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.

Wednesday, May 21, 2014

"The Inevitability of Fundamental Disagreement"

By Rick Garnett

Rebecca Brown's review of Linda McClain's and James Flemings book, Ordered Liberty, is up at SSRN.  Here is the abstract:

This review of Ordered Liberty: Rights, Responsibilities, and Virtues, by James
E. Fleming and Linda C. McClain, considers the possibility of reconciliation
between political liberalism and its critics. The book promises such a
reconciliation with a new version of liberalism they call “constitutional
liberalism.” This review essay considers four different topics on which
constitutional liberalism claims to find compromise and concludes that, in the
end, the compromise is elusive. Ultimately, liberalism must choose because
rights cannot be subject to communitarian or majoritarian approval; equality
cannot yield to intolerance; and political status cannot depend on the tenets of
contested moral belief systems. There is great social value in seeking common
ground in the arenas of public life where overlapping consensus is possible; but
on the deep constitutive principles, we search in vain for common ground.

Reading the review, and recalling the book, I'm reminded of the thought that these conversations about "liberalism" can be frustrating because there does not seem to be "common ground" on what, exactly, we are even talking about.  Brown writes, for example -- when treating McClain and Fleming's discussion of freedom-of-association, the following:  "The book acknowledges the tension between allowing private associations to define and compose themselves as they wish (a republican ideal) and the principle of antidiscrimination (a liberal ideal)."  But . . . those of us who think that "private associations" matter tend to regard this as a "liberal" ideal, and to regard as anti-liberal -- as statist -- the view that the state should be able to impose on non-state associations the antidiscrimination (or other) laws that constrain the government's dealings with citizens.

Brown also writes, in a footnote -- in the context of discussing the "dual authority of parents and schools to educate children" and addressing the familiar "why and to what extent do/should/must we 'tolerate' the 'intolerant'?" question -- this:  "It seems right that tolerance should not and cannot extend to groups that practice inequality, because equality is a principle on which liberalism cannot compromise.  But it does not seem accurate to speak of this as an accommodation to those fundamentalist doctrines for which inequality is a foundational tenet."  It is very difficult, for me, to recognize as "liberal" a "liberalism" that cannot (even) "tolerate" groups that "practice inequality."

Of course, folks like my friend and colleague Patrick Deneen would say that I have simply failed to appreciate what "liberalism" really is, that I missed the totalizing, flattening, homogenizing, anti-pluralism that was always and still is there in "liberalism."  Maybe so.    

Monday, May 12, 2014

A good day (like most days) for Eucharistic Adoration (updated)

By Rick Garnett

As the Boston Globe reports, here, today, "the Harvard Extension Cultural Studies Club plans to host a reenactment of a historical 'black mass,' which is believed to mock traditional Roman Catholic rituals."  ("Which is believed"?).  At the same time, "the Roman Catholic Archdiocese of Boston will host a eucharistic procession from MIT to a nearby church for an hour of prayer, hoping to 'combat evil' with positive worship, church officials said."  

UPDATE:  At the last minute, the "black mass" was cancelled.  And, according to reports I've read and pictures I've seen (here, for example) the Eucharistic Adoration was moving . . . and jam-packed.

Thursday, May 8, 2014

"Religious pluralism, civic unity, and the judicial role"

By Rick Garnett

Here is my contribution to the SCOTUSblog symposium on the Town of Greece case.  Here is a bit:

On June 27, 2005 – the last day on the bench, it turned out, for both Chief Justice Rehnquist and Justice O’Connor – the nine Justices managed to issue ten opinions regarding two challenges to public displays of the Ten Commandments.  They disagreed about premises, precedents, methodology, and results, and their work seemed to confirm the widely held view that the Court’s Establishment Clause “jurisprudence” was in “disarray,” was in “shambles,” and was a shuffling “ghoul.”

Those who hoped that nine years and four new Justices might fix the problem were, probably, disappointed by the opinions, even if not the outcome, in Town of Greece.  True, the opinion-count dropped to five, and the Justices professed a welcome, even if not entirely convincing, unanimity with respect to the permissibility-in-theory of legislative prayer and the continuing authority of Marsh v. Chambers.  But, as to the heart-of-things questions about the meaning of the Establishment Clause and the Court’s role in enforcing it through the development and application of judicial doctrines, the Justices seem to have served up – as Prof. Paul Horwitz put it, in his The Agnostic Age – yet another “dog’s breakfast.”  The controversial-but-still-bar-review-black-letter Lemon and endorsement tests were not applied, or clarified, or rejected — just ignored.  Now as before, when it comes to public-religion cases, no single “test” controls, no one factor is decisive, and not much confidence is warranted about the outcome of the next case. . . .

