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.

Tuesday, August 30, 2005

Informal Groups and the Law

By Rob Vischer

Even if you don't normally keep up on technology-and-law scholarship (and I don't), anyone interested in mediating structures, subsidiarity, civil society, etc. will want to check out Pittsburgh law prof Michael Madison's paper, "Social Software, Groups, and the Law."  Here is the abstract:

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading "social software," increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, of things, and of stories.

And here's an even more intriguing passage from the paper itself:

Law channels social organizations into prescribed forms, fictionalizing the entity for regulatory purposes.  Absent the prescribed form, law looks to the individual.  Informal social structures are messy and dynamic; formal legal structures are relatively neat, and static.  Part of my argument here is that something is lost in the translation.  There may be good which comes from informal groups, which may be lost when group activity is channeled into typical legal forms.

(HT: Solum)

Rob

Kmiec on Catholics, judges, and precedent

By Rick Garnett

A long and very interesting interview with Pepperdine's Professor Doug Kmiec, "Catholic Judges, the U.S. Constitution, and Natural Law," is available at ZENIT (you might have to scroll down).  Note that Professor Kmiec kindly concludes his interview with a plug for Mirror of Justice!

Here is one exchange:

Q: Right now there are three, and there could be four, Catholics sitting on the Supreme Court. However, they often have diverging views on some important issues. Is there a Catholic way of interpreting the U.S. Constitution, or can there be legitimate disagreement about the meaning of the text?

Kmiec: The tools of constitutional interpretation are the text, history and structure of the American Constitution. Part of that history includes the Declaration of Independence and its reference to self-evident truths of creation, created equality and unalienable rights.

As Lincoln reflected, the Constitution was framed for the philosophy of the Declaration, not the other way around. It is to secure our unalienable rights that "governments are instituted." All those who would seek judicial office should sincerely appreciate the intrinsic value of the human person reflected in the Declaration.

Moreover, one would expect, and I do, that those who are truly sustained by the Catholic faith and a Catholic family, and perhaps educated in Catholic schools, would have a special appreciation by study of the natural law tradition and its direct contribution to the American order of these first principles.

As to divergence among believers, in law or anything else, that is part of the human condition. In truth, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy ­- the three Catholics presently on the Supreme Court -- have a statistically high level of agreement in matters of legal interpretation, though each has had different legal training and experience, and that, rather than their common faith, likely explains the variations among them.

Professor Kmiec very nicely identifies what was good, and what might have been off-base, in Bishop Skylstad's call not long ago for a Court that would rule in accord with certain USCCB-preferred policies:

Q: Recently, Bishop William Skylstad, president of the U.S. Conference of Catholic Bishops, sent a letter to President Bush calling for a Supreme Court justice that would rule in a number of ways consistent with the bishops' public policy agenda. What would be the jurisprudential consequences for a Catholic justice who heeded Bishop Skylstad's call?

Kmiec: Bishop Skylstad's letter was a direct and entirely appropriate expression of Catholic faith. The letter might be perceived as somewhat misunderstanding the intended role of the Supreme Court, but one can hardly fault the bishop for this since some members of Congress, themselves, wrongly think of judges as policy-makers.

As a matter of original understanding, nothing in the Constitution is at odds with any of the policies the bishop urges. For example, while the Constitution provides for capital punishment, there is nothing precluding the American people in their respective states to end or limit its application if the people come to be persuaded by the witness and prayer and instruction of Catholics -- and others -- in the public square that, as John Paul II taught in "The Gospel of Life," its application should be rare.

And, of particular relevance to our discussion about Roberts, precedent, and Roe, there's this:

Q: Can a Catholic judge in good conscience strike down laws restricting abortion that he or she believes are unconstitutional? What about applying unjust laws? What should a judge do in the case of a moral conflict?

Kmiec: As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law. Yet, repeatedly and circumspectly, the Church's teaching is directed at "elected officials" or those casting "a legislative vote."

. . . Nowhere, however, does the Church formally instruct judges to act outside the bounds of their judicial office to legislate from the bench. The Church exhibits great respect for the separation of powers, even as the justices themselves have been less than faithfully observant of this constitutional building-block.

Here, the Church is following in the instruction of St. Thomas Aquinas, who argued "that all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."

. . . So, while Church leaders are well within their rights as citizens to point out in public statement or amicus brief how they believe that a proper understanding of law does not support abortion on demand, a Catholic judge may be part of a judicial system that includes Roe.

