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 11, 2018

African-American Evangelicals on the Masterpiece Cake Issue

By Thomas Berg

Here is a worthwhile piece from Kate Shellnutt at Christianity Today with several African-American evangelical leaders giving their perspectives on Masterpiece and other situations of declining service to a same-sex wedding. The leaders quoted negotiate the tension between the importance of nondiscrimination laws in public accommodations and the importance of religious liberty.

Polls by Pew, quoted in the article, show black Protestants support same-sex marriage a little more than white evangelicals do (44 versus 35 percent), and are substantially below the level of support of Americans overall (44 versus 62 percent). But on the matter of "requiring businesses to serve same-sex couples," black Protestants are way above white evangelicals (46 percent to 22 percent) and close to Americans overall (46 to 49 percent). As always, you have to look at how the questions are phrased; the kind of limited exemption for an expressive service to a wedding is different, and may garner more support, than a hypothesized claim to "refuse to serve same-sex couples." (Of course, those distinctions might matter to everyone, not just black people; so the point about black evangelicals emphasizing nondiscrimination holds.)

There's no representative position in the article--the views vary. But here are a few thought-provoking comments from Justin Giboney, founder of the AND Campaign ("Biblical Values, Social Justice"):

        It’s not surprising that black Protestants are more likely to believe vendors should serve same-sex weddings than their white counterparts. We might agree theologically, but historically speaking, we have little reason to believe the concerns aren’t pretext for prejudicial impulses. There’s very simply a lack of trust, and it’s better to err on the side of caution than to be complicit in furthering bad faith and un-Christlike endeavors....

        That said, the biblical love and service imperative is coupled with truth-telling and a responsibility to honor what God has deemed good.... Thus, a pastor—or a baker—who’s been asked to participate in a wedding ceremony should be able to refuse if compelled by religious conscience; however, services generally should not be declined outside of very limited circumstances.

Sunday, June 10, 2018

Austin’s Minimalist Theory of Sovereignty (A Note)

By Adrian Vermeule

A brief note on John Austin’s theory of sovereignty, to follow up on my questions about sovereignty for Andrew Willard Jones. A couple of responses have assumed that Austin pictures or assumes a “unitary” or “simple” sovereign. He does not. Austin’s theory is truly thin, truly minimalist; it posits only that there is a determinate person or group of persons who are habitually obeyed by the bulk of the population, etc. That group may itself be internally complex, like “the Queen in Parliament,” “the Estates of the Realm,” or “the Gelasian Dyarchy.” That group may be internally conflictual, struggling inter se to reach decisions, or may instead operate by smooth internal procedures. None of this is relevant for the theory. So long as the group is determinate and habitually receives obedience from the bulk of the population, and does not habitually obey any determinate human superior, it is enough.

Some Questions about Sovereignty for Andrew Willard Jones

By Adrian Vermeule

 

In Andrew Willard Jones’s fascinating picture of the 13th century France of St Louis IX, Before Church and State, there is a strand of argument that makes some sort of claim about sovereignty. I am unclear, however, about what exactly the claim is, and — to the extent I can discern what it is — fear that it rests on a confusion between “sovereignty” as a concept in political theory and sovereignty as a fact, a confusion between “sovereignty” de dicto and sovereignty de re. Let me explain.

Consider this passage, which states the book’s basic theses about sovereignty:

I contend that it is an assumption of modern politics that sovereignty exists someplace, even if it is obscured by constitutional arrangements, opaque structures of power, or certain rhetorical constructions. I further contend that this notion of sovereignty carries with it certain assumptions about society and certain approaches to social reality that were absent in the Middle Ages. Indeed, the monopoly of violence that sovereignty demands is actually organizationally possible only through the technology of the modern State, and the ideological component of sovereignty—the belief that monopolized violence is “legitimate”—is constructed and sustained only as a response to the conviction of the ubiquity of violence or scarcity, the conviction that all “difference” is ultimately conflict and that reality is fundamentally a sequence of “differences” (a foundational belief of modern social theory).

Observe that Willard Jones (1) switches from sovereignty and its existence in the first sentence to the “notion” or idea or theory of sovereignty in the second, and then (2) goes on to critique a particular theory of sovereignty — Weber’s theory — on the ground that it does not adequately account for the factual circumstances of 13-century France. There are two problems here. One is that sovereignty as a fact may exist long before sovereignty as a notion, idea or theory, just as gravity long predated (at least on sane views of scientific epistemology) the theoretical discovery of gravity. The second is that Weber’s is hardly the only modern theory of sovereignty; in my view it is not even the best one. These two problems will converge if there is another leading modern theory of sovereignty that sidesteps Willard Jones’s critique of Weber, and that potentially applies to 13th-century France regardless of whether any contemporaries thought in terms of the theory’s categories.

