Mirror of Justice

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Friday, October 10, 2014

O Canada!

Last weekend I had the privilege of speaking at the national conference of the Canadian Christian Legal Fellowship.  It was very similar to Christian Legal Society conferences in the U.S. except that different court cases were stirring passions.  The controversy surrounding the proposed Trinity Western Law School was a frequent topic of conversation. It appears that Canadian law is supportive of Trinity Western's right to train professionals without sacrificing its community covenant; it's the members of the various provinicial law societies who are working to block accreditation. 

One equally interesting debate concerns the case of Loyola High School v. Attorney General of Quebec, a case pending before the Canadian Supreme Court.  Loyola objects to the government's requirement that the Catholic school teach the required Ethics, Religion and Culture (ERC)  curriculum from a neutral perspective in order to support pluralism and facilitate dialogue among students.  The oral arguments in March 2014 included some exchanges that would be eyebrow-raising in the US, including one Justice's suggestion that Loyola avoid the dilemma by hiring a non-Catholic to teach this portion of the curriculum. Opposition to the ERC is not universal, even among traditional evangelical Christians.  Regent prof John Stackhouse, for example, supports the ERC as a sensible approach in a pluralist society.  The Court's ruling, expected in the coming weeks, will shape the future of institutional religious liberty in Canada.

There is a vibrant community of religious liberty advocates in Canada, including Christian Legal Fellowship and the Canadian Council of Christian Charities, and it was a privilege to get to know their leaders

October 10, 2014 in Vischer, Rob | Permalink

Thursday, October 9, 2014

Re: SSM cert denials -- generally speaking, state courts are not bound by federal circuit court of appeals precedents

Some of the reporting about state actions regarding marriage following the Supreme Court's denial of certiorari may leave the inaccurate impression that something in our nation's federal structure dictates that state courts are bound by federal circuit court of appeals precedents. But that is not the case. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) ("The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located."). There are some older state appellate cases that appear to require state courts to follow federal authorities. Indeed, the state caselaw is surprisingly messy on this point. See generally Colin E. Wrabley, Applying Federal Courts of Appeals' Precedent: Contrasting Approaches to Applying Court of Appeals' Federal Law Holdings and Erie State Law Predictions, 3 Seton Hall. L. Rev. 1, 16-28 (2012). But most state courts have expressly stated (as they should) that they are not bound as a matter of vertical stare decisis by lower federal court decisions on questions of federal law.  Id. at 17-19.

Consider what is taking place now in South Carolina. (HT: How Appealing) The South Carolina Supreme Court has issued an injunction prohibiting probate judges from issuing marriage licenses until a federal district court addresses the issue in a pending case, Bradacs v. Haley. A lawyer for two women seeking a marriage license has criticized South Carolina Attorney General Alan Wilson for seeking the injunction. The Post & Courier reports:  

Asked whether Wilson was simply upholding South Carolina law by filing the injunction, S.C. Equality Attorney Malissa Burnette, who is representing Condon and Bleckley, said to do his job, Wilson must also uphold federal law.

"The Fourth Circuit Court of Appeals governs the South Carolina courts, and it has already stated that there's a fundamental right to marry for same sex couples and that to deny that is a denial of due process and equal protection," Burnette said. "That has already been decided. He has an oath to honor that law as well."

The South Carolina Supreme Court's order suggests that the South Carolina Supreme Court does not agree, although it is not as clear as it could be on this point. Perhaps this is because a South Carolina Supreme Court case from the 1940s stated that federal cases "are controlling of the meaning and effect of the Federal Constitution." State v. Ford Motor Co., 208 S.C. 379, 390 (1946). The court's statement about federal cases, in context, was not limited to decisions of the Supreme Court of the United States. As recently as last year, the Court of Appeals of South Carolina relied on this older state supreme court case for the proposition that lower federal cases are controlling. State v. Dukes, 404 S.C. 553, 562 (S.C. Ct. App. 2013). Regardless of what happens with same-sex marriage in South Carolina, the Supreme Court of South Carolina should clarify and fix the state's approach to the purported binding effect of lower federal court judgments.

