Thanks much to Professor Thai for his thoughts in response to my post about the Smith case, the Religion Clauses, and Catholic teaching.
With respect to Smith, I should have been more careful than I was, and made clear that when I say Smith was "right," I mean only that, in my view, the case's holding captures what I think the Free Exercise Clause and the Fourteenth Amendment actually mean and require. Like Professor Thai I suspect, I worry that, by leaving the exemptions question (pretty much) to the political process, Smith leaves open the possibility that such exemptions will not be granted, even when they should. (That said, the political process has responded in many ways, with state-law RFRAs, the federal RFRA, the RLUIPA, and so on.)
Now, in Dignitatis humanae (link),and in the Catholic social tradition generally,it is clear that religious freedom is a fundamental human right. In DH, we read, for example (par. 2):
This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.
And (par. 2):
Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.
And (par. 3):
Injury therefore is done to the human person and to the very order established by God for human life, if the free exercise of religion is denied in society, provided just public order is observed.
And, finally (par. 7):
The right to religious freedom is exercised in human society: hence its exercise is subject to certain regulatory norms. In the use of all freedoms the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility.
Furthermore, society has the right to defend itself against possible abuses committed on the pretext of freedom of religion. It is the special duty of government to provide this protection. However, government is not to act in an arbitrary fashion or in an unfair spirit of partisanship. Its action is to be controlled by juridical norms which are in conformity with the objective moral order. These norms arise out of the need for the effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights, also out of the need for an adequate care of genuine public peace, which comes about when men live together in good order and in true justice, and finally out of the need for a proper guardianship of public morality.
Smith is, it seems to me, consistent with the Church's teaching that religious freedom is fundamental and that the exercise of religion may and should be subject to certain "regulatory norms," consistent with "just public order." The rule of Smith is consistent with the view that religiously motivated conduct may and should be exempt from generally applicable laws (so long as it would not harm the common good to exempt it). At the same time, the Court insisted, the Constitution does not authorize judges to second-guess the decisions of the politically accountable branches with respect to whether or not a particular exemption should be granted. I don't think the Church presumes to teach that the balancing inherent in, say, the passages quoted above must be conducted by a court, rather than a legislative body.
On the coercion point, Professor Thai should not be "embarrassed," because I'm sure that I misunderstood him!
With respect to Professor Thai's next set of observations, about different Catholic justices' views on accommodation, and his claim that some current Catholic justices "tend to favor majority or mainstream religions," while Justice Brennan "tended to be more constitutionally protective of minority religions": I would probably disagree with the view that the current Catholic justices "favor" majority religions. That said, it is true that an approach like Justice Brennan's is likely, in practice, to require religion-friendly exemptions for members of minority religions, primarily because, in his view, they can be easily accommodated without doing harm to what he regards as the state interests at stake.
Of course, my friend Tom Berg, church-state guru that he is, is going to set me straight on all of this.
“Much thanks to Prof. Garnett for taking the time to respond thoughtfully to my two novice questions. I very much appreciate his kindness in responding and his considered reflections. If I may pursue the thread further, I’d like to offer a question, a clarification, and a tentative observation.
First, with respect to Free Exercise, Prof. Garnett writes that it is “entirely Catholic” to leave it up to the legislative branch to grant religious exemptions from neutral, generally applicable laws, and that the legislature need not grant them when “damaging to the common good.”
As I wrote earlier, I am not a scholar on Catholic thought. However, my “gut” Catholic reaction to Smith is what Prof. Garnett posits might be the reaction of most of the other MOJ-ers, i.e., that Smith was wrong. And my reaction is based on speculation as to the Church’s likely response to various hypothetical situations, including one in which all states revoke their legislative exemptions for underage drinking in the case of sacramental wine. In the absence of Smith, would the Church simply seek state-by-state legislative reversals, or would it also argue that even non-discriminatory legislation that bars religious practices infringes upon religious freedom, both in a Catholic and a constitutional sense?
