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.

Tuesday, November 1, 2005

"Gangs of MOJ" Brawl Continues

I'll have to blog very quickly and briefly, continuing the Catholic-Protestant mix-up that Rick and I have started.

On my point that, apart from whether Protestantism was a good development, the mere fact of the Reformation ushered in fundamental disagreement:  Rick is right that there was dissent before then, but surely the Reformation level of disagreement -- the size, power, and determination of both sides -- marked a fundamental break in Western Europe.  The continent had to deal with pluralism of a nature and degree it never had before.  Many things stemmed from that, including tyranny in some places (including in England directed at Catholics).  But the effects also included a proto-federalism (as in the "whose the rule, his the religion" solution of 1555) and eventually, as it became clear that dissenters were still around in each place, rights of individual conscience.  To treat England under Elizabeth and James as the epitome of Protestant arrangements is to pick out the worst case -- the most Erastian (state ruling church) variation -- and overlook what developed later out of Protestantism in England, America, and elsewhere.  And by Murray's own account, the degree of religious diversity in (Reformation-influenced) America was at a new level and called for a further limiting of state power.

Second, I acknowledge the important contribution made by the medieval fight for the "freedom of the church" that Murray and others have described.  But I think it would be way too easy to say that this was the determinative battle for institutional pluralism and freedom, and pass over the difficulties that the Church had over the next 700 years in acknowledging a similar freedom for any non-civil institution besides itself.  We can contextualize the Syllabus of Errors, "error has no rights," and the defenses of monarchy as against democracy --and it's important to do that contextualization -- but even after that's done, I think there remains an undeniable, irreducible sense in which the Church was formally negative for a long time about freedom for institutions other than itself, and sought arrangements in which (to oversimplify) there were not multiple sources of authority, meaning, and power in society, but two sources, civil authorities and the Church.  America was quite different, but largely because the American Catholic Church contextualized the Syllabus and those other things practically out of existence.

And for all of America's plank in its own eye with respect to Catholic freedom, it was in early America -- with a largely Protestant rather than Catholic influence at that point -- that the model of a full array of non-state social institutions, with varying religious and non-religious bases, really took shape.  Protestantism was not, and is not, incompatible with a thick civil society, as various writers such as the Dutch "sphere sovereignty" Calvinists show.  (My comment that Protestantism led directly to all the problems of "unmitigated individualism" was meant as partly tongue in cheek.)

Let me emphasize that I think (and have written) that there's been loads of Protestant triumphalism over the centuries, claiming that Catholicism stood for nothing but ignorance and persecution, and that Protestantism's emphasis on the individual is the key to freedom of all kinds.  These claims have been both wrong and dangerous.  But recognizing that fact should make one all the less inclined to substitute a Catholic triumphalism, under which the Church's fight for its freedom solved the basic problem, and after that the Protestants messed everything up by enthroning the individual.  (I'm not at all saying that Rick goes there; I'm just saying let's be wary about moving in that direction.)

Tom   

Conservative Catholics on the Court

A few thoughts to add on why the Catholics on the Court now make up a majority and why they're the conservative wing.  (Note that one of them is a bit of an accident: Thomas, who converted back to Catholicism after he joined the Court.)   

The current position of Catholics in America really begins with Vatican II and the "mainstreaming" of Catholics beginning in the mid to late 1960s.  Since then, Democratic presidents have had relatively little chance to appoint justices -- Carter had no opportunity -- and Clinton in his opportunities  appointed justices who weren't Catholic (who were Jewish).  It's not surprising that conservative presidents would have many more chances to appoint Catholics, because they've had many more chances overall.

Republicans recently have used their opportunities to appoint a lot of Catholics (a disproportionate number), for a couple of reasons.  There may be some element of political calculation in it: for example, W Bush using SCT appointments among other things to try to cement conservative Catholics' ties to the Republican party.  I don't think that's been a big factor, but it could have played a role.  In addition, however, I have a sense that the other component of the conservative religious coalition -- evangelical Protestants -- hasn't yet developed a pool of lawyers/judges with elite educational and professional credentials that's as large as the conservative Catholic pool.  Evangelicals are attending Ivy League schools, but they're perhaps a decade behind the Catholics in doing so.  (Watch for an incerasing number of evangelicals in the future.)  And the clumsy interventions of people such as James Dobson in the Miers nomination may show that some evangelical activist leaders aren't quite ready for prime time yet.  Judge Michael McConnell would have been the sterling nominee who happens to be a conservative Protestant (I confess to bias on that matter, as his co-author, former student, and friend).