This issue has come up in recent years in Virginia. In MacDonald v. Moose, a split panel of the United States Court of Appeals held the state's sodomy prohibition in Virginia Code 18.2-361 facially unconstitutional under Lawrence v. Texas. The Supreme Court of Virginia had previously rejected just such a challenge. Virginia courts are continuing to follow the state decision rather than the federal decision. See, e.g., McClary v. Virginia, No.  No. 0240-13-4 (Ct. App. Va. 2014)Saunders v. Virginia, 62 Va. App. 793, 753 S.E.2d 602 (2014). (For whatever it's worth, I've argued elsewhere that the Fourth Circuit's decision in MacDonald is wrong.)

October 9, 2014 in Walsh, Kevin | Permalink

Lawler and Reinsch on Freedom and the Human Person

One of the recurring questions here at MOJ and across the Catholic blogosphere is whether and to what extent Catholicism and American liberal democracy can happily co-exist ("the viability of the John Courtney Murray project" in shorthand). This essay at National Affairs by Peter Augustine Lawler and Richard Reinsch is a rich (and very well-written) reflection on that question by way of an engagement with the thought of Orestes Brownson, the still-unduly-neglected nineteenth century American Catholic thinker. As Lawler and Reinsch note at the outset of the piece:

Some of our most familiar political and intellectual categories, adapted to suit 20th-century debates, now cause us to fall into a simpleminded individualism that we cannot really believe. Too many conservatives, for instance, persist in the tired distinction between individual freedom and collectivism. That unrealistic bifurcation helped discredit the communist or fascist reduction of the particular person to nothing but an expendable cog in a machine, plugging away in pursuit of some glorious paradise to come at the end of History. But today that distinction too often ends up placing in the same repulsive category any understanding of the person as a relational part of a larger whole — of a country, family, church, or even nature. It thus causes conservatives to dismiss what students of humanity from Aristotle to today's evolutionary psychologists know to be true: that we social animals are "hardwired" by instinct to find meaning in serving personal causes greater than ourselves, and that reconciling freedom with personal significance is only possible in a relational context that is less about rights than about duties.

Read the whole thing to see how Lawler and Reinsch think Brownson helps us move past such individualism, but here is a bit from a later part of the essay:

The American, constitutional mean between abstract universalism and tribal secessionism, according to Brownson, is a limited political unity of citizens who know they are also more than and less than citizens. All of us equally are shaped by natural, personal imperatives having to do with flourishing as material, political, and spiritual beings. When we forget any of the three, we fall into trouble. The material being is concerned with the personal subsistence of himself and his family. The political being is concerned with the common good shared by citizens in a "territorial democracy" in a particular part of the world. The spiritual being is concerned with discovering his relational duties to his loving personal Creator and sharing that personal news with his fellow creatures through the church.

October 9, 2014 in Moreland, Michael | Permalink

My thoughts on Biblical justice

Plough Quarterly, the journal of the Bruderhof communities, asked me to offer some thoughts on the Biblical conception of justice. Here's a link to the video of the interview:



October 9, 2014 | Permalink

Finnis on Posner's acclaimed marriage opinion: "It disgraces the federal judiciary"

Richard Posner, the "economic analysis of law" pioneer and Seventh Circuit Court of Appeals judge, has argued, as the late Ronad Dworkin reminded readers, "that mothers should be permitted to auction off their newborn babies, and that criminal laws prohibiting rape are justified because 'even if the rapist cannot find a consensual substitute… it does not follow that he values the rape more than the victim disvalues it'." 

Recently, however, in what surely counts as one of the most bizarre moments in the more than two-decades-long debate about redefining marriage, Judge Posner has emerged as a hero on the Left for his allegedly "unanswerable" case against the argument that states have a valid interest in preserving the historical definition of marriage as the conjugal union of husband and wife.

This morning at Public Discourse, John Finnis examines Posner's case and, to say the least, finds the claim that it is "unanswerable" sorely lacking: 

"In truth,"Finnis says, "the argument that Posner is said to have refuted remains compelling. His judgment is one long attempt to hide from that argument and to conceal it from his readers. In its refusal to engage the opposing argument, Posner’s opinion disgraces the federal judiciary."

Professor Finnis concludes that the opinion "constitutes a profound injustice, recklessly imposed."

