Wednesday, April 25, 2012
Our own Robby George was sworn in to his new post as a commissioner on the US Commission on International Religious Freedom yesterday. Justice Elena Kagan administered the oath, and Daniel Mark--one of Robby's graduate students at Princeton--held the Bible.
Saturday, April 14, 2012
I agree with Marc's comments about some mischaracterizations of the law of religious freedom that have been flying around the past many weeks, and, as he notes, we have both commented on a post about Employment Division v. Smith by Cathy Kaveny over at the Commonweal blog.
Speaking of our friends at Commonweal, it's remarkable for a document that invokes Martin Luther King's "Letter from a Birmingham Jail" and criticizes a state anti-immigration statute and the exclusion of many predominantly African-American churches from worshipping after-hours in New York City public schools to be swept aside as an exercise in partisanship. But that's just what the Commonweal editors have done in this editorial. Like Marc, I find much to commend in "Our First, Most Cherished Liberty," including its use of a range of specific examples, adapting the American idiom of religious liberty to a Catholic context, the judicious use of theological and historical sources, and a pastoral sensibility about the challenges facing Catholics today. The document leaves on the table one of the more potent points that could have been lodged against the Obama Administration, namely the Administration's brief arguing against the ministerial exception in Hosanna-Tabor v. EEOC. I just don't see throwing the label of partisanship around as an especially interesting or useful exercise. Catholics on the left bristled at allegations of partisanship from conservative Catholics upon release of the bishops' pastoral letters on the economy and war in the 1980s, conservative Catholics bristle when pro-life advocacy is deemed mere partisanship, and around and around we go. So here's a proposal: in this election year, let's talk about the merits of particular issues drawing upon the rich tradition of Catholic thought, avoid cheap allegations of partisanship against the bishops or anyone else, and let the electoral consequences fall where they may.
Thursday, April 12, 2012
The USCCB's Ad Hoc Committee for Religious Liberty has just released this document, which includes a number of interesting historical and theological arguments. Here's a brief excerpt:
Religious liberty is not only about our ability to go to Mass on Sunday or pray the Rosary at home. It is about whether we can make our contribution to the common good of all Americans. Can we do the good works our faith calls us to do, without having to compromise that very same faith? Without religious liberty properly understood, all Americans suffer, deprived of the essential contribution in education, health care, feeding the hungry, civil rights, and social services that religious Americans make every day, both here at home and overseas.
What is at stake is whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Religious believers are part of American civil society, which includes neighbors helping each other, community associations, fraternal service clubs, sports leagues, and youth groups. All these Americans make their contribution to our common life, and they do not need the permission of the government to do so. Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations.
Monday, March 26, 2012
Congratulations to our own Robby George upon his appointment to the U.S. Commission on International Religious Freedom. House Speaker John Boehner's press release is here, and the Becket Fund has a story here.
Tuesday, March 20, 2012
Here's a question that keeps me up at night, especially when, as now, I'm teaching the morass of products liability law: Was Erie Railroad Co. v. Tomkins--one of the most celebrated cases of the twentieth century--wrongly decided (or if it's now too well-settled to call into doubt, should we regret that)? Michael Greve puts the question back on the table with his new book The Upside-Down Constitution (Harvard, 2012) and has a short blog post about the argument here with the promise of more to come. Apart from the concerns about Erie's effects on federalism that Greve raises in his book, there are also passages in Justice Brandeis's opinion (here quoting Justice Holmes in his dissent in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co.) that I should think have to chafe the sensibilities of anyone sympathetic to the Catholic legal tradition:
The doctrine [of Swift v. Tyson] rests upon the assumption that there is "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute," that federal courts have the power to use their judgment as to what the rules of common law are, and that, in the federal courts, "the parties are entitled to an independent judgment on matters of general law":
"but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally, but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. . . ."
"the authority and only authority is the State, and, if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word."
Erie Railroad Co. v. Tomkins, 304 U.S. 64, 79 (1938) (omission and second alteration in original).
Monday, March 19, 2012
This Friday, March 23, Villanova will host its annual Joseph T. McCullen, Jr. Symposium, and the topic is the moral foundations of private law. Speakers include James Gordley (Tulane), Chapin Cimino (Drexel), Eric Claeys (George Mason), Andrew Gold (DePaul), Jody Kraus (Penn), Nate Oman (William & Mary), Jeff Pojanowski (Notre Dame), and Chaim Saiman and yours truly from Villanova. Details here.
Michael McConnell will be delivering the annual Giannella Lecture at Villanova this Wednesday, March 21, on "Employment Division v. Smith in Hindsight: Ministers, Peyote and the Supreme Court." Details for anyone in the area who would like to attend are here.
Tuesday, March 13, 2012
The proximate purpose is a review of Charles Murray's new book Coming Apart, but my friend and former colleague Yuval Levin and Ross Douthat offer perceptive comments about the role of religious institutions and the problem of their decline in American life here and here. From Yuval:
[T]he cultural disaster Murray describes seems to be a failing of America’s moral (and therefore largely its religious) institutions. And although he does not put it this way, Coming Apart is a scathing indictment of American social conservatism.
Social conservatism serves two kinds of purposes in a liberal society: We might call them justice and order. In the cause of justice, it speaks up for the weak and the oppressed, defending them from abuse by the powerful, and vindicating basic human dignity. In the cause of order, it helps us combat our human failings and vices, and argues for self-discipline and responsibility. Think of abolition on the one hand and temperance on the other.
