That's what a panel of the Second Circuit held yesterday in Alliance for Open Society Int'l, Inc. v. U.S. Agency for Int'l Development. The issue was whether the government can require assorted NGOs engaged in the fight against various diseases including HIV/AIDS to have a policy opposing prostitution and sex trafficking as a condition of receiving federal funds for their causes. By a 2-1 vote, the panel held that it cannot and upheld the injunction against that portion of the "Leadership Act."
The case has an involved procedural history, but the upshot seems to be that, in the majority opinion's view, the provision is not salvaged by Congress's broad spending powers because it imposes an unconstitutional condition on the receipt of funds (the majority distinguished Rust v. Sullivan). "Compelling speech as a condition of receiving government funds cannot be squared with the First Amendment." (majority opinion, at 23). Note, though, that cases like Barnette are distinguishable from this context, since those dealt with existing benefits, while this one involves a putative funding program.
But setting aside the doctrine for a moment, and in light of Michael's smart post below about the jurisdictional quality of the First Amendment, a question arises for me about this. Even if one views the First Amendment as jurisdictional, can it be right to say that asking organizations which make a claim on the government's money to have a policy against sex trafficking or prostitution is outside the government's proper ken, especially when those precise activities threaten the aims of the very reason to provide the funding in the first place? Here Congress found specifically that as part of its effort to combat the spread of the HIV/AIDS epidemic, it ought to be helping to eliminate prostitution and the sexual exploitation of women and children. So what sense does it make to say that it is unconstitutional for the government to demand that organizations which accept funds for the exact purpose of combating these diseases concomitantly affirm a commitment to fighting prostitution and sex trafficking? Maybe there is a distinction to be drawn between sex trafficking and prostitution here?
Thoughts from those more knowledgeable than I about free speech? Mike?
On Tuesday, July 5, the National Catholic Reporter (NCR) published an editorial entitled “Gay marriage, bishops and the crisis of leadership.” The editorial was highly critical of U.S. bishops in general but of two New York bishops in particular over the Church’s role in the recent legislation enacted in New York recognizing same-sex unions. I read with great care the NCR’s editorial, which is [HERE]. As it addresses the role of the Church in the public square and the right of all to inform lawmakers about what is good for society and what is not, the editorial, which is misinformed on many fronts, must be challenged.
At the outset, the editorial claims that the role of bishops in the promulgation of the New York legislation “is the latest and most glaring confirmation of some gloomy news for the Catholic church [sic].” This allegation is based on the “disturbing reality” that the bishops have “lost most of [their] credibility with the wider culture on matters of sexuality and personal morality.” If this is the case, then one would have to ask if the bishops, if the Church’s position on the major issues of the day must correlate to whatever the “wider culture” has to say on any issue? If we harken back to the antebellum age of the 1850s, should we say that Justices McLean and Curtis lost their credibility with the “wider culture” when they dissented in Dred Scott? Should we say that Justice John Marshall Harlan lost credibility with the “wider culture” in 1896 when he dissented in Plessy v. Ferguson? Fast-forwarding to the twentieth century, should we say that Justice Pierce Butler lost credibility with the “wider culture” in 1927 when he dissented in Buck v. Bell? And, for good measure, should we say that Justices Roberts, Murphy, and Jackson lost credibility with the “wider culture” in 1944 when they dissented in Korematsu? History is replete with instances of the objective, moral voice not wining the major discussions of the day in disputes where the “wider culture” thought it convenient to pursue in the making of law in a problematic and unprincipled way. The point is that the “wider culture” may well determine the outcome of what the positive law declares, but this culture does not always operate in a moral fashion that leads to that which is right and just. As I referenced in a previous post [HERE], we have been reminded on a number of occasions that when our democracy loses its proper values, it can morph into a thinly disguised totalitarianism.
Contrary to what the NCR editorial asserts, the bishops who addressed the New York redefinition of marriage did not react hyperbolically in a “wrong-headed” and “counterproductive” fashion. They did what the Church asks of them—to teach with authority, an authority that precedes the wisdom of the “wider culture” in propriety and justice. Well, at least they did what Christ asked and what councils from Trent to the second Vatican Council have taught.
