Ed Whelan has six posts at NRO following his original comment on the Fourth Circuit panel decision last week in G.G. v. Gloucester County School Board. Whelan's sixth post here links to the prior five. And, for those interested in more, Judge Niemeyer's dissent, beginning on page 45, is very clear and well worth the read in full.
Thursday, April 28, 2016
Ed Whelan on the G.G. case
Wednesday, April 20, 2016
The New Battle of the Sexes
Deferring to the U.S. Department of Education's Title IX guidelines and a January 2015 statement from the DOE's Office of Civil Rights, a Fourth Circuit panel ruled in favor of a transgender student up and against the student's school yesterday, holding that the school violated Title IX when it restricted students' bathroom use to their biological sex (rather than chosen gender identity). Ed Whelan writes at Bench Memos: "The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX 'requires schools to provide transgender students access to restrooms congruent with their gender identity.'” Whelan posts a portion of Judge Paul Niemeyer's dissent which is well worth reading. Here's the money quote: "Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes."
The student's Equal Protection claim is pending before the district court thus was not at issue in the case decided yesterday. Still, Niemeyer's understanding of biological sex as the essential legal marker is in keeping with the line of Equal Protection cases that take seriously "inherent" biological difference, even as they treat "sex stereotyping" (what we'd now likely refer to as "gender stereotyping") as sex discrimination. Though I don't pretend this is a full analysis, I thought it'd be helpful to point out quickly some relevant language in the Court's decisions vis-a-vis biological difference.
Remember Justice Ginsburg writing for the Court in United States v. Virginia (1996) in which the Court struck down the historic male-only admissions policy of Virginia Military Institute: “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity." And Justice Kennedy writing for the Court in Nguyen v. INS (2001), upholding the INS' differential treatment of American mothers and fathers in their children's citizenship proceedings: "To fail to acknowledge even our most basic biological differences...risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real."
For sex discrimination law to serve its function--for the rule of law to govern--sex as a legal term has to mean something in particular.
Friday, April 15, 2016
Sex and Gender in the Literature
Last week I participated in an intense and deeply informative conference on "gender theory," co-sponsored by the Catholic Women's Forum at the Ethics and Public Policy Center and the Catholic Information Center. We heard from a scientist, historian and economist, as well as philosophers, theologians, and lawyers. Should these papers be published--and that is the hope--I will be sure to post here. But in the meantime, I wanted to post a few excellent resources for anyone trying to make sense of what has become a leading--and confusing--issue today.
Here is a collection of studies drawn from scientists and researchers on sex differences in the brain, posted yesterday on MercatorNet, originally published in the journal, The Family in America. A few money quotes:
. . . The truth is that virtually every professional scientist and researcher into the subject has concluded that the brains of men and women are different. . . . [T]he nature and cause of brain differences are now known beyond speculation, beyond prejudice, and beyond reasonable doubt.
As a result, “There has seldom been a greater divide between what intelligent, enlightened opinion presumes—that men and women have the same brain—and what sciences knows—that they do not.” Therefore, they proclaim in frankness, “It is time to cease the vain contention that men and women are created the same."
And this one is especially interesting:
Given that cultures are different and that male and female differences are demonstrated to varying degrees in different cultures, where would you imagine gender differences between male and female to be most pronounced?
In traditional, developing cultures, where men and women have to depend on each other for daily survival, where today’s food is collected, prepared, cooked, and consumed today?
Or . . .
In modern cultures that are more technologically, economically and politically advanced, where men and women have the resources and cultural freedoms to become and do what they desire?
It appears that when they enjoy greater freedom—financially, politically, and culturally—men become more stereotypically masculine and women more stereotypically feminine. This is, however, most true for women.
The New York Times summarized the findings of personality tests in more than 60 different countries and cultures: “It looks as if personality differences between men and women are smaller in traditional cultures like India’s or Zimbabwe’s than in the Netherlands or the United States.” The New York Times concludes: “The more Venus and Mars have equal rights and similar jobs, the more their personalities seem to diverge."
I'd also recommend UVA professor Steven Rhoades 2005 book, Taking Sex Differences Seriously, and Leonard Sax's Why Gender Matters? Additionally, this paper by Sister Prudence Allen, the learned philosopher and author of the three-volume series The Concept of Woman (Vol 3 available in November 2016), is very helpful as a historical-philosophical approach. She also has an excellent, clarifying chapter in Not Just Good, but Beautiful, the collection of presentations of the Humanum colloquium in Rome last year.