Here is a link to th article:



October 9, 2014 | Permalink

Wednesday, October 8, 2014

Sen. Hatch on Preserving Religious Freedom "As Social Reality and Constitutional Principle"

Sen. Orrin Hatch has been a great proponent of religious freedom, leading the sponsorship of statutes like RFRA and RLUIPA. He just gave the keynote address at the annual symposium of BYU's international law and religion center, where he spoke about both the achievement of religious liberty in America and the sobering, multiplying challenges to it.

I'm gratified that he started off with a quote from me that  "one of America’s greatest contributions to the world"--one that must be preserved and strengthened--"has been establishing religious freedom as both social reality and constitutional principle." He goes on:

Nor is religious freedom a uniquely American ideal.  In 1948, after the horror of World War II, numerous nations, including the United States, signed the Universal Declaration of Human Rights.  Article 18 of that Declaration states that every person has a fundamental right to freedom of religion, including “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Here again we see the three dimensions of truly robust religious freedom: belief and behavior, private and public, individual and collective.  Genuine religious freedom exists when these three dimensions are both social reality and constitutional principle, and are understood as fundamental.

Then he talks about the threats to religious liberty today--many of us know them well, but it's a useful summary. And he ends with some thoughts on how "to strengthen religious freedom as both social reality and constitutional principle," like:

Sixth, we must affirm our own individual faith and devotion.  As community leaders, we have the ability to reach and influence broad audiences.  By publicly affirming our faith, we both show that faith does have a place in the public sphere, and show community members that their leaders place a priority on religion.  This does not mean we should become public pastors.  But it does mean we should not be shy about our own beliefs.  By demonstrating that religion is important to our own self-identity and desire to serve, we show our community members that religion is a thing of value and source of motivation.

And who knows?  Showing others how religion has changed our lives may spark a desire in them to seek greater devotion in their own lives.  There can be no greater protector of religious liberty than a society composed of individuals who actually value religion.

Right. Religious liberty protects the ability to have a vibrant, outward-looking, growing faith, but it works the other way too: as John Garvey, Steve Smith, and others have emphasized, religious liberty will be protected if (and only if) there are lots of believers and they can't be ignored. It's also crucial (and I know Sen. Harch would agree) that the manner of doing so be humble and service-oriented, never about the religious believer's "prerogatives."

October 8, 2014 in Berg, Thomas | Permalink

Movsesian on the Plight of Middle East Christians

You should check out the video of a lecture delievered at the Lanier Theological Library by my colleague, Mark Movsesian, on this important subject. Very informative and, if I may say, quite moving in parts.

October 8, 2014 in DeGirolami, Marc | Permalink

Tuesday, October 7, 2014

Should the Sixth Circuit certify the central constitutional questions in its marriage cases to the Supreme Court?

Suppose you are a judge on the United States Court of Appeals for the Sixth Circuit and you believe both (1) that there is no constitutional right to same-sex marriage, and also (2) that five Justices on the Supreme Court of the United States are prepared to hold that such a right exists, how should you vote on the same-sex marriage appeals currently pending before your court?

This very well may be the question that Judge Sutton and Judge Cook are asking themselves today. To be sure, today is not the first day they would have asked this question. By now, tentative votes have been cast, opinion drafts have been written, and much work has been done on the appeals argued before their three-judge panel (with Judge Daughtrey as the third). But the question may appear differently to these judges now than it appeared before the Supreme Court denied certiorari yesterday in similar cases from the Fourth, Seventh, and Tenth Circuits. 

Before yesterday's certiorari denial, the judges' duty to decide based on their best legal understanding, as they would decide any other appeal, seemed plain. But yesterday's certiorari denial calls into question the Supreme Court's willingness to do the same.

The question of a constitutional right to marry a person of the same sex is both important and unsettled. And surealy at least one of the cases in which the Court denied a petition for certiorari would have been a suitable vehicle, legally, for resolving this question. But at least six of the Justices may believe that the American people are not ready for the "yes" answer that five are likely poised to give. That is the reason some observers have given for the unwillingness of the Windsor five to vote for certiorari. Noah Feldman, for example, has written that "[t]he great worry of the Supreme Court – or at least of Justice Kennedy -- is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade." And Dahlia Lithwick has suggested that, lurking beneath the surface of yesterday's certiorari denials, is at least some Justices' "fear that they need to time these marriage decisions around some magical moment in the ebb and flow of public opinion." Geoffrey Stone has made a similar suggestion.