I believe there is such a theory: John Austin’s theory. Roughly speaking, for Austin, sovereignty is above all a possible fact, a state of affairs that may or may not obtain, regardless of anyone’s theorizing about it. The correct theory of sovereignty, Austin thinks, is his own, but that theory itself shows that sovereignty (rightly understood) may or may not have obtained in 13th century France or for that matter Imperial Rome or China of the Han Dynasty.

For Austin, sovereignty is a state of affairs in which there is, in a particular territory, a person or determinate group of persons who are habitually obeyed by the bulk of the population, yet do not habitually obey any other human superior (thereby bracketing the question of the sovereign’s obedience to God). This definition is intended, as far as possible, to leach out normative propositions and thereby to isolate sovereignty-as-fact. In particular, and in contrast to Weber’s theory, it says nothing at all about violence or other possible causes of obedience, and avoids stumbling into the notorious conceptual swampland that is “legitimacy.” Of course no definition of a politically loaded concept can be simply descriptive the way “the spoon is on the table” is descriptive, but Austin’s theory has the great virtue that without appealing to concepts like “legitimacy” there are perfectly straightforward cases in which the theory indicates that sovereignty does exist (China 2018) and does not exist (England at the height of its Civil War, or Libya in recent years). Even in the boundary cases, which for all I know include 13th-century France, the question to be asked under Austin’s theory is itself clear, even if the answer is unclear.

On this view, it is an open question, at least to me, whether sovereignty did or did not obtain in 13th-century France. Perhaps there was no person or determinate group of persons meeting Austin’s criterion; perhaps there was. I would love to hear Willard Jones’s thoughts on that question as a historian. But it would not be responsive to point out that contemporary 13th-century notions of sovereignty were not the same as modern notions, or that Weber’s very particular theory of sovereignty does not adequately account for the France of St. Louis. Most of all, one wonders what if anything of Willard Jones’s claim remains intact were he to draw more clearly the distinction between sovereignty as fact and as theory, de re and de dicto.

I hasten to add that none of this undermines the main point of the book, which is to reconstruct and revive an entirely alien thought-world in which the modern separation between Church and State simply does not capture the way anyone looked at matters. That contribution is magnificent; and it does not depend upon the book’s discussion of sovereignty, even if I am correct that the latter is somewhat confused.

Adrian Vermeule

Saturday, June 9, 2018

Masterpiece Comment

By Thomas Berg

I've been preoccupied, since the Masterpiece Cakeshop ruling came down, writing about the decision and also finalizing a book manuscript for submission to the publisher on an entirely different subject (gene patents). Tardily, let me note that Doug Laycock and I posted an analysis of Masterpiece earlier this week on the SCOTUS Blog. A bit:

 

     There is a practical holding and an ideal holding [in Masterpiece]. The practical holding is that the unequal treatment of Phillips and the protected bakers is evidence of unconstitutional hostility. Conscientious objectors embroiled in litigation will have to send testers to smoke out uneven enforcement of anti-discrimination law. We expect that states are unwilling to require socially liberal vendors to produce goods with conservative religious messages they find offensive or against their conscience. If that is so, then those states cannot require religiously conservative vendors to produce goods in violation of their conscience.

     The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.

     But a requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.

     Those manipulations began in the state’s briefs and in the concurring and dissenting opinions.... 

Thursday, June 7, 2018

"Freedom 'for' Religion: (Yet) Another View of the Cathedral"

By Rick Garnett

I've posted a short paper on SSRN, on the idea of "Freedom 'for' Religion".   Here's the abstract:

This chapter is a reflection on the meaning and implications of "freedom for religion." It is suggested that to consider "freedom for religion" as one dimension of the right to religious freedom is to ask, "what are the necessary or helpful conditions that contribute to making religious freedom a healthy reality? What is needed 'for' religious freedom to work, even to thrive?" The chapter argues that a healthily "secular" political community may and should take account of citizens' religious lives and help to create conditions favorable to the fostering of religious life. Although the state should remain "neutral" with respect to (most) religious questions—primarily because the resolution of such questions, assuming for now that they can be identified, is outside the jurisdiction of civil authorities—it may and should affirm enthusiastically that religious freedom is a good thing and that it should be not only protected, but also nurtured, by law and policy.

As one would expect, Rouen and Monet make appearances . . .

