Friday, May 18, 2012
My friend and colleage, Prof. Carter Snead, is the new Director of Notre Dame's Center for Ethics and Culture. And, he just sent me the Call for Papers for the Center's 13th annual Fall Conference. This year's conference, "The Crowning Glory of the Virtues: Exploring the Many Facet of Justice," looks to be outstanding. A wide, interdisciplinary, and diverse range of accomplished and interesting scholars are already "on the bill." See you in South Bend, Nov. 8-10!
Prof. Michael Stokes Paulsen (St. Thomas) has posted a new paper, "The Priority of God: A Theory of Religious Liberty." Check it out. Here is the abstract:
Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth (or not) and whether society and state embrace the idea of religious tolerance (or not). It then argues that America's Constitution's religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals' and groups' pursuit of truth. This perspective illuminates many of the issues that have plagued interpretation of the First Amendment religion clauses.
Looks to me like a must-read.
My friend and colleague, Gerry Bradley, has an essay up, over at Public Discourse, about the understanding of faith and religion that was expressed by President Obama during his speech, a few years ago, at Notre Dame. A bit:
. . . The commencement address was full of musings about religious faith, and its tone and substance were remarkably faith-friendly. The president spoke winsomely of his own faith journey, and credited “the church folks” with whom he worked in Chicago as a community organizer with showing him the way to religious faith. Throughout his speech, Obama showed how the Christian tradition supplies him with a vocabulary for describing and understanding realities that he previously glimpsed without the eyes of faith.
The faith of which he spoke was not, however, the faith of our fathers. Therein lies the novelty of Obama’s initiative. He would protect the state from the church, not by privatizing faith, but by redefining it. In a bold and unprecedented challenge to the churches, Obama told believers, not what they believe, but what it means for them to believe it. . . .
Yesterday, May 17, was the anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, which ruled unconstitutional laws mandating racial segregation in schools. This anniversary is, of course, an occasion for celebrating our country’s progress; it's also a good time for reflecting on the fact that, for too many, Brown’s promise remains unfulfilled.
The Court in Brown did more than disapprove of discrimination. It also emphasized the vital importance of education to opportunity and equal citizenship. The justices called education ‘the very foundation of good citizenship’ and warned that ‘it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.’ If we hope to make good on the promise of Brown – and I believe we have an obligation to do so – we must pursue, in law and policy, creative and bold reforms in education. The strongest arguments for school choice, opportunity scholarships, charter schools, and so on are not merely arguments about efficiency and cost-saving, they are about equality and social justice.
In Brown, the Court challenged us to confront the connection between meaningful educational opportunities and equal citizenship in the political community. It is not enough to respond to that challenge by changing the racial composition of public schools’ student bodies. We must also change what is – and, too often, is not -- happening in these schools, challenge them to put the needs and futures of children above the preferences and comfort of teachers and administrators, and empower private, religious, and charter schools to participate fully in the shared enterprise of educating the public.
Thursday, May 17, 2012
Michael Sean Winters calls it "neo-con constitutional theory" but I (or, maybe some would say "therefore"!) thought it was excellent. Here's the text; decide for yourself. Here's a bit:
We do not seek to defend religious liberty for partisan or political purposes, as some have suggested. No, we do this because we are lovers of a human dignity
that was fashioned and imparted not by the government but by the Creator. We defend religious liberty because we are lovers of every human person, seeing in the face of every man and woman also the face of Christ, who loved us to the very end and who calls on us to love and serve our neighbor with the same love he has bestowed on us. We uphold religious liberty because we seek to continue serving those in need while contributing to the common good in accord with the Church’s social teaching and to do so with compassion and effectiveness through Catholic Charities, the largest private provider of human services in the State of Maryland. We do this because Archbishop John Carroll’s generation of believers and patriots bequeathed to us a precious legacy that has enabled the Church to worship in freedom, to bear witness to Christ publicly,and to do massive and amazing works of pastoral love, education, and charity in ways that are true to the faith that inspired them in the first place.
Winters' suggestion that statements like these sound too much in "constitutional law and political practice" and so are "better suited to a blog post than a sermon" seems wrong to me. To be sure, Winters is entirely right that any homilists' focus should always be on "preaching Christi crucified and risen," but I am afraid I cannot agree that there was anything at all bizarre, or even unwelcome, about the new Archbishop of Baltimore's eloquent instruction on the foundations, implications, and importance of religious freedom.
As many readers of Mirror of Justice know, Tom Mengler is leaving UST Law School. Here is the blog post I wrote this morning on Creo en Dios!, which I thought would be of relevence to many of us here at MOJ.
"Yesterday we had the farewell mass and reception for Tom Mengler, who steps down this month as dean of UST Law School, a position he has held for the last ten years. Tom is leaving to become the President of St. Mary's University.
"Whenever we say good-bye to someone who has been a good friend, a faithful steward, and a strong leader, we have mixed reactions. We are grateful for the time we had and wish him or her the best in their new endeavor, but we are sad to see them depart from our midst. A part of us would like those we love and enjoy working and being with us to always stay with us - particularly those with whom we have been engaged in a joint endeavor.
"Yet, if we are a people committed to follow the call of God, wherever that may lead us, we live with the comings and goings. We know that the ultimate endeavor is God's and that each of us have a role in God's plan of salvation. So if we stay true to our call, well then, some of us leave New York to move to Minneapolis. Some leave Minneapolis to move to Texas. Some go even further afield...I think of my friends Marcia and Doug, who are spending this year in Rwanda, or my friend Aidan, posted in Bolivia.