Whether framed in terms of fear of backlash, or understood as good care and feeding of a living Constitution, this kind of thinking is inappropriate for shaping the institutional approach of the federal judiciary to the issue of same-sex marriage. (On this, I agree with Lithwick and Stone, with whom I often do not agree on matters of culture-war constitutionalism.) 

According to an Associated Press report from a few weeks ago, Justice Ginsburg has signaled one-way urgency on the issue, specifically mentioning the pending Sixth Circuit's pending appeals:

She said "there will be some urgency" if [the Sixth Circuit] allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

She said if the appeals panel falls in line with other rulings there is "no need for us to rush."

This kind of thinking makes the enterprise of constitutional law seem like a game of tactics and strategy. I'm inclined to think that the Sixth Circuit should not play along and should instead send the issue directly to the Supreme Court by certifying questions. Congress has long provided such a path to Supreme Court review, now codified at 28 U.S.C. 1254(2). This would encourage the Supreme Court to have the courage of its constitutional convictions, and would provide the type of expeditious ruling that all the parties to the pending cases deserve.

Constitutional law is not poker; and neither the parties nor the lower courts should be played by the Court. Yet it sometimes feels as if the Court is playing not only them, but all of us. 

The Supreme Court has disfavored certification, stating that "[i]t is ... the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business." United States v. Wisniewski, 353 U.S. 901, 902 (1957). Although I have not fully thought through the question, this appears to be one of those "rare instances ... when certification may be advisable in the proper administration and expedition of judicial business." Id. If a panel majority is prepared to find a constitutional right to same-sex marriage, then certification would be inappropriate; the court should just rule on the merits and vindicate its perception of the rights of the parties before it. But if a panel majority believes both that there is no such right, and that the Supreme Court will say that there is, "the proper administration ... of judicial business" is the "expedition of judicial business." 

October 7, 2014 | Permalink

Gordon College's accreditation review

The story is here:

The regional body that accredits colleges and universities has given Gordon College a year to report back about a campus policy on homosexuality, one that may be in violation of accreditation standards.

The higher education commission of the New England Association of Schools and Colleges met last week and "considered whether Gordon College's traditional inclusion of 'homosexual practice' as a forbidden activity" runs afoul of the commission's standards for accreditation, according to a joint statement from NEASC and Gordon College. . . .

There's a lot going on here, obviously.  The premise of the one-year review, it appears, is that a body like the NEASC is now authorized to declare, and to enforce the declaration, that the mission and practices of a Christian college or university must conform with -- must be, as some put it, entirely "congruent" with -- (the current understanding of) the mission and practices of the liberal state in order to actually be a "college" or a "university."  But, this premise seems wrong to me.  (More here on that point.)  It is, it appears, not only that governments and officials and laws are constrained by the Lawrence decision but that civil-society institutions are (or should be), too.  

Check out John Inazu's recent paper, "Confident Pluralism," here, for a different take.



October 7, 2014 in Garnett, Rick | Permalink

Holt v. Hobbs and the Third-Party-Harm Establishment Clause Theory

Readers may recall that during the course of the Hobby Lobby litigation, some contraceptives mandate supporters argued that religious accommodations that impose "significant" harms or burdens on third parties constitute violations of the Establishment Clause. In this post, I argued that this view of the reach of the Establishment Clause was not convincing. It was based on a misreading (and substantial extension) of the relevant case law but also on a controversial conceptual view of the permissible scope of religious accommodation that, I claimed, should be rejected.