The NCR editorial appears to be swayed by polls and political votes and argues that the Church can learn from them. But the Church must not be so inclined. Once again, human history demonstrates over the millennia that popular opinion and the opinion of public officials are not always right; moreover, they have been often wrong. And it is a further wrong when the reason used to justify these opinions become the basis of norms that are to direct society; then these norms, these laws are also flawed in fact, logic, and objective analysis and moral principle. The Church, through her teachers, the bishops, has a clear responsibility to demonstrate that the foundation of such norms is defective. The editorial seems to conflate these opinions and the views of the “wider culture” with the Gospel, and the teachings of Christ and His Church. But this conflation is also flawed.
The editorial then comments that if the bishops “want laws to reflect Catholic values, they need a new more sophisticated and potent model of legislative engagement.” Does the NCR editorial board propose that the bishops employ the methods that the New York governor purportedly used as discussed by the press to achieve this? Governors may be heavy-handed, but the bishops cannot be nor were they in this case. Stalin was right on one thing, neither the pope—nor for that matter, bishops—has or have military divisions or secular means, like the governor, to attain the objectives that he or they consider moral and proper. All they have are objective reasoned argument and fact. The NCR editorial fails to acknowledge this.
The editorial further offers a second critique of the bishops. It posits that even if the bishops “had a persuasive case to make and the legislative tools [whatever they are] at their disposal,” the use of “wholesale excommunications, railing at politicians, denial of honorary degrees and speaking platforms, using the Eucharist as a political bludgeon, refusing to entertain any questions or dissenting opinions, and engaging in open warfare with the community’s thinkers as well as those, especially women...” has resulted in the mistaken perception of the NCR editorial an “episcopal caricature” in which the NCR editors see only “common scolds” and the “caustic party of ‘no’.” However, the NCR editors again fail to take stock of the canonical, conciliar, and other authority of bishops to speak out against those who in fact contravene the Church and her teachings on the basis of their view of Catholicism.
The NCR editors finally impart their ultimate argument that the bishops have no credibility because of the scandal of clerical sexual abuse of minors. Could not a person also argue that when one considers that the sexual abuse of minors is also a scandal of society at large—and in far greater proportion than in the Church’s clergy—that legislators who go along with the “wider culture” might also have no credibility when we see that the public institutions for which they legislate also perpetrate sexual abuse on a much wider scale?
Somehow the NCR editorial finds need to insult two men who are faithful priests and the heads dioceses in New York. Calling them names and relying on ad hominem ridicule do little to advance the cause of robust debate and providing the public with objective and factual argument on any matter of important public policy.
Finally, the NCR editorial relies on an article published in the NCR on the same date by one who is a friend or colleague to many of us here at the Mirror of Justice, and that is Nick Cafardi. I will not respond to all of what Nick had to say in his article “Civil marriage is for Caesar to decide, not the Church.” [HERE] However, there are two quick observations I’ll make about several of his points.
The first is this: Nick states that, “No legislature can tell the church [sic] who to marry or who not to marry.” But this, in fact, is incorrect. The state—be it the German National Socialist State or the states of the United States—has, in fact, done this on the grounds of race, ethnicity, disease, degrees of consanguinity, age, and the list goes on. A second point that Nick asserts which I dispute is this: “Natural law, despite the church’s [sic] assertion, is not self-evident.” If that is the case, then Thomas Jefferson was wrong when he wrote that the American people held certain truths to be self-evident and our nation is premised on falsehood. But Jefferson has not been the only one in human history to make this claim. Many others have, too.
