Monday, July 4, 2016
Sometimes, material for a Catholic legal thought blog can emerge from the most unexpected of places...such as the tiny parish St. Andrew the Apostle (membership less than 200) ... on the tiny island of Chincoteague, VA (population approximately 3,000). It is here that Father Michael Montalban Imperial, of the diocese of Richmond, offered some insightful reflections on the Fourth of July.
My mother, a lifelong Catholic, used to say that the best Catholics were converts. Similarly, I have found that those who truly appreciate the United States often work with immigrants or are immigrants themselves. Unlike many of us, they do not take the freedom we have for granted. Fr. Imperial, ordained in the Philippines and the Director of the Eastern Shore Migrant Ministry, is just such a person. His work for the last several years has been ministering directly to the thousands of migrant agricultural workers who come from places such as Haiti and Guatemala to the Eastern Shore of Virginia to work 14 hour days in brutal conditions. Seeing their struggles and commitment to a better life for themselves and their families, Fr. Imperial witnesses firsthand what cherishing opportunities and true sacrifice look like. So, on July 3, 2016 he posed a question to his parish: if the founders could come here today, what would they share with us about July Fourth? His research offered some answers of particular interest today as our nation is in a deep debate about so many divisive issues, and many of us feel at a loss for what to do about our nation's future.
He found that Patrick Henry offers some insight for us all to consider on both immigration and church / state relations:
It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the Gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here. - Patrick Henry, The Trumpet Voice of Freedom: Patrick Henry of Virginia, p. iii.
Charles Carroll suggests a timely reminder for the debate of religious freedom:
Without morals a republic cannot subsist any length of time; they, therefore, who are decrying the Christian religion . . . are undermining the solid foundation of morals, the best security for the duration of free governments.
And as we think about our duty to vote and serve one another, Fr. Imperial's research reminds us that the owner of perhaps the most famous signature on the Declaration - John Hancock- discussed our duties as Christians when he said, "Resistance to tyranny becomes the Christian and social duty of each individual….Continue steadfast and, with a proper sense of your dependence on God, nobly defend those rights which heaven gave, and no man ought to take from us." ; - John Hancock, History of the United States of America, Vol. II, p. 229. On this same note, Patrick Henry sounded agreement, stating, "It is when people forget God that tyrants forge their chains."
Fr. Imperial thoughtfully connected this past vision with our present circumstance. Here are some excerpts:
July 4 2016 will mark the 240th anniversary of that spirit that cried out freedom and self-determination, the moment when the original thirteen colonies declared their independence from Britain in 1776. The articulation of the aspirations for freedom, human dignity and goodness of man lived on to this day.
But with recent events, can we say still that the same burning desire in every heart is alive or it has been diluted by modernity that breeds apathy and individualism. I will not include the penchant for violence - the escalating number of mass shootings like the Orlando incident that took 49 lives. Do we still possess the same conviction as the Founding Fathers - the firmness of their faith and their belief in the goodness of man? Does God still play a special role in our lives or we become part of a sub-culture who says "God is Dead."
* * *
As Christians, we seek goodness in every heart. Seeking such goodness and bringing it together as a community of faith was the mission of the disciples. As we honor the Founding Fathers, we embrace their belief and tradition: recognizing God in our lives and seeking the good in every heart.
The world is troubled. The country is troubled. But Fr. Imperial reminds us that we have a long tradition of embracing God and embracing each other. Perhaps this is a lesson Washington can take to heart – a lesson sent from a small rural parish with a large amount of wisdom.
On this 240th anniversary of our declaration of independence our beloved country is, alas, in trouble and badly in need of reform. At the heart of our woes is what has so often been at the heart of our woes whenever we have had woes, going all the way back to the original sin of slavery---infidelity to our Nation's founding principles. Those principles include our formal constitutional commitments as well as the moral and cultural norms, practices, and understandings that those commitments presuppose for their intelligibility and force and without which they cannot long endure. The promise of America remains great, but in many crucial areas we have gone astray. If America is to fulfill her promise then things must be turned around. It will not be easy, nor can it be accomplished without sacrifice; but it can be done.
