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.

Friday, October 31, 2014

"Judicial Review and Judicial Supremacy"

By Rick Garnett

Jeremy Waldron has posted his paper, "Judicial Review and Judicial Supremacy".  Here is the abstract:

 This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary.

In my view, Waldron's critique (here and elsewhere) of certain versions and understandings of judicial review (i.e., the judicial-supremacy version) is important and powerful.  I borrowed from his critique in this very short piece, "Judicial Enforcement of the Establishment Clause."

Here we go again with the "Catholic justices imposing their religion" thing

By Rick Garnett

(Revised)  I was sorry to learn, from this piece, that at an event featuring some of the very best journalists covering the Supreme Court (includes Bob Barnes, Tony Mauro, and Lyle Denniston), an appearance was made by the tired (and unfair) complaint that the annual "Red Mass" in Washington D.C. is (in Mauro's words) a "regularized ritual" reflecting the fact that "[t]he Roman Catholic Church, maybe more than any other churches, has made a project of trying to impose its doctrine on the judiciary and other parts of the government.”  [Note:  I was happy to learn, via Twitter, from Mr. Mauro, that he was referencing someone else's views, and not endorsing this statement himself.]  The Mass is a "ritual" of course, but the sentence about this alleged "project" is unfair, inflammatory, and unworthy, and traffics in some of the (to put it mildly) less-attractive themes in American history.  To propose is not to impose, and to support the enactment of laws that one believes to be consonant with human rights, human dignity, and social justice -- that is, to, like the Catholic Church, advocate for immigration reform, social-welfare programs, an end to capital punishment . . . and religious freedom and legal protection for unborn children -- is not to "impose doctrine."

Another participant, CUA's Marshall Breger, said, with respect to the Hobby Lobby case, said "the notion that the Hobby Lobby owners could be implicit in a sin perpetrated by the company’s employees, in this case taking birth control, was probably rooted in Catholic doctrine."  But, this "notion" was the belief asserted in the litigation by Hobby Lobby and their non-Catholic owners, the Greens.  The Catholic justices did not posit or endorse the belief, but simply note that it was sincerely held and, as a result, RFRA requires careful scrutiny of government-imposed burdens on that belief.  Nothing nefarious -- or even distinctly Catholic! -- about that.

Finally, Lyle Denniston -- whose coverage of the Court is, again, outstanding -- fell short of his usual standard when he said (assuming he is quoted accurately in the piece):   “To accept the notion that a corporation, which is an artificial being, can have some manner of religious belief system transferred to it by its owners, aside from being pretty close to ludicrous, is highly debatable in terms of social philosophy."  Actually, the notion is unremarkable and, in any event, this wasn't really the notion that the Court was asked to accept (see, e.g., pp. 20-25 of the Court's slip opinion).  As Justice Alito explained, neither "corporate" status nor the profit motive categorically excludes a claimant from RFRA's protections.  The question is not whether a corporation has a soul (as some have put it) but whether a law's application to a corporation can impose a substantial and unjustified burden on someone's religious exercise.  And, as the Court explained, sometimes it can. 

Thursday, October 23, 2014

Law and Religion Moot Court at Touro

By Rick Garnett

Check this out.   This Spring, Touro is hosting its Second Annual National Moot Court Competition in Law and Religion.  The line-up of judges looks excellent.  This is a great opportunity for law students!

Bishop Kevin Rhoades on spousal benefits, religious freedom, and Notre Dame

By Rick Garnett

Bishop Kevin Rhoades, of (my own) the Diocese of Ft. Waye-South Bend, has this column in the weekly issue of Today's Catholic, in which he discusses, among other things, the recent court decisions involving challenges to states' marriage laws and those decisions' implications for the religious freedom of Catholic institutions.  He also addresses, in a thoughtful way, the recent announcement by the University of Notre Dame that it will provide spousal benefits to all legally married spouses of employees.

I should note that some critics of Notre Dame's move have suggested that it is inconsisent (or worse!) for Notre Dame to agree to "comply with the civil law" when it comes to providing benefits to all those who are, under Indiana law, "spouses" while at the same time challenging the contraception-coverage requirements in the Affordable Care Act.  I  do not quite see the inconsistency, though.  It is true, certainly, that in both cases, there is the possibility of causing scandal and demoralization to those who care (as we all should) about Catholic institutions' (and especially Notre Dame's) authentic Catholic character and mission.  And, in both cases, the relevant "civil law" -- the HHS mandate, or the Seventh Circuit's decision invalidating Indiana's marriage law -- is vulnerable to criticism as being unsound.  

