Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, September 5, 2014

On the style (and a little bit on the substance) of Judge Posner's same-sex marriage opinion

A few thoughts prompted by Paul Horwitz's observation about the style of Judge Posner's opinion in Baskin v. Bogan requiring Wisconsin and Indiana to provide and recognize same-sex marriages:

Paul is right that this opinion "speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving." It is vintage Posner. I find this vintage too tart and informal; but the taste it leaves is unmistakable. To explain why he writes this way, here's Posner quoting William Popkin describing Posner's opinion style:

The public projection of judicial authority through an authoritative institutional and individual style of presenting judicial opinions has always existed in tension with the internal professional reality that the development of the law is a messy task, fraught with conflict and uncertainty. And this has placed tremendous pressure in the Anglo-American tradition on the judicial opinion, which must implement the dual external and internal goals of preserving judicial authority and developing judicial law. That pressure has only increased in the modern legal culture where judges acknowledge the intersection of law and politics, reject the older tradition of judges authoritatively declaring law derived from legal principle, and consider an institutional base for judging to be insufficient support for justifying judicial law in a legal system where democratic legislation is now the dominant source of law. The judge is no Hercules.

This leaves modern judges with the difficult task of appealing to an external source of substantive law, without the protective armor of authoritative legal principle or a completely secure institutional base. My suggestion for responding to this difficulty . . . is to make greater use of a personal/ exploratory style of presenting judicial opinions, as illustrated by Posner’s approach. This style implements what I call “democratic judging,” which is suited to a legal culture where law and politics are clearly related and in which a democratic process is essential to maintaining the authority of government institutions.

Reflections on Judging (pp. 259-260). 

In constitutional cases like this one, Posner seemingly takes Holmes as a guide substantively as well as stylistically. Holmes had the puke test. Posner's version of this seems to be something like disdain or incredulity. This explains the charged characterizations of various arguments put forward by the states, such as "totally implausible" and "so full of holes that it cannot be taken seriously." It also explains his reformulations of various state arguments, like this one: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." 

An exploratory, "impure" judicial style need not be so harsh. A better alternative, in my view, is the kind of opinion style cultivated by Judge Sutton. Good examples of this style include his opinion upholding the individual mandate against facial invalidation and his opinion reversing a hate crime enhancement in the Amish beard-cutting case. Like Judge Posner's opinions, Judge Sutton's are conversational and accessible to an intelligent lay reader. But in contrast with Posner's Baskin opinion (or his stylistically and substantively similar partial-birth abortion opinion), one does not sense disdain for lawyers' arguments or contempt for legislators and voters. 

September 5, 2014 in Walsh, Kevin | Permalink

Upcoming public events in Philly and DC for "Lost Classroom, Lost Community"

MOJ readers are familiar (I hope!) with the important new book by Nicole Garnett and Margaret Brinig, "Lost Classroom, Lost Community:  Catholic Schools' Importance in Urban America" (U. Chicago Press).  The book was reviewed, here, by Michael Sean Winters, and here by George Weigel.

If you are in or near Washington, D.C. or Philadelphia, I'd encourage you to attend an upcoming event (one in each town) that the University of Notre Dame is hosting for Garnett and Brinig and learn more about the book and their research.  For the September 18 event in Philadelphia, go here.  For the  Sept. 17 event in Washington, D.C., go here

Here's more from the blurbage:

In the past two decades in the United States, more than 1,800 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Community examines the implications of these dramatic shifts in the urban educational landscape. (See the full press release)

More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.

This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policy debates.

Key Data from the Book

  • Catholic school closures in Chicago between 1984 and 1994 predicted substantial between-neighborhood variance in the levels of social cohesion and disorder in 1995. Using data obtained from a survey conducted by the Project on Human Development in Chicago Neighborhoods in 1995, the authors show that residents of neighborhoods where Catholic schools closed had less cohesive and more disorderly communities than residents of neighborhoods with open Catholic schools.

  • While serious crime declined across the city of Chicago between 1999-2005, it declined more slowly in police beats where Catholic schools closed. In contrast to the city-wide average of a 25 percent decline, serious crime fell by only 17 percent in police beats experiencing a school closures.

  • Between 1999 and 2005, the presence of an open Catholic school in a police beat was consistently associated with a statistically significant decrease in crime. Although the percentage difference varied by year, the crime rate in police beats with Catholic schools was, on average, at least 33 percent lower than in police beats without them.


September 5, 2014 in Garnett, Rick | Permalink

Thursday, September 4, 2014

"A Secular Age?": P. Deneen reviews J. Bottum and C. Smith

I think I've mentioned here at MOJ -- if not, I should have! -- my colleague Christian Smith's new book, "The Sacred Project of American Sociology."  (It's excellent.)  Here is an essay in The American Conservative by another colleague, Patrick Deneen, of Smith's book (as well as Jody Bottum's An Anxious Age . . . two for the price of one!).  Here's a taste:

. . . In a word, both books are stories about the “sacred” nature of what we often call “secularism.” Bottum speaks of the decline of Mainline Protestantism and its replacement by the “Post-Protestant” denizens of academe, journalism, entertainment, business, most Protestant religious outside Evangelicalism, many liberal-leaning Catholics and non-Christians, and broad swaths of “non-elites” who have been shaped by these many leaders of culture and opinion. Smith writes of one segment of this population—sociologists—who are the embodiment of what Bottum calls the Post-Protestant “poster-children.” They are what we typically call “secular.” Both these books call into question the purported a-religiosity of this “secularism,” but rather point to the specifically sectarian nature of this particular form of “secularity”—not so much “Post-Protestant,” as Bottum describes, but Protestant after God.

