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.

Monday, June 8, 2015

Executive Power and Religious Belief: A Thought on Zivotofsky v. Kerry

By Marc DeGirolami

One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and legal scholars take the former.

Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.

And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia says in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.

In dissent, Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.

Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?

Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on a quite expansive reading of Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that has characterized its years in power.

Contra Barnett, judges don't kill parrots

By Kevin C. Walsh

Randy Barnett has a long post at Volokh Conspiracy arguing (with reference to his 2004 article on The Original Meaning of the Judicial Power) that "the 'judicial power' included the power to nullify unconstitutional laws." His basic claim is that "when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void" (emphasis in original). He says that a judicially nullified law is like a dead parrot. Judicial review kills, and dead is dead. 

But we shouldn't need Miracle Max to help us realize that there's a big difference between mostly dead and all dead. Mostly dead is slightly alive. And when it comes to law, a judicial ruling of unconstitutionality does not always kill; sometimes it's just a flesh wound. 

Take Marbury v. Madison, for example. What is "that law" that this decision "rendered null and void"? The Judiciary Act of 1789? Just Section 13? Just part of Section 13? Or just certain applications of one part of Section 13? 

There is no right answer, because the question is wrong. The Supreme Court in Marbury did not render any particular law null and void. As far as the Court was concerned, the law was already void to the extent of its conflict with the Constitution, and it was the duty of the Court to refuse to give it effect as law in resolving the case. So the Court did just that; it refused to give effect to Section 13 of the Judiciary Act of 1789 because doing so in that case would have caused the Court to exceed its jurisdiction under Article III.

The reasons the Court gave for this refusal would require a similar refusal for every other attempt to secure a writ of mandamus from the Supreme Court in an exercise of original jurisdiction outside the limited categories of cases specified in the Distributing Clause of Article III. And as a matter of law, these reasons are to be given effect going forward by virtue of precedent and preclusion doctrine in addition to the intrinsic force they possess for participants in the legal system. But the Judiciary Act of 1789 itself underwent no change by virtue of the Court's ruling in Marbury. The Court declared the law void, but did not render the law void. Put another way, the Court recognized the constitutional conflict and refused to give effect to the statute, but it did not take the law and make it void.

For a contrast with the judicial nullification power described by Barnett (and the concept of judicial review supported by many many others), see the judicial displacement understanding set forth in my first law review article, Partial Unconstitutionality. Here's what I said there about Marbury v. Madison: 

The statutory grant of authority for the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction went beyond the Article III grant of original jurisdiction to the Supreme Court. As inferior law, the statutory grant was therefore unconstitutional to the extent that it went beyond Article III, but no further. The Judiciary Act of 1789 was still “law” to the extent that it was not “void.” The operative concept of judicial review here was one in which the Court, in disposing of the case before it, was obliged to apply the superior law of the Constitution in preference to conflicting, inferior statutory law: “If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison, 5 U.S. at 178.

 

Friday, June 5, 2015

Vatican Finances

By Elizabeth Schiltz

Having just finished teaching "Payment Systems" again this past semester, I was delighted to come across this "news" item (on the "Eye of the Tiber" blog), about a particularly Catholic use of evolving electronic methods of payment.

The Threat of (and to) Catholic parenting

By Erika Bachiochi

The Pontifical Council of the Laity recently published Archbishop Chaput's remarks to his brother priests at their annual convocation in Philadelphia.  The speech is worth reading in its entirety, of course, but this paragraph quoting Gerard Bradley was especially poignant...and frightening: 

Professor Gerard Bradley of the University of Notre Dame School of Law is a constitutional scholar and a longtime friend of mine.  Recently he shared with me his belief that “the most perilous [developing challenge that U.S. Catholics face] has to do with the establishment of ‘sexual health,’ ‘gender identity’ and ‘sexual self-determination’ as paramount goods even for children and minors — such that their parents and the Church become serious threats to these minors’ alleged well-being.  In other words, Catholic parenting is in jeopardy of being branded, in relatively short order, as a kind of child abuse, a calumny against which our diminishing religious liberty protections will be thin shields.”

On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers

By Michael Perry

This paper was my contribution to the conference on “The Scope of Religious Exemptions,” hosted by the Bowling Green State University Department of Philosophy, April 17-18, 2015.  I explain in the paper that both the constitutional law of the United States and the political morality of human rights converge on the conclusion that government may not grant conscience-protecting exemptions only to religious believers.

