At City Journal, Adam Freeman helpfully identifies a number of the issues that are, or will soon be, arising regarding religious institutions, public funds and grants, and antidiscrimination laws.
Thursday, July 2, 2015
Religious Freedom after Obergefell
". . . [C]orporations aren't always the bad guys."
So says Frank Bruni, in the NYT. It turns out, apparently, that when we're talking about Hobby Lobby (etc.), corporations "don't have a soul," don't stand for things, don't exercise religion, don't have expressive interests, etc. But, when it's Eli Lilly bashing Indiana for its Religious Freedom Restoration Act (on the basis of misrepresentations and misunderstandings of that Act), then . . . we see the "sunny side of greed."
Vallier on "Liberal Politics and Public Reason"
Go here for a really interesting podcast about Prof. Kevin Vallier (Philosophy, Bowling Green) and his new book, "Liberal Politics and Public Reason: Beyond Separation." Here's part of the promo:
In Liberal Politics and Public Faith: Beyond Separation (Routledge, 2014), Kevin Vallier develops a novel view of the role of religious conviction and reasoning in liberal democracy. On his view, religious citizens will rarely need to constrain the role that their religious convictions play in their public activities. However, Vallier also contends that public officials and institutions cannot determine public policy solely on the basis of religious reasons.
A Catholic Response to Modern Day Slavery
Campus of The Catholic University of America is abuzz with the just announced details of the Papal visit. While the focus of his trip is the World Meeting of Families in Philadelphia, Pope Francis will be involved in some very important matters here. To follow the details of his trip, click here.
While it is wonderful to host the Holy Father, it is even more important to heed his calls to work for justice. One way this is happening next week on campus is an important multi-disciplinary conference on Human Trafficking, aptly titled, Answering Pope Francis's Call: An American Catholic Response to Modern Day Slavery. Hosted by University's National Catholic School of Social Service, the USCCB, Catholic Charities of the Archdiocese of Washington, and Catholic Charities, USA, this critical conference seeks to educate dioceses throughout the nation on identifying and responding to modern day slavery in their communities. As I have blogged about previously, many components of the Church, particularly women religious, have been working on this issue for decades. But many other diocese are unaware of the problem within their midst. This conference will bring together national leaders on the topic, both within and outside the Church, to help the Church continue its important work in this area. Tune in next week for blogging from the conference.
Wednesday, July 1, 2015
Federal court dismisses ACLU's "theological malpractice" lawsuit
A federal district court in Michigan yesterday dismissed the ACLU's "theological malpractice" lawsuit against the United States Conference of Catholic Bishops and current and former chairs of a Catholic hospital network. For background on the case of Means v. United States Conference of Catholic Bishops, see my earlier Mirror of Justice post (with links to other coverage).
The filing of this case made a big media splash; its dismissal, not so much. Compelling factual allegations are more interesting than careful dissection of a novel legal theory, I suppose.
The court concluded that it lacked personal jurisdiction over the USCCB and that plaintiff failed to state a claim upon which relief can be granted against the other defendants. There is some discussion of what the court describes as ecclesiastical abstention, which the court found would have applied to the elements of breach and proximate cause. But the plaintiff would have failed to state a claim upon which relief can be granted even in the absence of that doctrine. The court held that plaintiff failed to identify a legal duty owed plaintiff by the individual defendants. In the court's words, "Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network."
I am already seeing expressions of dismay and outrage in various quarters one would expect to see them. But the court's application of plain-vanilla legal principles seems unobjectionable. People who want to express their opinion should probably read the court's opinion first.
When bad things happen to good law -- some law and principles for a rough guide
I wrote yesterday that the Supreme Court's Arizona redistricting-by-commission decision made good law bad. A court majority did this by redefining the word "Legislature" in the Constitution's "Elections Clause" to include a legislative process designed to bypass the legislature. This new and expanded understanding of "Legislature" may be better policy, considered purely as policy. But as law, the "Elections Clause" is worse than it was before, for it has lost some of the determinacy it previously had, which is one of the reasons it was included as written law to begin with.
Decisions like the Supreme Court's "Legislature"-redefinition decision raise the question of how to respond when bad things happen to good law.
