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.

Thursday, July 24, 2014

school vouchers in a time of increasing intolerance

By Michael Scaperlanda

Catholic schools are "public" schools in the best sense of the word, contributing as they do to the public - and common - good of the communities they serve. In many communities, they serve non-Catholic and poor students and their parents.

As Rick Garnett has said on this blog many times, in a healthy society, the state ought to recognize the public character of these institutions and support them through vouchers or a similar funding mechanism.  When the public schools were de facto Protestant and an anti-Catholic spirit filled the air, many states adopted Blaine Amendments to prohibit public funds being used to support parochial schools. 

Could the Blaine Amendments - as ugly as they were - be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy? Because of the Blaine Amendments, Catholic and other religious primary and secondary schools - unlike religious colleges, which are dependent on federally subsidized student loans - have had minimal entanglement with government money.

There may come a day in the not too distant future when religious colleges and univesities will be faced with a choice: capitulate to the secular orthodoxy or ween yourself from the government teat. The Blaine Amendments unintentially shield many primary and secondary schools from this choice. Over a decade ago, James Dwyer wrote Vouchers Within Reason, which argued that vouchers might provide a way to bring relgious schools and their parental patrons to heels without have to padlock school doors or put parents in jail (his words, not mine). When I reviewed his book, less than a decade after the Religious Freedom Restoration was enacted with overwhelming bi-partisan support, I was hopeful that government strings attached to vouchers would not threaten the character and culture of these religious schools. I am much less hopeful today and therefore am inclined to see the Blaine Amendments as an unexpected blessing.  Rick, I'd be interested in your take.

 

Does the ACLU's Steven Shapiro regret the organization's amicus curiae brief in McCullen v. Coakley?

By Kevin C. Walsh

SCOTUSBlog is running a series of video interviews with the ACLU's Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.

Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief's defense of the facial constitutionality of Massachusetts' public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law--not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional. 

The ACLU's McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU's position "evolved over time."

McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.  

There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU's brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.

Not all evolution is progress.

Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.

Is More Less? Or is More More?

By Marc DeGirolami

The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?

The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger's key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to "balance" the right against rival interests.

That particular "more-is-less" claim depends on the scope given to a protected right. A related "more-is-less" claim focuses on the expansion of the number of protected rights. That's the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven't seen it, Steve Smith is writing up a storm over there). Steve writes:

[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights...“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)....

Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are "substantial" trigger the law's protection. A religious burden isn't enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we've now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of "substantiality" and we talk about the shifting of burdens and the balancing of interests because we've watered down the basic right so much that we don't even really know what it is that counts as the right in the first place any longer.

But there is another side to the story. That side is admirably represented by John Inazu in this paper--More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of "rights confinement" as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest--that is, in what government ought to be interested in at all.

Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen. 

If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right's prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right's strength and ambit, but evolving cultural perceptions of the strength and ambit of the state's proper power.

Wednesday, July 23, 2014

R. George replies to J. Doig on the nature or marriage

By Robert George

Here is my reply to my Princeton colleague Jameson Doig in round two of our debate about what marriage is:

http://www.thepublicdiscourse.com/2014/07/13530/

Esbeck on the new Executive Order

By Rick Garnett

At the Cornerstone blog, Prof. Carl Esbeck has a helpful piece ("Differences:  Real and Rhetorical") regarding the President's recent Executive Order having to do with sexual-orientation and gender-identity discrimination by federal contractors.  In it, Esbeck responds to certain claims made by a group of prominent legal academics, in their own letter opposing any religious exemptions in the Order.  Esbeck concludes:

How do we live together as a people despite our deepest differences? The nation’s better practice, historically, was to bracket off religious conscience and thereby stop making religious scruples fair game for partisan debate. America’s unique contribution to government theory was to separate matters of religious conscience from the machinery of politics and the will of the majority. That approach has brought us sectarian peace despite our unprecedented religious pluralism. Why trade in a system that has served this country so well for one that has served others so poorly?

Arkes replies to Garnett re: RFRA, Hobby Lobby, etc.

