Thursday, October 17, 2013
The liberty of the Church
I have a new paper here on the libertas Ecclesiae. The aim of the paper is to challenge Catholics (and others) not to settle for the incessant cant about "religious freedom." My argument is that, in light of the Catholic doctrine that "creation was for the sake of the Church" (CCC 760), questions of "religious freedom" must be subordinated to the rights of the Church. The contingent constitution of the state must be conformed to the given constitution of the Church, not the other way around.
Wednesday, October 16, 2013
Religion Without God (bien avant Dworkin)
I am in Evanston for a conference and thought to pay a visit to a favorite old used bookstore that
I had enjoyed several years ago, "Bookman's Alley." The store is truly a treasure, full of surprises, and complete with a wonderfully surly owner. I took a shot of the old storefront (which is tucked away down the alley) and here's also a picture of part of a lovely collection of the complete works of Thackeray--some thirty odd volumes of his writing, all in disorder.
To my great regret, I discovered upon entering that Bookman's is closing down after more than three decades. I see from this story last year that plans for Bookman's closing have been in the works for some time. But it seemed from the melancholy mood of the store (and from the 70% discount) that the end is nigh.
I wanted to honor the store by buying a few things, even though I never relish the thought of carrying back books on a plane (I resisted the Thackeray feast...I would have carried it all the way home, and then who knows when, if ever, I would have read it?). Instead, I found a few smaller things, including an old edition of Carl Becker's skeptical classic, The Heavenly City of the Eighteenth Century Philosophers, delivered as the Storrs Lecture in 1931 and still remarkable in several respects (one of which, I think, is the informality and easiness of the writing).
Becker's short tract is a masterpiece of critical commentary on what we would today call the relationship of "secularism" and "civil religion." Here's something from the fourth and final lecture, "The Uses of Posterity," which will perhaps be of interest to those who are now reading Ronald Dworkin's recently published, posthumous volume, "Religion Without God":
Nearly a century ago De Tocqueville noted the fact that the French Revolution was a "political revolution which functioned in the manner and which took on in some sense the aspect of a religious revolution." Like Islamism or the Protestant revolt, it overflowed the frontiers of countries and nations and was extended by "preaching and propaganda." It functioned,
in relation to this world, in precisely the same manner that religious revolutions function in respect to the other: it considered the citizen in an abstract fashion, apart from particular societies, in the same way that religions consider man in general, independently of time and place. It sought not merely the particular rights of French citizens, but the general political rights and duties of all men. [Accordingly] since it appeared to be more concerned with the regeneration of the human race than with the reformation of France, it generated a passion which, until then, the most violent political revolutions had never exhibited. It inspired proselytism and gave birth to propaganda. It could therefore assume that appearance of a religious revolution which so astonished contemporaries; or rather it became itself a kind of new religion, an imperfect religion it is true, a religion without God, without a form of worship, and without a future life, but one which nevertheless, like Islamism, inundated the earth with soldiers, apostles, and martyrs.
L'ancien régime et la Révolution, Bk I, ch.3 [emphasis mine]. De Tocqueville's contemporaries were too much preoccupied with political issues and the validity of traditional religious doctrines to grasp the significance of his pregnant observations. Not until our own time have historians been sufficiently detached from religions to understand that the Revolution, in its later stages especially, took on the character of a crusade. But it is now well understood...not only that the Revolution attempted to substitute the eighteenth-century religion of humanity for the traditional faiths, but also that, contrary to the belief of De Tocqueville, the new religion was not without God, forms of worship, or a future life. On the contrary, the new religion had its dogmas, the sacred principles of the Revolution--Liberté et sainte égalité. It had its form of worship, an adaptation of Catholic ceremonial, which was elaborated in connection with its civic fêtes. It had its saints, the heroes and martyrs of liberty. It was sustained by an emotional impulse, a mystical faith in humanity, in the ultimate regeneration of the human race.
Where Magisterial Morality and Constitutional Morality Converge: The Case of Capital Punishment
I just posted to SSRN a paper titled Why Capital Punishment Violates the Constitutional Law of the United States. The paper is available here. If my argument misfires, where does it misfire?
