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.

Monday, June 29, 2015

A sliver of silver lining

By Erika Bachiochi

It's difficult to find a silver lining in the case decided last Friday, but I'm going to try to offer just one:  in Kennedy's discussion of substantive due process, he dropped neither Roe nor Casey in his citations.  Casey's "sweet mystery of life" passage would have seemed particularly apt, given that Obergefell's definition of liberty builds upon that phrase's postmodern quest for identity-creation more than anything we've seen since. "At the heart of liberty is the right to define one's concept of existence, of the universe, and of the mystery of human life"...and, according to Obergefell, to "define and express [one's] identity." Kennedy cited Griswold (6 times) and Eisenstadt too, but neither Roe nor Casey.  Yes, both cited cases concern privacy within the marital state, but Obergefell wasn't at all about privacy within the marital state.  

From the Opinion of the Court: 

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972)

Gives one a bit of hope that Kennedy's "better informed understanding" of liberty no longer includes the right for a mother to end the life of her unborn child...

Sunday, June 28, 2015

Our way cool Constitution

By Robert George

I mean, is this cool or what?  Our Constitution is a living, breathing document!  It evolves to stay in sync with Anthony Kennedy's moral and political beliefs. It's like magic!

June 26 and the Future

By Robert John Araujo, SJ

This portrayal of Thomas More's trial for high treason is something upon which Catholic legal theorists may wish to reflect in light of Friday's marriage decision:

 

Some organizations which received the decision they sought in the litigation have suggested they will now disband. I am skeptical of their claim. As was the case with Henry VIII and his Parliament, will those having rational arguments to present that conflict with the majority decision find themselves in the difficult position of Thomas More? Time will tell.

 

RJA sj

Saturday, June 27, 2015

Three recommendations for religious reaction to the Supreme Court's legal redefinition of civil marriage

By Kevin C. Walsh

In thinking about the general topic of religious reactions to the Supreme Court's redefinition of marriage, I continue to find that the strongest religious reactions are among those evangelizing the five-Justice majority's decision as if it should be revelation for the rest of us. Consider, for example, this CNN report of a speech by Hillary Clinton in northern Virginia last night:

Clinton read the last paragraph of Justice Anthony Kennedy's opinion from the stage on Friday, ending with, "And to that I say, amen, thank you."

"This morning, love triumphed in the highest court in our land," Clinton said. "Equality triumphed, America triumphed."

There's more where this came from, of course, from the relighting of the White House to the rainbow-ization of corporate logos and profile pictures on social media. (And let's not forget the Supreme Court demonstrator proclaiming "Anthony Kennedy is My Spirit Animal." Or the reaction to the decision: "Cries of joy rang out when the decision was announced. A gay men's chorus began to sing.") Everyone wants to "spread the good news," it seems.

But that's not true. Not everyone thinks what the Supreme Court has done is legally permitted, much less legally compelled. So what about the rest of us, who take what comfort we can from the symbolism and the substance of the Chief Justice of the United States dissenting from the bench? 

A few suggestions, in increasing specificity:

1. Pray. We all need grace to be prudent, temperate, just, and courageous, as well as faithful, hopeful, and charitable. 

2. Insist that all in government act lawfully. People of faith must insist that our legislators and judges be people of the law rather than prophets of a false faith--whether in "progress" or in "history" or in a new understanding of "the central meaning of the fundamental right to marry."

3. Engage in concrete acts of self-government. Congress should pass legislation using its authority under Section 5 of the Fourteenth Amendment to ensure that marriage remains a two-person enterprise. 

A few quick thoughts about Obergefell (and Glucksberg)

By Rick Garnett

Here is a short reaction-piece I did for America, and here is one I did for National Review Online.  Here's a bit from the America piece, which touches on an issue that I don't think most commentators have been talking about:

Today’s ruling raises many questions, and not only about the “next steps” with respect to marriage-related rules and nondiscrimination laws. For example, the reasoning in Justice Kennedy’s opinion is in significant tension with the opinion—which Justice Kennedy joined—in the Court’s 1997 decision that upheld the right of governments to outlaw physician-assisted suicide. In that case, Washington v. Glucksberg, Chief Justice Rehnquist had insisted that a “liberty interest” had to be deeply rooted in our country’s history and traditions before it could be treated as the kind of “fundamental right” that is protected against state regulation. The asserted right to doctor-assisted suicide did not, the Court concluded, have that kind of pedigree. In Obergefell, however, Justice Kennedy did not follow Rehnquist’s example in allowing history and tradition to constrain judicial power. And, as the pressure in some states to embrace physician-assisted suicide increases—in the name of “dignity” and “compassion”—it is not clear that the Court’s wise refusal in Glucksberg to constitutionalize a right to that practice will stand.

Here, just as a reminder, is how the late Chief Justice Rehnquist ended his opinion for the Court in Glucksberg:

Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.

 

Friday, June 26, 2015

Justice Kennedy's opinion as a religious reaction to same-sex marriage, and President Obama on "justice that arrives like a thunderbolt"

By Kevin C. Walsh

A few weeks back, I agreed to participate in an AALS panel next January on "Religious Reactions to Same-Sex Marriage." So I've been thinking about and observing and reflecting on the phenomenon, and will continue to do so.

Reading Justice Kennedy's opinion in Obergefell v. Hodges, it seems to me that the opinion itself can be understood as a religious reaction to same-sex marriage. Among other things, it purports to remedy an injury of being rendered "strangers even in death."  

