Pia de Solenni has the story, here. How frustrating, that an organization that could and should be focused -- intelligently -- on the reality and dangers of anti-Catholicism (and, uncomfortable as the fact is for some, anti-Catholicism is a reality) hamstrings itself, and dishonors the Church, with such nasty nonsense. (The nastiness and stupidity of Rosen's revealing comments were clear enough to most people without the CL's help.) Parents who adopt are parents, and their generosity, sacrifice, and love inspires.
Sunday, April 15, 2012
The Catholic League's repulsive and stupid response to Rosen's offensive and stupid comment
A Thought on Evolutionary Textualism
One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation. The primary virtue of textualism is sometimes said to be its fixity: words mean something -- and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words' authorship. And yet it seems to me that the interpretation of the Smith decision -- and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) -- may suggest something like the opposite view. Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.
Here's why. We know that Justice Scalia was the author of Smith. And we know that his Smith opinion for the majority was joined by 4 other Justices (Justice O'Connor wrote a special concurrence which did not adopt the Smith framework). And we also know that Smith itself seems to carve out really three categories of exception -- for hybrid rights, regulatory schemes with individual assessments, and the issue of church autonomy.
What we don't know is what either Justice Scalia or any of the other Justices who signed on to the opinion intended by making the exceptions to Smith's general rule. Perhaps they really intended to create major exceptions which would put in doubt the central holding of the case. Or perhaps they needed to make these exceptions simply in order to circumvent existing precedent, never intending (or desiring) that those exceptions would see the light of day again in future cases. Or maybe there was a combination of motivations -- some exceptions were really intended to have doctrinal consequences, while others were just attempts to get around some inconvenient decisions of the past. We could ask Justice Scalia or any of the other Justices signing the majority opinion what they intended 22 years ago, but we are not likely to get a reliable answer. It's hard to remember what one intended by doing something in the past, let alone in a single case among hundreds some decades long past, and now lost to the sands of time.
But it gets fun when one reflects on what happened next. In the wake of Smith, lower courts had to make sense of its language. They had to interpret the language -- including, and especially, the exceptions to the central rule -- in a way that made sense to them in light of the specific concerns reflected in their own cases. It was the text, rather than the intentions motivating it, which served as their guide and governed the texts that they in turn produced. And by interpreting the text in this way, lower court judges moved Free Exercise law in directions possibly (probably...almost certainly) not intended by the Justices who joined Smith. It is entirely possible (perhaps even likely) that the exception for individualized assessments made in Smith was never remotely intended to ground a subsequent doctrinal evolution in which that exception was interpreted, expounded, and expanded upon by lower courts. But that is exactly what has happened: in fact, it has happened many times over, as different judges have interpreted it in very different ways. The Justices may have intended one thing, but the words of Smith do not belong to them, and it is for later courts to interpret them in new ways -- ways which take text in unexpected and likely unforeseen directions. This phenomenon occurred in Hosanna-Tabor too. If you had asked Justice Scalia at the time he wrote Smith whether he thought that the ministerial exception lay outside of Smith's general rule, he may well have given you a very different answer than what he gave in signing on to CJ Roberts's decision this past January.
My own view is that the evolutionary quality of textualism might please Justice Scalia, himself (along with Justice Black) a primary exponent of its virtues. The text does not belong to its author. It belongs to the interpreters that follow -- to those others that come after. It is in this way that textualism may be a theory of both fixity and gradual change.
Saturday, April 14, 2012
Religious Liberty is a fact of life--and of citizenship
I thank Mike, Marc, and Tom for their postings of earlier this weekend. Whether I have something to add, or not, is up to them and to other contributors and readers of the Mirror of Justice, but here goes:
We, wherever we are—be it in the United States or elsewhere—if we are believers in God and the next life—be we Catholics, Christians, Jews, Muslims, etc., etc., etc.—are citizens of two cities. This does not mean that we have divided loyalties; rather, it means that we must be loyal, faithful, and true in the exercise of our citizenships. The ultimately loyalty for the Catholic is to God and His holy Church.