"The comings and goings can be difficult, but they are made easier by knowing that we are all part of God's plan, and that in that, we are all united, whether physically proximate or not."
Wednesday, May 16, 2012
Seamus Hasson is both a friend and a hero of mine. I'm delighted that he will be receiving an honorary degree this weekend from the University of Notre Dame. Here is a really nice piece, by Kathryn Lopez, about him and his work.
A quick announcement for a wonderful looking conference to be held at Harvard Law School on June 7-8, The Changing Faces of Religion and Secularity, organized by the Universidad de Navarra in Spain. The program is international in scope and includes some terrific speakers -- Mary Ann Glendon, Jean Bethke Elshtain, and Russell Hittinger, among many others. My Center for Law and Religion colleague Mark Movsesian will be presenting his paper, Crosses and Culture: State-Sponsored Religious Displays in the United States and Europe.
The following style of argument has on occasion found favor with courts. The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause. And it appears to violate the Establishment Clause when it accommodates a religious group or organization -- whether on equal terms with non-religious groups or not. For example, in the Second Circuit's Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: "In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause." Not only endorsement, but a "strong basis" for "concern" that there is endorsement -- that is, the appearance of an endorsement -- is constitutionally relevant. I have not been able to locate the phrase, "appearance of endorsement" in Justice O'Connor's statements of her test, though I did find that precise language in Justice Souter's concurrence in Capitol Square Review and Advisory Bd. v. Pinette.
I think the argument is utterly bogus. But I feel that way about many Establishment Clause standards and arguments. What makes this one particularly -- uniquely -- wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.
Who is assessing appearances? From what vantage point? The same person who is assessing reality? May not appearances be deceiving? If something appears to violate the Establishment Clause, does that imply that it actually does not violate the Establishment Clause? And if something does not violate the Establishment Clause, why in Heaven's name should we care at all -- from a constitutional point of view, as opposed to a political one -- that it appears to do so? Or is the appearance of violating the Establishment Clause a suggestion that something may violate the Establishment Clause, but we are unprepared to say so? When would we be prepared to say so? When it actually does violate the Establishment Clause? But shouldn't we only say so then?
But ridiculous as all of that is, it's not really what I find supremely irritating about the argument from appearances. What really rubs me wrong is that by using the language of appearances or reasonable "concern," courts are able to give constitutional weight to practices that have nothing to do with the Establishment Clause. They can tacitly expand the reach of the Establishment Clause without actually so ruling. They can say, for example: "Accommodating a religious group may or may not be constitutional under the Establishment Clause; we're not saying. But whether or not such an accommodation is constitutional, the state's failure to grant an accommodation vindicates a non-establishment value -- to wit: avoiding the appearance of an establishment." Instead of saying honestly that the Establishment Clause says absolutely nothing about the refusal to accommodate X, that refusal is itself constitutionalized through the back door of the Establishment Clause. You may be too weak politically to get yourself an accommodation -- you may not know the right people or your claims just may not have traction in the political climate of the day -- but it adds needless insult to injury to be told by a court that the political rejection of your accommodation actually has a basis in the Constitution. It doesn't. And saying that it does bloats the Establishment Clause; it expands its waistline with the empty calories of what "appears" to be unconstitutional but really isn't. That is no way to interpret the Constitution.
There is a final reason that I think the appearances argument is obnoxious: it rewards the government that declines to accommodate religious objectors by sanctioning its action as a constitutional matter, and in so doing it insidiously suggests that it is part of our constitutional tradition to be intolerant of religious difference. We here at MOJ see the holding of Employment Division v. Smith in different ways: some think it wise, while others do not. But most people agree that Smith was not intended to discourage legislatures from accommodating religious objectors. It was intended to place primary responsibility for such accommodations in legislative hands -- to de-constitutionalize the issue of exemptions from neutral and generally applicable laws.
The Establishment Clause appearances argument alters that framework. It re-constitutionalizes the exemption issue. Failures to accommodate are no longer purely political matters. They are supported by constitutional reasons. In combination with Smith, the EC argument from appearances suggests that it's a very good thing, constitutionally, when legislatures are intolerant of religious difference, because accommodating people for religious reasons gives the appearance of violating the Constitution, even if -- in reality -- it does nothing of the kind.
Tuesday, May 15, 2012
The Wall Street Journal had a good op-ed, a few days ago, on the situation at Vanderbilt. As the title suggests, Vanderbilt's aggressive position reflects a misunderstanding of, or a misapplication of, the non-discrimination norm. As I wrote, in this Public Discourse essay:
Like other controversies involving, for example, the Boy Scouts, or the Christian Legal Society, the goings-on at Vanderbilt reveal a troubling confusion about “discrimination,” a confusion that, as it spreads, will undermine religious freedom, institutional pluralism, and civil society. This confusion travels with a deeply illiberal failure to appreciate that the kind of liberal democracy we should embrace is not “total” or “comprehensive”; in Lawrence Alexander’s words, it is not “liberalism all the way down,” and it does not insist that the rules that govern in the political sphere and context—non-discrimination, neutrality, “all comers”, etc.—need to, or even should, govern in other spheres and contexts.
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