The religious reactions I've seen so far have been from the opinion's enthusiastic adherents. President Obama, for example, has described this 5-4 ruling as bringing "justice that arrives like a thunderbolt." 

"Serious Questions About Religious Liberty"

By Susan Stabile

From Justice Roberts' dissenting opinion in today's marriage ruling:

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

June 26, judicial impartiality, and Justice Kennedy -- cause for concern?

By Kevin C. Walsh

At Above the Law, David Lat wrote yesterday "Why the Same-Sex Marriage Decision Will Likely Come Out Tomorrow." That's today, June 26.

Lat and others find in this speculation reason for excited anticipation. They should not, for the timing would further sharpen the perception that Justice Kennedy's amour-propre has played an outsized role in the Supreme Court's evaluation of same-sex marriage under federal law. 

The speculation about June 26 as a day for "Big Gay Cases" (to use Lat's phrase) is based on the belief that Justice Kennedy has written an opinion for the Court requiring states to license and recognize same-sex marriages. Lat writes:

A June 26 hand-down of Obergefell would make that the day of decision for three of Justice Kennedy’s four Big Gay Cases — Lawrence, Windsor, and Obergefell (with Romer v. Evans, decided on May 20, 1996, as the only case not falling on June 26). And authorship of Obergefell would arguably make Justice Kennedy the single individual who has done more to advance gay rights in the United States than, well, anyone in history.

An astute observer of the Court corresponding with Lat points out that it appears unusual based on experience in recent years for the Court to schedule an opinion announcement for the Friday before the end of the Term. "There is no reason to break with character and issue a Friday decision," Craig Konnoth writes, "except to celebrate an anniversary." In an update, Lat notes that Justice Kennedy has "a sense of history and also a sense of drama, so if any justice would be attentive to anniversaries, it would be AMK."

All of this is highly speculative, as all involved acknowledge. And the final update on Lat's post quotes Eric Citron (a former Supreme Court clerk, current SCOTUSBlog commentator, and Supreme Court practitioner) with a strong formulation of the conventional wisdom about the timing of hand-downs. "The main determinant of when a case comes out is when it is ready; the Court barely considers other factors at all. And these matters are largely under the control of the Chief’s office, and I think it would be genuinely surprising, given all the things the Court is working on right now, if this kind of coincidence was in mind." I tend to agree with Citron. But Lat further comments "even if the decision on timing is ultimately up to Chief Justice Roberts, perhaps with input from the Reporter of Decisions, I can’t help thinking that the Chief would try to accommodate Justice Kennedy if AMK expressed a strong preference for June 26." And it is hard to disagree with that.

So, why would this timing be bad if deliberate? Justice is supposed to be blind. Judges should not try to create anniversaries of decisions of theirs that they would like to be celebrated. That is not how impartial judging operates. As John Finnis has written in the related context of criticizing Dworkinian moralism, "the horizon is ordinarily not the best focus for the judicial gaze."

I don't want to overstate the principle at work here. Judges may often properly have regard to the effect of timing on particular litigants. And this may even properly push them to work overtime to issue a decision more quickly. Consider the wrongfully convicted and imprisoned man now in possession of conclusive evidence exonerating him. The judicial system should work hard to end that injustice as soon as possible.

One might analogize that situation to same-sex marriage under the Constitution. Interpreting the Fourteenth Amendment to require State licensing and recognition of same-sex marriage, on this view, would be the correction of a historic injustice that cannot come fast enough. But that is not how Justice Kennedy and his colleagues have managed the issue thus far. A more accurate perception is the careful cultivation of public opinion, and concern to be on "the right side of history." Because these are not the actions of judges under the law, I hope this speculation of Above the Law is wrong. 

Thursday, June 25, 2015

The role of the judge

By Robert George

OK, I think I finally get it!  The role of the judge in constitutional interpretation is to insert into the text words that aren't there but, in the judge's opinion, should be ("abortion," "marriage," etc.).  The role of the judge in statutory construction is to remove from the text words that are there but, in the opinion of the judge, should not be. Eureka! (I must have been absent the day they taught this in law school.)

Tuesday, June 23, 2015

Mary Ann Glendon’s 2015 Cardinal Egan Lecture: “Religious Freedom: Yesterday, Today and Tomorrow”

By Robert John Araujo, SJ

 

Many of us who contribute to or read the Mirror of Justice know and appreciate the importance of religious liberty to our American republic and beyond. As an important voice in our nation, our bishops are encouraging us to once again observe, discuss, and pray for the Fortnight for Freedom in anticipation of the Fourth of July. In this context, I note that Professor Mary Ann Glendon delivered the 2015 Cardinal Egan Lecture at the NYU Catholic Center last month. Courtesy of the Magnificat Foundation, her lecture is HERE. It is entitled “Religious Freedom: Yesterday, Today and Tomorrow.” It should be no surprise that her thoughts are prescient. In relying on the work of the late Jean Elstain, she poses the question about the kinds of distractions used today to divorce authentic liberty—especially religious liberty—from the citizenry. It seems that bread and circuses can last only so long.

As I had several rough days in chemotherapy on Friday, Sunday, and today, I shall conclude here and let contributors and readers savor Professor Glendon’s insights. In saying this I hasten to add my strong recommendation to read carefully what she has to say.

 

RJA sj

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