American Religious Freedom: Reflections on Koppelman and Smith

By Michael Perry

This review essay, Review of Politics 77 (2015), 287-299, may be of interest to MOJ readers.  The abstract:

Among contemporary scholars of American religious freedom, Andrew Koppelman and Steven Smith are two of the most esteemed.  In their respective books -- Koppelman's Defending American Religious Neutrality (Harvard 2013) and Smith's The Rise and Decline of American Religious Freedom (Harvard 2014) -- they address a broad range of important issues.  Space limitations constrain me to be selective in this review essay.  I comment here on what Koppelman and Smith say, and don’t say, about two of the most fundamental issues concerning American religious freedom:  the meaning of the nonestablishment norm and the constitutionality of granting conscience-protecting exemptions only to religious believers.

Thursday, June 4, 2015

Another Winters (Tall) Tale

By Robert George

Michael Winters of the National Catholic Reporter continues to burnish his well-earned reputation for malicious dishonesty.

Winters accuses me of "attempting to co-opt the Church’s teaching authority for crass political ends." His evidence?  "All five of [Robert George's] non-negotiables [abortion, embryo destructive research, redefining marriage, euthanasia, and human cloning] align with positions articulated by today’s socially conservative Republican Party." If you've had even an introductory level course in logic you immediately perceived the fallacious inference--the non sequitur. He has offered no evidence whatsoever to show that I chose these issues or stress their importance because they line up with Republican Party positions. The truth is that I support the Republican Party (and left the Democratic Party) because of the Republicans' pro-life stance. Winters' suggestion that I chose or stress the issues because that helps the Republicans is the very reverse of the truth. And he knows it.

I regard the principle of the profound, inherent, and equal dignity and right to life of every member of the human family--beginning with the child in the womb, and including the frail elderly and the physically handicapped and cognitively disabled--as foundational. If we get that principle wrong, then, as Governor Robert P. Casey of Pennsylvania, the last of the great pro-life Democrats, said, "we will get nothing else right."  I grieve, as Casey grieved, that his Party--the Party of my own family and of my youth--has utterly abandoned the principle by embracing the abortion license, embryo-destructive research, and, increasingly, assisted suicide.

Winters goes on to say it is "telling that there was no mention of poverty, or war, or environmental degradation on Professor George’s list."  Since Winters comments on my work frequently and therefore, I assume, actually reads it (though maybe I shouldn't assume that), he knows perfectly well that I also stress the obligation to fight poverty and the need to design and implement policies that lift people out of it and do not mire people in it.  What is discussable or "negotiable," as I have said time and again, is not whether we have a strict moral obligation to fight poverty, but what is the best--the most effective--way to do it.  As the liberal New York Times columnist Nicholas Kristof has candidly observed, many of the federal anti-poverty programs championed by liberal activists and politicians since the mid-1960s have failed. Some have harmed the people they were meant to help. So we need new ideas and new approaches. People who share a deep and firm commitment to fighting poverty can and do disagree--reasonably disagree--on the best means to achieve that agreed upon goal.  This doesn't make fighting poverty less important than, say, fighting euthanasia; it is only to say that different people may reasonably differ about how to do it.  (I would add that people who are seriously interested in fighting poverty should agree on one point, even if they disagree on others:  the rebuilding of a flourishing marriage culture, especially in poor communities, is imperative. Daniel Patrick Moynihan's claims about the relationship between the collapse of the marriage culture and the entrenchment of poverty have been fully vindicated.)

Since Winters knows all this--none of it is news to him--he is being dishonest in telling readers that "by saying that these five, and only these five, are non-negotiable, Professor George, and his political followers, gave the impression that the Church’s commitment to fighting poverty or environmental degradation was negotiable." But, then, what else is new? Dishonesty is the man's stock in trade.

A few observations on judicial supremacy in response to recent commentary

By Kevin C. Walsh

There has been a lot of learned commentary lately on the idea of judicial supremacy. (See, e.g., Mike Paulsen, Michael Ramsey (and again), Seth Barrett Tillman, Ed Whelan (and again), Ilya Somin, Andrew Hyman (and again), Evan Bernick, Randy Barnett). (HT: The Originalism Blog)

It's difficult to pick precisely where to wade in. So rather than pick one spot, I'll just add a few observations.

1. Originalist methodology:

To the extent that we are trying to figure out what our law provided with respect to judicial supremacy at the Founding, we should just ask the question of "original-law originalism": "What did our law, including the Constitution, provide regarding the authoritativeness of Supreme Court legal determinations about the meaning of the Constitution in 1789?"

This seems more promising than starting with "how the relationship between the monarch and judges was understood in eighteenth-century England" or the way in which "at least some framers expressed views that indicated a privileged role for judges in interpreting the law." To the extent that such understandings were sources of law, they will be picked up by the original-law inquiry. But there are much more obvious sources of law to begin with, such as the law of jurisdiction, the law of judgments, and the law of remedies. These are the sources of law we typically look to in determining the authoritativeness of all sorts of other judicial rulings; why shouldn't the authoritativeness of determinations about the legal meaning of the Constitution by the Supreme Court also be shaped by these sources? 

