Here, in The Telegraph. I am, I confess, very nervous. I love this novel, and I love Scorcese's movies, but . . . I sure hope the latter does the former justice.
Sunday, December 11, 2016
An early (glowing) review of "Silence"
Friday, December 9, 2016
Important AR Supreme Court birth certificate ruling
The Supreme Court of Arkansas announced yesterday that the state has a vested interest in continuing to list a child's biological parents on his or her birth certificate. Last year, the county circuit court had allowed three same-sex couples to amend the birth certificates to include both spouses' names without a court order (as required in adoption cases). That decision was overruled.
Writing the AR Supreme Court's opinion, Justice Josephine Linker Hart explained: "In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths." The dissent argued that the inclusion of the parent's name on the birth certificate ought to flow from marriage--not biology. Find the state court's opinion here.
Like the legal fiction created by the abortion cases in the use of the term "potential life" to describe the very actual, albeit nascent, vulnerable, and dependent human being whose life is snuffed out by the procedure, Obergefell v. Hodges created another such fiction regarding basic biology. From the Obergefell Court's opinion: "A third basis of protecting the right to marry...draws meaning from related rights of childrearing, procreation, and education..." And then, "All parties agree, many couples provide loving and nurturing homes to their children, whether biological or adopted." I do not quote these here to dispute the substantive point of the parties' agreement; rather, I seek to emphasize Kennedy's use of the terms procreation and biological children in the context of same-sex relationships. The use of these terms by the highest court in the land--like "potential life" in decades past--is pure legal fiction. To repeat the good Arkansas judge, who is simply upholding a well-grounded tenet of equal protection jurisprudence: "It does not violate equal protection to acknowledge basic biological truths."
Correction: The original version of this post incorrectly used the postal abbreviation for Alaska.
The Importance of Constitutional Norms, or “Why the Vice President’s Party Can’t Do Whatever It Wants in the Senate”
David Waldman at Daily Kos has advanced a proposal getting a good deal of attention on social media to have the Senate confirm Judge Merrick Garland to the Supreme Court on January 3rd at noon. The basic idea is to have Vice President Biden use his authority as presiding officer to recognize the Democratic leader (Senator Durbin, as Senator Reid’s and Senator Schumer’s terms will have expired) while there are only 66 senators (32 Democrats, 2 Democratic-caucusing independents, and 32 Republicans) and jam through Judge Garland’s confirmation (his having been renominated by President Obama that very moment) before the newly elected 34 senators have been sworn in (and bring with them a 52-48 Republican majority, assuming Republican John Kennedy wins the runoff in Louisiana).
Sean Davis argues in devastating detail why this would, among other things, flaunt the 20th Amendment (providing that Senate terms end and begin at noon on January 3rd) and a host of Senate Rules and practices, including Rule II.1 (providing that “the presentation of the credentials of Senators elect…shall always be in order” and take precedence over a motion to confirm a nomination) and Rule XXXI (providing that a nomination may not be acted upon the same day it is received). Waldman’s argument appears to rely on the view that the Senate is not a continuing body and that a majority (for a few minutes after noon on January 3rd anyway) can ignore or amend the Standing Rules of the Senate at will.
To Davis’s arguments and as a devotee of congressional procedure (everyone needs a hobby), I would add another based on a reductio. The Vice President is constitutionally the President of the Senate, and the presiding officer has the power of recognizing senators. But Rule XIX on recognition of senators by the presiding officer is just another rule. As long as Senate rules are amendable and disregardable from the chair, why couldn’t Waldman’s scheme be executed simply by having the Vice President recognize a Democratic senator (anytime, not just on January 3rd) for a unanimous consent request to confirm Judge Garland and ignore objections from Republicans? Or bring up the motion to confirm Judge Garland on a voice vote, assert that the ayes have it, ignore the request for a roll call vote, and table the motion to reconsider?
