Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, March 3, 2013

A symposium on Fleming & McClain's "Ordered Liberty"

By Rick Garnett

Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty.  My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here.  Among other things, I wrote:

At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so.  But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.

So, a more focused thought on a particular part of the book:  In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.”  Fair enough — these case do indeed illustrate these struggles.  But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.”  That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions.  To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.

- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf

 

Amicus Brief in HHS Mandate Case: Former Rep. Bart Stupak and Democrats for Life on Abortifacients

By Thomas Berg

This was a busy week for me.  The same day I joined as of counsel on an amicus brief arguing for protecting same-sex marriage and religious liberty, I joined in writing and filing a brief in one of the HHS mandate cases brought by a for-profit business, Newland v. Sebelius (now in the court of appeals for the Tenth Circuit).  The amici are former Congressman Bart Stupak and the Democrats for Life of America, and the burden of the brief is to focus attention on the plaintiffs' claim against being forced to cover medicines that are, or that may colorably be thought to be, abortifacients.  Here is a significant portion of the Summary of Argument:

*******

I.  Multiple federal and state laws show that our nation’s tradition of protecting conscience, including religious conscience, is at its strongest and broadest for individuals and organizations that object to facilitating abortions.  Plaintiffs’ complaint alleges that the mandate, as applied to emergency contraceptives that may cause abortions, violates several such provisions, including in the Affordable Care Act itself.  But the widespread pattern of conscience protection for objectors to abortion also supports plaintiffs’ claim under the Religious Freedom Restoration Act (“RFRA”), which served as the basis for the preliminary injunction.  Three conclusions can be drawn from this pattern of conscience protection.  First, although health-care conscience laws cover religious and moral objections to several procedures, objections to abortion carry especially strong weight in American law.  They fall within our tradition of protecting objectors from participating in actions, including assisted suicide, abortion, capital punishment, and war, that the objectors believe unjustly take human life.  Second, the right not to facilitate or support abortions protects a wide range of objectors, regularly extending to individuals engaged in for-profit commerce and to for-profit businesses.  Finally, our tradition protects objectors to abortion far beyond the case of direct involvement in the performance of the abortion.

Plaintiffs’ objection to covering emergency contraception falls within the tradition of broadly protecting conscientious objections to facilitating abortions.  Although the government claims that terminating an embryo before it implants in the uterus is not an abortion, the relevant matter for the claim of conscience under RFRA is plaintiffs’ belief that a distinct human life begins at fertilization: it is no salve to their conscience to be told that the government defines abortion differently.  There is a colorable reason to believe that emergency contraceptives may act to terminate embryos.  And even applying the government’s definition, there is evidence that Ella may terminate embryos after implantation.

II.  The longstanding, pervasive tradition of broadly accommodating conscientious objections to facilitating abortions has two implications for this case.  First, it supports plaintiffs’ argument that the contraception mandate “substantially burdens” their religious exercise, triggering the government’s duty under RFRA to demonstrate that this burden serves a “compelling governmental interest” and does so by the “least restrictive means.”  42 U.S.C. § 2000bb-1(a), (b).  The mandate requires plaintiffs to provide insurance coverage for procedures they believe are grave moral evils.  The government’s attempts to deny this burden must be rejected.  The government says that for-profit corporations and their owner-operators cannot engage in religious exercise; it also says that an employer suffers only an insubstantial, “attenuated” burden from being forced to cover methods and procedures that employees choose for themselves whether or not to use.  Both arguments are irreconcilable with our tradition of protecting health-care-related conscience in the commercial sphere—in particular the strong tradition, under federal and state laws, of protecting objections to abortion.  Protections for objections to facilitating abortion extend to multiple categories of for-profit entities and individuals engaged in commerce, and to many kinds of indirect facilitation, including mandatory coverage of abortion in insurance plans.  When impositions are repeatedly prohibited under various conscience provisions, they cannot be dismissed as “insubstantial” burdens under RFRA.

Saturday, March 2, 2013

An Amicus Brief in the "Gay Marriage" Cases

By Michael Perry

MOJ's own Tom Berg, along with Douglas Laycock (University of Virginia School of Law) and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case).  The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage.  The brief also argues:

"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right.  And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage.  If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals.  The Court should not reverse on the merits.  To do so would be wrong, for the reasons we have stated; it would also be unstable.  In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims.  The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports.  The Court should not repeat its Bowers mistake in these cases."

The brief is available here:  Download Marriage Cases AJC Brief Final.

John Paul II and the Law: A First Try (again)

By Rick Garnett

I've been thinking some about Pope Benedict's "legacy" for the MOJ "Catholic Legal Theory" project, and coming to the conclusion that identifying, exploring, engaging, and embracing this legacy are tasks beyond my capability.  A little help?

In the meantime, here's a post I did, about 8 years ago, during our last sede vacante:

John Paul II and the Law:  A First Try

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

There's a lot more to say, of course.  I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.