This is the abstract:
I explain in this paper why we are warranted in concluding
that capital punishment—punishing a criminal by killing him—is both “cruel” and
“unusual” within the meaning of the Eighth Amendment’s ban on “cruel and
unusual punishments” and therefore violates the constitutional law of the
United States. In setting the stage for
that explanation, I discuss the internationally recognized human right not to
be subjected to any punishment (or other treatment) that is “cruel, inhuman or
degrading”. When I turn to the question
of the original understanding of the Cruel and Unusual Punishments Clause of
the Eighth Amendment, I discuss the important work of John Stinneford,
explaining why I concur in Stinneford’s conclusion about the original understanding
of “cruel” but dissent from his conclusion about the original understanding of
“unusual”.
Rosen reviews Forsythe on Roe
Here is Jeff Rosen's helpful and I think fair review of Clarke Forsythe's new book -- "Abuse of Discretion" -- on the Roe decision. Here's a bit:
. . . "Abuse of Discretion" provides a cautionary tale about the political and constitutional hazards of unnecessarily broad Supreme Court decisions. . . .
Justice Ginsburg has said that the court should have ruled more narrowly in Roe, striking down
the extreme Texas law while leaving it up to the states to debate the precise
contours of the right to choose. Mr. Forsythe agrees that a narrower ruling
could have allowed the debate to continue while participants observed how public
health was affected in the 13 states that allowed abortion under certain
circumstances. A wiser and more restrained approach, in other words, might have
been "wait and see."
Mr. Forsythe is especially critical of the Supreme Court for deciding Roe on an incomplete
factual record, with no trials or evidence in the lower courts or examination of
medical evidence. "Courts should not formulate rules of constitutional law
broader than required by the facts," Mr. Forsythe concludes. Today liberals
criticize conservative justices for delivering overly broad decisions in cases
like Citizens Unitedv. Federal Election Commission, which struck down
campaign-finance restrictions on corporate spending, and Shelby County v.
Holder, which struck down a key provision of the Federal Voting Rights Act. Mr.
Forsythe's book is a useful chronicle of the most prominent case in the past 40
years when the shoe was on the other foot.
Again, I think the review is well done, and I'm very happy for Mr. Forsythe, who has been working hard on this important project. I do have one minor quibble / question regarding the review, though. Rosen writes:
The most surprising omission in this book is that Mr. Forsythe fails to discuss in any But, the partial-birth-abortion law (if I remember correctly) restricts post-viability abortions of a certain type, not abortion itself. So, it doesn't seem to me that the Court's decision undermines Clarke's claim about America's outlier status in terms of allowing abortions after viability. Still, as Rosen writes, the longer-term effects of the decision remain to be seen.
detail the transformative impact of Gonzales v. Carhart, the 2007 decision by
the Supreme Court upholding the federal partial-birth abortion law, which
doesn't contain a health exception and allows restrictions on abortion both
before and after fetal viability. The Gonzales case, which Americans United for
Life has invoked in defending current laws that restrict abortions throughout
pregnancy, calls into question Mr. Forsythe's claim that the U.S. today is one
of only four nations allowing abortion "for any reason after fetal
viability."
Tuesday, October 15, 2013
This Much Rings True
Kevin Walsh’s post (here) on the bell and clock tower at the Cathedral of St. Louis in New Orleans made me think of my own parish, Saints Peter & Paul in Naperville, Illinois. In February of this year the parish welcomed a newly cast bell. Like the bell christened “Victoire” in New Orleans, our new bell was “baptized” – blessed by Joliet’s auxiliary bishop, Joseph Siegel, and named the “Mother of God” bell (here). A picture of the bell appears above (that is my son’s head in the Union Jack hat in the foreground).
In the late 1990s, to mark the new millennium, the City of Naperville decided to construct a carillon and tower near the city’s downtown. The project was late and over budget (here) but was eventually completed. With the carillon Naperville can now boast of being home to the fourth largest musical instrument in North America (here).
When it was originally proposed I remember thinking “Why do we need a bell tower when we already have one?” Of course the “we” is different – the political community did not have a bell tower whereas the Catholic community of faith already did. And the bells of Saints Peter & Paul parish ring out for all, marking the hours accented by the melody of hymns, while the city carillon, though lovely, chimes a different tune.