The Holy Father has strongly opposed what he calls "gender ideology" in a number of documents, including Laudato Si and now Amoris Laetitia. Here is #56 in the latter:
Yet another challenge is posed by the various forms of an ideology of gender that “denies the difference and reciprocity in nature of a man and a woman and envisages a society without sexual differences, thereby eliminating the anthropological basis of the family. This ideology leads to educational programmes and legislative enactments that promote a personal identity and emotional intimacy radically separated from the biological difference between male and female. Consequently, human identity becomes the choice of the individual, one which can also change over time”[Quoting the Relatio Finalis, 2015]. It is a source of concern that some ideologies of this sort, which seek to respond to what are at times understandable aspirations, manage to assert themselves as absolute and unquestionable, even dictating how children should be raised. It needs to be emphasized that “biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated”. On the other hand, “the technological revolution in the field of human procreation has introduced the ability to manipulate the reproductive act, making it independent of the sexual relationship between a man and a woman. In this way, human life and parenthood have become modular and separable realities, subject mainly to the wishes of individuals or couples”. It is one thing to be understanding of human weakness and the complexities of life, and another to accept ideologies that attempt to sunder what are inseparable aspects of reality. Let us not fall into the sin of trying to replace the Creator. We are creatures, and not omnipotent. Creation is prior to us and must be received as a gift. At the same time, we are called to protect our humanity, and this means, in the first place, accepting it and respecting it as it was created.
I've shared some of my take on all this here at MOJ, and also in Mary Hasson's book, Promise and Challenge, from the first gathering of the Catholic Women's Forum. First Things is due to publish another article soon.
Monday, April 11, 2016
Doctrine by Footnote?
I have only read the first 28 pages of Amoris Laetitia--and do intend to read the rest "patiently and carefully" as the Holy Father instructs us to in the Exhortation's introduction. Admittedly, however, upon hearing of the controversy stirred up by a few footnotes in Chapter 8, I raced ahead to see what all the fuss was about...as though doctrine could be taught...changed!?...via footnote? But then, am I the only one for whom footnote 4 of Carolene Products came rushing to mind?
Recall that in US v. Carolene Products Company (1938), the Supreme Court upheld a public health and safety regulation as presumptively constitutional law-making on the part of the federal government as within its power to regulate interstate commerce. (The Court had repudiated Lochner just a year earlier.) But the Court dropped footnote four, laying claim to other types of legislation for which a more probing scrutiny would ensue. Footnote four would eventually become legal doctrine.
Of course the parallel between the Exhortation and Carolene Products fails as to the substantive contents of the text and footnotes, and it's inapt to compare the development of doctrine in the the Church with the development of jurisprudence by the US Supreme Court. But what I am struck by is the confidence with which notable Catholics eager to see the full dismantling of the Church's sexual teachings believe they have found their foothold in the Exhortation--and perhaps in the footnotes specifically! (And some Catholics hoping to see tradition upheld have agreed that the debate about the document's meaning takes place in a footnote...with some quite sure of it!)
Even for a centuries-old faith, this is a first.
Thursday, March 31, 2016
Yuval Levin religious liberty article up at EPPC
For those who aren't First Things subscribers, but are interested in reading Yuval Levin's outstanding essay, "The Perils of Religious Liberty," it's now up on the EPPC website.
Thursday, March 24, 2016
A Jewish Thinker Clarifies My Prayer This Holy Thursday
Tonight we Catholics enter the Holiest of Holy Days. We may be tempted, in light of all that's going on in politics (and at the Supreme Court, Kevin Walsh's post notwithstanding), to discouragement or even despair. The republic seems on the brink. And yet, there's this beautiful and enduring Truth:
Pange lingua gloriosi
Corporis mysterium,
Sanguinisque pretiosi,
Quem in mundi pretium
Fructus ventris generosi,
Rex effudit gentium.
Christ reigns.
Taking a cue from Pope Francis, it may be fair to put some of the blame on us -- well-formed, well-educated Catholics-- that we are now at a point in our country's history when some are at risk of not being able to live according to this truth, without significant financial penalty. As Catholic entrepreneur and philanthropist Frank Hanna memorably remarked at last week's conference on Human Ecology at CUA's School of Business and Economics: "Our problem today is two words: Frank. Hanna." But that surely is a bit of it, right? Most of us don't give credible enough witness to the faith. Christ reigns, always offering to live through us, but all too often, we are lukewarm. Secularization is on the march, and has been for decades, but for all our good arguments (and they are good arguments!), have we been the neighbors we've needed to be, the other Christs we're called to be?