Second, let me clarify my enigmatic comment about the views of the current Catholic justices on the Establishment Clause. I did not mean to suggest (and am embarrassed that I apparently did) that they would view “actual coercion” as fine. On the contrary, I agree with Prof. Garnett that no justice, of any religious or ideological stripe, believes that. I meant to make the opposite point. To my knowledge, every justice, current and former, accepts that the EC at minimum prohibits actual coercion. The current Catholics simply split as to what kind of coercion qualifies. See Lee v. Weisman (Kennedy—“subtle and indirect” coercion prohibited; Scalia & Thomas—only direct coercion “by force of law and threat of penalty” counts).
What is interesting to me is that these Catholic justices apparently also regard this constitutional minimum as the constitutional maximum,see Allegheny County (Kennedy, dissenting, with Scalia), or at least coercion + “neutrality.” None of them like the less religiously accommodating (and more subjective) endorsement test, and they all are hostile to the least accommodating EC principles of Lemon. See, e.g. Lamb’s Chapel (Scalia, concurring, with Thomas); McCreary County (Scalia, dissenting, with Kennedy and Thomas). Brennan seems to be the only Catholic justice to have embraced Lemon. See, e.g., Lynch (Brennan, dissenting). So, on the EC side, we have three Catholic justices who incline towards accommodation (Scalia, Kennedy, and Thomas), and only one who has inclined towards a strict view of separation (Brennan).
Now for my tentative observation. It appears that the views of the current Catholic justices on both clauses tend to favor majority or mainstream religions, which is what Catholicism is now (can anyone doubt it, with a majority of them on the Court?). These religions have the least need for constitutional protection of their religious practices, because they are politically powerful enough to obtain legislative accommodations. By the same token, they may have less to fear, and likely more to benefit, from a view of the EC that allows greater public accommodation of religion. Prayers at graduation, monuments on public grounds, and vouchers to parochial schools are more likely, respectively, to be said by, reflect, or go to mainstream religions than minority ones (e.g., I’ve yet to see a Wiccan pentacle at a state capitol). Am I wrong?
On the flip side, it appears that Brennan’s views on both clauses tended to be more constitutionally protective of minority religions. This majority/minority divide between the Catholic justices appears to reflect somewhat their general jurisprudence. But does it also reflect their Catholicism?
Finally, let me make clear that in making these tentative observations, I am not yet implying motivation. Nor am I asking (yet) the more fundamental question whether Catholic justices should vote their religion (which they all seem to put aside at their confirmation hearings). At this stage, I simply want to explore further the preliminary questions about what might be “Catholic” views of free exercise and establishment. Thanks for helping me to think about these issues more deeply.”
At Books & Culture, Mark Gavreau Judge has this review of Andrew Sullivan's new book, "The Conservative Soul." From what I've been able to gather, from this and other reviews, Sullivan spends a fair bit of time in the book reflecting on Catholicism, and on his faith.
Near the end of Ian "Crow's Ear" Fisher's piece, "A Coming Papal Visit Focuses Anger Among the Turks," in today's New York Times is this:
The status of Christians in Turkey has long been difficult. Greek Christians in Turkey have dwindled to fewer than 5,000, from an estimated 180,000 in 1923.
Much of the difficulty revolves around the Orthodox patriarchate, which is forbidden by law to train new priests or to elect a new leader who is not a Turkish citizen.
Good grief. To describe the situation of Christians in Turkey as merely "difficult," and to use 1923 (after the Armenian genocide) as the baseline for describing the disappearance of Christianity in one of its oldest historical homes, is -- to be charitable -- obtuse. (To be fair to Mr. Fisher, though, the State Department is not much better.)
Thanks to Professor Joseph Thai for his two questions. For what it's worth . . .
He asks, with respect to the Court's Religion Clauses jurisprudence:
(1) [W]hat, if anything, is “Catholic” about the jurisprudence of these justices [i.e., Justices Scalia and Kennedy]; and relatedly, (2) is it possible to identify what a “Catholic” position should be to on, say, the conflicting Sherbert and Smith approaches to FE, or the various EC principles out there.