Now I return, more generally, to the idea of dual citizenship for the believer-American citizen, particularly the Catholic. Recalling Charles Dickens, we in the U.S. of the second decade of the twenty-first century, live in the best of times and the worst of times. Dickens addressed the bloody turmoil of the French Revolution. We address a different time, but it is not without its mammoth challenges and suffering as well as hope and promise.
In the American context, the dual citizenship of which I speak is not a loyalty to two states (one of which is the United States) but to country and God. For, American Catholics are simultaneously asked to be faithful members of the Church and contributing members of the American republican democracy. This is why Pope Benedict XVI earlier this year in one of his ad limina addresses to U.S. bishops noted that there is now, more than ever, a “need for an engaged, articulate and well-informed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with courage to counter a reductive secularism which would delegitimze the Church’s participation in public debate.”
Why is this important?
I, for one, do believe the voice of Catholics, as formed by the Universal Church, her teachings, the exhortations of the Holy Father, and the teachings of the bishops-in-union-with-Peter, are quite correct in their presentation of what’s right and what’s wrong regarding the positions on the issues of the day on the public matters that address the common good. This is not argument, on my part, this is—for the time being—background.
What is argument is this: for the American republican democracy to succeed, it is essential that this voice must not be excluded and silenced. Moreover, as the Framers established a union described in the Constitution’s preamble, it is essential for Catholics, who are simultaneously citizens of two cities, to understand how they are to inform themselves on the public issues of the day through careful and deliberate moral evaluation of what is before them. For this preparation to be effective, we need to hear the voices of the successors of the Apostles when they help form our consciences which will direct our actions as citizens in the City of Man. After all, it is we, as citizens of this country, who cast ballots, who run for office, who accept appointive office, and who lobby causes that are crucial to the success of American republican democracy. But when we pursue these things, we must be mindful of our other citizenship.
That is why religious liberty—something that is essential to this country’s establishment, and something that is essential to its preservation—is decisive. To accept what well-meaning persons (who claim fidelity to Christ but who choose what is not reflective of his Church and what is in conflict with citizenship in the City of God) opts for what is not Christ and for what is detrimental to the perseverance of American republican democracy and the critical role that libertas ecclesiae has to play in this democracy. To think that the good Catholic citizen of the U.S. is also true to the faith in Christ and His Church when he or she is attracted to the will of the dominant secular culture is, to borrow from John Courtney Murray, “moral nonsense.”
Dickens spoke of one time of two cities; we still live in a world where two cities are before us and where Catholics (and other believers who are people of good will) are called to participate in both through their dual citizenship. But we cannot be tempted to rest comfortably forever in the City of Man if we forget that the City of God awaits us.
What the U.S. bishops said in their statement of a few days ago on religious freedom will help us understand who we are and where we are going in the exercise of dual citizenship.
RJA sj
Partisanship and Religious Freedom
I agree with Marc's comments about some mischaracterizations of the law of religious freedom that have been flying around the past many weeks, and, as he notes, we have both commented on a post about Employment Division v. Smith by Cathy Kaveny over at the Commonweal blog.
Speaking of our friends at Commonweal, it's remarkable for a document that invokes Martin Luther King's "Letter from a Birmingham Jail" and criticizes a state anti-immigration statute and the exclusion of many predominantly African-American churches from worshipping after-hours in New York City public schools to be swept aside as an exercise in partisanship. But that's just what the Commonweal editors have done in this editorial. Like Marc, I find much to commend in "Our First, Most Cherished Liberty," including its use of a range of specific examples, adapting the American idiom of religious liberty to a Catholic context, the judicious use of theological and historical sources, and a pastoral sensibility about the challenges facing Catholics today. The document leaves on the table one of the more potent points that could have been lodged against the Obama Administration, namely the Administration's brief arguing against the ministerial exception in Hosanna-Tabor v. EEOC. I just don't see throwing the label of partisanship around as an especially interesting or useful exercise. Catholics on the left bristled at allegations of partisanship from conservative Catholics upon release of the bishops' pastoral letters on the economy and war in the 1980s, conservative Catholics bristle when pro-life advocacy is deemed mere partisanship, and around and around we go. So here's a proposal: in this election year, let's talk about the merits of particular issues drawing upon the rich tradition of Catholic thought, avoid cheap allegations of partisanship against the bishops or anyone else, and let the electoral consequences fall where they may.