Virtually all accommodations impose harms or burdens of some kinds on others, though both the nature and the degree of the harms will vary. Some harms are financial, others are symbolic, and still others are to value systems more generally. Some harms are acute and others are mild. Yet it would reflect an impoverished conception indeed of what is valuable in life to claim that only financial costs are real or cognizable harms: it simply isn't true that the only way in which a person can be harmed or burdened is through the pocketbook. Some financial burdens may be much less harmful than some symbolic harms, and vice versa, depending on factors too numerous to list. Whether money is involved or not, choices to accommodate or not to accommodate are often choices between ways of life that specify totally different virtues, or if they specify the same virtues, weigh them completely differently. In Goldman v. Weinberger, for example, a choice to accommodate Goldman would have been a choice against the set of values that the military was bringing to bear, and there were many of them. Ultimately I disagree with the outcome in Goldman. But the reason is not that the military would not have been harmed at all by accommodating him. In fact, it's only by ignoring, flattening out, or misdescribing the military's interests and concerns that we can say that the only issue in the case was accommodating Goldman, and the military was simply being obtuse. Perhaps there are rare situations in which the costs on third parties are so small as to be invisible (O Centro?). But in the main, it is in the nature of these kinds of conflicts that when one side loses, so does its way of life to some greater or lesser degree. The Hobby Lobby majority discussed the third-party-harm theory briefly at footnote 37, where it made the point that if all that was required to invalidate a religious accommodation was that a law conferred a benefit on a third party, and consequently that the deprivation of that benefit would be a burden, then the effect might (depending on what exactly "significant" means) be to destroy RFRA and render many religious accommodations unconstitutional.

Now that Holt v. Hobbs is in the offing (argument is scheduled for today, I believe), I am curious why nobody is making the third-party harm claim. Perhaps it is because the degree of deference ostensibly due to prison authorities in the Arkansas system is so great. Still, I would have thought that for somebody who subscribed to the third-party-harm theory of the Establishment Clause, Holt v. Hobbs would present a far clearer case than Hobby Lobby in which there might be serious, or significant, or at the very least cognizable, or tangible, harms to third parties--and easily identifiable third parties at that. I am writing this in haste (for a much more thorough treatment, see this excellent student note by Taylor Stout, The Cost of Religious Accommodation in Prisons), but I can think of three:

1. Increased risk of prison escape, harm to other inmates, and harm to those who must be in physical contact with the prisoner. This is a particularly vicious prisoner, who has shown himself capable of very violent behavior using a knife. He slashed a woman's throat with a knife. And while in prison, he held a knife to another prisoner’s throat as a result of a religious dispute. Though Arkansas prisons do not themselves have experience with prisoners hiding weapons and other contraband in their facial hair (naturally, since they don’t allow beards) other state prison systems do (see page 25 and following of this brief). Again, I recognize that it is perhaps the total deference to prison administrators which makes this particular prison policy specially objectionable. But I would have thought that these sorts of harms—harms to the personal security and safety of other people in physical proximity to the prisoner—are not obviously less “significant” than the harms to third parties in Hobby Lobby.

2. Administrative and financial harm to the prison system. The administration of religious accommodations in a prison system is burdensome. It requires more decision-making, more exercise of discretion, more manpower in the monitoring of the exceptions, and therefore more cost. One can dismiss these costs as de minimis, or unimportant, but that seems to me a cavalier view that can be bought rather cheaply at a great distance (which is where most of us are privileged to live) from the actual operations of prisons.

3. Symbolic harm, including harm to the idea of equality in the treatment of prisoners. A prison’s legitimacy depends in part on treating its prisoners equally and fairly, without privilege or favor. Dissimilarity of treatment can breed resentment on the part of the “disadvantaged” prisoners and on the part of the prison population more broadly. Moreover, prisons have important interests in uniformity of treatment that go not to equality concerns, but instead to order and discipline. Prisons are dangerous places. They are populated with people who have been convicted of crimes. Sometimes, as in the case of this particular prisoner, those crimes are extremely violent. Prisons therefore need systems to regularize and impose discipline on such people. It is at least a symbolic harm—but quite possibly much more than that—to burden the efforts of prisons to cultivate uniformity in the service of prison discipline.

To be clear, I believe that the prisoner should win in this particular case. But the reason is certainly not that the prison is simply being obtuse inasmuch as accommodations of this kind are harmless or nothing at all to it. Yet the absence of the third-party-harms theory of the Establishment Clause in general public debate has puzzled me. Setting aside the issue of the remoteness of the potential harms, the nature of the potential harms relating to accommodation under RLUIPA in a case like this goes to deeply important interests in personal and institutional safety—interests that do not seem categorically less important than those of the third parties at stake in Hobby Lobby.

October 7, 2014 in DeGirolami, Marc | Permalink