We must renew our national commitment to limited government and the rule of law. This includes restoration of the constitutional separation of powers and recovery of the principle of federalism. More broadly we must demand respect for the principle of subsidiarity for the sake not only of individual liberty (though that is certainly very important) but also the flourishing of vitally important institutions of civil society, beginning with the family and religious and other private associations that (a) crucially assist the family in forming decent and honorable citizens---people who are fitted out morally for the burdens and responsibilities of freedom; and (b) play indispensable roles in the areas of health, education, and welfare, including the provision of social services and assistance to those in need.
We must also restore to its rightful place in the constitutional system the democratic element of our republican system by reversing the outrageous usurpations of legislative authority regularly and indeed routinely committed by the executive and judicial departments. Such reform will, substantively, enable us to make critically needed gains in the direction of restoring in law and culture even more fundamental principles, beginning with the sanctity of human life in all stages and conditions; marriage as conjugal union of husband and wife; and respect for religious freedom and the rights of conscience along with other basic civil liberties. Social liberalism is riding high, especially after eight years of extremely aggressive promotion by a president who is willing to stretch and even breach the constitutional limits of executive power at every possible turn to institutionalize his socially liberal values and weave them into the fabric of our law and public institutions (including the military), but what he and the courts have done can be undone. It is a matter of political will---the willingness to "pay and price and bear any burden" to accomplish what is needed in the cause of moral-cultural renewal.
Economic reform must also be given its due in an overall agenda of reform. Corporate welfare and crony capitalism (of the sort that, for example, creates regulatory barriers preventing upstarts from competing with large established firms that can more easily absorb compliance costs) are blights on the honor of our Nation. Moreover, there is a problem of plutocracy that the left derides while frequently taking advantage of and the right denies or ignores, supposing that the cultural and political power of big business is just the free market doing its thing. The Trump, and to some extent, the Sanders phenomena are driven to a considerable extent by legitimate economic grievances. Economic inequality is not in itself something unjust. And any truly effective effort to eliminate it would give us tyranny in no time flat. But justice does require that we maintain fair terms of competition and cultivate conditions for large scale upward social mobility. A sound system will be one in which upstart firms can compete fairly with the big dogs and hard work, initiative, and the willingness to take investment risks are rewarded.
In the area of national security, where many of our most urgent and frightening challenges lie, a renewed sense of American exceptionalism--one that would be massively advanced by moral reform and re-dedication to our constitutional principles--would serve us well. American exceptionalism is often misunderstood. It is not a claim that we, as Americans, are superior people. Rather, it is a claim that the principles of our founding are unique and valuable principles. It is an affirmation that the American people are not bound together as a nation by blood or soil but rather by a shared commitment to a moral-political creed: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life liberty and the pursuit of happiness."
This creed is what has rallied Americans in the past to the defense of our country. It can once again strengthen us to stand up to the evil doers who threaten us, and it can inspire us to make the sacrifices that---make no mistake---will have to be made if we are to defeat them. The evil doers have confidence that they will prevail over us, despite our overwhelming military power, because they believe in something and we believe in nothing, because they are spiritually and morally rigorous and we are soft and self-indulgent, because they are willing to fight and die and we are not. Our survival against them depends entirely on whether these beliefs about us are true or false. Whether they are true or false is up to us. A central goal of any reform movement worthy of the name will be to make it the case that these beliefs about us are false. If they are true, then we are doomed, and doomed with us is the noble experiment in morally ordered liberty bequeathed to us by the founders of the American republic on this day 240 years ago.
Saturday, July 2, 2016
The Supreme Court has had essentially nothing of substance to say about it over the last 23 years. The contraction of whatever rights are protected by it proceeds apace. In this article a couple of years ago, I noted that religious accommodation--
one of the most vital issues of religious free exercise that at one time implicated the Free Exercise Clause directly—has by now largely become entirely statutory. The Roberts Court has decided or issued substantive orders in 4 cases involving either RFRA or RLUIPA [excluding the nonprofit contraception mandate litigation]. In the same period it has decided only one case (perhaps) partially about the Free Exercise Clause, a case in any event that is arguably not about religious accommodation at all and that represents a carve-out from general free exercise principles. The single case that brought both statutory and free exercise claims was resolved solely on the basis of the statutory claim without any decision as to free exercise.