Perhaps by now many MOJers have watched or read Yuval Levin's November 2015 First Things Lecture, published (online for subscribers) in the February issue of the journal, "The Perils of Religious Liberty." If not, do so. The entire thing is superb, as we've come to expect of Levin's work. But I wanted to focus attention on his call--similar to Rod Dreher's, I suppose, but just elemental to good Christianity (N.B.: Levin is Jewish)--to prioritize the shoring up of our families and communities to live our lives as credible witnesses. Levin well understands that our ability to do just this requires that we continue to take the political and legal fight to those who oppose religious liberty rightly understood and who oppose our way of life, but he asks that in doing so we not sell ourselves short. Admittedly, this is not my area of expertise, so I'm not as widely read as many who write (or perhaps read) on this blog, but this is perhaps the best piece I've read on religious liberty - ever.
Here's Levin:
This may be the greatest peril we face in championing religious liberty--the danger that our call for sustaining a space for living out our moral vision might be mistaken for an argument that the sustaining of space for ourselves is itself the essence of our moral vision....
This means we need to see that we are defending more than religious liberty: We are defending the very idea that our government exists to protect the space in which various institutions of civil society do the work that enables Americans to thrive, and we are defending the proposition that this work involves moral formation and not just liberation from constraint. That is an entire conception of the meaning of a free society that goes well beyond toleration and freedom of religion. It is ultimately about the proper shape and structure of American life.
Making that clear--to ourselves and to others--will require an emphasis not just on the principles involved (be they religious liberty or subsidiarity or the freedom of association), but also on the actual lives of our actual, concrete communities. It will require that we turn more of our attention homeward, away from raging national controversies and toward the everyday lies of our living moral communities--toward family, school, and congregation; toward neighbors in need and friends in crisis. It will require us to see that we need to build more than protective walls; we need to build strong, thriving, attractive communities.
The purpose of fighting to defend religious liberty is therefore not only defensive but also missionary: It is to allow the orthodox to meet their obligations, and to show the country a better way in practice. And that better way can only be embodied in real, living communities.
Only such communities can model appealing alternatives to the lonely decadence of the popular culture's ideal of the life of a young American. Only such communities can create meaningful norms of responsibility and commitment that can help their neighbors see why family matters and what it can make possible. Only such communities can demonstrate how meaningful progress can be rooted in collective remembrance rather than just individual desire, ambition, preference, or choice. Only such communities can give rise to a new generation committed to living out the virtues, or seeking out the wisdom of our moral and intellectual traditions, or continuing the struggle for a free society and a more just world.
I pray that we all may enter more deeply into the mystery of our faith tonight, seeking the wisdom and the resolve to ask God, day by day, to transform our families, our communities, ourselves. Christ will always reign, regardless of what happens to this beloved country of ours, but friends, our country needs us...
Tantum ergo Sacramentum
Veneremur cernui:
Et antiquum documentum
Novo cedat ritui:
Praestet fides supplementum
Sensuum defectui.
Genitori, Genitoque
Laus et iubilatio,
Salus, honor, virtus quoque
Sit et benedictio:
Procedenti ab utroque
Compar sit laudatio.
Tuesday, March 1, 2016
My critique of dignity as autonomy in abortion cases at NRO today
As we await oral argument in Whole Woman’s Health v. Hellerstedt tomorrow, here are some thoughts on how the Supreme Court (i.e., Justice Kennedy) has made use of the concept of "dignity" as synonymous for autonomy and why it's particularly inapt when it comes to abortion. Here's a bit:
In the abortion context, dignity as autonomy is particularly troublesome. In point of scientific fact, the pregnant woman is simply not autonomous, whatever legal fictions (e.g., “potential life”) the Supreme Court may have conjured up to justify its claims. Indeed, the vulnerability and dependency of another human being weigh on her; this may well be inconvenient and even personally quite burdensome, but were we honest, we would call her to an affirmative duty of care to protect the intrinsic dignity of her developing child. Dignity as autonomy would give way, as it certainly must in this case, to dignity as solidarity, our personal and communal responsibility to care for the vulnerable persons entrusted to us. This is how dignity is best understood in international contexts, and this is how parent–child relationships are best understood in all other contexts of U.S. family law, save abortion. Vulnerability begets responsibility.