One feature of the judicial power in the Founders' law that persists in our law is that a court's authority to rule in a particular case depends on jurisdiction (both as to subject-matter and with respect to a person or thing within the court's authority to reach). As Will Baude has argued, the "judicial power" in Article III is best understood in intra-systemic legal context to incorporate consideration of jurisdiction into the determination whether and with respect to whom a judgment is binding: "the judicial power vested in Article III courts allows [federal courts] to render binding judgments that must be enforced by the Executive Branch so long as those courts have jurisdiction over the case." 

2. Remedies and Marbury:

Under the Founders' law, the binding effect of a legal determination with respect to a particular matter was tied to the remedies it was authorized to provide. This is why Marbury v. Madison counts against modern notions of judicial supremacy.

Chief Justice Marshall's extensive disquisition in that case on the Jefferson Administration's illegal refusal to deliver Marbury's commission established no law binding on the Administration (or anyone else for that matter). A writ of mandamus issued by that Court would have supplied the means by which that binding effect would have arisen. But the Court issued no such writ.

Chief Justice Marshall's opinion had three parts: (1) Did Marbury have a right to delivery of his commission? (2) Is there a judicial remedy for the violation of Marbury's right? (3) Is the right remedy a writ of mandamus from the Supreme Court? An affirmative conclusion in each of the three parts of Chief Justice Marshall's three-part opinion would have been legally essential to give rise to a judgment that altered the legal position of the Jefferson Administration.

The Court disposed of the case at (3), determining that the Supreme Court Court lacked authority to issue mandamus in the exercise of its original jurisdiction because the statutory grant of jurisdiction exceeded the constitutional grant. But part (2) was another way the Court's part (1) determination could have been legally inefficacious.  Even if issuance of the writ of mandamus would have been within the Court's jurisdiction, the Court's determination that Marbury had a vested legal right to his commission would not have been binding on the Administration unless this determination was enforceable via a judicial remedy such as a writ of mandamus.  

It very well may be that the Jefferson Administration did break the law in refusing to deliver Marbury's commission (and maybe even for the very reasons supplied by Chief Justice Marshall in the first part of his opinion), but the Supreme Court's first-part say-so on that point would itself have provided no content-independent legal reason to think so as a matter of the Founders' law. 

3. The judicially situated nature of judicial reasoning about the Constitution.

Constitutional doctrine applied by courts does not directly map onto constitutional meaning such that a judicial declaration with respect to the constitutionality or unconstitutionality of a law is equivalent to a judicial statement that a law is constitutional or unconstitutional.

A recent high-profile example comes from Chief Justice Roberts's outcome-determinative opinion in NFIB v. Sebelius. Roughly, the Chief Justice's reasoning took the form:

(1) The "individual mandate" exceeds Congress's authority if the relevant provisions are a mandate plus penalty rather than a tax.

(2) Even though the relevant provisions do not most naturally look like they impose a tax, they resemble a tax enough that the judiciary should treat them as amounting to a tax for purposes of refusing to hold them unconstitutional.

(3) The Court therefore should refuse to hold the "individual mandate" unconstitutional but instead treat the relevant provisions as amounting to a tax.

There is nothing about this reasoning that prevents someone who is not a federal judge from deciding that the "individual mandate" really is a mandate enforced by a penalty and therefore unconstitutional. Indeed, one who accepts the constitutional reasoning of Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito under the Commerce Clause and Necessary & Proper Clause probably should reason this way as long as he is under no role-based legal obligation (as Chief Justice Roberts believed he was) that requires a thumb on the statutory-interpretive scale to avoid a determination of unconstitutionality.

Wednesday, June 3, 2015

"Pope Benedict XVI's Legal Thought"

By Rick Garnett

Do you own this book yet:  "Pope Benedict XVI's Legal Thought:  A Dialogue on the Foundation of Law"?  You should.  Thanks to John Witte's Cambridge Studies in Law and Christianity, we have with this volume an excellent collection of reflections on church-state relations, human dignity, human rights, and democracy by (to mention just a few) Mary Ann Glendon, John Witte, Joe Weiler, Andrea Pin . . .  Run, don't walk . . .

Gender Trouble

By Erika Bachiochi

I suspect most MOJ readers are not reading Judith Butler, the influential gender theorist who teaches at the University of California at Berkeley. Since I have actually waded through much--but not all--of her fame-making Gender Trouble: Feminism and the Subversion of Identity, I thought I'd share some of it below, to shed some light on the intellectual underpinnings of the American gender/transgender movement. Butler's writing is almost impossible to decode, but the following passages are noteworthy for their unusual clarity. They also provide a decent summary of the rest of the book (or what I've been able to get through anyway).  