By Rick Garnett

Prof. Hadley Arkes asked me to post the following reply to my recent post, and I am happy to do so:

I’d like to respond to a couple of the concerns that Richard Garnett raises in his post today on my arguments about Hobby Lobby.   I need to recall to him and my other friends that I have been thoroughly sympathetic to the use of RFRA.  What I've argued is that RFRA is apt and useful because it creates, for the religious, that zone in which the government would have to bear a heavier burden of justification when it restricts personal freedom.  The saving grace of RFRA is that it secures, for the religious, the kind of protection that the courts used to offer more fully for many others when the judges were far stricter in testing the justifications for laws that restricted private rights.

But as Garnett rightly says, my own view [is] that the case could have been argued on deeper foundations.  One friend of mine, experienced in litigation on religion, argued that Hobby Lobby could have been argued even more clearly on the Takings Clause.  Richard Epstein and the libertarians would invoke principles of freedom of association in fending off these intrusions into a private family arranging its private business.   Are they wrong for conceiving other ways of arguing the same case?  What I've been pointing out is that these arguments, draw from the principles of a regime of law,  are not diminished moral arguments. For they draw their meaning from the understanding of the "human person," a term given deeper resonance by our religious teaching.   Only those beings we call “moral agents” can impart a moral purpose to inanimate matter;  and so yes, it is no trivial matter to justify the restrictions placed on these kinds  of beings, as they seek, even in prosaic matters, to honor their own understanding of the ways of life rightful for them.  My pitch has been that if we begin from the classic understanding of the moral ground of the law, and the burdens of justification that the government should rightly bear, we will have provided an even former moral grounding for religious freedom.

But I have a question in turn:  Garnett says that he doesn’t agree with my argument against a “right to be wrong,” but he never sets out that argument or actually explains why it is wrong. 

He also cites this passage of mine in which I sought to bring together the strands of the argument that, taken together, would have a powerful effect in striking at the very ground of the law:

I’ve argued … that the Hobby Lobby case could have been won without setting into place these premises: that religious convictions are marked by “beliefs,” rather than “truths;” that we accept as a “religion” virtually anything that people tell us they regard as their religion;  that on the strength of these “beliefs” held “sincerely,” we give exemptions from the laws that are imposed on everyone else; and finally, as the Court said in Hobby Lobby, “it is not for [the government] to say that [our] religious beliefs are mistaken or insubstantial.”

Now I’m curious:  Have I not given an accurate account the strands that have actually been woven through these cases?  If I have any of these wrong, I would be glad to find out that I’m wrong. But if those strands are there, as I’ve marked them out here, why would they not be the carrie[r]s of principles quite destructive for the laws?

Forgive me one more point on a question I posed in First Things, and which I haven’t seen addressed yet:   

The Catholic Church doesn’t argue on abortion by appealing to revelation or belief.  It argues in the reasoning of natural law, a combination woven of embryology and principled reasoning.  And so I raised the question of whether the protections here under RFRA would apply to the Catholic businessman, reasoning on the matter in the style of the Church, but not to the businessman who uses precisely the same moral reasoning used by the Church, even while he disclaims any religious affiliation?   As I've pointed out, this was exactly the problem faced by Congress in the Civil Rights Restoration Act of 1988:  Would they give an exemption only to religious hospitals in sparing them the obligation to perform abortions?  Or would they honor also the moral objections of those hospitals that were morally opposed to abortions but had no religious definition?

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Arkes' reply clarifies nicely one of our disagreements.  He says that "the case could have been argued on deeper foundations" and, in response, I say, "no, it could not."  The "Takings" and "freedom of association" arguments that Arkes mentions are, at the present time and given the current legal givens, losing arguments (regardless of how deep their foundations go and regardless of their moral appeal).    

Next, Arkes says "Garnett says that he doesn’t agree with my argument against a 'right to be wrong,' but he never sets out that argument or actually explains why it is wrong."  This is true.  Such an explanation didn't and does not seem (to me) necessary, as it was provided in Ryan Anderson's response to Arkes (and, I think, in Dignitatis Humanae).   

Third, Arkes writes:  

One could simply say, I suppose:  yes, we are simply working with the positive law, which offers its protections here only for the religious under RFRA. The others may have to seek a remedy in other ways.  But that hardly gives a coherent moral account of the jurisprudence we are shaping.

Once again, I think Arkes has helpfully identified our clear disagreement.  I would "simply" say precisely what Arkes says, above.  The question whether a "coherent moral account" can be given of our current positive-law arrangements regarding religious freedom is an interesting and important one, but that question is (very) different from ones having to do with the arguments to be made in real-world, present-day courts, to judges charged with interpreting and applying not first principles of morality but unsurprisingly imperfect statutes and doctrines.