Tom

Monday, October 31, 2005

More on Alito and State Immunity

I should make clear that I think the Court's 11th Amendment immunity jurisprudence is poor constitutional interpretation and does mostly reflect the general policy preferences of the conservatives (to figure out "some way to protect the states").  And maybe Alito, as a general conservative, will take the 11th Amendment jurisprudence and run with it as a justice.  I just don't think that the FMLA case is a great piece of evidence.  And because it lends itself to good sound bites, it will be used a lot against him, more than I think is warranted.

Tom

I Awake, and Rise to Rick's Challenge!

All right, Rick!  Let's have a good old fashioned Protestant-Catholic brawl on Reformation Day.

I don't know exactly what the argument underlying your thesis is, and I might actually agree with it.  But here are two thoughts that should at least call it into question.  One is that the Reformation emphasized the importance of individual conscience, which certainly plays an important role in arguments for political freedom.  (I know, I know, unmitigated individualism leads to (a) the need for a Hobbesian Leviathan to control things and (b) unrestrained wants for which people demand big government to make provision and (c) the destruction of intermediate institutions; and the Reformation brought all that on.  We'd have to have a long conversation about whether Protestantism meant unmitigated conscience, and what the status of conscience was in medieval Catholicism, and probably some other things as well.)

Second, just the very fact of fundamental disagreement leads ultimately to government having to provide greater freedom.  This I take to be one of the theses of John Courtney Murray in his argument in the late 1940s that the religion clauses were "articles of peace, not articles of faith."  And it was picked up by Gerry Bradley in his 1987 article on the "no religious tests" clause, arguing that the religion clauses stemmed from the practical fact of pluralism rather than from a theory of individual conscience (for which Protestants have tended to claim credit).  (Is there a difference between political and religious freedom on this score?)  But even if the rationale for freedom was the fact of disagreement rather than the idea of individualism, isn't the Reformation also responsible for the fact of disagreement?

Tom

Alito and State Immunity

I want to publicly welcome Eduardo Penalver to the blog -- great to have you!  I won't deny the point that Alito is conservative -- more than I'd like, probably, on several issues.  Concerning the Family and Medical Leave Act case, though, my sometime assignment to teach federal courts makes me conclude that he was just following the Supreme Court's lead at the time he wrote the panel decision in that case.  When Alito wrote the decision (Chittister, here) in 2000, the SCT had for several years been greatly expanding the immunity of states from damages, and severely limiting Congress's ability to abrogate immunity through legislation enforcing the Fourteenth Amendment.  One of the broadest pro-immunity decisions had just come down in 2000 (Kimel), holding that age discrimination suits against states for damages were barred by state immunity. 

The SCT's Hibbs decision of 2003, holding that the Family Medical Leave Act did validly abrogate the state's immunity, came as a big surprise.  By the time of Hibbs, the Court had suggested that to abrogate state immunity validly, a federal statute had to protecte a class that was "suspect" under Fourteenth Amendment decisions, such as race or sex -- Kimel said age discrimination didn't qualify, and the disability act was struck down as violating state immunity (Garrett, 2001) -- and also that it had to protect that class against intentional discrimination vs. just discrimination in effect (that's how the Religious Freedom Restoration Act fell in 1997 in the Boerne case).  Finally, in in Garrett and other cases, the Court required overwhelming factual records to justify applying the laws to states.  But the Court then turned around in Hibbs and held that the Family Medical Leave Act prevented sex discrimination, even though its terms apply equal to male and female employees.  How FMLA could satisfy the Court's earlier, tough tests has never been clear.

I don't think Alito can be faulted for reading the tea leaves wrong on this one -- or more accurately, for the fact that there were no tea leaves to read that would have suggested Hibbs was on the way.

Tom

Catholic Social Thought and a Theory of Precedent?

In doing a public-radio interview this morning on the Alito nomination, I was struck again by how much concerning his ultimate decisionmaking on the Court might turn on his approach to precedent (stare decisis).  How much deference should a justice give to past decisions, and what factors should s/he consider -- and in what order of importance -- to decide whether to adhere to or overrule past decisions?

Abortion rights are obviously a major issue in this regard.  But to take just one other issue, Alito has shown some inclination to be vigorous in limiting Congress's legislative power over economic matters.  For example, in a 1996 dissent in U.S. v. Rybar, he argued for striking down the federal law prohibiting the possession of machine guns (I'm not saying that he was incorrect on that; I'm just using the case to raise the issue).  Would he go as far back as Justice Thomas in restricting the commerce power (doubtful), or would he be more like Scalia and Rehnquist, or Kennedy and O'Connor (who have made only moderate cutbacks)?  That question could depend significantly  on the extent to which, even if he thinks the Commerce Power was meant to be narrower than it's become, he nevertheless thinks many of the broad precedents should be followed as a matter of stare decisis.