It is not clear . . . why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible.  Several years ago, in an overlong and excessively annotated law-review article, I attempted to show that they should not be.  I reviewed in detail the genealogy of the political-divisiveness inquiry and concluded, among other things, that there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political “urgency.”  After all, and as Chief Justice Burger conceded in Lemon, “political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government.”  Judicial squeamishness regarding messy politics is not a reliable constitutional benchmark, and judicial observations or predictions of “political division along religious lines” are not enough to make controversial policies unconstitutional.

It is true that excessive polarization, disagreement, and division in a political community can be unsettling.  It is also true that one way to avoid “political divisiveness along religious lines” is to constitutionalize, as we did, a rule prohibiting “law[s] respecting an establishment of religion.”  (Another way, Justice Alito suggested in his concurrence, recalling the First Continental Congress, might be to join together in prayer.)  It is also worth remembering, though, the challenges and risks that attend what Justice Kagan called “the distinctively American project . . . of creating one from the many, and governing us all as united.”  We should, as John Courtney Murray once put it, “cherish only modest expectations with respect to the solution of the problem” — and, in particular, with respect to the Court’s ability to solve through Establishment Clause decisions, the problem — “of religious pluralism and civic unity.”

Monday, May 5, 2014

Legislative prayer, "division," and "strife."

By Rick Garnett

To Marc's outstanding analysis I would just add that, in both of the dissenting opinions, the notion that because American church-state law reflects in part a widespread desire to avoid "political divisions along religious lines" and other forms of "strife" and "division" it follows that courts should (a) speculate about the possible "divisiveness" of a policy and (b) invalidate as unconstitutional those that it oberves or predicts to be "divisive" seemed to be doing significant work.  As I have argued, this is unfortunate:

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. 

This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. . . .

Friday, May 2, 2014

St. Joseph the Worker, communism, and labor unions [updated]

By Rick Garnett

I'm a day late, so I missed the chance to re-post this (at least, to re-post it on time).  It links to, and then quotes in full, a nice piece that Susan Stabile wrote, in 2009, for her wonderful Creo en Dios blog.  Here is Susan's text:

Today, the Catholic Church celebrates the memorial of St. Joseph the Worker, one of two days in the church calendar on which we honor St. Joseph.  The memorial was instituted by Pope Pius XII, some say in response to Communist-sponsored May day celebrations for workers.  It is a day dedicated to the dignity of labor and to honoring workers.

Work is central to who we are as human persons.  As our friend Randy Lee once put it, "man does not work because he does not have the wealth stored up to be constantly at rest; man works because his dignity is in creating."  Gaudium et spes speaks of work as the means by which humans develop themselves and in <em>Centesimus Annus</em>, Pope John Paul II observed that humans express and fulfill themselves by working.

This view of work stems from our creation in the image of God; created in the image of God, human are called to co-create the world with God.  We participate in the act of creation, we share in God's creative activity, through our work. 

On this day on which we remember St. Joseph the Worker, we pray in a special way for all workers and we pray that we may develop and use the gifts God has given us to do the work to which He has called us.

[UPDATE:  In the original version of this post, I failed to copy the text from my 2013 post which indicated that I was quoting Susan Stabile's 2009 post.  (That's quite a sentence.)  Regular readers probably noticed the much-improved prose in the quoted material ("Today, the Catholic Church celebrates . . .") but, in any event, I apologize for my mistake and for causing any confusion.] 

I note that my friend and neighbor, Patrick Deneen, posted a May Day essay at The American Conservative, called "How Red (State) is Marx?", in which he (among other things) identified "the kind of Marxism we need today. People who really want to work, make things, build families and communities and dig deep roots—Unite!"  I get the point, but, for me, what some (with justification) call Victims of Communism Day is not the best day for those who believe in human dignity to talk about what "Marx got . . . admirably right."  Even if it is true -- and I think that Patrick overstates the point -- that "capitalism is unforgiving to 'conservatives,' those who care about neighborhood, Church, family, loyalty, tradition" (what "Marx got . . . right"), I regard it (cue the "neo-con!" and "Randian!" charges, I guess) as beyond reasonable dispute that the triumph of democratic capitalism (in the substantially regulated form it takes today) over Marxism (etc.) in the economic order is a good thing . . . . and something that makes it possible for more people to actually, [UPDATE:  in Susan Stabile's words,] "use the gifts God has given us to do the work to which He has called us."

My friend Michael Sean Winters also remembered to celebrate St. Joseph the Worker on the correct day, and he posted a piece about the "long, profound relationship between Catholicism and workers and specifically organized labor" that, in his view, needs to be "central again."  I won't bore readers (or Michael Sean) with my often-expressed view that it is not "libertarian" (or Randian, or neo-conservative, or right-wing) to insist that respect for work and workers, and for the rights of workers to associate and advocate for their interests, does not require (indeed, today, it cannot require) support for all of the political and policy goals of organized labor -- especially the hostility of teachers unions to school choice -- in America today.  (I do not think, by the way, that it is accurate to say, as Michael Sean does, that "organized labor is the only part of the left-liberal political coalition that has never signed on to Roe v. Wade."  Different unions and organizations that are part of "organized labor" have taken different positions, and some -- not all, true -- have supported the right to abortion and opposed regulations of abortion.) 