What struck me through my juxtaposed reading of these two books is that they together tell the story of where Protestantism went and what Protestantism became when it ceased to be a “religion.”  . . .


September 4, 2014 in Garnett, Rick | Permalink

"Is God Irrelevant?"

I really enjoyed Steve Smith's review of Ronald Dworkin's, Religion Without God.  In the review, Steve "argues that Dworkin misunderstands the way theists typically think God relates to 'morality' [and] essay sketches a subjectivist (or 'super-subjectivist') account of morality that arguably better fits the understanding of believers in the biblical tradition than does Dworkin’s more objectivist account."  Check it out.

September 4, 2014 in Garnett, Rick | Permalink

"Constitutional Contraction: Religion and the Roberts Court"

I've posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here's the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

September 4, 2014 in DeGirolami, Marc | Permalink

Wednesday, September 3, 2014

Constitutional judicialism in Judge Feldman's refusal to hold Louisiana's marriage laws unconstitutional

Reading through Judge Feldman's opinion granting summary judgment to Louisiana in a challenge to its marriage definition brought by same-sex plaintiffs, I noticed that some of the authorities he quoted were somewhat atypical for a federal district court decision. These authorities were about what one might call constitutional judicialism, which is a collection of ideas about what it means to be a good judge in deciding questions of constitutional law.

In explaining his refusal to identify a new suspect class that would require departing from rational basis review under the Equal Protection Clause, Judge Feldman quotes excerpts from Justice Powell's dissent from the Court's holding in Furman v. Georgia that capital punishment violated the Eighth Amendment. At other places in the opinion, Judge Feldman quotes the dissents of Judge Kelly (Tenth Circuit) and Judge Niemeyer (Fourth Circuit) from decisions holding unconstitutional state definitions of marriage to require a man and a woman. In an extended footnote, Judge Feldman also commends Judge Holmes (Tenth Circuit) for his "very careful" opinion concurring in a decision holding Utah's marriage definition unconstitutional. That opinion commended the district court in the Utah case for refusing to attribute Utah's definition of marriage to animus.

Although Judge Feldman's reliance on these authorities is atypical, that is because cases that turn on the proper understanding of the federal judicial role in constitutional cases are themselves atypical ... at least outside of the Supreme Court. Whether typical or not, this explicit discussion about what counts as good and bad judging in constitutional cases is entirely appropriate for cases of this sort. 

September 3, 2014 in Walsh, Kevin | Permalink

Ryan Anderson on Judge Feldman's ruling upholding Louisiana's marriage law

Ryan Anderson on today's federal court ruling upholding Louisiana's constitutional authority to define marriage as the conjugal union of husband and wife:


September 3, 2014 | Permalink

Videos from Conference on International Religious Freedom and the Global Clash of Values

I have posted several videos of the presentations at the conference in Rome this summer co-sponsored by the Center for Law and Religion at St. John's. The title of the conference was "International Religious Freedom and the Global Clash of Values." Tom Farr delivered the keynote address, and we had panels on The Politics of International Religious Freedom (Pasquale Annicchino, Heiner Bielefeldt, and Ambassador Ken Hackett), Comparative Perspectives on International Religious Freedom (Francisca Pérez-Madrid, Marco Ventura, and Roberto Zaccaria), and Christian and Muslim Perspectives on International Religious Freedom (Abdullahi Ahmed An-Na'im, Olivier Roy, and Nina Shea). 

September 3, 2014 in DeGirolami, Marc | Permalink

Tuesday, September 2, 2014

White Reviews The Tragedy of Religious Freedom

A very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don't disagree with anything in it!

And for something rather different (and speaking of Holmes), here's a column from Reason (whose tagline is "Free Minds and Free Markets") about tradition whose conclusion is that "We treasure the customs and practices passed down from our ancestors. And we change them anytime we want." Judge Posner is quoted as saying, "How can tradition be a reason for anything?"

September 2, 2014 in DeGirolami, Marc | Permalink

Sunday, August 31, 2014

Cavadini and Smith, "Building Catholic Higher Education"

My friends and colleagues, John Cavadini and Christian Smith, have a new, important, and slim volume out called "Building Catholic Higher Education:  Unofficial Reflections from the University of Notre Dame."  Here's a blurb:

American Catholic universities and colleges are wrestling today with how to develop in ways that faithfully serve their mission in Catholic higher education without either secularizing or becoming sectarian. Major challenges are faced when trying to simultaneously build and sustain excellence in undergraduate teaching, strengthen faculty research and publishing, and deepen the authentically Catholic character of education. This book uses the particular case of the University of Notre Dame to raise larger issues, to make substantive proposals, and thus to contribute to a national conversation affecting all Catholic universities and colleges in the United States (and perhaps beyond) today. Its arguments focus particularly on challenging questions around the recruitment, hiring, and formation of faculty in Catholic universities and colleges.

You can (and should) learn more about and buy the book here.

August 31, 2014 in Garnett, Rick | Permalink