In my view, which is not shared, I suspect, by most of my fellow MOJ-ers, the bottom line in the Smith case is right. That is, the Constitution, best understood, does not require governments to exempt religious believers or conduct from religion-neutral, generally applicable laws. (Of course, as Justice Scalia notes in Smith, it is entirely appropriate -- and, it is entirely "Catholic" -- for the politically accountable branches to grant generously religious exemptions.) In my view, the Church's religious-freedom teachings are not inconsistent with Smith, in that these teachings make it clear (to me, anyway) that religious exemptions need not be granted when they would be damaging to the common good. And, there is no "Catholic" reason for preferring judges' determinations about the appropriateness of exemptions in particular situations to those of legislators.
As for the Establishment Clause, it seems to me that the Catholic justices' views are squarely in line with the Catholic understanding of religious freedom under law, and an appropriate separation of church and state. I'm not sure what Professor Thai is getting at with respect to his invocation of "coercion"; I would have to disagree with any suggestion that any justice -- Catholic or not, liberal or conservative -- believes that the EC permits actual "coercion" in matters of religious conscience.
Reflecting on how to think about what Rick or someone similarly situated might write for his parish bulletin, I would hazard that a parishoner's "statement" in a parish bulletin, concerning a matter on which he or she invites fellow parishoners to bring justice to bear on a matter of import to the faithful, and does so in a way that fairly mediates the teaching of the Church, should be encouraged as exemplary of what Benedict XVI asks of the laity in Deus caritas (and elsewhere). It is for the laity to bring reason-purified-through-faith to bear on politics, and if the parish bulletin is not a place to begin that conversation (in statements signed by competent laity) and carry it forward, in a way that shows and builds the Church's call to the laity to transform the social order in ways taught by the Church and specified by the laity, I can hardly imagine such a place. (I guess I can imagine an old-fashioned bulletin that sticks to the knitting of the sacramental life, but I haven't seen one of those in quite some time). It will be for the pastors to decide that is "unnecessarily polarizing," and on that basis to exclude it from parish conversation. Assuming the orthodoxy of such contributions by the laity, though, I should think that inclusion in the hope of education and witness would be the clear norm.
I apologize for the variations in size of print. I tried to edit in html without success. Those variations were not in the e-mail Professor George sent to me.
Dear Steve:
I appreciate the good intention
behind your critical comment on Rick Garnett's "Respect Life Sunday" insert in
his parish bulletin, but I would like to offer for posting a comment that I hope
will show that your criticisms of Rick's insert aren't warranted. I invite
you (and MoJ readers) to consider the parallel case of a pastoral statement
issued in the 1950s by New Orleans Archbishop Joseph Rummel calling on Catholics
to reject racial segregation.
Before abortion became a
political issue in the mid to late 1960's, the most important
domestic human rights issue in our nation was the struggle against segregation
and other forms of racial injustice. New Orleans was typical of southern
cities in its segregationist ordinances and policies. Most whites in the
city, including most white Catholics, supported segregation, believing that
blacks, though human, were as a class intellectually and morally inferior to
whites. Of course, many of the misguided individuals who believed
this were persons of goodwill. They were not monsters or
haters. They were personally kind to blacks, including their black
domestic workers and other employees, and some even contributed generously to
charities that served blacks who were in severe need. A not insignifcant
number thought that the city's racial laws were too severe, and were prepared to
support limited reforms.
In the early 1950s, Archbishop Joseph Rummel decided in light
of the Church teaching on the equality in worth and dignity of all human beings
that he would integrate the Catholic schools. Controversy ensued because a
large number of Catholics, including many well-educated people of influence and
social standing, did not accept, or accept fully, the Church's teaching on
equality. They respectfully dissented, while regarding themselves as good
Catholics.
In
response to this dissent, Archbishop Rummel ordered a pastoral statement to be
read in the parishes informing Catholics that support for racial segregation was
incompatible with Catholic teaching on the inherent dignity and equal rights of
all human beings. Rummel
said
that “racial segregation is morally wrong and sinful because it is a denial of
the unity and solidarity of the human race as conceived by God in the creation
of Adam and Eve.” He warned
Catholics--including public officials--that support for segregation placed their
souls in peril .