Constitutional theory about stare decisis and the weigh of precedent is less well developed -- fuzzier -- than are the various theories about the substantive interpretation of the Constitution (originalism, political-process theories, etc.).  And a lot of prudential calculations go into it, including, I think we ought to admit, assessments of the nation's mood (which bears some relation to, even if it's not the same as, the degree of societal reliance on a past decision, which is a reocgnized part of the analysis about whether to follow precedent).  That's why some anti-fuzzy scholars like Mike Paulsen hate for precedent to play any significant role in constitutional decisions.

In our discussions about Roberts and precedent, we've mostly discussed whether Catholic moral positions on substantive questions such as abortion should override any prima facie duty to follow precedent.  I'd like to ask a different question now:  whether Catholic social thought has anything to offer on the question of precedent itself in law and legislation.  Does the tradition have anything to say on the values of stability versus the values of getting some question right?

I'm not asking about Catholic insights on stare decisis as to Church teachings on faith and morals (where there is the argument that the Church doesn't get things wrong, or is at least guided by the Holy Spirit in ways that the Justices are not).  I'm asking about Catholic insights, from the social-teaching tradition, on the issues of stability, reliance, etc., in civil matters.  And could a justice be legitimately informed by Catholic thought (or religious thought, or general moral reasoning) on that general matter?

Any thoughts on this from co-bloggers or readers?

Tom

Alito on Free Exercise of Religion

In addition to other opinions that will be discussed (most notably his dissent in Casey that would have upheld spousal notoficiation for abortion), Alito is also the author of what is currently one of the most important decisions under the Free Exercise Clause: Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999).  The decision held that a Muslim police officer had a constitutional right to wear a beard as required by his faith, notwithstanding a police department rule prohibiting facial hair, because the department had already made a similar exception for officers needing to wear a beard for medical reasons (such as a sensitive-skin condition).  The opinion has been highly influential in the wake of Employment Division v. Smith, the peyote case, which had rejected  exemptions from law for religious conduct when the law in question was "neutral and generally applicable."  Alito, in a careful opinion, wrote that the presence of the other major exemption made the department policy not generally applicable and suggested that the department regarded other interests as more important than the constitutional right of religious exercise.  This is the best reading of the free exercise right, I believe, but it was not compelled by precedent.  It suggests a hospitable attitude on Alito's part toward religious freedom, within the bounds of precedent and the historical purposes of the Free Exercise Clause.   And as the case indicates -- and as with so many cases involving free exercise -- a hospitable attitude toward religious freedom is also a hospitable attitude toward religious and cultural (even ethnic) minorities such as Muslims.

Alito has written several other opinions concerning religion and the state under the First Amendment (see here and here for starts at analysis). 

Tom

Saturday, October 29, 2005

The Ultimate "Driven to Church on Sundays" Used Car

From Reuters:

The only car the late Pope John Paul II ever owned sold at auction for $680,000 on Saturday to a Houston attorney and car collector. . . .

The 1975 powder-blue Ford Escort went on the auction block in Las Vegas after a father-son ownership spat was resolved earlier this month. . . .

Pope John Paul, who died in April, drove the car himself and put 60,000 miles on it before giving it in 1996 to Kruse International, an Indiana rare automobile museum and auction house, to sell with the proceeds going to charity.  [That buyer then had the father-ownership spat and auctioned the car again this year. -- ed.]

The prospective auction was discussed in May in this story, which includes details like: (1) the car came with the rosary beads that John Paul threw in as part of the 1996 deal; (2) the late Pope used the car to get away for hikes (or maybe for gelato, see here); and (3) Benedict XVI has yet to reach his predecessor's name recognition but is off to a respectable start, given the six-figure price his former VW Golf fetched on E-Bay this spring.

Tom

Friday, October 28, 2005

"More Catholic than the [Catholics]"?

A new Harris Poll has some interesting numbers on public opinion concerning various "healthcare policies, programs, and practices."  Major pattern: "the attitudes of Catholics are generally very similar to those of all adults and, on some issues, very unlike the official position of the Pope and the Church."  On these issues, it looks like more evangelical Protestants than Catholics are reading the encyclicals:

Birth control/contraception is supported by 93 percent of all adults, including 90 percent of Catholics and 88 percent of born-again Christians, the "very religious" and Evangelicals.

