The pastor in China who opposed the regime's removal of crosses from church-buildings is being sent to prison for 14 years. (More here.) Kudos to the New York Times and some other media outlets that often disappoint me -- they've been on top of this big-picture story, I think. And yet . . . "American universities [continue to] open up shop in China." No institution that claims to be committed to academic freedom and the pursuit of truth can afford to become entangled with a political authority that jails pastors for opposing the removal of crosses.
Monday, February 29, 2016
More troubling blows to religious-freedom in China
Sunday, February 21, 2016
Justice Scalia's funeral Mass
You can watch a recording of Justice Scalia's funeral Mass on YouTube, here. It's beautiful . . . especially the wonderful homily preached by the Justice's son, Fr. Paul Scalia. R.I.P.
Wednesday, February 17, 2016
Good and welcome news from Oklahoma on school choice and the "Blaine Amendment"
As I mentioned the other day, Justice Scalia's sudden death could mean bad news in the case out of Missouri, having to do with that state's discriminatory prohibition on aid to religious institutions. However, thanks to Prof. Friedman, we have some good news in a related case out of Oklahoma:
In Oliver v. Hofmeister, (OK Sup. Ct., Feb. 16, 2016), the Oklahoma Supreme Court upheld the constitutionality of the state's voucher program that permits children with disabilities to attend any private school of their choice to obtain special education services, whether the school is sectarian or non-sectarian. The Court held that the program does not violate the "no aid" clause of Oklahoma's Constitution, Art. II, Sec. 5 (Oklahoma's Blaine Amendment), saying in part:
Because the parent receives and directs the funds to the private school, sectarian or non-sectarian, we are satisfied that the State is not actively involved in the adoption of sectarian principles or directing monetary support to a sectarian institution through this scholarship. When the scholarship payment is directed to asectarian private school it is at the sole and independent choice and direction of the parent and not the State. The scholarship funded through the Act has no bearing on state control of churches. We are convinced that the scholarships funded by the Act have no adverse impact on the ability of churches to act independently of state control and to operate separately from the state.
Tulsa World, reporting on the decision, says that in 2014-15, 61% of the the $2.5 million total vouchers went to religious schools.
Disagreeing with Michael Sean Winters on "Justice Scalia's Legacy"
A few days ago, at Distinctly Catholic, Michael Sean Winters posted this, "Justice Antonin Scalia's Legacy." In my view, the piece is mistaken in several ways, starting with the claim that it was Justice Scalia who "helped accelerate the transformation of the court into a political football." In fact, it was a constant and consistent refrain of his, in opinions and in speeches, that one of the many reasons to regret the Court's overreaches and mistakes in politically and philosophically charged areas is that these overreaches and mistakes naturally made the Court and its composition into political footballs. As he (correctly) pointed out, if the Court insists on assuming for itself the power to decide and purportedly settle political disputes over matters that people really care about, it should not be surprised when people come to care a lot about who is sitting on the Court.
Winters pronounces that the Justice was "an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other[,]" referring to "originalism" and "textualism." To be sure, "originalism" (which, contrary to Winters's suggestion, is, in the literature, many things and not one) is controversial and contestible, but it's pretty clearly "tenable" (I've seen it done!) "Textualism" in statutory interpretation anyway is entirely mainstream and unremarkable (thanks in no small part to Justice Scalia). But, Winters does not accurately describe either interpretive method and so the post has a straw-man flavor about it. For example, he confuses Justice Scalia's view with one that asks about the Founders' "original intent." Winters also argues that the two "ideologies" "conflict with each other" but this claim rests entirely on his misdescription of "textualism" as the view that "words must be interpreted in a kind of fundamentalist matter." Nor is "textualism" the view that "the Constitution is a self-interpreting text." Nor is there any conflict between Justice Scalia's view that in statutory-interpretation cases the "legislative history" of the statute is not a helpful guide to the statutory text's meaning and his "originalism" -- which, again, does not involve a "search for explanations as to what was intended by the drafters of a given text."
