I understand that the government’s role in litigation is to defend, well, the government. But the Obama Administration’s brief in Hosanna-Tabor v. EEOC (the upcoming Supreme Court term’s blockbuster ministerial exception case) goes beyond the narrow issue of whether the ministerial exception should apply to the facts of the case and takes the extravagant position that there is no general ministerial exception (no "categorical" or "prophylactic" rule, to use the brief's peculiar formulation) under the First Amendment’s religion clauses. (There’s been some speculation that the brief’s argument is limited to the ADA anti-retaliation claims of the employee, but it’s difficult to see why the logic of the brief’s argument is so limited.) As pointed out by Ed Whelan, this puts the Administration at odds not only with the U.S. Conference of Catholic Bishops, the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod, and the Union of Orthodox Jewish Congregations, but also with (among others) the Episcopal Church, the Presbyterian Church (U.S.A.), the United Methodist Church, the United Church of Christ, the Evangelical Lutheran Church in America, the American Jewish Committee, the Union for Reform Judaism, the Muslim-American Public Affairs Council, United Sikhs, and the Society for Krishna Consciousness, all of which filed amicus briefs on behalf of Hosanna-Tabor arguing for a robust ministerial exception as a necessary component of religious freedom. (See especially the brief by our own Tom Berg and Rick Garnett, the brief by Christopher Lund for the Lutheran Church-Missouri Synod, the brief by Michael McConnell for a consortium of Protestant churches, and the brief by my former colleagues at Williams & Connolly for the USCCB, the LDS Church, the Orthodox Union, and the Episcopal Church.) Indeed, the Administration takes a position more hostile to religious freedom than the ACLU and Americans United for Separation of Church and State, which acknowledge the ministerial exception in their amicus brief but argue that it should not apply to cases in which the alleged discrimination or retaliation is unrelated to religion.
What remains of the right of religious groups to select their ministers? Don’t worry, the Administration says:
Under different circumstances, a religious employer would be able to successfully invoke a freedom of association defense to application of the civil rights laws. The availability of such a defense provides a full response to petitioner’s concern that the operation of generally applicable employment discrimination laws “would prohibit many common religious practices,” including, for example, “the all-male clergy among Catholics and Orthodox Jews.” Pet. Br. 18. As an initial matter, it is unclear whether Title VII would permit claims challenging such gender-based qualifications because gender could well be considered a bona fide occupational qualification for such positions. See 42 U.S.C. 2000e2(e)(1); Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977). But assuming arguendo that the statute otherwise permitted such claims, religious employers could defend against them on the ground that compelled ordination of women would be impossible to square with their religious view that only men should occupy such roles. In light of the deeply embedded and long-standing nature of such ecclesiastical rules, the government interest in enforcement of anti-discrimination laws would necessarily give way. Cf. Dale, 530 U.S. at 656659 (state interest not sufficiently compelling to outweigh Boy Scouts’ right to shape message on homosexuality); see also Smith, 494 U.S. at 882 (“[I]t is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.”). Brief for Federal Respondent, 31.
There’s a lot to say about this argument and much else in the brief, but I’ll make two points for now. First, if this is really EEOC’s position (it’s “unclear”) about the scope of the bona fide occupational qualification exception to a Title VII gender discrimination claim, I’d like to hear more from EEOC about how an all-male clergy requirement meets the prevailing (and ordinarily quite narrow) standard for a BFOQ (the cite to Dothard v. Rawlinson—a prison guard disparate impact case—doesn’t help much). Is EEOC's position that a religious employer doesn’t have a constitutional defense against a claim of gender discrimination in a ministerial employment decision, but the religious employer can self-define the qualifications for ministers in such a way that consideration of sex is essential to the employment function of a minister and thereby get the benefit of a BFOQ defense? And in what other contexts would that argument for a BFOQ pass the laugh test?