In ruling on such matters, a judge does not become morally complicit in the underlying act or share in its intent. If the question is: Does John Roberts have a specific Catholic duty on the bench to restrain abortion? -- Justice Scalia has given the apt answer: "A judge ... bears no moral guilt for the laws society has failed to enact."

Rick

Monday, August 29, 2005

Religion and the New Urbanism

By Rick Garnett

Here is an article, from the Chicago Tribune, about religion's inroads into the New Urbanism conversation.

Eric Jacobsen speaks passionately about things like sidewalks and storefronts. But he's not an architect or developer. He's a Presbyterian pastor.

As Jacobsen sees it, city planning has an important influence on religious experience. He is an advocate for New Urbanism, the architecture movement that calls for interdependence among residents, with neighborhoods where shops and homes co-exist, streets that are pedestrian-friendly and parks that are gathering places for residents.

New Urbanism has become a mantra for those interested in restoring urban centers and reconfiguring suburban sprawl. Its designs have sprouted from new towns like Seaside, Fla., to redevelopment in existing places like Gaithersburg, Md., or West Palm Beach, Fla. The Congress for the New Urbanism started small 12 years ago and now has more than 2,300 architects, developers, planners and urban designers.

Now Christian leaders are adopting the movement. They say the philosophy behind New Urbanism is a possible antidote to the isolation experienced by many churches and Christians. Across the country, influential Christians are thinking theologically about urban design and applying its principles to the church. They advocate for New Urbanist concepts because they force people to share with one another, dwell among their neighbors and allow for a healthy exchange of ideas.

This is, I think, a good thing.  And, it's good not just for the churches about which people like Jacobsen are concerned; it's also good for the New Urbanism.  Too often, the New Urbanists have proceeded as if religion did not exist.  Of course, Catholicism is home to a rich tradition of urbanism that -- maybe we can hope? -- the New Urbanists will learn to appreciate.

Rick

More church-property disputes

By Rick Garnett

This article describes a "momentous" church-property ruling involving a dispute over homosexuality and property between an Episcopal church in Newport Beach, California and the Episcopal Diocese of Los Angeles.  Perhaps it is because the article appears in World magazine -- a publication that is, I believe, Evangelical in orientation -- that the piece appears quite sanguine about the developments it reports:  "California courts appear to be the most aggressive in applying the neutral-principles doctrine."  Apparently, the local church even filed an "an anti-SLAPP motion against the diocese.  In legal jargon, a SLAPP (Strategic Lawsuit Against Public Participation) is a suit aimed at intimidating and silencing a critic by making defense so expensive the critic abandons it."

Judge Velasquez agreed with St. James: The diocese had sued only after the parish rejected its pro-homosexual doctrinal positions and the leadership of Bishop J. Jon Bruno. (Bishop Bruno had voted for the consecration of a noncelibate homosexual as bishop and endorsed blessings for same-sex couples.) The judge reasoned this made the case also a free-speech matter for the purposes of a SLAPP ruling.

Even if one is inclined -- as I probably am -- to sympathize with the dissenting, "conservative" parish, it seems to me that the law is reaching awfully far (and many believers are inviting the law awfully far) into internal church matters.

Rick

St. Maximos' Hut

By Rick Garnett

Law prof Andy Morriss and several others have started a group-blog, "St. Maximos' Hut" (check it out to learn about the name!) dedicated to the conflicts and connections between religion and economics.  It looks to be very interesting.  This post, "Orthogonality", serves up an interesting taste of what's to come . . .

Rick

Neutrality and Free Exercise

By Susan Stabile

My new colleague, Nelson Tebbe, has recently published a piece in the Hastings Law Journal that will be of interest to MOJ readers.  The article, "Free Exercise and the Problem of Symmetry" (56 Hastings L.J. 699 (2005), parts company with the critics of the Supreme Court's decision in Employment Division v. Smith whose claim is that that Court should have adopted a principle of substantive neutrality rather than one of formal neutrality.  Because of tensions with what he terms the problem of symmetry, Tebbe argues that "neutrality of any stripe will insufficiently protect free exercise."  He thus proposes the addition of a liberty principle for evaluating free exericse claims, finding a liberty principle both easier to defend and one that "better captures the affirmative value of free exercise" and avoids the symmetry problem.  The article elaborates on his "substantive liberty" principle and defends it against anticipated objections, including the claim that the principle violates the Establishment Clause.