I share, as a general matter, what I take to be Winters's view that the Court should defer to the politically accountable branches . . . except when the Constitution clearly requires otherwise. (Interestingly, this "deference" is what Justice Scalia called for in his Smith opinion, which Winters regards as deeply wrong.) And I think there is plenty of room for reasonable disagreement about when, in fact, the "Constitution clearly requires otherwise." Justice Scalia thought, in Citizens United, that the Constitution did require otherwise (he was right), and Winters disagrees, which is fine. (I probably agree with Winters regarding the Affordable Care Act cases.) But there's nothing un-conservative (or opportunist or hypocritical) about concluding, from time-to-time, that a particular policy favored by a political majority has been taken off the table by the Constitution or that a particular precedent was wrong and should be abandoned. And, in any event, if one steps back and surveys the Court since, say, the mid-1960s, and asks which justices have been most inclined to invalidate legislative or other policy choices on the basis of adventurous interpretations of the Constitution, I think Justice Scalia appears at least as deferential as the more liberal justices employing "living constitutionalism."
There are lots of interesting arguments to be had about how, exactly, judges should go about identifying the meaning of the Constitution's text, constructing doctrines and standards, and deciding cases. In my view, Justice Scalia's brand of "faint-hearted originalism" has a lot to recommend it over its various rivals and textualism seems clearly the appropriate approach to the business of statutory interpretation. Of course, I could be wrong. In any event, I think it's very important -- when dealing with these debates, and with the three-decades-long "legacy" of one of the most consequential jurists in the post-war period, to engage claims and ideas carefully and accurately (even within the admitted limits of the blog-post format).
Winters followed his "Legacy" post with this one, on the "Consequences of Justice Scalia's Death." (I think his predictions regarding particular pending cases are right, though there is no basis at all for the suggestion that Justice Scalia's Smith decision (his "handiwork") suggests any reservations about RFRA or about the wisdom of and need for legislative accommodations of religion.) Near the end of the post, he returns to the matters I was discussing above:
As I noted yesterday, for all the volumes that have been written about Originalism and Textualism, they are not ideas that are as rigorous as they pretend to be, and even those of us who are not legal scholars, and who may treat them superficially when compared to the treatment they receive from those scholars, nonetheless we sniff what is wrong about them, and the abuses to which Scalia put them. There was a lot about the Founding he seemed not to grasp, not least its intensely anti-Catholic temper. And there is no text for which there is a mere “objective” reading. His ideology made judicial interpretation seem easy, and to the unwashed masses, if not to the scholars of the law, that ease fed their own desire for simplistic political solutions.
Again, there might well be some things "wrong about" (or at least incomplete about) originalism as a method of constitutional interpretation (my own view is that it wins-out in a second-best kind of way) and I'm sure that it (like any method) can be abused (or just inaptly deployed). But, again, I don't think Winters's presentation of what these ideas actually are is accurate and so it is difficult to know how one who endorses his description could really "sniff what is wrong about them." I don't think either of Winters's post actually identifies or presents an argument against "originalism," as Justice Scalia and most contemporary legal scholars understand it, other than to list some decisions (like Heller and Citizens United) that he thinks were wrongly decided and that Justice Scalia wrote or joined. (Readers who are interested in learning more might enjoy this volume, "Constitutional Originalism: A Debate.")
Monday, February 15, 2016
Re-posting some Justice Scalia-related reflections
Here ("Dershowitz v. Scalia on Catholic Social Teaching") is Rob Vischer, reflecting on Justice Scalia's visit to Prof. Alan Dershowitz's criminal-law class. Here ("Justice Scalia, Law, Morality, and Judging") is me, intervening in the discussion about whether there is, or should be, such a thing as a "Catholic judge." Here is Kevin Walsh on Justice Scalia, Pope Francis, and belief in the devil. Here is Marc DeGirolami, discussing his review of Scalia's Reading Law. And, here is Marc again, on Justice Scalia's remarks on the "separation of church and state."
Sunday, February 14, 2016
The loss of Justice Scalia is a loss for religious freedom
I've seen some commentary in which the writers suggest that, because he was the author of the Smith decision, Justice Scalia's work and legacy should not be seen as friendly to religious freedom. This line strikes me as glaringly wrong: Putting aside the fact that Justice Scalia was in the Court majority that moved away (in cases like Agostini, Mitchell, and Zelman) from an unsound and unwise form of "strict separationism" in funding cases, he was also with the Justices who upheld the religious-accommodation or antidiscrimination claims in (for example) Lukumi, O Centro, Cutter, and Hobby Lobby.
