domestic, professional, social, and technical enterprises into one vital synthesis with religious values, under whose supreme direction all things are harmonized unto God’s glory” (Id.).

The notion that a business owner must forfeit his or her religious way of life by going into business and adopting the corporate form is incompatible with Vatican II’s understanding of the Christian vocation in the midst of the world.

(3) For these reasons, the owners of businesses do not receive a “double-dose of rights” under the Hobby Lobby decision.  They are not granted the same rights twice.  Rather, the decision merely restores to these owners the right that the government had sought to take away from individuals who enter into the marketplace and make use of the corporate form.

Similarly, the Jesuits who are members of Oregon Province of the Society of Jesus do not enjoy a “double-dose” of legal rights simply because they have taken advantage of the corporate form by establishing a juridic person.  The creation of such an entity is surely a way of limiting individual liability, but it also represents the common sense conclusion that some things simply cannot be accomplished as individuals.  They require a collaborative effort.

To see the Court’s decision as granting corporate owners a “double-dose of rights” one must subscribe to the view advanced by the Obama administration that people lose their rights when they adopt the corporate form as a means of conducting their affairs in the world, or (more narrowly) that they lose these rights when they enter the marketplace as business entities that are for-profit enterprises.  But as noted above, this is a view of the human person and his or her vocation in the world that is decidedly at odds with the vision of the Council and, one might add, the grand tradition of Catholic moral theory and canon law.

(4) The respective rights of distinct individuals inevitably come into conflict.  But this takes place irrespective of the corporate form or the recognition organizations as entities that can engage in the “exercise of religion.”  Suppose that Hobby Lobby had not been a large national corporation, but an unincorporated sole-proprietorship (a “mom-and-pop store”), and that the HHS mandate was not limited to companies with fifty or more employees but applied to all employers.  If the sole-proprietor running the store objected to the mandate on the same grounds as the actual plaintiffs in Hobby Lobby, the same conflict of rights would arise: the right of the employee to a government mandated benefit provided at the employer’s expense, and the right of the employer to the free exercise of religion.  The prevalence of the corporate form and the recognition of corporations as possessing a right to religious freedom may make this sort of conflict more common (though I doubt it), but this is a tension that is unavoidably present in a society marked by pluralism.

It may be possible, under some circumstances, for the rights of both parties to be respected.  If there is some other “less restrictive means” through which the government may accomplish its objectives, then it is free politically to pursue this as an option going forward – a point underscored by the Hobby Lobby majority (Slip Op. at 40-43).

(5) Fr. Whitney’s claim that the effect of Hobby Lobby is to give a “fictional entity the authority to make moral decisions on behalf of natural persons” grossly mischaracterizes the Court’s decision.  The case does not stand for the proposition that an employer may decide whether or not an employee uses contraception.

With respect, to say so is to simply mimic the talking points of Planned Parenthood and other actors in the “reproductive health” industry.  Contrary to Whitney’s assertion, an employee of Hobby Lobby today is just as free to choose to use contraceptives or abortifacient drugs as before the decision.  The difference is that the federal government may not appropriate a religiously inspired business for its own purposes and coerce the company’s owners into cooperating with actions to which the owners object on religious grounds.  The holding is not that employers can now make health care decisions for their employees, but that the government cannot force an employer to pay for its employee’s use of abortifacient drugs and other techniques.

(6) Whitney says that the Catholic tradition “has long supported both negative rights, such as personal liberty, and positive rights, such as basic health care.”  Elsewhere he notes that his discussion “radically oversimplifies a complex group of theories.”  Fair enough, but here Whitney’s oversimplification is seriously misleading.  The Catholic tradition does not believe that anyone has a negative right in personal liberty to engage in actions that kill innocent human life, even if that life is in the embryonic stage.  Likewise, while the Catholic Church in the U.S. has long been supportive of a positive right to “basic health care” it does not regard contraception – let alone abortifacient drugs and other techniques that lead to the destruction of innocent, nascent human life – as “health care” at all, basic or otherwise.  Contraceptives as such do not address any physiological or other medical malady in the human body, and abortifacients do not work to preserve human life.  On the contrary, they act to destroy it.

In sum, Whitney’s hyperbolic conclusion – that recognizing organizational entities as possessing “the basic rights of a human being” is “a type of idolatry” misses the mark by a wide margin. The rights of natural and juridic persons to maintain and adhere to a moral code consistent with the common good is not idolatry but an authentic exercise of religious freedom.  Hobby Lobby does not mistake an inanimate legal fiction for a real flesh-and-blood human being.  Instead, it recognizes Congress’ conclusion that a person does not forfeit his or her rights by engaging in business and adopting the corporate form.

It is certainly true that idolatry exists today and that it surrounds much of American business.  The false idol of business is the profoundly mistaken belief that what is truly important in life (what is worth sacrificing one’s life for) is the accumulation of wealth and power.  But that is not what the Hobby Lobby case is about.  Instead, it is about the use of the corporate form to exercise religious liberty – something, one would think, a Catholic priest would strongly support.

If Fr. Whitney is truly concerned about vanquishing the idols of our day, there exists a whole pantheon against which he could direct his ire, including the idol of immorality that the culture celebrates as sexual liberation and the fulfillment of personal autonomy.  Perhaps this is unlikely (see here, here, here, and here) as Fr. Whitney appears to think that the Catechism is something that ought to be ignored (except where he thinks it ought to be followed, see here), but one can hope and pray that this member of St. Ignatius’ little company will come to embrace the full teaching of Christ’s Church by striving to defend and propagate the faith for the progress of souls in Christian life and doctrine.

 

 

 

July 14, 2014 | Permalink

Robert Christian on Obama's Pro-Family Proposals

Robert Christian, of the Millennial blog and Democrats for Life, writes at Time of the President's policy proposals at the recent White House summit on working families:

The leaders and members of the Church are the perfect partners in this push for economic justice and stronger families. From supporting the Pregnant Workers Fairness Act to minimum wage increases to a paid family leave program, Catholics should take up the battle to provide American families with the flexibility, support and economic security they need to thrive in the 21st Century.

July 14, 2014 in Berg, Thomas | Permalink