More on Stare Decisis and Cooperation with Evil

By Thomas Berg

On the blog Democracy of the Dead, Justin Dziowgo posts about our discussion whether affirming Roe and Casey as a matter of stare decisis -- say, because the societal reliance on abortion rights has become so great -- would be "culpable cooperation with evil" and thus create a conflict with fundamentals of Catholic faith.

Would such cooperation make him culpable? I would argue that it depends upon the obligations of a judge to the stare decisis principle. If a judge has a moral obligation to that principle due to natural law or civil law, and if it is clear that stare decisis must be applied in this particular case, then it seems that Roberts would not be culpable, for one must still do what they are morally obliged to do even if the consequences may be bad. Any argument that Roberts would still be culpable in these conditions would then seem to rest on a false idea about the power of a Supreme Court justice.

If one argues that he’s morally obligated to follow stare decisis and at the same time is morally bound to overturn Roe even when stare decisis calls for it to be maintained, then they are effectively arguing that he should act beyond his capacity to overturn it. Reductio ad absurdum would suggest that this could cause many problems. Suppose that in addition to stare decisis, there is a legal principle found in the Constitution that upholds the wrongly decided Roe case. Should Roberts override that principle as well? If so, when should he stop? And what if Roberts decides that it is really our form of government that ultimately allows the Roe case? Should he then begin a revolution against the government? In other words, I think the culpability of Roberts has to be measured by the limits of his office.

One could argue that this is false because one is not obligated to follow the evil orders of a superior, and in this case the superior is stare decisis. I think, however, that Roberts would not be following an evil order, for stare decisis is not evil. It is a good principle – presumably – that is allowing an evil to happen, just as doing many other good things allow evils to happen. An example is that my following the good principle of respecting human life keeps me from killing abortionists even though I know that their existence permits other evils.

A few quick responses -- very abbreviated because of the press of other commitments.  First, I think that give more credence than Mr. Dziowgo does to the existence of conflicts between prima facie moral duties.  Second, as I said before, I don't think that a justice who votes to uphold Roe and Casey merely "allow[s abortion] to happen," as when one refrains from interfering with an abortionist (or, to take another example, when a judge refrains from blocking a death sentence, the ground that the death penalty is constitutionally permissible).  The justice actually blocks a legislative effort to stop abortion; the analogy is not to refraining from interfering with an abortionist, but to stepping in to block someone else from doing so.

Mr. Dziowgo also argues that "the Casey decision is slightly different because it makes arguments for why Roe was right and why the right to abortion must be maintained."  This is a distinction that, as I said before, I don't see.  If anything, it seems more justifiable to adhere to a constitutional decision whose result runs against religious faith because the decision is a correct interpretation of the Constitution than because the decision, though an incorrect interpretation, should be followed as stare decisis.

Finally, even if Mr. Dziowgo's arguments show that following stare decisis is ultimately justifiable and therefore creates no conflict with Catholic faith in this case, I don't think that this conclusion is so obvious -- note it takes several paragraphs to reach the conclusion -- that one should simply assume that Roberts would not feel the conflict.  Therefore, it still seems to me too simple to say that in no way would Roberts' religious beliefs ever be likely to have any bearing on the issue. 

Tom B.

Vincentian Chair of Social Justice Conference

By Susan Stabile

On October 22, the St. John's University Vincentian Center for Church and Society will hold its biennial Vincentian Chair of Social Justice conference.  The biennial conferences convene academics, practitioners, church leaders and policy makers to explore perspectives on poverty in an effort to move toward systemic solutions.  In this 40th anniversary year of Gaudium et spes, the theological virtue of hope is celebrated. 

For additional information concerning speakers, sessions and registration information, see the conference web page here.

Sunday, August 28, 2005

Commitments to Precedent and to Faith

By Thomas Berg

I appreciate Rick's response to my suggestion that Roberts might well face a conflict between his judgment about Roe/Casey as stare decisis versus his Catholic conscience.  Like Rick, I'm not equipped to apply "cooperation with evil" principles to this particular situation (moral theologians out there, write and advise us!).  But my initial reaction is to disagree with his argument that there's no reason to question Roberts on Catholicism because "I [Rick] do not see how it would, or even could, 'conflict[] with the fundamentals of [his] faith' for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil."