His absence will, I fear, make a difference -- and not for the better -- in the pending Little Sisters and Trinity Lutheran cases. It could well be -- and again, this is most unfortunate -- that the change to bury a rule that (paraphrasing Justice Thomas) was "born of bigotry" (that is, the Blaine Amendment-type bans on evenhanded support for students in religious schools) is gone for another generation.
Thursday, February 11, 2016
Mt. St. Mary's, Higher Ed, and Catholic Character
One of the topics we've discussed often, over the years, at MOJ is the challenge (and importance) of building and maintaining meaningfully (and therefore interestingly) Catholic institutions, including universities. The recent news out of Mt. St. Mary's University provides (among other things) an occasion for thinking not only about what it means for a university to be meaningfully, pervasively "Catholic." Does a university's "Catholic" character constrain -- and, if so, how? -- the strategies and tactics that administrators may employ in responding to what they regard as the challenges facing higher-education institution's generally? (Here's another news story, thanks to Crux.)
Thoughts?
Wednesday, February 10, 2016
The Commonweal Editors on the Friedrichs Case
In this editorial, Commonweal asks whether the "Supreme Court will fatally weaken labor" in the Friedrichs case. In my view, the Court's Abood case was wrong the day it was decided and it should be overruled.
Let me start with agreement. The Editors open with this:
Labor unions can be corrupt, obstructionist, and maddeningly bureaucratic. They are also important mediating institutions—John Paul II called them “indispensable”—that serve as a counterweight and check on government as well as corporate power. In that role, unions are essential to the health of democracy, and crucial to promoting participation in the political process.
I agree. (I might insert a caveat, though: It is not clear that public-sector unions consistently or effectively serve as a "counterweight and check on government . . . power." They sometimes support and contribute to government power . . . when that power is being exercised in ways that align with those unions' interests.)
As the editors note, the power and membership of private-sector unions has declined in recent decades, while "[p]ublic-employee unions have remained relatively strong, thanks to the acceptance by government and unions alike of collective bargaining and binding arbitration." As I see it, though, some governments have "accepted" these -- and they have done so when doing so was in the political interests of the parties in power in those governments -- while others have not. One of the criticisms of public-sector unionism, as it is practiced today, is that it too often does not involve negotiation or checking, but instead mutual-benefit arrangements between some politicians, on the one hand, and public-sector unions, on the other.
The editors acknowledge that public-sector unions contribute consistently and generously to the Democratic Party. They write, next, that "[t]he Friedrichs case has been steered through the lower courts by a right-wing libertarian group that is not coy about its hope that in overturning Abood the Court will deal a devastating blow not just to the union movement, but to the Democratic Party." I don't see why this group should be "coy" about wanting to undermine the power of the Democratic Party, especially if -- in that group's views -- the power of the Democratic Party is being unfairly (and, they think, unconstitutionally) augmented through funds obtained not through contributions but through exactions on objecting public employees.
In any event, though, the First Amendment question should be asked and answered without regard to the ideological leanings either of the group challenging the agency-shop deal or the party that benefits from that deal. And, I think that question has a clear answer. The editors suggest, in one sentence, that the First Amendment theory the challengers are relying on is tainted by association with Citizens United (another case that is widely misunderstood and that was correctly decided) and with the "money is speech" theory. But, as many have pointed out, the Court did not say that "money is speech"; it said that "forbidding spending money on speech burdens the right to speak," which it clearly does. Here, the claim is that requiring someone to spend money on speech burdens the right not to speak. (That the freedom of speech includes the right not to speak is well established. See, for example, the classic flag-salute case.) I am sure the editors would agree that it would be unconstitutional for a government to require public employees to contribute, as a condition of employment, to the production, printing, and mailing of political literature for the Republican Party. So, it seems to me, the editors' objection is not really to the claim that mandatory dues implicates the First Amendment, but to the conclusion that the challengers' First Amendment rights outweigh the benefits that agency-shop arrangements provide to public-sector unions. As they conclude:
Free speech has not, and should not, trump every other right or social good. The right of association and the dignity that follows from having an effective voice in the workplace are equally important.
The Constitution does protect the freedoms of association and assembly and I agree that the associational rights of unions "weigh" just as much as the speech rights of employees. However, this case does not implicate the right of public-sector workers to associate; it does implicate the current ability of public-sector unions to require workers to engage in expressive association. Whatever public or moral interest there might be in maintaining that ability is outweighed -- given our First Amendment -- by the objecting employees' rights.