Second, there’s something striking (and downright odd) about an argument that the religion clauses of the First Amendment don’t protect the right of religious groups to select ministers, but the right of free association somehow does. I am all in favor of a robust freedom of association, but, as argued by John Inazu, current freedom of association doctrine rests on a tenuous constitutional basis somewhere amid freedom of speech. And while I agree with Dale, it’s remarkable that the Administration is arguing that a hotly contested decision that has been subject to substantial scholarly criticism somehow provides the authority for what remains of the freedom of the church with regard to selection of ministers. Alas, instead of a constitutional limitation on the power of the state to interfere in the ministerial employment decisions of religious bodies and rooted in nine centuries of Western political theory, the Administration's view implies that such freedom--in those rare instances where it exists at all--is merely the provisional outcome of weighing the state’s anti-discrimination interest against a religious institution's right to expressive association.
Tuesday, September 13, 2011
A recurring theme here at MOJ is the role of urban planning in fostering (or failing to foster) communities. This story about a new 24-acre park in Philadelphia built by the University of Pennsylvania seems to me a nice illustration of some subsidiarity-related themes, particularly the contribution of private, subsidiary institutions to the common good in a challenging urban environment:
Penn bought the 14-acre lot in 2007 and combined it with existing land to create the 24-acre Penn Park. It features two athletic fields, a multipurpose stadium with 470 seats, a tennis center, and parking for 210 cars. In addition, there are two acres of open space and a picnic grove. The park, which has 530 newly planted native trees, gives the urban campus breathing room and offers everyone a new vantage point for viewing Center City. When the site was a parking lot, only the postal drivers who used it could appreciate the expansive sweep of skyline from the west bank of the Schuylkill. Now that the area is accessible to all, it gives visitors a "big sky" view of the city, said David Hollenberg, an architect for Penn. "It's Philadelphia's Montana."
Penn Park is bordered by Walnut Street to the north, Amtrak rails to the east, SEPTA tracks to the west, and South Street to the south. It's accessible via three walkways, from Walnut, South Street, and Franklin Field. Built with donations and university funds - no public money - the park was difficult to redevelop, said Anne Papageorge, vice president of facilities and real estate services at Penn. The park sits in a bowl and is crossed by three rail lines: Amtrak, CSX, and SEPTA. Under the asphalt of the former parking lot were unstable layers of rubble, cobblestones, and dredged silt. When construction began two years ago, workers spent the first couple of months driving 2,200 pilings from 20 to 55 feet long into the ground to support fields and berms. "There's a lot of work below ground that no one sees," Papageorge said. The soil also was too poor for planting trees or grass. "Not even a teaspoon that we could use," said Laura Solano, a landscape architect for Michael Van Valkenburgh Associates, which designed the park. Caravans of trucks dumped 45,000 cubic yards of planting soil to create berms and swaths of open space. Architects created a varied landscape around the two regulation-size athletic fields. Under the CSX trestle that cuts through the length of the park are small hills covered with grass as thick as shag carpet.
Those of us teaching in colleges and law schools should take note of David Brooks's column today summarizing the findings of a study by Notre Dame's Christian Smith of the moral lives (really the folk moral philosophy) of 18 to 23 year-olds:
Rejecting blind deference to authority, many of the young people have gone off to the other extreme: “I would do what I thought made me happy or how I felt. I have no other way of knowing what to do but how I internally feel.”
....
Smith and company found an atmosphere of extreme moral individualism — of relativism and nonjudgmentalism. Again, this doesn’t mean that America’s young people are immoral. Far from it. But, Smith and company emphasize, they have not been given the resources — by schools, institutions and families — to cultivate their moral intuitions, to think more broadly about moral obligations, to check behaviors that may be degrading. In this way, the study says more about adult America than youthful America.
....
Many of these shortcomings will sort themselves out as these youngsters get married, have kids, enter a profession or fit into more clearly defined social roles. Institutions will inculcate certain habits. Broader moral horizons will be forced upon them. But their attitudes at the start of their adult lives do reveal something about American culture. For decades, writers from different perspectives have been warning about the erosion of shared moral frameworks and the rise of an easygoing moral individualism.