In many communities there are some – whether a-religious or anti-religious – who seek to silence the bells of churches (see here, here, here and here).
At Saints Peter & Paul the “Mother of God” bell now accompanies the “Saint Bernard” bell and the “Saints Peter and Paul” bell in the church steeple, calling the faithful to prayer and reminding everyone who have ears to hear (cf. Matt. 11:15) that there is something else, something beyond themselves – a horizon of existence beyond immediate sense perception. For when the bell tolls it reminds us that the “secular” is only that – of the times. But there is time beyond time where “one day is like a thousand years, and a thousand years like one day” (2 Peter 3:8). But it is in the here and now that we seek to "work out our salvation" (cf. Phil. 2:12) through love of God and neighbor.
Kevin’s post reminds us that the Establishment Clause has not always meant what it means today. The clock and bell tower in New Orleans stands in sharp relief to the theme of strict separationism and the naked public square.
The truth is that we do not need the government to pay for our bells to be cast or to build our churches and other sanctuaries. What we need is the freedom to live our faith – to ring the bells not only from our steeples, but in our schools, universities, hospitals, and charities – in the corporal works of mercy that we seek to perform “for the least of these” (cf. Matt. 25:40).
"Catholic Priest Sues Defense Department Over Shutdown"
That is the headline from a BLT post today reporting that "[a] Catholic priest claiming he was barred from ministering at a U.S. Navy base because of the government shutdown is suing the Department of Defense, claiming violations of his First Amendment rights" (and RFRA, one should also note). According to the complaint, "[p]laintiffs seek a preliminary and permanent injunction preventing government interference with religious services by military chaplains to their congregants. Plaintiffs further seek a declaratory judgment that the Anti-Deficiency Act as applied to the sermons and counseling of the United States Military Chaplains violates the Free Speech, Free Association, and Free Exercise Clauses of the First Amendment of the United States Constitution and the Religious Freedom Restoration Act of 1993." Plaintiffs are represented by Thomas More Law Center, which has issued a press release about the case (including a photo of what looks to be a sign on the chapel door).
As some of the astute commenters at the Volokh Conspiracy have noted in commenting on Jonathan Adler's post (where I learned about this lawsuit), it would be helpful to have some clarification of the underlying facts and background. Consider, for example, paragraphs 41-43 of the complaint:
41. The doors to the Kings Bay Chapel were locked on October 4, 2013, with the Holy Eucharist, Holy water, Catholic hymn books, and vessels all locked inside. Father Leonard and his parishioners, including Fred Naylor, were prohibited from entering.
42. The Department of Defense placed a sign outside of the Kings Bay Chapel stating that due to the government shutdown, there will be no Catholic Services until further notice.
43. The Kings Bay Chapel remains open to other faiths and is being used for their religious services. The Department of Defense has allowed the Protestant community to continue their services in the chapel during the government shutdown, without threat of penalty.
The chapel was locked but only for Catholics? Or is the chapel being used, but only for Protestant services because those are supplied by on-payroll chaplains instead of contractors?
The complaint also alleges that the cancellation of on-base Mass and confessions, among other things, effectively means that some base personnel cannot attend Mass or confession because of timing and other difficulties associated with attending the parish in town eight miles away. That sounds like a substantial burden on the exercise of religion, and it is hard to see how the government would satisfy strict scrutiny, so the RFRA claim may succeed. A better plaintiff would probably be one of the individuals who is now unable to attend Mass. But if Fr. Leonard is not even permitted on base to hear individual confessions, for example (see paragraph 40 of the complaint), his own exercise of religion is substantially burdened. The RFRA claim is in Count I of the complaint. The next three counts assert free exercise, free assembly, and free speech claims. I am not familiar enough with the background of how the military supplies chaplains in order to have confidence in a legal analysis about those claims without learning more. (On special problems relating to access to military bases and the First Amendment, see United States v. Albertini, 472 U.S. 675 (1985)).I do wonder, though, about the interpretation of the Pay Our Military Act described in the complaint at paragraphs 51-52:
51. The Secretary of Defense issued a statement on October 5, 2013, providing guidance for the implementation of the Pay Our Military Act and “instructions for identifying those civilian personnel within the Department who ‘are providing support to members of the Armed Forces’ within the meaning of the Act. Secretary of Defense, October 5, 2013 Mem. available at http://www.defense.gov/pubs/POMA-implementation-guidance.pdf last visited Oct. 14, 2013.