And further down:
Harvard Law professor Laurence Tribe, smitten with Justice Kennedy over the Obergefell decision, recently suggested that the Court’s jurisprudence of dignity is best understood as the weaving together of fundamental-rights due-process jurisprudence with an anti-subordination equal-protection principle — voila, “equal dignity” — ensuring, Tribe hopes, the ultimate “solicitude for vulnerable groups.” Putting aside the obvious application of this putative principle of constitutional law for the most vulnerable of vulnerable groups, unborn human beings, we can see that its alternative application in support of women as a subordinate group would vitiate against abortion as well. If women with children are indeed socially subordinate, which arguably they are, the response of a civilized society ought not be to cast aside the source of the vulnerability when, as here, that source is nothing less than a developing child. It ought instead be to deliberate intelligently about how, on the one hand, to increase cultural esteem and support for care work undertaken disproportionately by women while, on the other hand, not pigeonholing women into that work, since they are capable of that and more. A delicate deliberation, to be sure, but not one facilitated by the judiciary’s dominion over abortion in the past four decades.
Read all of it here.
Tuesday, February 16, 2016
A Matter of Interpretation
As the nation grieves the passing of a great jurist, I suspect many of us at MOJ have been thinking about the precise contours of Justice Scalia's towering contribution to statutory and constitutional interpretation. I've found myself reviewing the philosophical and technical differences in Scalia and Thomas' views, and I have been happy to see pieces like this that throw out political categories to celebrate Scalia's achievement for the rule of law.
Mary Ann Glendon's comment on Scalia's 1995 Tanner lectures at Princeton, published together (with comments from Gordon Wood, Laurence Tribe and Ronald Dworkin) in A Matter of Interpretation in 1997, is well worth reading, as a comparatist complement to Scalia's foundational lectures. Glendon republished her comment in the magnificent collection of some of her writings, Traditions in Turmoil. (I couldn't find Glendon's comment online but here is Scalia's lecture.)
The issue at hand in Scalia's celebrated lecture (over two days) was looking at how American lawyers trained almost exclusively in the great common law tradition (at the very least, in the first year of law school) would have the necessary habits of mind to properly interpret statutes (and, well, the Constitution). Scalia reminds us that common law judges performed two functions: applying the law to the facts and making the law [or, depending on your cast of mind, discovering the law according to the dictates of reason]. This, of course, requires resolving the particular dispute at bar by discerning the applicable legal/common law principle, distinguishing this case from prior cases (or not), and applying stare decisis. This is a very different practice from the work of the lawyer or judge in the civil law system (e.g., Germanic) "where it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect, much as academic commentary would be; but they are not binding."
More Scalia:
As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge- the Holmes, the Cardozo - is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule - distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on.
And then, Scalia writes: "All of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy." !! Scalia describes the tension between common law judging ("making law") and separation of powers in the new era of statutes. And then:
But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge - the mindset that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”-is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law....This is particularly true in the federal courts, where, with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law I resolve as a federal judge is an interpretation of text - the text of a regulation, or of a statute, or of the Constitution.
He then offers his robust and deeply influential view of statutory (and constitutional) interpretation as a way to fill the "sad" void of having had "no intelligible theory of what [American judges] do most." ("Whereas legal scholarship has been at pains to rationalize the common law - to devise the best rules governing contracts, torts, and so forth-it has been seemingly agnostic as to whether there is even any such thing as good or bad rules of statutory interpretation. There are few law school courses on the subject, and certainly no required ones; the science of interpretation (if it is a science) is left to be picked up piecemeal, by reading cases (good and bad) in substantive fields that are largely statutory, such as securities law, natural resources law, and employment law.")
Glendon's comparatist comment runs a bit deeper into the historical comparison between the training and habits of the American lawyer in common law and those trained in the civil law, describing both the greater ease with which continental lawyers and judges have taken on constitutional interpretation due to their civil law habits of mind and the way in which those legal traditions could advance our own view of statutory/constitutional interpretation.
When civil lawyers come to American law schools for graduate work, they often express surprise at the degree to which the case method dominates our approach to courses based on enacted law. In particular they find it hard to understand why constitutional law cases and materials typically begin not with the study of the language and design of the Constitution but with a case (usually Marbury v. Madison).
Her suggestion for studying the Constitution in law school, drawn from continental canons of interpretation, will now be quite familiar to anyone who has read Michael Stokes Paulsen's superb book, The Constitution: An Introduction.
Here's Glendon:
One trait that most conspicuously differentiates the Bundesverfassungsgericht's [German Constitutional Court] decisions from those of the American Supreme Court...is the practice of attending consistently to the language and structure of the entire Constitution--to the document as a whole, and to the relationship of particular provisions to one another as well as to the overall design for government....