I've written many, many times here at Mirror of Justice that criticisms of some aspects of public-sector unionism, and defenses of public-employees' constitutional right to opt-out of agency-shop arrangements, are not inconsistent -- at all -- with the emphasis in the Church's social teachings on the dignity of work and the important mediating functions of labor unions. Those teachings do not prevent us either from (i) noting the implications and demands of our First Amendment or (ii) pointing out the many ways in which American public-sector unions undermine the common good (e.g., their opposition to school choice and their strong support for abortion rights).
News from Hampton Court . . .
"Palace of Henry VIII Holds First Catholic Service in Nearly 500 Years," the New York Times reports. Progress . . . Next up, the return of the monasteries . . .
Monday, February 8, 2016
Camosy on voting, prudence, and Sanders
Here is a piece by moral theologian Prof. Charles Camosy (Fordham) - author of (among other things) Beyond the Abortion Wars (which I blurbed) -- called "Yes, Catholics May Vote for Bernie Sanders." Charlie reminds readers that Catholics indeed may vote for political candidates, notwithstanding those candidates' unsound views in support of serious moral wrongs, in some cases. And, I think he's right: A conscientious Catholic "may" vote for Sen. Sanders, notwithstanding the Senator's deeply misguided views on (inter alia) abortion.
I believe there are more than a few things to like and respect about Sen. Sanders (and more than a few things -- e.g., his past sympathies for the Soviet Union -- that are highly objectionable). I would hope that not just Catholics, but thoughtful people generally, would see that many of Sen. Sanders's views and proposals are unsound and impractical, wholly and apart from their consonance or not with Catholic moral teaching. That said, as Rusty Reno and others have pointed out, Sen. Sanders (and Donald Trump, for that matter) are, notwithstanding their failures on other fronts, calling attention to the alienation many middle- and working-class Americans feel and to some of the often-overlooked costs of technological innovation, globalization, urbanization, and mobility. This alienation needs to be addressed.
In his post, Charlie asks us to assume a voter who honestly believes that (a) "Republican lawmakers rarely sacrifice other concerns in defense of prenatal children"; (b) "women are structurally pushed toward abortion"; and (c) "Catholics must favor the poor first." He thinks that such a person could have "proportionate reasons" for voting for Sen. Sanders.
There is no denying that Republican politicians have often disappointed when it comes to abortion. That said, I believe that Charlie here (and he's not alone on this) is probably not weighing heavily enough (to be fair, though, he's simply constructing a hypothetical) the reality -- a reality that has to be confronted and cannot reasonably be disputed -- that (i) the Supreme Court's caselaw constrains what can be done on the pro-life front; (ii) within those constraints, non-trivial progress has been made in terms of reasonable regulations of abortion; and (iii) this progress is due nearly-entirely to the efforts of Republican politicians (and the permission of GOP-appointed judges and justices). The argument that "the GOP talks about abortion but never actually does anything" does not square with facts (even if many of us wish more had been accomplished and are frustrated by those occasions when "other concerns" have unnecessarily trumped).
I want to put that matter aside, though, and not "fight the hypo." I'm wondering: more generally, with respect to the "proportionate reason" inquiry: Can "Candidate A supports Good Policy X (for example, "comprehensive immigration reform") be a "proportionate reason" for supporting Candidate A, notwithstanding Candidate A's support for Immoral Policy Y, if (i) Candidate A's election will almost certainly not result in the enacting of Policy X and (ii) Candidate A's election will almost certainly result in the enactment of Policy Y? Given what I take to be the givens in current American politics, the more ambitious social-welfare policies that Sen. Sanders and Charlie's hypothetical voter support are not particularly likely to emerge from a Republican Congress (or, for that matter, an American Congress). If (as I imagine) the arguments about social-welfare and economic policy are likely to stay "between the 40 yard lines" in American politics, but arguments about (say) school choice, religious freedom, and the equal dignity of unborn and elderly persons could turn out dramatically differently, depending on who is in the White House, staffing the administrative state, and picking judges . . . then it seems to me that any prudential judgments about "proportionate reasons" would need to take these likelihoods into account.
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