52. The Memorandum states that after consulting with the Department of Justice, the Department of Defense reads the Pay Our Military Act’s standard of “support to members of the Armed Forces” to “require[ ] a focus on those employees whose responsibilities contribute to the morale, well-being, capabilities, and readiness of covered military members during the lapse of appropriations.” Id.; see Dept. of Defense Press Release, October 5, 2013, Statement by Secretary Hagel on the Pay Our Military Act, available at http://www.defense.gov/Releases/ReleaseID=16293 last visited Oct. 11, 2013.
Why wouldn't the chaplain services contribute to the "morale" and "well-being" of covered military members? Maybe the problem here is not with the rule but with its application?
Merits aside and procedural/jurisdictional glasses on, I am surprised that the complaint does not explicitly mention 28 U.S.C. § 2201 (providing a cause of action for declaratory relief) or explicitly mention the statutory provision in RFRA supplying the cause of action under that statute, but mistakenly cites 42 U.S.C. § 1983 as supplying a cause of action for the free assembly count. (Section 1983 supplies a cause of action against state officials, not federal officials. And insofar as the complaint seeks damages, stinginess with Bivens remedies is likely to be a problem, particularly because of the military context.)
Monday, October 14, 2013
Introducing Oliver Ellsworth
In connection with research into the Judiciary Act of 1789, I have recently been reading Oliver Ellsworth and the Creation of the Federal Republic, by William R. Casto. Published in 1997, the book contains the fruits of Professor Casto's extensive study of Ellsworth and is likely to be of interest to many readers of this blog. One of the themes running through the book is the relationship among Ellsworth's Calvinism, his understanding of government, and his actions as a public official. From the book's introduction:
Throughout the Founding Era, Ellsworth played an almost omnipresent role in forging what he called an "energetic" federal government. Littls purpose would be served by retelling the whole story yet one more time. Ellsworth's participation in the Constitutional Convention will be used to shed light upon his understanding of the art of political dealmaking rather than to rehearse the general meaning and significance of the Convention's labors. In particular the compromises on the states' representation in Congress and upon Congress's power to forbid the importation of slaves provide a laboratory for studying the nuances of Ellsworth's sophisticated political psychology and his consummate ability to craft effective political compromises.
Other episodes of the Founding Era are less familiar and will be addressed in more general scope. In particular, Ellsworth was the most effective and influential senator in the First Congress. He was the drafter and leading proponent of the Judiciary Act of 1789 that created the federal judicial system, and he had to bring all of his formidable political skills to bear on this complex and difficult task. In the Senate debates on the Bill of Rights, he was the floor manager, and he later was the Senate chairman of the Committee of Conference on the Bill of Rights and personally drafted the Committee's Report. Finally he was the architect of the Senate's Rhode Island Trade Bill that coerced the hold-out state into ratifying the Constitution and joining the Union. Rhode Island's ratification of the Constitution was the final step in the creation of the federal government. Ellsworth continued playing the premier leadership role in the Senate until 1796.
Ellsworth's exploits as a pragmatic politician are interesting, but what made him such a gifted political operative is even more so. He had a clear, sophisticated, detailed, and ruthlessly analytical political philosophy and psychology that was quite consistent and never failed him in his quest for effective political solutions. His philosophy, however, was not that of the secular enlightenment. He was not like Madison, Jefferson, Hamilton, and many other Founders. He was a strict Calvinist who saw no difference between secular and religious life and whose entire world view of personal and political life was consciously based upon religion. His strict Calvinism provided him with a philosophical model that enabled him to make sense of the chaotic and occasionally tragic human condition. He view all human activity as a seamless web minutely predestined by an all-powerful God. Moreover he viewed himself as a "Righteous Ruler" chosen by God to rule on earth and elected by God for personal salvation.