Rick

Five years ago: Ambassador Glendon's Address to Pope Benedict XVI

By Rick Garnett

Worth re-reading:

Ambassador Glendon's Address to Benedict XVI

"An Essential Element of Strong Friendship Is Ongoing Conversation"

 

VATICAN CITY, FEB. 29, 2008 (Zenit.org).- Here is the address Mary Ann Glendon, the new ambassador of the United States to the Holy See, gave today upon presenting her credentials to Benedict XVI.

* * *

Your Holiness,

It is a distinct honor and pleasure to present to you my credentials as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Holy See. I extend warm greetings from President George W. Bush and the American people. I am grateful to President Bush for the opportunity to represent him and my country to the Holy See.

Your Holiness, in your message for the celebration of the World Day of Peace this year, you wrote “We do not live alongside one another purely by chance; all of us are progressing along a common path as men and women, and thus as brothers and sisters.” The United States of America believes that strong alliances, friendships and international institutions enable us to advance along that path through shared efforts to promote freedom, prosperity, and peace. We recognize a privileged place in such a partnership for the Holy See whose strong moral voice resonates in the hearts of men and women throughout the world.

* * *
The United States and the Holy See have collaborated in recent years on many projects to protect and enhance the dignity of the person. The United States is particularly proud of its initiatives to tackle trafficking in human beings. U.S. funded programs have provided anti-trafficking training and support to hundreds of women religious in Europe, Africa, Asia and South America. Similar programs for ...

Your Holiness, poverty, hunger and disease continue to plague too many regions of our world. For the United States, these are not only humanitarian issues but concerns that affect regional stability and security. We are striving, therefore, to provide impoverished nations with the economic and social tools that will empower them to seize hold of their own destiny. The United States is leading the struggle against global poverty with strong education initiatives and with humanitarian assistance programs like our new Millennium Challenge Account which are geared toward strengthening democracy, transparency, and the rule of law in developing nations. The United States is also in the forefront of efforts to combat global hunger. Today, more than half the world's food aid comes from the United States. In his State of the Union address, President Bush referred to an innovative proposal to provide food assistance by purchasing crops directly from farmers in the developing world, in order to build up local agriculture and help break the cycle of famine. The United States is also confronting the infectious diseases that are taking such a toll in developing nations. We are working to cut the number of malaria-related deaths in 15 African nations. Through the President’s Emergency Plan for AIDS Relief, the United States is treating 1.4 million people. We can and will bring healing and hope to many more.

Your Holiness, the United States is an instrument of hope in the world because its people are compassionate and generous. That is why we are eager to work in partnership with the Holy See to enhance the lives of all the world’s people, but in particular, those who are caught up in the despair that comes from poverty, hunger and disease. Your Holiness, in your encyclical "Spe Salvi," you reminded us that “our lives are involved with one another, through innumerable interactions they are linked together. No one lives alone.” It is our commitment to this essential human solidarity that inspires the compassionate actions of the United States in and for the human family.

* * *
Thank you, Your Holiness.

 

For the whole address, click here.

 

Friday, March 1, 2013

Why would any Catholic (of any stripe, brand, or variety) support the NYT?

By Rick Garnett

Today, the NYT -- in keeping with its usual pattern of reporting and commentary regarding the Catholic Church (which, in my view, is one that involves providing and generously stocking a forum for people to complain, sometimes in an informed way, sometimes not, about the Church) -- ran this op-ed by Paul Elie (the author of a wonderful book, The Life You Save May Be Your Own), "Give Up Your Pew For Lent," which contends that "if the Pope can quit, Catholics can, too."

Because I so admired Elie's book, this piece made me sad (when a similar bit from, say, Maureen Dowd would have been just irritating).  In several places, Elie purports to be speaking for "American" Catholics and about how "we" feel about "our" church, and about the many ways in which ("we" think) it has let us down.  So, for example, for "us", "it has been 'all bad news, all the time' since Benedict took office in 2005."  Well, this is just nonsense.  Re-read Deus caritas est and Spes salvi.  Watch again video from his visits to the United States, or his address in Parliament.  There's been bad news and there have been challenges, for sure, and big ones -- though I imagine different Catholics would come up with different lists of what those challenges and bad news have been -- but, "all bad news, all the time?"  So much so, in fact, that we're urged to "resign" -- if only for a time?  I'm sure Mr. Elie is accurately reporting his own state-of-mind, and it is what it is, but it isn't mine, and it isn't all, or -- I suspect -- even most "American Catholics'".    

Particularly off was Elie's citation of Flannery O'Connor -- about whom he certainly knows more than I do! -- in connection with his suggestion that taking a "time out" from the Church would "let us begin to figure out what in Catholicism we can take and what we can and ought to leave."  I'm pretty sure that O'Connor would have had some tasty and tart responses for the suggestion that this "figuring out" -- depriving the pews of the honor of our presence so that we can decide what in Catholicism is worthy of a people like us -- is something that Catholics go in for.

But, putting all that aside . . . there's no avoiding the fact, it seems to me, that the Times thinks it's part of its job to keep the complaints about the Church flowing and visible (without, at the same time and in similar ways, serving as a complaint-conduit about other communities and institutions).  So . . . why should any of us (liberal, conservative, whatever) support it?  Even if we agree with the complaints? 

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