The Bishops' Statement on Religious Freedom and Widespread Misunderstanding of the State of Free Exercise
Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Michael noted here. This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country. It's one that I've encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it. The misunderstanding leads commentators to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty. I'll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context. The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility. If I were a betting man in the mandate context, I'd put the odds somewhere around 60-40 for upholding the mandate as constitutional (RFRA is another matter entirely).
The part that people do seem to get is the basic rule of Employment Division v. Smith -- the announcement that a facially neutral law which applies generally is constitutional under the FEC, even if its effects may substantially burden a religious claimant.
But that's just the beginning of the analysis. I repeat: that is just the beginning of the analysis. The tricky part is that Smith carves out a number of "exceptions" to the core holding. One of these has, in part, grounded the Court's decision in the Hosanna-Tabor case (disagree as one may with the Court's distinction of Smith).
Another "exception" -- the key exception for our purposes -- involves regulatory schemes which conduct individualized assessments for deciding whether they will grant exemptions. The Court in Smith discussed this "exception" in order to make its way around the unemployment compensation cases (like Sherbert v. Verner). But I put quotes around "exception" because it really isn't an exception at all. It's part of the very rule that Smith announces -- the part dealing with general applicability. Laws which make lots of exceptions are not generally applicable. And a law which is not generally applicable is lifted out of the Smith framework and (ostensibly) receives strict scrutiny (I bracket the issue of whether the sort of scrutiny that FEC claims received pre-Smith really was, in the event, strict).
The question for courts interpreting this exception is what precisely its contours ought to be. Should it be limited to regulations with textual exceptions built right into the statute? Should it apply whenever there is a practice of conducting individualized assessments, and granting individualized exemptions, whether or not the text so specifies? Should it apply when there has been a history of exemptions granted on secular grounds, but not (never?) on religious grounds? How many exemptions are enough to trigger the exception? One? If so, the exception seems to swallow the rule, so that can't be right. Should there be some sort of balancing approach to deciding when the exception kicks in and when not? Should it be subject-specific -- i.e., limited to the unemployment compensation context? (Deeply unpersuasive, in my view, but some courts have said so.) All of these issues are unresolved as a matter of fixed doctrine. Courts have resolved them in a wide variety of ways. They remain to be litigated, and the results are uncertain. There is at least one member of the Supreme Court -- Justice Alito -- who has looked favorably on this exception in a couple of cases when he was a Third Circuit judge. How the rest of the Court might react, should the issue ever reach it, is anybody's guess.
I should emphasize that it still seems to me, in the end, that an FEC claim by Catholic organizations will face a problem with the existing doctrine. But...enough already with intoning the basic rule of Smith, as if this obviously resolves the question decisively, without so much as mentioning, let alone getting into, the doctrinal weeds of the exception. That sort of curt analysis represents a gross misunderstanding of the state of free exercise. The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations; hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others. There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution. That doesn't mean the claim will succeed. The results are uncertain, and are likely to vary (at least for the foreseeable future) from court to court.
In my opinion, that is just as it should be. Let the issue rattle around the lower courts for a decade or two. Let judges apply themselves to these problems in light of the particular circumstances and factual specifics facing them. Let's see what shakes out with time and that peculiar variety of judicial wisdom which results from keeping your eyes fixed narrowly on the specific case or controversy right in front of you.
UPDATE: My friend Prof. Cathy Kaveny criticizes some of what I have to say here (Mike Moreland and I have some comments to Cathy in response). I want to make clear that my post was not a response to hers; I've been beating this drum repeatedly here at MOJ before, and I'll be beating it again here and there. Mostly I think that this area of the law is going to see an explosion in the coming years -- it has the potential to have a huge effect in FEC law, but what is most likely (I think) is that it will see some successes and some failures in the lower courts over time.