In the late twentieth century, there is a tendency to compartmentalize religious belief short of the political realm--to separate secular decision making in public life from personal faith. Consistent with this tendency, the political leaders of the Founding Generation are frequently viewed as secular giants who either had little religion or whose religion was important in their private--but not their public--lives. For example, one capable and respected historian whas written that "nearly all of the Founding Fathers claimed to be Christians; but, by virtually any standard of doctrinal orthodoxy, hardly any of them was . . . . Quite possibly, not a single delegate [to the Constitutional Convention] accepted Calvinist orthodoxy." Even among today's historian's studies of religion in the eighteenth century almost always focus upon the ideas of ministers rather than those of public officials. Oliver Ellsworth stands in sharp contrast to this compartmentalized, secular vision, and his thoroughoing integration of what today we call religious and secular life presents a valuable counterpoint to our inclination to separate the two.
In addition to shedding light on a largely unexplored aspect of the world view of the political leaders of the Founding generation, Ellsworth's understanding of the role of religion in society bears directly upon the religion clauses of the Bill of Rights. He played a significant role in framing these clauses and personally wrote the Establishment Clause. Therefore a thorough investigation of his complex and carefully elaborated views on the free exercise of religion and the governmental establishment of religion . . . provides fresh insights to the framing of the Constitution's religion clauses.
Thank you, New Orleans City Council, for the clock, bell, and tower
I had the good fortune to spend this weekend in New Orleans celebrating a nephew's baptism. One of the highlights was a Sunday morning trip to the French Quarter, including wanderings around Jackson Square and St. Louis Cathedral. At 7:45 a.m. some of the bars still had partiers from the night before, but most of the quarter was in clean-up mode getting ready for the new day. Everything really came to life in the Square around 8 a.m. (although not the performance artist in metallic makeup who was performing as a statue).
The cathedral is a beautiful church with a fascinating history,and it has provided a form of continuity to a plaza that has witnessed transition from French to Spanish to French to American rule. It should be no surprise to learn that the clock tower was put up before the Establishment Clause was held to be incorporated against the states, but it was surprising to me to learn that the city government paid for part of the Cathedral. According to the Cathedral's website, the City Council paid for the Cathedral's clock and bell, as well as for part of the tower holding them:
In 1819 a New Orleans clockmaker, Jean Delachaux, was authorized by the trustees to obtain a suitable clock to be placed in the facade of the Cathedral.
As this was a project of general civic interest, the City Council agreed to the expense of buying the clock and its bell and also to share in the cost of erecting a central tower to house them. Delachaux brought the clock and bell with him from Paris and Latrobe records in his journal an incident which occurred when he was about to place the clock's bell in the tower:
When the new bell was ready to be put into the tower, I wrote him (Pere Antoine) a letter in Latin to apprise him of the circumstance, in order that, if the rites of the Church required any notice of it, he might avail himself of the occasion and do what he thought necessary. He thanked me, and I had the bell brought within the Church. After High Mass, he arranged a procession to the bell and regularly baptized her by the name of Victoire, the name embossed upon her by the founder.
More on Pope Francis, misunderstandings, risks, and older brothers
Returning to my ongoing conversation-with-myself about the content and reception of some of Pope Francis's recent and highly publicized less-formal interventions: I got together the other night with some good friends-and-colleagues here at Notre Dame to reflect on the America interview and the "letter to the Italian atheist." This gathering gave me an excuse to re-read both items, and I was struck, again, by (at least) three things: First, I really like their warm and inviting tone. While. I admit, I am not entirely sold on the idea that magazine interviews and semi-private correspondence is the ideal vehicle for the Pope's pastoral or teaching roles, it seems impossible to deny (and, of course, why would one want to?) the appeal of these and similar writings and statements.