I also think that it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions.  (The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minion and Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It is notgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

In any event, here in St. Joseph County, by the St. Joseph River, this member of St. Joseph Parish, whose kids attend St. Joseph Grade School, says . . . St. Joseph the Worker . . . pray for us!   

Wednesday, April 30, 2014

"Sector Switchers" and Catholic Schools

By Rick Garnett

A new report from the Friedman Foundation, called "Sector Switchers," is looks at "why Catholic schools convert to charters and what happens next."  Here's a bit from the summary:

For decades, Catholic schools, particularly inner-city Catholic schools, have seen declines in enrollment and an increasing need for subsidies from their dioceses. Many dioceses, however, have been unable to shoulder that burden, forcing schools to close. In response to difficult financial circumstances, the archdioceses of Indianapolis, Miami, and Washington, D.C., put a new twist on the typical story, “closing” a set of their inner-city schools, but allowing them to reopen as independently managed public charter schools.
 
That phenomenon raises interesting questions about the future of urban Catholic schooling. In this paper, we examine, both qualitatively and quantitatively, the effect of this conversion on the schools and communities involved.
 
As a general matter, I would strongly prefer that Catholic schools remain Catholic schools -- schools where a Catholic mission and commitment pervades the entire enterprise -- rather than "thriving charter schools in buildings that once housed Catholic schools," even if these charters are accompanied by various before- and after-school religious-education programs.  I support the charter-school movement -- very much! -- but believe tax credits and scholarships are essential to a just public-education-funding regime (because what happens in Catholic schools counts as "educating the public" it should be funded by the public).

A church-autonomy decision in Canada.

By Rick Garnett

A story of interest:

A breakaway group of Anglican parishioners has been dealt a deathblow in their legal battle over ownership of a Riverside church.

The Supreme Court of Canada has refused to grant St. Aidan’s parishioners leave to appeal, dismissing their case with costs.

The group of about 100 parishioners broke away from the Anglican Church of Canada in 2008 over the church’s acceptance of same-sex marriage and other disagreements over interpretations of Scripture. The group joined the Anglican Network in Canada and went to court over ownership of the church building on Wyandotte Street East.

The Superior Court judge who heard the case in 2011 ruled the church assets belong to the Diocese of Huron, not the parishioners who amassed them. The parishioners appealed, but last year had their case dismissed by the Ontario Court of Appeal.

More here.

The execution in Oklahoma

By Rick Garnett

What went wrong Tuesday in Oklahoma "will not only cause officials in that state to review carefully their execution procedures and methods," said Richard W. Garnett, a former Supreme Court law clerk who now teaches criminal and constitutional law at the University of Notre Dame, "it will also almost prompt many Americans across the country to rethink the wisdom, and the morality, of capital punishment."

"The Constitution allows capital punishment in some cases, and so the decision whether to use it or abandon it, and the moral responsibility for its use and misuse, are in our hands," he added.

More here.

 

Tuesday, April 29, 2014

A(nother) mean-spirited attack on religious-liberty supporters at Slate

By Rick Garnett

As Howard Wasserman notes (here, at Prawfsblawg), Mark Joseph Stern -- who writes regularly at Slate -- wrote a snarky hit-piece (my characterization, not Howard's) in which he accused "conservatives" of "hypocrisy" for not rising up in opposition to a North Carolina law that, he claimed, makes it a crime for "houses of worship to honor lifelong commitments they deem worthy of solemnization in the eyes of God."  

A law that purported to make it a crime for a religious community to include same-sex unions in its religious understanding and practice of marriage would, certainly, violate religious freedom.  And, I suspect that most, if not all, of those whom Stern charges with "hypocrisy" think as much.  As Ramesh Ponnuru and others have explained, though, Stern apparently misunderstands the North Carolina law he's writing about and so his "hypocrisy" charge is both unwarranted and uncharitable.  But, Stern has a practice of characterizing religious-accommodations and RFRA-type laws, and those who support them, in rhetorically excessive and inaccurate ways.  It would be nice if Slate made an effort to facilitate more thoughtful contributions to the debate.

Monday, April 28, 2014

"No rules for me . . . I'm free."

By Rick Garnett

Odds are that MOJ readers have been hearing, as I have, the song "Let it go", from the movie Frozen, a lot.  I mean, I've been hearing it a lot.  Even my 20-month-old son wanders around the house singing the chorus at the top of his little lungs.  It's adorable, even if . . . repetitive.  But, unfortunately, there's this:

It’s time to see what I can do
To test the limits and break through
No right, no wrong, no rules for me
I’m free.

Ummm, no.   Sigh.

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