That all seems plausible enough, though it may just mean that 18 to 23 year-olds are Humeans on the question of moral motivation. Of course, those of us who are Aristotelians knew all along that young people can be inarticulate about the moral life:
Hence a young man is not a proper hearer of lectures on political science; for he is inexperienced in the actions that occur in life, but its discussions start from these and are about these; and, further, since he tends to follow his passions, his study will be vain and unprofitable, because the end aimed at is not knowledge but action. And it makes no difference whether he is young in years or youthful in character; the defect does not depend on time, but on his living, and pursuing each successive object, as passion directs. For to such persons, as to the incontinent, knowledge brings no profit; but to those who desire and act in accordance with a rational principle knowledge about such matters will be of great benefit. Nicomachean Ethics, 1095a2-11
The European Union has long been an exhibit for aspects of Catholic social thought, and not surprisingly so--several of the "Founding Fathers" of the EU (Jean Monnet, Robert Schuman, and Konrad Adenauer, for example) were deeply influenced by Catholic social thought, and popes ever since John XXIII have been outspoken advocates of European integration. But things are not going well in Europe right now, to put it mildly (thorough Der Spiegel story here, commentary by FT's Wolfgang Munchau here, h/t Tyler Cowen). Although subsidiarity is a constitutional norm in the EU, see George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331 (1994), the current crisis strikes me as a cautionary tale about free-floating concepts from Catholic social thought unmoored from a sufficiently determinative conception of the common good and solidarity (economic crises have a way of doing that), with a good measure of the usual human tale of avarice, corruption, and incompetence thrown in.
Friday, September 9, 2011
I've just returned from an extraordinary conference on the work of Stanley Hauerwas at Duke Law (details here) that was a model of engagement between law and theology. I was joined on a panel by my fellow MOJ blogger Lisa Schiltz (UST), Brad Wendel (Cornell), and James Logan (Earlham). Steve Macedo (Princeton) provided a Rawlsian critique of Hauerwas, Stanley Fish (FIU) was as entertaining as expected, and H. Jefferson Powell (GW) moderated a concluding discussion with Hauerwas himself. Thanks to John Inazu (Washington U., who also gave an excellent paper on Hauerwas and Ronald Dworkin) for his creativity and energy in organizing the conference and to Duke Law for its gracious hospitality. The papers are forthcoming in Duke's Law and Contemporary Problems.
Wednesday, September 7, 2011
Notre Dame will play Michigan this Saturday in Ann Arbor in the first-ever night game at Michigan Stadium, the largest football stadium in the world. Why is this pertinent to Catholic legal education? Because both schools were founded by Catholic priests—the University of Michigan by Father Gabriel Richard in 1817 and Notre Dame by Father Edward Sorin in 1842. Both were fascinating figures in their own right--Richard, for example, was the first priest to serve in Congress and published the first newspaper in Detroit. So although I will be cheering for the Fighting Irish (my undergraduate alma mater), I’d like to think that every Notre Dame-Michigan game is a celebration of the role of Catholics in the history of American higher education.
Monday, September 5, 2011
Anyone in the Philadelphia area on Friday, September 16, will want to come to Villanova's Constitution Day Lecture, which will be delivered this year by Philip Hamburger, Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the splendid books Separation of Church and State (Harvard UP, 2002) and Law and Judicial Duty (Harvard UP, 2008). Professor Hamburger will be speaking at 3:00pm that afternoon on "Censorship and Death," and Amy Wax, Robert Mundheim Professor of Law at the University of Pennsylvania Law School, will respond. Details here.
How many other law prof blogs have a blogger asking questions at a presidential debate? As noted in this story, our own Robby George will be part of the panel tonight at a Republican presidential debate in South Carolina:
How candidates respond to George’s queries, which will focus on the political and philosophical, could shake up a primary season that, so far, has been dominated by platitudes. The race for the GOP nomination, he says, is often cast as a scramble for the highly coveted but nebulous tea-party crown. But few voters, he laments, have a sense of how leading Republicans interpret the principles that inspire tea-party activists.
George aims to clarify the often blurry positions of Republican candidates on issues of political, moral, and philosophical importance. If they give him a stock or evasive response, he will follow up with sharper questions. It won’t be a fishing expedition for red-hot quotes, he emphasizes, but a quest for paragraph-length answers about America’s founding principles in an office-hours-type setting.