Many dissenting Catholics refused to accept their
bishop's teaching. They formed an "Association of Catholic Laymen of New
Orleans" which petitioned the Pope to restrain Rummel and to decree that
Catholics were not required to believe that racial segregation is "morally wrong
and sinful." The Vatican rejected their petition, pointedly reminding the
dissenters that the Pope himself had "condemned racism as a major evil."
Now here is the rub. What Steve wrote about
Rick's
pro-life insert could just as well have been written about Archbishop Rummel's
statement. Here is what it could have said:
"A statement
like this would be unnecessarily polarizing. It is too easy to ignore that the
overwhelming majority of New Orleans Catholics do not think that blacks are,
strictly speaking, the intellectual and moral equal of whites, though they
think that cruel or abusive treatment of
black
peopleis never justified. Many of
them might deny that segregation is “morally wrong and sinful.” They might read
the statement (I am not saying that it was) as striving for political influence.
I recognize that a bishop might think it important to witness to the truth and,
if people do not like it, so much the worse for them. But I believe it more
constructive for a bishop to encourage dialogue about issues such as
these."
For his part, Archbishop Rummel did not think that dialogue
about the responsibility of Catholics to respect the inherent and equal dignity
of every human being was what was needed at the time. Eventually he took
the extraordinary step of publicly excommunicating three prominent dissenting
politicians, including Leander Perez, one of the most powerful
political figures in Louisiana. .
In what would become an
interesting footnote to history, the Archbishop's actions came to the
attention of the editors of the New York Times. Did
the Times condemn the Archbishop? Did the editors accuse him
of interfering in politics, fomenting division, or crossing the line separating
church and state? Nope. The New York Times
published an editorial lavishly praising Joseph Rummel for his "unwavering
courage" and for "setting an example founded on religious
principle."
As the Supreme Court starts its first full term with five Catholic justices, my colleague, Joe Thai has two questions pertaining to Catholic Legal Theory and the Religion Clauses of the First Amendment:
“My colleague Michael Scaperlanda has graciously agreed to post to this blog a few questions of mine related to the religion jurisprudence of Catholics on the Supreme Court.
With the addition of Justices Roberts and Alito, the Court now has a Catholic majority. The others are, of course, Scalia, Kennedy, and Thomas. I have often been struck by the influence that Catholics have had in the development of the Court’s modern jurisprudence in both the Free Exercise and Establishment areas. With respect to Free Exercise, Brennan gave us Sherbert, which Scalia’s Smith overruled. Kennedy then invalidated Congress’ attempt to overrule Smith (RFRA) in Flores. With respect to Establishment, Catholics have been less dominant (who, other than O’Connor, has?) but no less forceful, and their views appear somewhat closer in alignment, along the axis of coercion (direct, in the case of Scalia and Thomas, and indirect, in the case of Kennedy).
I recognize that these are simplifications of the nuanced views of the Catholic justices, but I hope they’re adequate to set up my questions, which are (1) what, if anything, is “Catholic” about the jurisprudence of these justices; and relatedly, (2) is it possible to identify what a “Catholic” position should be to on, say, the conflicting Sherbert and Smith approaches to FE, or the various EC principles out there.
Although I’m a Catholic myself, I am no expert at Catholic jurisprudence, and would very much appreciate any insights members of this blog may share on these questions. Thanks.
Joseph Thai
Associate Professor of Law
University of Oklahoma College of Law
P.S. I apologize if these questions have been discussed before, and if so, would appreciate pointers to the relevant discussion. I’m treading with some trepidation as an uninformed interloper!”
Here's another attempt to move forward on the abortion debate:
FEMINIST GROUP: WE WANT PEACE IN THE ABORTION WARS
Alexandria, VA, October 2, 2006 __ Feminists for Life is launching a national web campaign aimed at bringing peace to America’s painful, decades-long abortion conflict.
“Since 1973, it's been the same thing. One side of the hotly contested abortion wars yells, ‘What about the woman?’ Instead of yelling back, ‘What about the baby?’ Feminists for Life answers the question,” says FFL President Serrin Foster. “It’s hard to talk when there’s all that distance.”