Wednesday, June 6, 2018

Does recognizing stillborn babies threaten abortion rights?

By Rob Vischer

U of Arkansas law prof Jill Wieber Lens argues that tort law must recognize the true nature of the loss when medical negligence results in a stillborn baby:

Tort law, for the most part, already enables parents to sue when someone wrongly causes their child’s stillbirth . . . . However, that tort claim must properly recognize the extent of the parents’ loss: It’s not just a loss of pregnancy or of a fetus ― it’s the death of a child. Only this kind of recognition correctly incentivizes doctors and provides compensation to grieving parents.  

Proper recognition of the devastating loss after the death of a desired unborn child does not threaten abortion rights, and we cannot let the ongoing abortion debate minimize that devastation. This is something the pro-abortion rights and anti-abortion movements should be able to agree on.

Both sides of the abortion debate could and should agree on this, but I'm skeptical that they will.  Pro-abortion rights advocates are leery to recognize the fetus as a child.  If passage through the birth canal loses its moral significance, the abortion debate opens up to important and sensible new policy questions that have been marginalized in the U.S. since Roe.

Tuesday, June 5, 2018

"Ireland Takes on the Catholic Church Again"

By Rick Garnett

This piece has a tendentious headline (sigh) but it points to some important questions about the mission, character, funding, and regulation of Catholic schools.  It's hard to see how it can be justified -- except on "fit of spite" grounds -- to say that Catholic schools should lose the right to prefer Catholics in admissions, but faith schools connected with other traditions will not.  More generally, though, I would think that even the battered and lacking-credibility Church in Ireland is in a sufficiently strong bargaining position to say, "if you want to run our Catholic schools as secular state schools, then we will sell some of them to you."  It is not unreasonable for the public, and the public authority, to think that there should be non-Catholic school options for children whose families prefer those options.

I am, as MOJ readers know, a strong supporter of school-choice programs; indeed, I believe they are morally required.  But, this story about what's happening in Ireland is an important reminder about the temptation on the part of the state to leverage the funding it provides to secure practices and outcomes it prefers.        

Some reactions to the Cakeshop case

By Rick Garnett

Here are some quick thoughts of mine -- not nearly so well developed as Marc's! -- on the Masterpiece Cakeshop ruling.  Here's a (perhaps overly optimistic) bit:

The Court affirmed that religious and other conscientious beliefs regarding same-sex marriage are constitutionally protected, even when unpopular. The justices recognized that deep and sincere disagreements persist about these matters and that both our First Amendment and the needs of civil society require balance, understanding, and humility.

Although the decision is not definitive, and the justices seemed deliberately to avoid the difficult but important constitutional questions that most Court-watchers thought were at stake, the ruling can be seen as a prudent way for the Court to invite civil dialogue and conversation, rather than more rancor and litigation, about striking the right balance in our pluralistic society.

Some Reflections on Animus and "Adjudicatory Bodies"

By Marc DeGirolami

Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of "animus" might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who "objected to a requested cake on the basis of conscience" (this was said by the Court to be an "indication of hostility" to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips' religious views, comments which were never subsequently disavowed (more evidence of animus).

I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting "animus": “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading "seems more likely." I really don't understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to "compromise." Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner's comments were hateful? I wonder if the Court's approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.

And speaking of "adjudicatory bodies." In describing the state of jurisprudential play with respect to "animus" evidence, the Court said this:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the "animus" discussion. Indeed, the "animus" discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?

The explanation offered here seems to be that Lukumi dealt with "lawmakers" while this case deals with the "very different context" of "adjudicatory bod[ies] deciding a particular case." It is true that in the following section of the opinion, the language about "adjudicatory bodies" does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that "the government's" "neutrality" may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.

But the application of these factors in this case to an adjudicatory body which ruled on this particular case--the Commission--does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of "animus" analysis that did not get a majority in Lukumi, but only when one is dealing with "adjudicatory bodies deciding a particular case."

If that reading is right (and it of course may not be), what could explain a new, special animus rule for "adjudicatory bodies"? Admittedly this is speculation, and I don't have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis--its susceptibility to manipulation, for example--those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.

Again, just a speculation. We'll see how, if at all, the "adjudicatory bodies" language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors. 

Monday, June 4, 2018

7-2 is the new 5-4*

By Marc DeGirolami

Lots will be written about the decision today in Masterpiece Cakeshop (congratulations to Tom Berg for...pretty much nailing it). Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices' voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).

The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration (the asterisk to the asterisk is Hosanna-Tabor, if one is inclined to think of that case as [principally] an Establishment Clause case).

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