Regrettably, TNCs [Trans-National Corporations] have failed to measure up to this standard on numerous occasions, have violated established rules and regulations, and thus have caused exceptional damage. Evidence of such failures can be found in the manufacturing sector when workers have been deprived of a living wage, when safety and security measures have not been observed, and especially when forced or child labor has been tolerated. The extractives and energy sectors, for example, remain particularly susceptible to a corporate culture that operates without sufficient regard for the rights of indigenous and local communities and deprives these same communities of safe water, food and livelihoods. In other instances, in order to circumvent social and environmental laws, some TNCs have resorted to the practice of sub-contracting without adequately monitoring the policies and practices of their business partners. In countries, where governments lack the resources to monitor these companies, it must be recognized and enforced that the principal contractor carries responsibility for assuring that subcontracting partners observe and respect such rules.
While, some advocacy groups, including Human Rights Watch and Amnesty International, have voiced important criticisms of the Guiding Principles, suggesting that the standards for government and business are not adequate, even these organizations most likely will endorse the Guiding Principles, while advocating at the UN level for more stringent standards.
You know we live in interesting times when Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Alito, Sotomayor, and Kagan are lined up against Justices Thomas and Breyer, Archbishop Charles Chaput, Cathy Kaveny, and MOJ’s own Steve Shiffrin. To that mix, add Hadley Arkes today at Public Discourse writing on Brown v. EMA (the California violent video games case, though I still prefer the earlier caption, Schwarzenegger v. EMA) and charging Justice Scalia with “add[ing] yet another step to the acceptance over the years, of the law on speech that has been built on the premises of Justice Harlan’s relativism: ‘One man’s vulgarity is another’s lyric.’”
With all due respect to Hadley, I think I see things a little differently. The First Amendment is not a sanction for moral relativism but is instead a judicially enforceable limitation on the power of the government to prescribe orthodoxy in the expression of ideas (a "jurisdictional" interpretation of sorts). Now, there are interesting disagreements that consume my friends who work on the First Amendment over what counts as protected “speech” and the appropriate level of scrutiny of government restrictions on various types of speech. But outside of a narrowly circumscribed set of cases, the government is powerless (“shall make no law”) to limit speech. That’s why I regard the recent spate of controversial First Amendment cases as, for the most part, correctly decided and, in some instances, obviously so—U.S. v. Stevens (animal cruelty videos), Snyder v. Phelps (tort liability for funeral protest), Citizens United v. FEC (limits on independent campaign expenditures by corporations and unions), Davis v. FEC (“Millionaire’s Amendment” to Bipartisan Campaign Reform Act), and, most recently, Brown v. EMA (violent video games), Sorrell v. IMS Health, Inc. (prescription drug "data mining"), and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (public finance matching funds scheme).
A minor doctrinal disagreement I have with Arkes’s characterization of R.A.V. v. St. Paul in an earlier piece at the First Things web site (where Arkes took Justice Alito’s side in Snyder v. Phelps) and again today is, I think, illustrative of the larger point. Arkes wrote back in March at First Things that Justice Scalia’s opinion in R.A.V. v. St. Paul was based on the “presumption that any attempt to judge the content of speech was on its face invalid,” and today he writes:
Scalia would insist yet again that it is arbitrary to cast moral judgments on the “content” of speech. The same doctrine that led him to accept, as free expression, the burning of crosses…now leads him to withdraw any ground of judgment, or moral restraint, on a class of “entertainments” that occasioned no particular strain in the past as they were brought under a regimen of legal restraint.
But this misinterprets Justice Scalia’s opinion for the Court in R.A.V. (joined by Chief Justice Rehnquist and Justices Kennedy, Souter, and Thomas) as a bald claim of moral relativism about whether the burning of crosses is a good thing or a bad thing. Instead, R.A.V.stands for a much narrower (but, from the standpoint of First Amendment precedent, very important) principle that, even within a class of otherwise constitutionally proscribable speech (fighting words or assault), the government cannot make a content-based discrimination and carve out some forms of such speech for especially punitive treatment:
The content based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier, nor within a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier, the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty. 505 U.S. 377, 393-94 (1992).
So where Arkes sees moral relativism, I see an appropriate limitation on the authority of the state to censor the expression of ideas. This isn’t (I hope) because I’m in the grips of moral relativism but because that’s what the text and interpretive history of the First Amendment require.
