In this New York Times piece, Andrew Rosenthal discusses former Gov. Jeb Bush's recent statement that:
“But I love … first of all, Pope Francis is an extraordinary leader,” he said. “He speaks with such clarity,” Mr. Bush said. “He speaks so differently and he’s drawing people back into the faith, all of which as a converted Catholic now of 25 years I think is really cool.”
But, Mr. Bush said, “I don’t get economic policy from my bishops or my cardinals or from my pope.” He added that “religion ought to be about making us better as people and less about things that end up getting into the political realm.”
Although I admire a lot about Gov. Bush's views and record, I had been preparing to do a post, along the line of Rod Dreher's, criticizing Bush's statement for it's wrongheaded sharp distinction between "making us better people" and "the political realm." As Dreher says, "Catholic Christianity is not focused only on personal piety, but has a broad social dimension as well[.]" But then along came the Rosenthal piece, which manages, at the same time, to (a) hold up the JFK speech as a model of the right way to think about religion-and-politics while (b) blaming Bush for not being more like JFK. As I see it, Bush's mis-step was precisely in echoing JFK (on this particular point). According to Rosenthal:
Mr. Bush is perfectly O.K. with government imposing the religious values he shares on women who make the difficult decision to have an abortion, or simply to get prenatal care or contraceptive services. He doesn’t want to hear from “his cardinals” on economic issues, but apparently thinks the right wing’s religious views should dominate on the civil rights issue of allowing people to marry whomever they choose, regardless of gender. He’s O.K. with laws that allow discrimination against same-sex couples based on the religious beliefs of business owners.
And he had no problem when he was governor of Florida acting on his personal religious views to thrust himself into the agonizing decision of Terri Schiavo’s family to disconnect her feeding tube after she had been in a persistent vegetative state for over a decade.
Well, there's a lot of question-begging going on here, I think, involving the distinction between "acting on . . . personal religious views" or "imposing . . . religious values" and . . . supporting and executing laws in accord with one's understanding of the common good, human dignity, and political morality? It's an old point, but it's also always worth making: The equality norm that Rosenthal (and others) fault Bush (and others) for disregarding in, say, the abortion context is, at the end of the day, inextricably indebted to "religious views" and "religious values."
Reed v. Gilbert is a unanimous--and clearly correct--decision upholding a start-up church's challenge to a crazy-quilt town ordinance that severely limited both the size and duration of the church's roadside signs directing people to its worship services. (The church, which met in a local school, effectively could not put up the signs until late the evening before the service.)
But behind the unanimity in invalidating the ordinance is pretty substantial division on whether to analyze it under strict scrutiny (the majority) or something less (Kagan and Breyer concurrences in the judgment). The division reflects the increasingly evident fact that the Court's "conservatives" interpret free-speech rights more broadly than the "liberals" do. The liberals' concurrences bring up various government regulatory interests that involving prohibiting or requiring speech (securities filings, required signs urging people to wash their hands after leaving a petting zoo, etc.). Looming in the immediate background of this case is the recurring divide over the extent to which free-speech rights might cut into general government regulation.
Justice Kagan raises some reasonable questions about whether strict scrutiny should be automatically triggered just because a sign ordinance makes distinctions based on a sign's content (by, for example, favoring historical-marker signs or highway signs advertising the availability of coffee). The amicus brief filed by the Christian Legal Society and others, written by the St. Thomas Religious Liberty Appellate Clinic, agreed with the majority's analysis here but also offered a narrower potential principle. We argued that laws discriminating against announcements of, and directions to, noncommercial events--as the town's ordinance did here--should trigger strict scrutiny under the distinct First Amendment freedom of assembly. We made use of John Inazu's groundbreaking work on that freedom.
The majority didn't take up our suggestion. But it did say that the town's argument that it could treat signs advertising events less well than other signs (e.g. those supporting political candidates or "ideological messages") was "novel" and unsupportable. So make a mental note: in the future, Reed v. Gilbert might be cited as a case where the Court recognized, if implicitly, that gatherings of people--"assembl[ies]"--enjoy strong, not weak, First Amendment, protection.
(St. Thomas student Michael Blissenbach did fine work helping to draft the CLS et al, amicus brief.)
The Supreme Court holds unanimously in Reed v. Town of Gilbert that an Arizona municipality's sign code violates the Speech Clause.
I have a little more here, including a note that, though it isn't a Religion Clauses case and though there were a couple of concurrences in the judgment only in Reed, this case continues the Roberts Court's uniform voting pattern in law and religion-related cases of either 9-0 or 5-4. For more discussion of this question, see this paper.
The Supreme Court decided today that Texas did not violate the First Amendment's protections for free speech by denying the Sons of Confederate Veterans the ability to have a state-issued specialty license plate for their group. The Court held that Texas's license plates are government speech, and the Free Speech Clause does not bar the government from controlling the content of the government's own speech.
The government-speech theory that won the case was Texas's lead theory all along. This theory did not seem to fare very well at oral argument. But that only goes to show that oral argument is not always an aid to prediction.
One might wonder whether the unusual voting line-up in today's decision in Walker v. Texas Division, Sons of Confederate Veterans had something to do with the seeming mismatch between oral argument and outcome. Justice Thomas, who almost never speaks at oral argument, voted with Justices Ginsburg, Breyer, Sotomayor, and Kagan, and on the opposite side of Chief Justice Roberts and Justices Scalia, Kennedy, and Alito. Justice Thomas, of course, more regularly votes with the latter cohort. But this was not a contributing factor to the mismatch. Some of the Justices who voted for Texas on government-speech grounds seemed skeptical of those grounds at oral argument.
The most similar example of argument-outcome mismatch that comes to mind in recent years is McBurney v. Young. In that case, the Court upheld a challenged state law based on a categorical rule that the State led with and held tightly to even while it seemed to face significant headwinds at oral argument.
I would not go so far as to suggest that these two points make a line. But perhaps they can provide pre-opinion, post-argument reassurance to government lawyers when their categorical arguments don't seem to have found much judicial love at oral argument.
I haven't had a chance to read Laudato Si yet, but a group of my colleagues at UST (including my co-director at the Murphy Institute, Billy Junker) just had a conference on these issues here last week, and had this to say in today's local paper. Their conference included a keynote by John Allen, in which he offered some of the predictions and cautions about likely reactions to the encyclical that appeared in this column of his (he calls it "getting ahead of the spin"). Today's column offers an informative historical survey of the evolution of Church thought on these issues.
Wednesday, June 17, 2015
Several times now over the past while, I have resolved but failed to write a post with a link to Charles Alan Wright's tribute to his Texas colleague (and former Notre Dame Law professor) Bernard Ward. I have been stymied by inability to locate a publicly accessible full-text version. I have given up for now. Having recently come across a hard copy of the essay in the course of switching between offices, I've decided that it's worth simply recommending to people interested in law and humanity that they go ahead and figure out a way to get a copy for themselves. Here's a start: Charles Alan Wright, The Wit and Wisdom of Bernie Ward, 61 Tex. L. Rev. 13 (1982).