MOJ joins Law Professor Blogs Network

By Rick Garnett

After ten years . . . I am really happy to announce that, as of today, Mirror of Justice is now part of the Law Professor Blogs Network, and I am very grateful to my friend and longtime MOJ supporter and reader, Paul Caron, for inviting us aboard.  I hope MOJ readers like the new "look" and that you'll all continue to check in, and spread the word!

Genocide of Christians in Mosul -- and crickets

By Patrick McKinley Brennan

The Islamic terrorist group ISIS has recently rebranded itself (in Western fashion) as the Islamic State.  We mustn't let this self-promotion lull us into any illusions of legitimacy, however.  This terrorist organization has declared war on the Christians of Mosul.  The Christians in Mosual must convert to Islam, pay vast fines, or be killed -- or, in one last indignity, be robbed (of their crucifixes) as they flee for their lives.  The story is here

Pope Francis has repeatedly condemned this persecution, and the U.N. Secretary General Ban Ki-Moon has declared it a crime against humanity.  What the terrorists known as the Islamic State are accomplishing in Mosul is without a doubt genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide, which was signed in 1948 and took effect in 1951.

Yet where is the White House in all of this?  Why has President Obama not condemned *this* genocide?  

President Obama needn't start by calling it what it is, that is, genocide.  He could start by, say, actually acting to enforce the International Religious Freedom Act of 1998.  Yes, yes, I recognize that "religious freedom" doesn't do conceptual justice to genocide, but "religious freedom" doesn't itself do justice to the essence of true religion, yet nearly everyone in the West seems to be on board with "religious freedom," at least nominally.  And so, when will that great champion of "religious freedom," the USCCB, bestir itself to condemn this epochal violation of religious freedom and perhaps even call the Catholics of the United States to prayer and penance in solidarity with their persecuted brothers and sisters in Christ?

The Syrian Catholic Archeparchy in Mosul was burned to the ground the other day as a part of the ongoing purge.  What traces of ancient Christianity will be left in Iraq when U.S. (and other Western) foreign policy has run its course there?  I think the terrorists there know the answer, which no doubt emboldens them still further.    

J. Doig responds to R. George's criticisms of his marriage revisionism

By Robert George

Today at Public Discourse, my Princeton colleague Jameson Doig defends his revisionist understanding of marriage against the criticisms I advanced yesterday in our week-long debate about the nature of marriage. 

http://www.thepublicdiscourse.com/2014/07/13528/

This begins round two of our debate.  Tomorrow, I will respond to Professor Doig's latest effort. Then on Friday we will post a joint essay taking stock of the debate.

Tuesday, July 22, 2014

What difference would it have made if "the First Amendment" included explicit textual protection for "conscience" as well as "religion"?

By Kevin C. Walsh

One interesting question that came up during the Q&As following the first set of papers at this year's Annual Law & Religion Roundtable was something like the one set forth in this post's title. My rendition of it puts "the First Amendment" in scare quotes because a full answer to the question requires challenging the nomenclature of "First Amendment." (Indeed, I am not sure that we have properly understood the distorting effects on our understanding of what the first set of constitutional amendments intended to accomplish that result from the fateful decision to tack those amendments on to the end of the document rather than interpolating them into the particular provisions being amended. But that is a topic for some other days.)

To know what difference it might have made to include explicit conscience protection in the Constitution as initially amended, we have to know the form that conscience protection would have taken. Leading candidates would be those included in James Madison's proposals. And that plural is correct: Madison simultaneously proposed two different amendments that included explicit "conscience" protection. 

One of these proposals protected against federal government action while the other protected against state government action. The first was intended for Article I, Section 9: "That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. . . .”). The second would have gone into Article I, Section 10: “Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”

Attention to the different wording and proposed locations of these provisions provokes a couple of thoughts. First, "religious belief" is a distinct concept from "equal rights of conscience." Second, there would be no establishment clause-type limit on accommodations for conscience at either the federal or state level. The reason for no such limit at the federal level is that there was no "establishment clause" other than the prohibition against establishing a "national religion." And the reason for no such limit at the state level is that there was no establishment clause at all for the states.

(Perhaps for the sake of completeness, it is worth noting another proposed amendment that protected a form of conscientious objection but did not use the word "conscience": "[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person.")

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