Friday, April 13, 2012
Easter joy
OK, this is not about Catholic legal theory, but I hope you'll agree that it's a lovely Easter story. At the Easter Vigil mass at the Trenton, New Jersey Cathedral, two wonderful sisters, Lauren and Julia Wilson, were received into the Church. Julia's journey to Catholicism began when she read St. Augustine's "Confessions" in a seminar I taught at Princeton with my friend and colleague Cornel West. Professor West, a Baptist, graciously came along to the Cathedral to surprise Julia and stand with her and me (I had the honor of being sponsor for Julia and Lauren) as she was officially received by Bishop David O'Connell. It was a truly joyous occasion. Here is a photograph of the four of us taken in front of the altar after the Vigil.
A Socratic take on the vocation of business?
As Rob pointed out, Cardinal Turkson, President of the Pontifical Council for Justice and Peace, recently presented a reflection on the "Vocation of the Business Leader", the product of a 2011 seminar at the Pontifical Council on "Caritas in Veritate: The Logic of Gift an the Meaning of Business", a collaboration of the Council, the University of St. Thomas' John A. Ryan Institute for Catholic Social Thought, and the Ecophilos Foundation. A number of my colleagues at UST were involved in drafting the document, including Michael Naughton, director of the Ryan Institute, Ken Goodpaster,Endowed Chair in Business Ethics, and Bob Kennedy, Co-Director Emeritus of the Murphy Institute. The document is a creative step in applying some of the abstract ideas of Caritas in Veritate to the business world.
John Allen's current column describes it as "Catholic social teaching, Socrates-style. The 32-page document is designed as a vade-mecum, or practical handbook, for business leaders trying to integrate their faith with their work." He points particularly to the appendix:
Perhaps the most striking element of the text, however, comes in its appendix. There one finds a “Discernment Checklist for the Business Leader,” composed of thirty questions which amount to an examination of conscience informed by Catholic social teaching.
Some are fairly broad (yet still packing a punch), such as, “Have I been living a divided life, separating Gospel principles from my work?” and “Am I receiving the sacraments regularly and with attention to how they support and inform my business practices?”
Others are more concrete, and with real bite. For instance:
- Am I creating wealth, or am I engaging in rent-seeking behavior? (That’s jargon for trying to get rich by manipulating the political and economic environment, for example by lobbying for tax breaks, rather than by actually creating something.)
- Is my company making every reasonable effort to take responsibility for unintended consequences [such as] environmental damage or other negative effects on suppliers, local communities and even competitors?
- Do I provide working conditions which allow my employees appropriate autonomy at each level?
- Am I making sure that the company provides safe working conditions, living wages, training, and the opportunity for employees to organize themselves?
- Do I follow the same standard of morality in all geographic locations?
- Am I seeking ways to deliver fair returns to providers of capital, fair wages to employees, fair prices to customers and suppliers, and fair taxes to local communities?
- Does my company honor its fiduciary obligations ... with regular and truthful financial reporting?
- When economic conditions demand layoffs, is my company giving adequate notifications, employee transition assistance, and severance pay?
Interesting exercise! You can find the document here.
Social Justice and Children
Last week, I had the opportunity to observe many of the Seven Themes of Catholic Social Teaching at work. I had the privilege of serving on an expert working group to aid in drafting a model child protection law. This project arises out of the Child Protection Project, which is an exciting partnership between The Protection Project of The Johns Hopkins University School of Advanced International Studies and the International Centre for Missing and Exploited Children. One of the Project's goals is to "draft, publish, and globally disseminate model child protection legislation." While not intended to be connected to the Themes, I could not avoid thinking of them as the group worked. While present I was impressed with the focus on dignity of children, the desire to protect the most vulnerable, and a serious commitment to a responsibility to participate in society for its improvement.