Condom use to prevent HIV and other sexually transmitted diseases is supported by 92 percent of adults, including 93 percent of Catholics, 82 percent of born-again Christians, 83 percent of the "very religious" and 81 percent of Evangelicals

Embryonic stem cell research is favored by 70 percent of all adults, including 70 percent of Catholics. However, it is supported by only 45 percent of born-again Christians, 38 percent of Evangelicals and 51 percent of the "very religious."

Funding of international birth control programs is supported by 70 percent of the public, including 66 percent of Catholics, but only 53 percent of born-again Christians and 48 percent of Evangelicals.

I know that Harris has a reputation as a "liberal" poll, which may lead it to overstate overall support for some of these measures.  (Among "healthcare policies," they include "abortion rights" and get a pretty high number of support (63 percent) for that undefined term.)  But it seems less likely that any bias in the poll affects the relative numbers of Catholics, the overall public, and evangelicals.

Tom

Monday, October 24, 2005

Moral Disapproval and Animus

I appreciate Richard's comments on the Kansas case, which I think go straight to the heart of important issues.  He points out that the 18-year-old defendant might have been characterized as a "sexual predator," with two previous offenses with younger teens.  But I think that this highlights the problem with the "Romeo and Juliet" law.  Under it, no 18-year-old boy engaged in repeated opposite-sex acts with 14-year-old girls can be treated as a sexual predator; the maximum sentence is 15 months, and there can be no post-sentence probation or sex-offender registration, the legal marks that brand someone as a predator.  I don't think it's unfair to say that the law treats all those opposite-sex acts as involving "our kids," who are redeemable and therefore shouldn't have their lives unalterably put our of whack by a long prison term.  No matter how repeated the behavior, we're going to try to understand this person as a kid whom the law should handle carefully.  But the statute doesn't give such consideration to teenagers engaged in same-sex acts.

I don't think that classifying homosexuality as an "objective disorder" is irrational, or that courts should hold it to be irrational as a constitutional matter.  But can that classification come close to bearing the weight that the Kansas differential statutory scheme puts on it?  At some point, it seems to me, the state's treatment of a person resembles less a judgment about the objective disorder of this particular conduct, or this particular aspect of a person's life, and more a judgment than the person as a whole is irredeemably flawed and unworthy of respect from society.  After all, there are people out there -- including some from Kansas -- carrying "God hates fags" signs.  Can we really assert that such sentiments don't play a considerable role in the passage of laws like this with such huge potential differences in prison terms?

I have said that I think the constitutional questions are tough, because moral disapproval of conduct is a rational basis for legislating and I worry that courts won't try to draw sensitive lines between that and pure hatred or dismissal of the person.  Moreover, the strongest objections here may go to the individual sentence, which could be attacked under other legal theories.  But as I understand Catholic thought, it draws the line between disapproval of conduct and dismissal of the person, and so I don't think that Catholic legal theory should rule it out a priori as a line for courts to draw.  Maybe it's a judicially unmanageable line to draw in constitutional review, but we shouldn't conclude that without further exploration of the kinds of distinctions that might help in drawing the line.  To reiterate, the problem is not per se with treating homosexual conduct worse, but rather with the nature and severity of the differential treatment.

I think that Richard's post, in citing the Bradley and George approach in their Lawrence brief, runs the very same risk that their brief runs:  harming the traditionalist's ability to critique the culture of "anything goes" heterosexuality.  Yes, one can make the distinction that the opposite-sex activity is bad while the same-sex activity is worse.  But when the differential in legal treatment one is trying to defend is so great, one inevitably ends up sending one of two messages:  either (1) the same-sex behavior is just horribly, horribly atrocious, or (2)  the opposite-sex behavior really isn't so bad.  Since message #1 starts to shade over in the public view into animus (which loses the argument constitutionally and otherwise), there's a strong tendency for the message also to include some of #2 -- that the opposite-sex behavior isn't really that bad -- which is what undercuts the traditionalist cultural critique.

Obviously, this last point goes not to the constitutionality of laws like the Kansas one, but only to the prudence of enacting -- and defending -- them.  I realize that, once a really bad law gets enacted and challenged (and isn't repealed because of the challenge), there are reasons to defend it because of the need to defend certain broader principles that striking it down would endanger.  The most obvious conclusion to draw from all this, I guess, is that -- to the extent traditionalists lawyers and legal scholars have any influence over legislators -- they should (and I imagine many do) say vehemently to the legislators:  Don't pass laws like this!  Don't push us toward having to defend them!

Tom