One appropriate response is condemnation. Done persuasively, condemnation of bad decisions may decrease the likelihood of similarly bad decisions. And conscientious government officials should be open to fair legal criticism. Indeed, it is their duty to heed such criticism.
What about accepting the erroneous interpretation as law? Should we?
This raises a number of difficult questions for political prudence. The answers to some of those questions can be informed by correct legal analysis, although that will only take us so far. But here's a start.
The Supreme Court cannot change the Constitution. Like all other government officials, the Justices of the Supreme Court are under the law; they are its servants. The Constitution is their master; they are not our masters.
The Supreme Court can nevertheless change the law that judges of inferior courts are obligated to apply. The holdings of an opinion for the Court bind inferior judicial officials as a matter of vertical stare decisis. Even erroneous decisions create "new law" of a peculiar sort. This "case law" is not equivalent to the Constitution itself, even for judges of inferior courts. But it is law of a certain sort.
Like other courts, the Supreme Court can also render judgments and make legally binding orders. These judgments and orders also make law of a certain sort, in accordance with the law of judgments and the law of remedies. Included in the law of judgments, for example, are various rules of preclusion that prevent (or "preclude") the relitigation of finally decided matters.
All of this "new law" created by an erroneous Supreme Court decision is final in some respects, but not final in others. Precedents can be distinguished, narrowed, and even overturned; judgments can be re-opened; orders can be amended. There's law about how all that happens as well (though some of that law, such as that guiding judicial practice regarding precedents, is rather fuzzy).
Knowing the ways in which an erroneous Supreme Court decision is and is not law in various ways can help inform whether and how one accepts that decision as law.
Suppose you really like redistricting by commission but you think the Supreme Court's interpretation of "Legislature" to authorize it was legally wrong. Should you vote for an initiative that takes advantage of that erroneous interpretation to authorize redistricting by commission? That depends on much more than just the legal analysis provided thus far. You will be undermining constitutional self-government at least to some degree, but perhaps not much. And the resulting process will be good law of a certain sort. There is a lot of room for political judgment and discretion here.
What if you have taken an oath to uphold the Constitution (as I did, for example, when I was sworn into the bar)? Would voting for that initiative violate your oath? If so, then you shouldn't do it. But voting for an initiative that helps to solidify in practice an erroneous constitutional interpretation does not necessarily violate a voter's oath to the Constitution. We do not think that lawyers violate their oath to the Constitution when they help clients order their affairs in the wake an erroneous judgment in a constitutional case. After all, the judgment is law of a certain sort for that client. Why think differently about voters?
To say that it is permissible in certain circumstances to act on erroneous judicial interpretations of the Constitution is not to say that it is obligatory. Far from it. Some government officials have an obligation to treat these erroneous interpretations as law of a certain sort, as we have seen. But they also have an obligation to the Constitution itself. And they should not make that good law worse just because the Supreme Court has. Judges on inferior courts can distinguish and criticize; other officials (and voters) can adopt an opposite interpretation as a political rule. And in some circumstances--maybe even most--they and we should.
The law shapes and guides here, but does not fully determine what one ought to do when bad things happen to good law.
Tuesday, June 30, 2015
Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment
In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?
This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.
In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.
Some thoughts on the method-of-execution case
I posted, in America, some thoughts about the Supreme Court's Glossip decision on lethal-injection drugs. A taste:
This case and, more dramatically, this exchange highlight—as did Friday’s decision constitutionalizing same-sex marriage—one of the most important questions in constitutional law: Which divisive and difficult questions of morality and policy does the Constitution leave to the democratic process and which ones has it removed from politics? For about a century, this question has sharply divided citizens and justices alike. When the Court strikes down as unconstitutional a policy that we think is justified, or at least debatable, we are likely to cry “activism!” or “overreach!” When the Court lets stand a policy that we embrace, or at least think is reasonable, we tend to praise it for its “humility” and “restraint.” When it comes to the role of judges and the power of “judicial review,” few of us achieve perfect and principled consistency.