Didn't Justice Kennedy do precisely that in Casey -- decline for stare decisis reasons to overrule the basic abortion right of Roe -- and hasn't he been excoriated for doing so as a Catholic?  I strongly expect (although I don't have specific quotes to support it) that many of Kennedy's vocal critics think very much that he committed culpable cooperation with evil by upholding the basic holding of Roe.

Or is the Kennedy situation different because the Casey joint opinion also included some passages defnding Roe on its merits?  That seems a very slender reed for distinguishing the two instances, since:  (1) The stare decisis reasoning was clearly very important to the joint opinion's conclusion (the opinion several times referred to the author's potential "doubts" about the original correctness of Roe).  (2) Whether the ruling rests on stare decisis or on the merits, in either case the justice votes to stand in the way of a law that seeks to prevent a very great evil (we're taking the great wrongness of abortion as a given, of course).  Can stare decisis really be sufficient to allow the justuce to take such an active step preserving and defending a great injustice?  Indeed, I would have thought that if there were any difference, stare decisis would be a less powerful justification for ruling to protect an evil than is the justification that the Constitution on the merits protects the evil.  So I don't think it's implausible at all to think that a justice's commitment to stare decisis could be overridden by (and therefore is in potential conflict with) the fundamentals of the faith, especially on a matter such as this.

Again, I'm not saying that this stare-decisis possibility is enough to justify grilling Roberts about his Catholic conscience concerning abortion.  (As I said before, there are many reasons to presume against such religion-related questions.)  But I still think the issue is more complicated than Rick concludes.

Tom B.

Reply to Berg re: Roberts

By Rick Garnett

I appreciate Tom's reply to my post on Judge Roberts, religion, and Governor Cuomo.  Tom highlights what he sees as two "complications" with my view, which Tom describes in this way:  "Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure").

I agree with Tom that the question of "stare decisis" will be at the heart of the Roberts hearings, but I don't think I agree that the stare-decisis problem complicates or undermines my claim that Gov. Cuomo's op-ed, calling for Senators to ask Roberts about the tension between the Constitution and Catholicism, is misguided.  I understand, of course, that the fact Roe was wrongly decided does not necessarily translate into the conclusion that it will or should be overruled.  (More specifically, I understand that Roberts could conclude that Roe was wrongly decided -- and, it strkes me that he is too clear-thinking to believe otherwise -- yet refrain, for stare decisis reasons, from voting to overrule it.)  Still, the question whether Roberts would move from a judgment about Roe's wrongness to a decision to overrule it -- which is, I admit, a subject that Senators are perfectly within their rights to wonder about -- is not a question that, in my view, is remotely likely to be answered through inquiries into Roberts's religious beliefs.  I do not believe the new question that Tom poses -- "If you reach [the] conclusion [that Roe, although wrong, should not be overturned] as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?" -- is materially different from the questions that Gov. Cuomo seems to want and that I think are misconceived.  I do not see how it would, or even could, "conflict[] with the fundamentals of [his] faith" for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil, and so I don't think the question is appropriate.  (Of course, if the better trained moral philosophers out there tell me that relying on stare decisis to not overrule Roe v. Wade would constitute culpable cooperation with evil, then I'll have to revise my view.)

Rick

UPDATE:   A friend writes with this comment: 

Recently, on the Mirror of Justice blog, you wrote that you didn't see how it would, or even could, conflict with the fundamentals of a Justice's faith for him to decline to overrule a wrongly decided case, even one that has contributed to great evil. It seems to me that, given the nature of stare decisis, there could be such a conflict. The Supreme Court has repeatedly stated, and the legal community seems to agree, that stare decisis is a prudential doctrine, rather than one required by the Constitution or the nature of the judicial function. When the Court declines to overrule a wrongly decided case, it does so not on the grounds that there is anything wrong in principle with overruling prior precedent, but because there are certain prudential concerns that favor upholding the decision. So, for example, in Casey the Court cited the need for stability in the law, the damage that "overruling under fire" would have on the institutional integrity of th e Court, the fact that people had come to rely on the availability of abortion when planning their futures, etc., as reasons not to revisit and possibly overturn the "essential holding of Roe." The problem I would see for a Catholic Justice is that, in the case of something like abortion, any such prudential concerns would be outweighed by the massive injustice and evil that comes from legalized abortion. So he (or she) would not simply be able to say "stare decisis - my hands are tied" as a way of getting out of the difficulty.

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