Up to thirty years ago [now fifty years ago, as this was written in 1997], the typical constitutional law course was heavy on federalism, separation of powers, but light on the Bill of Rights. The obvious remedy would have been to teach the whole Constitution from preamble to last amendment--as a design for self-government as well as a charter of rights, and as a texts whose parts cannot be understood in isolation from one another.
For both Scalia and Glendon, the stakes in properly studying and interpreting both statutes and the Constitution are high: as Glendon puts it, "one of the most basic American rights is the freedom to govern ourselves and our communities by bargaining, education, persuasion, and yes, majority vote." Coming to Scalia's defense on this particular point (as many criticized his views as "vulgar majoritarianism"), Glendon concludes her comment:
[I]s tyranny of the majority really the greatest danger that faces a country when its courts foreclose ordinary politics in one area after another --and when more and more decisionmaking power over the details of everyday life is concentrated in large private and public bureaucracies? Which is more likely: that unruly majorities will have their way, or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few take rise? Whom should we fear more: an aroused populace, or the vanguard who know better than the people what the people should want?
Tyranny, as Tocqueville warned, need not announce itself with guns and trumpets. It may come softly--so softly that we will barely notice when we become one of those countries where there are no citizens, but only subjects. So softly that if a well-meaning foreigner should suggest, "Perhaps you could do something about your oppression," we might look up, puzzled, and ask, "What oppression?"
Monday, January 25, 2016
Conference on Human Ecology in March at CUA
I've been asked to announce the upcoming conference on Human Ecology, co-sponsored by the Napa Institute and CUA School of Business and Economics, March 15-18. Below is the conference summary and you can find more (including speaker bios and conference schedule) here:
Catholic teachings on the common good are comprehensive and universal. They communicate truths and principles which are relevant to every aspect of human flourishing. For the anniversaries of the great documents of Catholic social teaching Rerum Novarum, Centesimus Annus, and our newest addition to Catholic social teaching Laudato Si, CUA and The Napa Institute have convened a conference on Human Ecology that attempts to integrate and convey the wisdom of 125 years of the Catholic Church’ s social encyclicals and eternal teaching.
There is no question that our Catholic faith gives us strong moral motivations to help our neighbor, to help the poor, and to help the many charitable institutions that are run or inspired by the Church. One of the purposes of this conference is to extend our understanding of how our Catholic faith helps to build up a just and flourishing society, and how it may alleviate the material and spiritual poverty facing so many of our neighbors.
Pope Leo XIII in Rerum Novarum wrote that the church’ s desire is that the poor should rise above poverty and they should better their condition in life. He believes that this promotion is most likely to occur through the virtues. Similarly, Pope St. John Paul II in Centesimus Annus notes that the poor are right to ask for a share in the material goods of the society and to make good use for their capacity to work. He notes that in order for this to be the case, certain economic conditions as well as political stability are required for human beings to make good use of their own labor.
Pope Francis in Evangelii Gaudium tells us that business is a vocation and a noble one, it is a vocation provided by God so that each person would be challenged by a greater meaning in life to serve the common good, by striving to increase the goods of this world and making them more accessible to all. InLaudato Si, our Holy Father also examines corporate social responsibility for the common good of an "integral ecology" and the “care for our common home."
What is required for a truly sustainable, widespread, and inclusive prosperity? What is the vocation of business leaders who are committed to their Catholic faith, to the common good, and to the life of virtue?
These are the fundamental questions that our Human Ecology conference will ask in order to spur us all, Church leaders, scholars, and business leaders, to the heights of our own capacities and gifts.
Response to Whole Women's Health amici re women's equality
The amicus briefs in support of Whole Women's Health are pouring in. Scotusblog is of course keeping track here, and Center for Reproductive Rights has posted summaries of the many amici in support of their position. MOJ readers have likely already heard the disturbing news that one brief offered by 100+ female attorneys opens with the line, "I am an attorney because I had an abortion."
I respond to this brief and others supporting the view that abortion is necessary for women's full equality in an article in today's new Boston-based online newspaper, the NewBostonPost. (My complete argument against this position can be found here, and I hope to write more as the March arguments approach.)
The NBP is a pro-life, pro-family paper seeks to provide a more becoming alternative to the Boston Herald. "Although neither partisan nor agenda driven, the NewBostonPost aims to provide a home for conservative, libertarian, classical liberal, and moderate voices in an effort to promote constructive and civil debate on issues of concern to New Englanders and all Americans." Please support their important efforts (here in desolate New England) with a point and a click.
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