It is possible to think that, for example, abortion should be generally legal while at the same time believe that the Court got it very wrong, in Roe v. Wade, when it declared that the Constitution—rather than elections, legislation and compromise—answers all questions about abortion’s legality and regulation. The same can be said—indeed, Chief Justice Roberts underscored this point in his dissent in Friday’s ruling—about same-sex marriage. And, similarly, one can firmly oppose capital punishment as a failed and unjust policy while believing that, in our system, its abolition depends on persuading our fellow citizens and not five justices of the Supreme Court.
The Arizona redistricting decision shows how to make good law bad
I had not been following the Arizona redistricting-by-commission case very closely, but I've been reading the Supreme Court's opinions from beginning to end the past couple of weeks (the joy!), and yesterday brought the Court's decision in that case. It is a very bad decision. I don't mean bad as a matter of policy; I don't know enough to have an informed opinion on that. But bad, very bad, as a matter of law.
The bad law exemplified by the case is what one might call adverb law--law about how to do law lawfully. The Justices in the majority adopted an approach to the text of the Constitution that defeats a central purpose for having a written Constitution--to determine and to fix the rules so that people can hold the government (and themselves) to those rules later.
The legal text at issue was the "Elections Clause" of the U.S. Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." (emphasis added)
Arizona voters, acting via initiative, found a way to bypass redistricting by the Arizona legislature; they vested redistricting authority in an independent commission instead.
The Arizona legislature lodged the obvious legal objection: The Elections Clause says that redistricting is to be done "in each State by the legislature thereof," but the Arizona initiative places redistricting authority outside the state legislature.
The legislature lost. The same five-Justice majority that redefined civil marriage last Friday redefined "Legislature" yesterday. In an opinion for the Court by Justice Ginsburg, the Supreme Court held that redistricting by an independent commission counts as redistricting "by the Legislature" under the Elections Clause. Chief Justice Roberts wrote the main dissent, which interprets as well all the majority interprets as poorly.
While the willingness of one Justice to write and four others to sign on to loose legal analysis like the majority's is disheartening, a comparison of Justice Ginsburg's opinion for the Court with Chief Justice Roberts's dissent illustrates another virtue of a written Constitution: We can more easily identify when the Justices approve unlawful law by twisting our written Constitution than by operating outside the constitutional text entirely.
This is cold comfort, I know. But at least it provides the basis for warm condemnation.
So go, read the Chief's dissent. Don't be a chump.
In Conversation with Erika about the “sliver of silver lining”
Yesterday, I was in contact with Erika about her posting on the Obergefell decision and what seemed to be Justice Kennedy’s decision not to cite the “mystery of life” passage from Planned Parenthood v. Casey. During Sunday’s chemo session, I had the time and a little energy to read carefully the majority opinion in Obergefell—after all, as the old Soloflex advertisement used to say, “No pain; no gain!” Only Justice Thomas in his dissent cites Casey, but he does not address the “mystery of life” language.
Upon returning home, I studied the citations to Lawrence that appear in Obergefell and discovered something that robs Erika, me, and others of the hope that liberty is no longer defined by the “mystery of life” passage of Casey.
In the Court’s opinion of Obergefell, Justice Kennedy refers a fair number of times to Lawrence v. Texas. No surprise there. In two of his Lawrence citations on page 12 of the Obergefell slip opinion, he refers to 539 U.S. at 574. That is where he, Justice Kennedy, discussed the liberty passage of Casey in Lawrence. I hasten to add that on page 12 of Obergefell, Justice Kennedy is discussing the underlying substantive principle of liberty. So, indirectly he does rely on the problematic language of Casey without having to mention the specific language in Casey that formulates the definition of liberty discussed by Erika. Whether this was Justice Kennedy’s intention or not, I cannot say. But some readers of Obergefell may wish to take the time to examine all the citations to Kennedy’s previous decisions cited in Obergefell and discover that the Casey formulation is indirectly discussed by the two citations to “at 574.” Hence, the flawed definition of liberty discussed by Erika has been given an extension on its life. The sliver of the silver lining is a phantasm. While Casey is not specifically mentioned in Obergefell, Justice Kennedy introduces its liberty formulation in stealthy fashion by citing Lawrence’s discussion of it.
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