That said, and for starters, it seems to me that the question whether it constitutes culpable cooperation with wrong to provide spousal benefits through a benefit plan (that is, a contract) that uses the term "spouse" and defines that term with reference to Indiana law might not be the same as the question whether providing coverage for the objectionable "preventative services" constitutes such cooperation.  (In my own view, the nature of the burden imposed by the HHS mandate on Catholic institutions is best framed not in terms of cooperation, but in terms of mission, character, and authenticity.  After all, a law can burden religious exercise even if it does not compel or require wrongdoing.)  What's more -- and not to sound like an Unfrozen Caveman Lawyer -- there is the fact that RFRA is available to challenge the mandate while it would not, I assume, be available as a defense in a benefits-contract dispute between the University and one of its employees.  (I assume that state and federal law would -- at least for now -- allow the University to change prospectively the terms of its benefits-plans, but I have not studied the issue.)          

The University of Notre Dame -- where I am pleased and blessed to teach, study, and live -- aspires to be a distinctively and faithfully Catholic research university that is interesting and excellent precisely because of, and note despite of, the fact that it is distinctively and faithfully Catholic.  This aspiration means -- necessarily and unavoidably -- that the University will be called, sometimes, to decisions and actions that put it at odds with the certain features of our culture.  It's not easy or comfortable, especially for an intellectual community that -- quite correctly -- wants to be an engaged force for good in the world, to resist or dissent from that which either elites or political majorities declare correct or mainstream but, again, sometimes witness and integrity will require it.
 
The regulatory and legal landscape -- in addition to the cultural environment -- for authentically Catholic institutions is, certainly, becoming more complicated and less hospitable.  Navigating that landscape, faithfully, will become increasingly difficult and will involve close decisions and fine distinctions.  Before too long, I - like Bishop Rhoades -- worry that Catholic hospitals, schools, universities, and social-service agencies will be aggressively pushed to the margins, intrusively regulated, and foolishly de-funded.  The struggle to vindicate the religious freedom of these institutions is going to intensify and its uphill angle will steepen.

Friday, October 17, 2014

The answer to this question is "no"

By Rick Garnett

"Should Religion Be Blamed for the World's Bloodiest Wars?", is the title of this book review in The New Republic.  The review is John Gray's, of Fields of Blood: Religion and the History of Violence, by Karen Armstrong.   Here's a taste:

Consistently surprising and illuminating, Fields of Blood should be read by anyone interested in understanding the interaction of religion with violence in the modern world. Relying on detailed historical analysis, Armstrong argues convincingly against the prevailing idea that religion is uniquely prone to acting violently. She is less sure-footed in her account of secular faith and the violence that has been committed on its behalf. When she refers to the “secularist bias” of modern thinking, she seems to endorse the conventional perception of the modern world as having moved away from religion. Yet the logic of her argument pushes in another direction.

Few movements have been as single-minded in their commitment to modernization as Lenin’s Bolsheviks, and few have been so virulently hostile to mainstream faiths. Yet as Bertrand Russell observed in his forgotten 1920 classic The Practice and Theory of Bolshevism, written after he travelled to Russia and talked with Lenin, Soviet communism was from the beginning as much a religion as a political project. Oddly, though it was a rerun on a vaster scale of the French revolutionary terror that she analyzes so penetratingly, Armstrong says practically nothing about the Soviet experience, or about Maoism. Yet, together with Nazism, these 20th-century state cults plant a question mark over the very idea of secularization. Certainly there has been a decline in the old authority of churches, but that does not mean religion is becoming weaker. Simultaneous with the retreat of the mainstream faiths, there has been a rise of a plethora of political religions and an explosion of fundamentalism, sometimes fused in a single movement. . . .

Religious accommodations and legal pluralism

By Rick Garnett

In this piece, ("Religious accommodation's roots in legal pluralism"), Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme."  She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."

Now, for me, unlike Katherine, to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment.  (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.)  But, put that general matter aside:  Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I do not think it is the case that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority."  In practice, and in most of the arguments for religious accommodation, the conversation happens in terms of interest-balancing, toleration, benevolence, getting-along, etc.  

It is true that -- for some of us, anyway --  the idea that the state's authority is both limited and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception.  But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.  

We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control.  But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should.   There is nothing -- to use Katherine's word -- particularly "radical" about that.

Thursday, October 16, 2014

Bradley, "Religious Liberty at a Crossroads"

By Rick Garnett

My colleague Gerard Bradley has a good essay at Public Discourse, called "Religious Liberty at a Crossroads," in which (among other things) he engages some of the criticisms that have been made of the accommodation-and-exemptions features of our religious-freedom-protection regime.   As he writes, "US religious liberty law is not perfect, but it still deserves our support. Religious exemptions witness to the value of religion as a transcendent good."  Of particular importance, Bradley makes it clear why Christians who understand the Christian faith to be true nevertheless have a (non-relativistic, non-emotivist) reason for defending the religious freedom of non-Christians, including the Muslim prisoner in Holt v. Hobbs.

More on the Establishment Clause, "third-party harms", and RFRA

By Rick Garnett

My friends Nelson Tebbe, Micah Schwartzman, and Richard Schragger have a post up at Balkinization in which they discuss the aftermath of Hobby Lobby and the recently argued Holt v. Hobbs.  Among other things, they state that "longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs."  And, they continue, "there are five votes on the Court for the proposition that depriving Hobby Lobby’s employees of contraceptive coverage because of the company’s religious objection violates the Establishment Clause. And that is exactly what is happening right now."