Second, I'm struck -- hammered, really -- by how badly these writings have been presented in most press coverage. (This means, among other things, that some "conservatives" who have been complaining -- or worse! -- about the Pope's statements are really complaining about un-made statements.) For example, it was not evangelization but "proselytism" -- which has long meant in Church teaching and papal writings a particular unworthy mode of communication that is inconsistent with the human dignity of the hearer -- that was dismissed by the Pope as "pious nonsense." And, the Pope did not say, in America, that Catholics or the Church are "obsessed" with abortion and marriage; he did say that he did not think it was necessary to speak about these issues "all the time" (no one thinks that it is, it seems to me) and that it is better to speak about them in context, in the right way, as connected with the deep, core truths of the Gospel and about the human person. And, his point that we cannot "interfere spiritually" with people is an echo of John Paul II's reminder that the Church must "propose, not impose" -- it was not a statement about laws relating to marriage or about sexual morality. And on and on. (To be clear: I am not here "parsing the Pope", in an effort to avoid or water down something he said that I don't like. I am venting frustration over the fact that it's being reported, said, and complained that he said things he didn't say.)
Third, I did have a sense that John Allen was (as he so often is) right to raise the possibility of the Holy Father needing to respond to an "older son problem", in the sense that some Catholics -- I'm thinking particularly of those who have, without being "obsessed" or "legalistic", heroically labored in the trenches of the pro-life movement -- might wonder if their work -- which is, after all, precisely the kind of love-and-mercy-in-action that the Pope is challenging all of us to take up -- is getting short-changed a bit. It would be a blunder -- not so much a doctrinal or "culture war" one, but a pastoral one -- if the Pope or a bishop were to -- unwittingly, obviously -- cause the self-sacrificing and inspiringly other-regarding people (I am thinking of Ann Manion, the incredible person behind Indiana's "Women's Care Center") who have given a lot to help vulnerable women and unborn children to doubt the Church's gratitude and support.
Now, I think that some of my friends at the gathering were (not without reason!) confused or even frustrated by my simultaneous expressions of (a) appreciation for the Pope's statements, (b) criticism of misinterpretations and misrepresentations by misguided critics and perhaps-disingenuous fans, and (c) concerns about the message some statements could send but, well, there it is. Now . . . what does any of this have to do with law? Maybe (for now) this: A challenge facing any legislator or legislature is the crafting, in a prudent way, of laws that work -- that move the ball in the direction of their object or goal, in a reasonably efficient way, with reasonably low risk of unintended sub-optimal consequences and side-effects. It will be the rare law that comes with no such risk or causes no such consequences, but still we press on with law-making. What choice do we have? Well, given all the givens about communication, context, and the press's blind-spots and pathologies, it will be a rare papal statement -- whether a letter to a news-editor or to the universal Church -- that will not be misunderstood or misrepresented by some. It would be wise, and pastoral, for Church leaders, including the Holy Father, to do what they can to reduce the risks of misunderstanding or the dangers of misrepresentation but, at the end of the day, these risks and dangers are ineradicable and, I suppose, have to be faced if the Church is going to be salt and light, teacher and prophet, friend and "field hospital."
Friday, October 11, 2013
A church plan exemption as part of a deal to end the government shutdown
NBC News reports that a "big development" in yesterday's Obama-House GOP meeting was that President Obama "opened the door to giving Republicans a concession to reopen the government--with the understanding that the concession would be something the GOP would have ALREADY GOTTEN during normal budget talks (maybe like repeal of the medical device tax)." (emphasis in original)
Another proposal for the negotiators to consider is giving a concession that accomplishes through legislation what would otherwise be accomplished through litigation.
The particular proposal I have in mind would be to expand the religious employer exemption from the contraceptives mandate to employers who participate in church plans. The legal rationales for such a proposal have already been laid out in comments filed by the Church Alliance this past April in response to the Notice of Proposed Rulemaking. To those comments, I would add the observation that the strength of the legal claims in Little Sisters of the Poor v. Sebelius provides another reason to consider such an exemption. If church plans and plan members are going to prevail anyway, but only after some (deserved) embarrassment to the Administration, it would be better to get something for it now instead.
A church plan exemption would not put an end to all of the litigation, by any means, and it is less (in my view) than RFRA already requires. But it would be a visible "get" for GOP negotiators and a costless "give" for the Administration (at least insofar as the interest groups who would be upset by the "give" recognize that the likelihood of the Administration actually prevailing in the Little Sisters case is rather low).
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