And then there are other problems, to put it mildly. For example, the President signs a commission for a judge upon notification from the Secretary of the Senate that the Senate has consented to a nomination. The Secretary of the Senate is a continuing office, presently held by a Republican appointee. If after all of this manipulation of the rules the Secretary objects and refuses (quite reasonably) to carry out the ministerial duty of transmitting to the President notification that the nomination has been confirmed, then what? Can the President sign a commission without notification from the Secretary that the Senate has consented to the nomination? (As an aside, there are also significant problems with a recess appointment to the Supreme Court in January, for the reasons spelled out in NLRB v. Noel Canning (2014) and because after January 20th Congress could enact a joint resolution ending its session, adjourn sine die, and reconvene for a new session, thereby causing the recess appointment to expire.)
This is all absurd, of course. But the larger point to make here is that the norms governing our institutions are partly a product of mores and practices (such as respect for established parliamentary procedure) reflecting underlying judgments about political and legal authority. I’m inclined to think these constitutional norms are still legal norms for reasons Jeremy Waldron has argued (Are Constitutional Norms Legal Norms?, 75 Fordham L. Rev. 1697 (2006)). We might all wish that those mores and practices--including the Senate’s consideration and confirmation of federal judges--were in better repair. But we would do well, I suggest, as lawyers and law professors amid these divisive times to foster the constitutional norms that have served us well, however imperfectly and however much we want "our" side to win. "And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?"
Thursday, December 8, 2016
David Bernstein's "The Supreme Court oral argument that cost Democrats the presidency"
Noting how evangelical Christians and orthodox Catholics voted overwhelmingly for Donald Trump because they believed religious liberty was under attack by the left, David Bernstein joins other observers who have catalogued the many ways in which the secular liberal victors in the so-called culture wars were piling-on against conservative Christians and how such episodes played a major role in the surprising victory of Trump in the presidential election.
In a post on the Volokh Conspiracy, David Bernstein notes a point made by President Obama's Solicitor General in a Supreme Court argument, a point that got only passing attention in the mainstream media but was highlighted as deeply concerning in media directed to conservatives and religious audiences: "the time the solicitor general of the United States acknowledged that religious institutions that oppose as a matter of internal policy same-sex marriage may lose their tax exemptions."
The rest of the post made be found here.
As the left is now learning and the right should be reminded as it comes to power, scorched earth politics has consequences. The side that overreaches when it gets political power and goes beyond implementing its policy agenda to attempt to destroy opponents politically and culturally frequently finds itself being removed from that political power.
Leisure and Labor: The Liberal Arts and the Professions - Call for Abstracts
In conjunction with my formal installation as President, St. Gregory's University will host a conference titled Leisure and Labor: The Liberal Arts and the Professions, March 21-22, 2017. We invite scholars, professionals, administrators, lay leaders, and religious to reflect upon the fundamental relationship between the liberal arts and job preparedness. Because I am just now putting this on MOJ, we will extend the time for submitting abstracts until January 8, 2017.
Wednesday, December 7, 2016
"Problems arise even within his [Fr. Murray's] own thought"
I reached the following "editor's footnote" in my re-reading this afternoon of J. Leon Hooper (ed.), Religious Liberty: Catholic Struggles with Pluralism (1993) (p. 226 n. 11); in the footnote, Hooper is describing, analyzing, and judging Murray's "The Issue of Church and State":
Murray's manner of restricting the socially significant meaning of religious freedom to an immunity right works well, if one considers the interaction of the church hierarchy and the executive branch of government. Problems arise even within his own thought, however, when one considers the role of the laity in shaping governmental legislation. For his argument to still apply, one would have to presume that the laity could bring no substantive content from their faith commitments to the laws that they shape -- that their faith remains simply motivational. As discussed in the general introduction to this collection, some question whether Murray has adequately dealt with the laity's attempts to bring gospel values to the juridical structures of the state, much less to what is called the world.
John Rawls's imposition of "the proviso" was published in the very same year as Hooper's footnote was published.