It could be, I suppose, that there would be five votes for that proposition (based on Justice Kennedy's concurring opinion) but, in any event, I continue to disagree with the claim -- a claim that, I realize, other very smart friends of mine accept -- "longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs."  As I wrote, in this short essay, the argument that it would violate the Establishment Clause to accommodate Hobby Lobby (or Notre Dame, or the Little Sisters, etc.) pursuant to RFRA  relies on an overly broad reading of a few relatively short and thinly reasoned opinions, like Estate of Thornton v. Caldor.   This and the other cases relied on do not, in my view, "stand for a broad rule about the impermissibility of costly or cost-shifting accommodations.  And, to the extent that the Establishment Clause does place limits on accommodations that are excessively burdensome to the public or to identifiable nonbeneficiaries, RFRA would seem to incorporate those limits into its standard of review."  And, I added:

[T]here is broad agreement that the Constitution places some limits on the ability of governments to accommodate religious believers and institutions through exemptions from otherwise applicable rules.  An accommodation could be unconstitutional, for example, if it were not "administered neutrally among different faiths." And, again, it is true that in a few cases the Court has treated the burdens that an accommodation would impose on third parties or on the government as relevant to the question whether the accommodation is constitutionally permissible. At the same time, it is worth remembering that any imaginable legislative accommodation will benefit some (i.e., those whose religiously motivated practices are being burdened and from whom that burden is being lifted by the accommodation) more or rather than others. There is no constitutional requirement that the accommodation of religion, "permissive" or "mandatory," be entirely uncomplicated or completely cost-free."

(For a response to my essay, see Andy Koppelman's and Fred Gedick's paper, here.) 

As I see it, Nelson, Rich, and Micah are staking out a claim, and developing what is really a political-morality argument, about what ought to be the case and about how religious objections ought (or ought not) to be accommodated.  It does not seem to me that much in their argument really depends on the Court's authority, or on the binding authority of Caldor, Cutter, etc.  Caldor is just a few pages long, and contains just a few paragraphs of Chief Justice Burger's reasoning, and is devoted mainly to identifying the particular and very unusual features of the challenged law.  As I see it, it tells us very little either about what the Establishment Clause generally means and requires, and even less about the demands of political morality in a pluralistic society.

Wieseltier on Sierra Leone, Ebola, and God

By Rick Garnett

This piece ("This Room Is the Most God-Forsaken and Man-Forsaken Place on Earth") is gut-wrenching and heart-breaking.  Like so much of what the author does, it is -- putting aside the merits of all the claims -- brilliantly written.  Here's a bit:

The problem is that many victims will not be reached by the mitigations and the meliorations. Relief will come late or not at all. The hideous dying will proceed. And so the question of why the little girl perished cannot remain only a policy question. The death of a child deserves to be regarded as an event of cosmic significance, as a comment on the character of the universe. Gazing at Samuel Aranda’s photograph, how can one not recall Ivan Karamazov? The pandemic casts us into a search not only for causes but also for meanings. Theists can blame God, if they have the guts, since for them God exists, but atheists cannot blame God, since for them God does not exist. (“I hate You, God,” Maurice Bendrix acidly declared at the conclusion of The End of the Affair. “I hate You as though You existed.”) Atheists may blame the belief in God, but it is highly implausible to impute this disaster to the illusions of priests. Theists, who cannot tolerate the view that their God is vicious, will almost certainly invent a greater good in the great evil, and thereby protect their faith from the implications of the destroyed children. Atheists will insist that we ought to be acting practically instead of speculating metaphysically—discussing concrete fixes, not occult entities. But who is against fixes? Many of the heroes in the African charnel house are Christian missionaries. In the way of meaning, then, nobody has much to offer. Atheists ought to be struck dumb and theists ought to shut up. And neither a shaken fist nor a bowed head is a contribution to understanding. . . .

Monday, October 13, 2014

Inazu on "Guidelines for Living in a Pluralist Society"

By Rick Garnett

From Christianity Today.  A bit:

Almost all Americans agree about the background practicalities we need to live as a society. Most of us agree that we need public roads, national defense, fire departments, and the like. We also agree today on many basic features of a democratic society: the right to vote, the right to due process of law, the right to free speech. We disagree—sometimes sharply—about the contours of these rights, but we usually have enough of a baseline to recognize the nature of our disagreement. And importantly, we agree about many basic laws, like those protecting life and property, the payment of taxes, and the operation of courts and prisons.

But all of this common ground tells us surprisingly little about who we are as a people, what our goals should be, or what counts as progress. On these deeper questions, Americans remain a deeply divided and pluralistic people. . . .

I think, as a friendly amendment to Inazu, it is important to keep in mind that "pluralism" is not only "the state of things in which many reasonable people disagree reasonably with others in the political community."  It is also "the state of things in which non-state societies are real and do have and exercise authority, authority that is properly seen as constraining and marking the limits of the political authority." 

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