To bridge the gap between both sides of the abortion debate, Feminists for Life is offering a new e-course beginning October 5, free to all who sign up, and advertising it via a national web advertising campaign.
Pro-Woman Answers to Pro-Choice QuestionsTM answers such common questions—and real quandaries—as “What about in the case of rape?”, “What about poor women who are without resources?”, and “Is it fair to ask a girl to give up her education to have a baby she doesn’t want?”
This is a press release issued by the National Right to Life Committee (NRLC) in Washington, D.C., on Saturday, September 30, 2006. For further information, contact NRLC at 202-626-8820 or by e-mail at [email protected].
Eight Senate Democrats Flip, Kill Parental Notification Bill
WASHINGTON -- A bill to generally require notification of one parent before a minor obtains an out-of-state abortion died Friday when Senate Democrats voted overwhelmingly to block it.
Hours before Congress adjourned for pre-election campaigning, 57 senators voted to remove the final procedural obstacle to S. 403, which would have cleared the bill for transmission to President Bush for his signature. But 57 was three votes short of the 60 required under Senate rules to break through a procedural roadblock erected by the Senate Democratic leadership.
The Senate Democratic leadership had been obstructing the progress of the legislation for months. This week, pro-life Senate Majority Leader Bill Frist (R-Tn.) made a bold attempt to overcome the minority's obstructionism by forcing the decisive cloture vote.
The cloture motion was supported by 51 of the chamber's 55 Republicans (93%), but by only six of the 45 members of the Democratic caucus (13%). The complete roll call can be viewed here.
The bill, S. 403, the Child Custody Protection Act, as it initally passed the Senate on July 25 by a vote of 65-34, would have prohibited transporting a minor across state lines to obtain an abortion, if this abridged the parents' right to be notified under the home-state law. However, the Senate Democratic leadership subsequently raised unusual procedural barriers that prevented the bill from going to a House-Senate conference committee. On September 26, the House took up the Senate-passed bill, added a provision to require an abortionist in any state to notify one parent before performing an abortion on a minor from another state (with certain exceptions), and sent the bill back to the Senate by a vote of 264-153 (under the title "Child Interstate Abortion Notification Act," or CIANA). It was this amended bill that the Senate voted on last night.
Of the 14 Democrats who initiatially voted in favor of S. 403 on July 25, yesterday eight flipped and voted to kill the parental notification requirement: Ken Salazar (Co.), Tom Carper (De.), Bill Nelson (Fl.), Daniel Inouye (Hi.), Evan Bayh (In.), Kent Conrad and Byron Dorgan (both ND), and Herb Kohl (Wi).
The six Democrats who voted in favor of the bill on both occasions were Mark Pryor (Ar.), Ben Nelson (Ne.), Mary Landrieu (La.), Harry Reid (Nv.), Tim Johnson (SD), and Robert Byrd (WV). The four Republicans who opposed the bill were Lincoln Chafee (RI), Susan Collins and Olympia Snowe (both Maine), and Arlen Specter (Pa.).
"It is remarkable that only six out of 45 Senate Democrats voted to require a parent to be notified before an abortion is performed on a young daughter in some other state," commented NRLC Legislative Director Douglas Johnson, who noted that the bill had exceptions for cases involving abuse, medical emergency, and judicial waiver of notification. "We commend Majority Leader Bill Frist for fighting to the end to free this legislation from the grip of a Senate minority, a minority that has preserved the ability of profiteering abortionists to keep parents in the dark." The chief sponsors of the legislation are Sen. John Ensign (R-Nv.) and Congresswoman Ileana Ros-Lehtinen (R-Fl.).
To view a letter from NRLC to the Senate that explains the provisions of the bill in detail, click here.
For other information on the legislation, including the full text (PDF format), summaries of state parental notification and consent laws, and other resources, click here.
To view NRLC's scorecard of all key pro-life roll calls in the Senate during the current Congress, click here.
To view NRLC's scorecard of all key pro-life roll calls in the House of Representatives during the current Congress, click here.