The working group was the last of six that have convened throughout the world. All these experts have brought to the table insight from their experience regarding the needs of children to live in safe and healthy environment – and the reality that so many of the world's children do not. While there was a healthy exchange of perspectives, not always in agreement, it was hopeful to see so many people driven by a desire to protect the inherent dignity of children and their right to live and grow in a protective environment.
Thursday, April 12, 2012
Copyright and the Religious Liberty Statement: Not Your Typical Criticism of the Bishops
Today's USCCB document on religious liberty is a powerful statement (one that needed saying, I think), and I'm sure we'll have a lot to discuss about it. But can I protest one law-related aspect distinct from the merits? The statement is followed by a copyright notice, appropriately, but then comes this sentence: "No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright holder."
This is a boilerplate assertion found commonly in books and other copyrighted works. But as numerous copyright scholars have pointed out, it plainly misstates the law: "De minimis copying is not infringement, and fair use also permits certain kinds of reproduction." (Jason Mazzone, "Copyfraud," PDF p. 24.) Nor can the author create a contractual agreement against reproduction with every person who accesses a broadly distributed work. Of course, no one takes the blanket copyright claim seriously. Many of us will copy and transmit parts of the bishops' statement to comment on it, as we should, and presumably as the bishops want us to do. But that is precisely why, I think, our Christian organizations should avoid--rewrite--such blanket claims.
Actually, I see two reasons why they should do so. First, we should tell the truth. The notice does not make an accurate statement about the law, or about the organization's intentions (the bishops probably want a good deal of reproduction of excerpts for education and comment without having to give permission in each case), or about what is moral (it is perfectly moral as well as legal to reproduce parts of a work for fair use and similar purposes).
Second, our Christian organizations should model a more hospitable attitude toward sharing of creative work--and at least should not reinforce the most inflated versions of the moral status of copyright (i.e., "all copying is theft"). The Pope himself, like other Vatican officials, has argued against "an excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property." (Let me shamelessly plug my piece on "Intellectual Property and the Preferential Option for the Poor," which expands on the argument why Catholic moral teaching, while validating copyright and other IP rights, cuts against the most inflated versions of them.)
Again, the blanket copyright assertion probably will mean little in practice. But I'd urge the bishops and other Christian groups to model, and teach implicitly, the better understanding of IP laws and morals. I wouldn't say that necessarily means joining up with Creative Commons and foregoing essentially all claims against reproduction (although in many cases that might be the right thing to do to spread the Gospel). But good modeling certainly means dropping the blanket notice, instead explaining--and welcoming!--fair uses, and so forth.
Vanderbilt Turns the Screws Further on Student Groups
When Christian student groups at Vanderbilt complained about the university's policy forbidding registered student organizations to set eligibility criteria for leaders, Vanderbilt officials assured everyone that
We recognize that some groups, including some religious student organizations, may decide not to register. We will respect any such decisions and hope that those groups will continue to be actively engaged with our students and community, albeit without the rights and privileges accorded registered student organizations.
Now we have a report that one of those little rights and privileges to be lost is the ability to use the name "Vanderbilt" in the group's title. University officials have demanded that Vanderbilt Catholic change its name because it decided not to register rather than give up its requirement that leaders be Catholics.
“Those student groups who choose not to comply with the university’s nondiscrimination policy do forfeit the privileges associated with registered student organization status and that includes the use of the Vanderbilt name,” spokesperson Beth Fortune told Fox News.
Unless there is something missing in this report, it reveals the utter dishonesty, and confirms the intolerance, of the Vanderbilt administration. "[B]e actively engaged with our students and community," they soothingly said--"You just can't refer to yourself as being at Vanderbilt."
I assume that forbidding "use of the Vanderbilt name" includes forbidding a name such as "The Catholic Community at Vanderbilt." BUT I would think that if the Catholic group made such a change, the university would be unable to stop it legally. Vanderbilt's only claim would be a trademark suit, and the group would have a winning defense of fair use: the group is simply referring to its location and focus, not implying university sponsorship. (Would the university then try to bar the group from any activity or publicity on campus? How far is it willing to go in revealing that it in fact does want these groups off of campus altogether?)
Tom
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