In our time, American social conservatism has much to be proud of as a movement for justice: Social conservatives devote themselves to the pro-life cause, to human rights, and to the plight of the poor abroad. But American social conservatism has almost entirely lost interest in the cause of order—in standing up for clean living, for self-discipline and restraint, for resisting temptation and meeting basic responsibilities. The institutions of American Christianity—some of which would actually stand a chance of being taken seriously by the emerging lower class—are falling down on the job, as their attention is directed to more exciting causes, in no small part because the welfare state has overtaken some of their key social functions.
The cultural revival essential to addressing the crisis Murray describes is barely imaginable as long as this remains the case. Indeed, whether such a revival is imaginable under any circumstances is by no means clear in Murray’s telling. Surely an all-out return to the condition from which he says we have fallen seems far out of reach. But this may have as much to do with the particular cultural high-point against which Murray has chosen to measure our current state as with the potential for a moral revival in American life.
And then from Douthat, with a particular lesson for Catholic colleges and universities:
[R]eligious belief offers one of the most few motivators that might be potent enough to persuade a high-achiever to choose a life outside the SuperZips. (Just ask Ignatius of Loyola, or Francis of Assisi, or …) And even in their weakened state, our religious institutions — with their flar-flung networks of parishes and ministries and schools in need of leadership — offer a more plausible mechanism than most other professions for seeding middle America with the talented and energetic. What’s more, faith itself can have a leveling effect in a stratified society, and supply a common ground for people from very different walks of life: Under some circumstances, at least, a young Princeton-educated pastor might be better equipped to minister to a blue-collar community than a Princeton-educated social worker or Teach For America participant. To the extent that the kind of upper class civic reawakening that Murray calls for is even a remotely plausible answer to the current social crisis, then, it would probably have to be a religious awakening as well.
Monday, March 12, 2012
The central problem--or at least one articulation of it--for Catholic legal theory is the relation of justice and love, and so I have been eager to read Nicholas Wolterstorff's most recent book, Justice in Love (Eerdmans, 2011), which is a sequel to his remarkable Justice: Rights and Wrongs (Princeton, 2008). Justice: Rights and Wrongs was a powerful articulation (with an echo in Catholic social thought and the work of Catholic scholars such as John Finnis) of rights from within the Christian tradition (though I disagree with Nick's argument that rights are inconsistent with Thomism and other forms of eudaimonistic ethics, but that's a topic for another day). Justice in Love gets a tough review from Emory's Timothy Jackson at the Notre Dame Philosophical Reviews here, where Jackson takes Wolterstorff to task for his rejection of "modern day agapists," including Anders Nygren, Soren Kierkegaard, Karl Barth, and Paul Ramsey. (I suspect I'm with Wolterstorff in his reservations about a tendency to "love monism" in these figures, even if each of them presents particular complications.) But whatever one's assessment of this or that aspect of the overall Wolterstorff position, we can be grateful that one of the great Christian philosophers of our day--after taking up projects on epistemology, metaphysics, philosophy of religion, aesthetics, John Locke, and Thomas Reid over the course of a long career--is spending his "retirement" producing a lasting legacy for Christian political thought with Justice: Rights and Wrongs, Justice in Love, and the forthcoming The Mighty and the Almighty: An Essay in Political Theology (Cambridge, 2012)
Following on a friendly debate between Hadley Arkes and me last summer (here and here) over some of the Supreme Court's recent First Amendment cases, this essay by the always-interesting Richard Epstein at the Liberty Law Blog departs from the standard libertarian view in some provocative ways by contrasting judicial deference to legislative judgment on economic matters to judicial scrutiny on matters of speech and religion. As Epstein writes, "The deferential 'rational basis' inquiry on matters of property and contract is worlds apart from the searching 'strict scrutiny' inquiry often brought to the regulation of religion and, especially, speech." He then makes the argument that Snyder v. Phelps (the funeral protest case) and Brown v. EMA (the violent video games case) represent an unwelcome limitation on the morals aspect of the police power and disregard of common law rules.
On Snyder v. Phelps:
The Supreme Court knocked out these damages by resorting to a simple-minded paradigm of free speech cases that stated that since this speech was a “public, not private concern” the Church’s speech “occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’” Unfortunately, this approach takes a certain kind of moral blindness not to see the difference between this sorry episode and the speech involved in a political debate over the future of the country. The common law rules that always held that both falsity and latent aggression were reasons to allow damage actions after the fact, but not injunctions before the fact, reflect a very different set of sensibilities, and Chief Justice Roberts at no point explained why his view was better than the common law position. Recall that the First Amendment protects freedom of speech, which does not mean that all speech is free of bad consequences. The libertarian concern with force and fraud applies to speech as well as action, and it makes a lot of sense in this context to read the First Amendment as a protection against government encroachment into areas of protected political debate and artistic expression. But it hardly follows that this commitment offers courts a warrant to disregard the common law categories that have stood the test of time.
On Brown v. EMA:
As a matter of morals regulation this statute would not raise the slightest peep from any nineteenth century judge. Any judge who would let the legislature keep bowling alleys off limits to the young would rest easy with this statute on the books. But to read Justice Scalia’s opinion, one would think the entire edifice of freedom of speech would collapse of its own weight if this statute were allowed to remain on the books. Justice Scalia relied explicitly on the Supreme Court’s 1952 decision on Joseph Burstyn, Inc. v. Wilson, which rightly struck down a general censorship rule that required all films to go through a preclearance before being released. The more modest reach of the California statute makes the two cases readily distinguishable.
The replies to Epstein by Paul Salamanca and Adam White are also worth checking out.
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