Last Sunday’s New York Times Book Review contained a review by Harry Jaffa of a new translation of Aristotle’s Nicomachean Ethics, and I have some reservations about a couple things Jaffa says about Aquinas (and Aquinas’ appropriation of Aristotle) in the review.
First, Jaffa writes in the review that “Thomas Aquinas, writing in the 13th century, believed that in the ‘Ethics’ Aristotle had said everything needful for happiness in this life. Thus Aquinas did not write his own book on ethics, but instead wrote a commentary on Aristotle.” I’m not sure whether Jaffa means to say here that Aquinas didn’t think that the New Testament and Augustine, for example, said something “needful for happiness in this life,” but I’d submit that Aquinas most certainly did think so and thought that Aristotle’s account of happiness in the Nicomachean Ethics required the addition (replacement, perfection) of an account of supernatural beatitude, grace, and the theological virtues of faith, hope, and charity. See Denis J.M. Bradley, Aquinas on the Twofold Human Good: Reason and Human Happiness in Aquinas’s Moral Science (CUA Press, 1997), 395-401. Some (especially some Straussians) might say that such an insistent Christian theological element is all the worse for Aquinas, but it’s at least a plausible (indeed likely) view that what Aquinas meant by (perfect) beatitudo isn’t just Aristotelian eudaimonia with some random theological speculation thrown on top of it. Also, I'm not sure what to make of the claim that Aquinas didn’t write “his own book on ethics,” for surely the Secunda Pars of the Summa Theologiae might count as a “book on ethics.” Of course, Jaffa’s earlier book on Thomism argued idiosyncratically for the importance of Aquinas’s Commentary on the Nicomachean Ethics over and against the Summa Theologiae, so I understand (but don’t agree with) the marginalization here of the Summa and its much more theologically rich account of ethics and politics.
Second, Jaffa writes that “Aristotle’s greatness of soul (magnanimity) may seem to resemble pride, the greatest of sins described in the biblical canon. But Thomas Aquinas’s interpretation of the ‘Ethics’ offers proof against theological negativism.” Again, I think Jaffa significantly understates here the difference between Aristotle’s virtue of magnanimity (which wouldn’t seem to describe, say, Jesus Christ) and Aquinas’s theologically subversive account of it. See ST II-II, 129 a.3, ad.4 and Mary Keys, Aquinas, Aristotle, and the Promise of the Common Good (Cambridge UP, 2006), 143-172. Indeed, it was precisely by engaging in a clever misinterpretation of Aristotelian magnanimity that Albert the Great and Aquinas were able to reconcile Aristotelian magnanimity and Christian humility. See Tobias Hoffmann, “Albert the Great and Thomas Aquinas on Magnanimity,” Virtue Ethics in the Middle Ages: Commentaries on Aristotle’s Nicomachean Ethics 1200-1500 (Brill, 2008), 101-29. Jaffa wrote a book on Aquinas and Aristotle almost 60 (!) years ago in which he argued that Aquinas’s theological commitments undermined Aquinas’s “scientific and secular” bona fides, so I suppose this is just the latest installment in a long-running debate between those of us who think Aquinas achieved a genuine synthesis of Aristotelianism and Augustinian Christianity (preeminently in the Summa Theologiae) and those who think all the smart things Aquinas had to say (mostly in his commentaries on Aristotle) were already said earlier and more clearly by Aristotle himself.
Following up on some other MOJers' recent posts (e.g., Rob, Fr. Araujo, Russ, and Steve), here is Matthew Franck, commenting on the uncertain future but continued importance of religious liberty. In Franck's view, the religious-liberty protections contained in the recently enacted SSM law in New York are "woefully inadequate[.]" We'll see. It has been a premise of the letters that Tom Berg and I, and several others, have submitted to legislatures considering changes to their states' marriage laws that it is possible to find compromises that meaningfully protect religious freedom while moving to authorize and legally recognize same-sex civil marriages. I hope that premise is sound.
