Like most people, I do not know exactly all that is contained in the tax-related proposals that have emerged from the House and the Senate, and I'm not sure what will be in the tax legislation that eventually is enacted and signed into law -- if anything is. (Given that things so rarely get "signed into law" these days, it's hard for me to be confident that anything will be.) These two proposals contain some specifics that strike me as good policy and some that do not. The process that is producing the proposals and that will (perhaps) eventually produce the legislation is, in my view, impossible to admire, but -- again -- I'm afraid it's been a while since our national legislature did much legislating.
My social-media feeds and the commentary I'm reading -- particularly from public Catholics, including bishops -- are largely skeptical, critical, or worse about these proposals. My sense is that some skepticism and criticism are warranted, but also that some of the denunciations are exaggerated, underinformed, and/or overwrought. We'll see.
What, if anything, do "Catholic Legal Theory" or the Church's social-teaching tradition have to say about all this? Judging, again, from my social-media streams, many are confident that the answer is "a lot of very specific things." I don't think that's right. A few thoughts . . .
First, although it's not a distinctively "Catholic" position, it is a position that Catholics and everyone else should endorse that, generally speaking, that law-making should be characterized by "regular order", due consideration, deliberation, and transparency. At present, our federal law-making is not.
Next, I feel confident that the Gospel and the social-teaching tradition do not prescribe any particular mechanisms for political communities' important task of raising the funds necessary to do what political communities ought to do. As I see it, a political community's taxation policies should be seen as, and should function as, a mechanism for that task, and (pretty much) only that task.
Third, this mechanism should function well, not poorly. That is, it should efficiently, justly, and intelligently raise the necessary funds, in ways that do not create counter-productive incentives and wasteful losses, that are constrained by law and due-process norms, and that impose proportionate burdens across the board.
Fourth, political communities should be willing, in normal circumstances (i.e., not war), raise as much money (through taxation and other means) as they want to spend, and should not spend more than they are willing to raise.
With these four points in mind, I'm inclined to think that the taxation mechanism should not be used for policy purposes other than raising funds, although I realize that, in our world, it is used for other purposes (e.g., encouraging and subsidizing home ownership), even though I wish it were not. I'd like to see those other purposes pursued in more transparent and direct ways.
Friday, December 1, 2017
Mark Rienzi and Stephanie Barclay have posted their forthcoming paper, "Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions," on SSRN. Here is the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
Wednesday, November 29, 2017
A few days ago, thanks to the good people at the Lumen Christi Institute at the University of Chicago, I was able to participate in a panel/conversation about last year's Trinity Lutheran case with my friends Andy Koppelman and Dan Rodriguez. The video of the event is available here. (As you'll see, the video-producers substituted some bald guy for me but the words and bad jokes were mine.)
Sunday, November 26, 2017
Today is the Solemnity of Christ the King. In my experience, preachers in Catholic parishes don't know quite what to do with this Feast. Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should).
And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion. This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."
So . . . Here is a little Solemnity-appropriate reading: Pope Pius XI's Quas Primas. Great stuff. "Viva Cristo Rey!"
UPDATE: More, on Miguel Pro, S.J., here.
Monday, November 20, 2017
I'm looking forward to this event -- a discussion about the Trinity Lutheran case and its implications, with my friend Prof. Andrew Koppelman -- in Chicago today. CLE credit is available. If you're around, stop by!
Tuesday, November 14, 2017
A bracing, sobering read, here, about the state of Catholic higher education and some of the forces that are shaping it. I share many of the author's concerns about many of the particulars mentioned, though I think it sweeps a bit too broadly in places and also neglects the good things that are happening -- and, in many respects, the Catholic-identity improvements that have happened in recent years -- at my own University of Notre Dame. The author writes:
Still, despite all the evidence that most Catholic colleges and universities have lost their way, cause for hope exists in the flourishing of Catholic colleges—Christendom, Franciscan, Ave Maria, the University of Dallas, Wyoming Catholic, John Paul the Great, St. Thomas More College in New Hampshire, California’s Thomas Aquinas, and others—that remain committed to a Catholic identity.
I share this admiration for much of what's happening at these newer, smaller, intentional Catholic colleges. At the same time, "cause for hope exists in the flourishing" of, e.g., the McGrath Institute for Church Life, ND Vision, Echo, the Alliance for Catholic Education, the Program on Church, State & Society, the Center for Ethics & Culture, the Tocqueville Program, etc. As I've said before, if one cares about Catholic higher education (and, in my view, we all should), then one should care about, and pray for, Notre Dame (and not just the Fighting Irish!).
Monday, November 13, 2017
Touro Law Center is pleased to announce the Fifth Annual National Moot Court Competition in Law and Religion. More info is available here.
Friday, November 10, 2017
As Marc mentioned the other day, the annual Fall Conference sponsored by the Notre Dame Center for Ethics & Culture is in full swing. (It's always a wonderful event.) I had the pleasure of moderating a panel of law-professor-Criminal-Law-profs, including our own Marc DeGirolami and Cecelia Klingele, and also MOJ-friends John Stinneford and Meghan Ryan. It isn't always the case that multi-speaker panels actually cohere with each other, or with the panel's ostensible theme, but this one definitely did.
Meghan provided an overview and orientation of the various purposes and goals of punishment; John reflected on what exactly "punishment" is and the extent to which it is (or should be) connected to moral blameworthiness (and not merely social control); Marc discussed the different ways we have talked about, and talk about today, "evil" (with reference to, inter alia, Arent, Mill, and Stephen); and Cecelia rounded things out with some cautionary notes about the moves in Criminal Law and corrections in the direction of algorithm-driven risk-assessment and big-data-dependent predictive policing. A good time was had by all!