One note:  Butler's radicalism is rightly criticized by some gender feminists for rendering "woman" obsolete, such that there is no subject left for feminists to rally behind. As you will read below, for Butler, not only is (culturally constructed) "gender" a construct, but (bodily) "sex" is too...

Catholics, and especially those like myself who are seeking to give life to a robust articulation of a dynamic "new feminism," have a special responsibility, it seems to me, to defend human embodiedness, and the asymmetry, vulnerability and dependency that follows. Here's are two recent attempts of mine, which focus on asymmetry, one in Christian Bioethics (Oxford), the other a chapter in Mary Hasson's new book, Promise and Challenge. I recently presented a paper on embodiedness, vulnerability and dependency (that relies heavily on the great Alasdair MacIntrye and feminist philosopher Eva Feder Kittay), both at Steubenville and at a conference on women and the Church in DC this spring; publication is (one hopes) forthcoming.

From Judith Butler's Gender Trouble: 

Although the unproblematic unity of “women” is often invoked to construct a solidarity of identity, a split is introduced in the feminist subject by the distinction between sex and gender. Originally intended to dispute the biology-is-destiny formulation, the distinction between sex and gender serves the argument that whatever biological intractability sex appears to have, gender is culturally constructed: hence, gender is neither the causal result of sex nor as seemingly fixed as sex. The unity of the subject is thus already potentially contested by the distinction that permits of gender as a multiple interpretation of sex.

If gender is the cultural meanings that the sexed body assumes, then a gender cannot be said to follow from a sex in any one way. Taken to its logical limit, the sex/gender distinction suggests a radical discontinuity between the sexed bodies and culturally constructed genders. Assuming for the moment the stability of binary sex, it does not follow that the construction of "men" will accrue exclusively to the bodies of males or that "women" will interpret only femal bodies. Further, even if the sexes appear to be unproblematically binary in their morphology and constitution (which will be become a question), there is no reason to assume that genders ought also to remain as two. The presumption of a binary gender system implicitly retains the belief in a mimetic relation of gender to sex whereby gender mirrors sex or is otherwise restricted by it. When the constructed status of gender is theorized as radically independent of sex, gender itself becomes a free-floating artifice, with the consequence that man and masculine might just as easily signify a female body as a male one, and woman and feminine a male body as easily as a female one.

This radical splitting of the gendered subject poses yet another set of problems. Can we refer to a "given" sex or a "given" gender without first inquiring into how sex and/or gender is given, through what means? And what is “sex” anyway? Is it natural, anatomical, chromosomal, or hormonal, and how is a feminist critic to assess the scientific discourses which purport to establish such “facts” for us?9 Does sex have a history?10 Does each sex have a different history, or histories? Is there a history of how the duality of sex was established, a genealogy that might expose the binary options as a variable construction? Are the ostensibly natural facts of sex discursively produced by various scientific discourses in the service of other political and social interests? If the immutable character of sex is contested, perhaps this construct called “sex” is as culturally constructed as gender; indeed, perhaps it was always already gender, with the consequence that the distinction between sex and gender turns out to be no distinction at all.  

It would make no sense, then, to define gender as the cultural interpretation of sex, if sex itself is a gendered category. Gender ought not to be conceived merely as the cultural inscription of meaning on a pregiven sex (a juridical conception); gender must also designate the very apparatus of production whereby the sexes themselves are established. As a result, gender is not to culture as sex is to nature; gender is also the discursive/cultural means by which “sexed nature” or “a natural sex” is produced and established as “prediscursive,” prior to culture, a politically neutral surface on which culture acts. This construction of “sex” as the radically unconstructed will concern us again in the discus- sion of Lévi-Strauss and structuralism in chapter 2. At this juncture it is already clear that one way the internal stability and binary frame for sex is effectively secured is by casting the duality of sex in a prediscursive domain. This production of sex as the prediscursive ought to be understood as the effect of the apparatus of cultural construction designated by gender. How, then, does gender need to be reformulated to encompass the power relations that produce the effect of a prediscursive sex and so conceal that very operation of discursive production? [Pages 8-10]

...

In this sense, gender is not a noun, but neither is it a set of free- floating attributes, for we have seen that the substantive effect of gender is performatively produced and compelled by the regulatory practices of gender coherence. Hence, within the inherited discourse of the metaphysics of substance, gender proves to be performative— that is, constituting the identity it is purported to be. In this sense, gender is always a doing, though not a doing by a subject who might be said to preexist the deed. The challenge for rethinking gender categories outside of the metaphysics of substance will have to consider the relevance of Nietzsche’s claim in On the Genealogy of Morals that “there is no ‘being’ behind doing, effecting, becoming; ‘the doer’ is merely a fiction added to the deed—the deed is everything.” In an application that Nietzsche himself would not have anticipated or condoned, we might state as a corollary: There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its results. [Page 34]

Read more of Butler's book here.

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