The new Journal of Christian Legal Thought -- which has been launched by Michael Schutt and the other good folks at the Christian Legal Society -- is available online. Volume 1, No. 1 features (among other things) several dozen short essays on great works by important Christian thinkers about law (and related matters). Check it out, and read bits by, inter alia, Tom Berg, Patrick Brennan, Marc DeGirolami, me, Robby George, Kevin Lee, Michael Scaperlanda, Lisa Schiltz, Susan Stabile, Amy Uelmen, and Rob Vischer on, inter alia, Reinhold Niebuhr, Joseph Vining, James Fitzjames Stephen, Jacques Maritain, John Finnis, Robert Cover, Josef Pieper, and John Henry Newman.
Whew! All this and more, in just 44 pages! Download and read today!
Please excuse two self-promotional posts in a row, but in case it might be of interest, I wanted to flag a paper I just posted about the relationship of punishment theory and the intellectual history of punishment. The paper explores and reconstructs the ideas of Sir James Fitzjames Stephen, a prominent judge and public intellectual in the late Victorian period, and uses that reconstruction to make some methodological criticisms about the way that punishment theory gets done today. For those that may not know Stephen, may I strongly recommend that you have a look at this powerful and rewarding writer -- in fact, I can think of little that is better beach reading than Liberty, Equality, Fraternity (a critique of Mill's On Liberty, with resonances for many contemporary issues -- this edition has a useful foreword by Richard Posner) or Essays by a Barrister.
Comments on the article are welcome. [Painting of Stephen by Watts]
Here's an interview that I did with Il Sussidiario with the kind help of Dario Chiesa about subjects that we batted around a little at MOJ some time back.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a disability act case before the Supreme Court implicates some interesting issues though not all of them are before the Court. The issue before the Court is “Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.” One of the interesting facts of the case is that some of the teachers at the school are not commissioned ministers in the eyes of the Church, but do the same work as the person who is before the Court. Should they also be ministers in the eyes of the First Amendment? (A brief before the Court authored in part by Rick Garnett and Tom Berg argues that they should).
More fundamental, should the ministerial exception exist at all. At a recent conference, Caroline Corbin argued that it should not. Among other things, the doctrine arguably necessitates judicial theological determinations as to what counts as a minister (perhaps not if the history of the exception is clear, then the Court would merely be making a historical judgment though possibly one in which some religions are privileged over others).
Even if there were no ministerial exception, surely religious associations should be able to hire or fire their leaders just as other associations can. Ideological associations, for example, can determine their membership and their leaders according to their ideology. To take an extreme example, the KKK need not accept an African American, a Catholic, or a Jew for membership, let alone for leadership. And the Catholic Church has a First Amendment right to refuse to hire women priests because it is a part of its religious doctrine to do so.
Why should the Lutheran church have to keep a minister it does not want to keep in Hosanna-Tabor? On one reading of the facts, the Lutheran church fired the teacher not because of its religious doctrine, but because of a disability in violation of the disabilities act. I emphasize that it is no part of Lutheran doctrine or ideology that the church should do so.
The church also fired the employee for bringing the law suit which is contrary to church doctrine requiring employees to settle issues within the church (Could the Catholic Church fire an employee for reporting sex abuse on the ground that the employee was supposed to keep the issue within the Church – one brief argues that these third party cases are different though I do not see why). It seems to me that government has a compelling interest in enforcing laws against disability discrimination and against sexual abuse interests that outweighs the First Amendment interests in both cases.
If the ministerial exception applies, it does not matter what reason the Church has. It could, for example, discriminate on the basis of race even if it were no part of its doctrine to do so. One difficulty with this approach, as Jesse Hill observed at the conference, is that a Court would have to determine what the Church’s doctrine really is, something it has been loathe to do, at least with respect to property disputes where it has resorted to other criteria. On the other hand, courts have considered the sincerity of religious beliefs in many exemption cases and have looked to the religious doctrine of the churches to which the applicant for an exemption has belonged.
In the end, I think that religious associations should stand on the same footing as other ideological associations They should be able to select their leaders and members in accordance with their ideology. But religion should not confer a license to discriminate for reasons that have nothing to do with the religious doctrine of the Church, yet that is precisely what the ministerial exemption confers.