It is tempting to attribute the reason for this transition from the Free Exercise Clause to statute law entirely to the holding of Employment Division v. Smith, which ostensibly precluded judicial review as to laws that are neutral and of general application. To be sure, the rule announced in Smith has contracted the number of Free Exercise Clause challenges. And yet there are features of Smith—most notably the issue of the meaning of “general applicability” and the scope of what I have elsewhere described as the “individual-assessment exception” to Smith—that have suggested to several lower courts that accommodations are constitutionally required far more often than may appear under Smith. To date, however, the Supreme Court has declined to hear any cases raising a direct challenge to Smith.
The enfeeblement of the Free Exercise Clause continues. Last week, the Court denied cert. in Stormans v. Wiesman (with Justice Alito dissenting from the denial, in an opinion joined by the Chief Justice and Justice Thomas), a case about Washington State's regulations requiring the stocking of drugs in pharmacies that provided exemptions for various secular reasons (business reasons, for example) but not for religious reasons. The case presented a golden opportunity for the Court to clarify what exactly "generally applicable" means under the test given to us a full generation ago by Employment Division v. Smith. Together with my MOJ colleagues Rick and Michael Perry, I was pleased to join an excellent amicus brief urging the Court to do so.
No dice. Disappointing, but not surprising. Justice Kennedy, after all, was in the Smith majority, and while he authored the majority opinion in Lukumi-Babalu, his opinion offered a rather confused and confusing reading of general applicability (Justice Scalia's concurrence was much better on this point). He joined four other Justices in denying cert.
But the larger point is that the Free Exercise Clause, at least as a possible source of accommodation, is increasingly a dead letter. Unless one has evidence of explicit discriminatory motivation in the making of exceptions (and it better be really explicit), one should expect the Clause to offer nothing. The Court has little interest in saying anything else about the Free Exercise Clause, other than raising it as a kind of weak, pseudo-justification for carve-outs like the ministerial exception.
There are all sorts of political and cultural reasons for the atrophying of the Free Exercise Clause, of course. Some of those reasons are, I plan to argue in a new paper tentatively titled Religious Accommodation, Religious Tradition, and Political Polarization, pretty good reasons. But whatever the reasons--good or bad--they are not going away. In a generation or less, the Free Exercise Clause may well find itself in the company of the Privileges or Immunities Clause and the Third Amendment.
The current Chronicle Review includes an interesting article by Hillsdale prof D.G. Hart suggesting that the widespread support of Donald Trump among "evangelicals" reveals longstanding sloppiness in political scientists' reliance on "evangelicals" as a relevant category. He notes that the broad category ignores the extent to which local congregations are isolated from each other because of deep religious differences:
[I]f evangelical identity was so thin that it could not overcome realities that prevented Pentecostals from worshiping with Presbyterians, how useful was it to explain the way believers participated in electoral politics? Both a Baptist and a Methodist might vote for the same Republican presidential candidate, but was that the product of religion? Too much of the literature on evangelicals and politics said, 'Yes.'
Hart suggests moving away from evangelicalism as a category and looking instead to church membership, noting data showing that Protestants who attend church regularly are much less likely to vote for Trump than are people who self-identify as "born again." More broadly, he wonders whether scholars "should simply take religion less seriously" in explaining a person's ideas or actions. He cites Fintan O'Toole's work arguing that religion was not the chief factor alienating Protestants and Catholics in Northern Ireland.
There has been much hand-wringing over the breakdown of commitment to the core principles that have guided evangelicals' political engagement. Maybe that commitment was more illusory than we thought, and maybe the perception of guiding principles reflects a past convergence of motivations that had less to do with faith than previously assumed. In other words, maybe "evangelicals" look more like "Catholics?"