A fascinating church-autonomy case
MOJ-friend Prof. Michael McConnell shared with me a brief he and some colleagues filed in the Supreme Court of the United States in what strikes me as a fascinating neutral-principles/church-autonomy/religious-questions case. The case is called Ming Tung v. China Buddhist Association and Michael's brief is available here: Download Ming Tung cert petition. Also, here's a write-up that Prof. Friedman did, at Religion Clause, a few years ago.
Dr. Russell Moore's lecture, "Can the Religious Right be Saved?"
Dr. Moore's Erasmus Lecture is now available, in print, at First Things. I recommend it very highly. It was delivered before the presidential election but is no less timely or important for that. Here's just a taste:
A religious conservatism that sees politics as important but not ultimate is necessary even for our public policy goals. Take the issue of religious liberty. Some, in secular circles, assume that an emphasis on religious liberty is a merely defensive move. Many on the religious right think the same. One pastor told me that he’s all for religious liberty, but wishes that we could do something “more proactive” rather than “merely defensive.” Religious liberty is not a reactive, defensive move. Religious liberty reflects a positive vision of the limitations of the state and the dominant culture, one that frees religious communities to carry on their work. To think otherwise suggests a vision of power and influence in which statecraft is more important than church-craft. Statecraft is important, but good cultures and good laws, important as they are, merely put more resilient shackles on the Gerasene demoniac. The depravity of humanity can be mitigated by law, but humanity can only be renewed and transformed by something transcendent. It’s not just our religion that teaches that; our politics teaches that also, if in fact we are in any meaningful way “conservative.”
Religious liberty is a means to an end, and the end is not political. The Gospel frees consciences that cannot be coerced. The end we rightly seek is a society in which religious communities are free to serve and to persuade. If we are to be honest, the threat to this freedom comes as much from the collapse of cohesive church communities, especially in what once was the Bible Belt, as from Washington, D.C. When faith is not shaped by community, Rabbi Lord Jonathan Sacks points out, religion becomes politicized and politics become religionized. The collapse of well-defined, disciplined congregations in the South has been politically disastrous, and not merely theologically disastrous. Consider the way Latter-day Saints have approached the moral questions raised by the 2016 election in contrast to Evangelicals, even when the voting patterns were not substantially different. The difference between the two rests, I believe, in the contrast between intentional, cohesive, conscience-shaping communities of identity and social solidarity, not only in Utah but in the Mormon minority communities around the country, and Evangelical communities that are too often influenced by raging pundits, talk radio, and TV shout-shows—and these voices sometimes drown out the pastor’s. A Christianity without visible churches is backward-looking and seething with rage. Christianity loses its Gospel-centered character, Marilynne Robinson tells us, indeed any religion loses its distinctive identity, “when its self-proclaimed supporters outnumber and outshout its actual adherents.”
Saint Ambrose, Doctor of the Church (and Lawyer)
Reposting from 2011:
Thomas More is, to my knowledge, the only common lawyer ever canonized by the Catholic Church, but a number of civil and canon lawyers have been. Today is the Feast of Saint Ambrose, one of the four great doctors of the early Church (along with Augustine, Jerome, and Gregory the Great), who was trained in the law and an imperial governor under Valentinian before he was elected bishop of Milan by acclamation in 374 (Ambrose was a catechist at the time, so he was baptized and ordained bishop in the course of just a few days). In addition to his important contributions to Christian theology (particularly the refutation of Arianism) and music, he was also instrumental in the conversion of Augustine, who wrote that Ambrose "was one of those who speak the truth, and speak it well, judiciously, pointedly, and with beauty and power of expression" (On Christian Doctrine, IV.21).
Tuesday, December 6, 2016
Remarks on the "Future of Religious Freedom"
Here's a link to the video of the panel discussion, at the recent Federalist Society conference in Washington, on "the future of religious freedom." My remarks -- about 10 minutes long -- start at about 15:45. There was also a lively Q & A session.
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