This paper was my contribution to the conference on “The Scope of Religious Exemptions,” hosted by the Bowling Green State University Department of Philosophy, April 17-18, 2015. I explain in the paper that both the constitutional law of the United States and the political morality of human rights converge on the conclusion that government may not grant conscience-protecting exemptions only to religious believers.
Friday, June 5, 2015
On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers
American Religious Freedom: Reflections on Koppelman and Smith
This review essay, Review of Politics 77 (2015), 287-299, may be of interest to MOJ readers. The abstract:
Among contemporary scholars of American religious freedom, Andrew Koppelman and Steven Smith are two of the most esteemed. In their respective books -- Koppelman's Defending American Religious Neutrality (Harvard 2013) and Smith's The Rise and Decline of American Religious Freedom (Harvard 2014) -- they address a broad range of important issues. Space limitations constrain me to be selective in this review essay. I comment here on what Koppelman and Smith say, and don’t say, about two of the most fundamental issues concerning American religious freedom: the meaning of the nonestablishment norm and the constitutionality of granting conscience-protecting exemptions only to religious believers.
Thursday, June 4, 2015
Another Winters (Tall) Tale
Michael Winters of the National Catholic Reporter continues to burnish his well-earned reputation for malicious dishonesty.
Winters accuses me of "attempting to co-opt the Church’s teaching authority for crass political ends." His evidence? "All five of [Robert George's] non-negotiables [abortion, embryo destructive research, redefining marriage, euthanasia, and human cloning] align with positions articulated by today’s socially conservative Republican Party." If you've had even an introductory level course in logic you immediately perceived the fallacious inference--the non sequitur. He has offered no evidence whatsoever to show that I chose these issues or stress their importance because they line up with Republican Party positions. The truth is that I support the Republican Party (and left the Democratic Party) because of the Republicans' pro-life stance. Winters' suggestion that I chose or stress the issues because that helps the Republicans is the very reverse of the truth. And he knows it.
I regard the principle of the profound, inherent, and equal dignity and right to life of every member of the human family--beginning with the child in the womb, and including the frail elderly and the physically handicapped and cognitively disabled--as foundational. If we get that principle wrong, then, as Governor Robert P. Casey of Pennsylvania, the last of the great pro-life Democrats, said, "we will get nothing else right." I grieve, as Casey grieved, that his Party--the Party of my own family and of my youth--has utterly abandoned the principle by embracing the abortion license, embryo-destructive research, and, increasingly, assisted suicide.
Winters goes on to say it is "telling that there was no mention of poverty, or war, or environmental degradation on Professor George’s list." Since Winters comments on my work frequently and therefore, I assume, actually reads it (though maybe I shouldn't assume that), he knows perfectly well that I also stress the obligation to fight poverty and the need to design and implement policies that lift people out of it and do not mire people in it. What is discussable or "negotiable," as I have said time and again, is not whether we have a strict moral obligation to fight poverty, but what is the best--the most effective--way to do it. As the liberal New York Times columnist Nicholas Kristof has candidly observed, many of the federal anti-poverty programs championed by liberal activists and politicians since the mid-1960s have failed. Some have harmed the people they were meant to help. So we need new ideas and new approaches. People who share a deep and firm commitment to fighting poverty can and do disagree--reasonably disagree--on the best means to achieve that agreed upon goal. This doesn't make fighting poverty less important than, say, fighting euthanasia; it is only to say that different people may reasonably differ about how to do it. (I would add that people who are seriously interested in fighting poverty should agree on one point, even if they disagree on others: the rebuilding of a flourishing marriage culture, especially in poor communities, is imperative. Daniel Patrick Moynihan's claims about the relationship between the collapse of the marriage culture and the entrenchment of poverty have been fully vindicated.)
Since Winters knows all this--none of it is news to him--he is being dishonest in telling readers that "by saying that these five, and only these five, are non-negotiable, Professor George, and his political followers, gave the impression that the Church’s commitment to fighting poverty or environmental degradation was negotiable." But, then, what else is new? Dishonesty is the man's stock in trade.
A few observations on judicial supremacy in response to recent commentary
There has been a lot of learned commentary lately on the idea of judicial supremacy. (See, e.g., Mike Paulsen, Michael Ramsey (and again), Seth Barrett Tillman, Ed Whelan (and again), Ilya Somin, Andrew Hyman (and again), Evan Bernick, Randy Barnett). (HT: The Originalism Blog)
It's difficult to pick precisely where to wade in. So rather than pick one spot, I'll just add a few observations.
1. Originalist methodology:
To the extent that we are trying to figure out what our law provided with respect to judicial supremacy at the Founding, we should just ask the question of "original-law originalism": "What did our law, including the Constitution, provide regarding the authoritativeness of Supreme Court legal determinations about the meaning of the Constitution in 1789?"
This seems more promising than starting with "how the relationship between the monarch and judges was understood in eighteenth-century England" or the way in which "at least some framers expressed views that indicated a privileged role for judges in interpreting the law." To the extent that such understandings were sources of law, they will be picked up by the original-law inquiry. But there are much more obvious sources of law to begin with, such as the law of jurisdiction, the law of judgments, and the law of remedies. These are the sources of law we typically look to in determining the authoritativeness of all sorts of other judicial rulings; why shouldn't the authoritativeness of determinations about the legal meaning of the Constitution by the Supreme Court also be shaped by these sources?
One feature of the judicial power in the Founders' law that persists in our law is that a court's authority to rule in a particular case depends on jurisdiction (both as to subject-matter and with respect to a person or thing within the court's authority to reach). As Will Baude has argued, the "judicial power" in Article III is best understood in intra-systemic legal context to incorporate consideration of jurisdiction into the determination whether and with respect to whom a judgment is binding: "the judicial power vested in Article III courts allows [federal courts] to render binding judgments that must be enforced by the Executive Branch so long as those courts have jurisdiction over the case."
2. Remedies and Marbury:
Under the Founders' law, the binding effect of a legal determination with respect to a particular matter was tied to the remedies it was authorized to provide. This is why Marbury v. Madison counts against modern notions of judicial supremacy.
Chief Justice Marshall's extensive disquisition in that case on the Jefferson Administration's illegal refusal to deliver Marbury's commission established no law binding on the Administration (or anyone else for that matter). A writ of mandamus issued by that Court would have supplied the means by which that binding effect would have arisen. But the Court issued no such writ.
Chief Justice Marshall's opinion had three parts: (1) Did Marbury have a right to delivery of his commission? (2) Is there a judicial remedy for the violation of Marbury's right? (3) Is the right remedy a writ of mandamus from the Supreme Court? An affirmative conclusion in each of the three parts of Chief Justice Marshall's three-part opinion would have been legally essential to give rise to a judgment that altered the legal position of the Jefferson Administration.
The Court disposed of the case at (3), determining that the Supreme Court Court lacked authority to issue mandamus in the exercise of its original jurisdiction because the statutory grant of jurisdiction exceeded the constitutional grant. But part (2) was another way the Court's part (1) determination could have been legally inefficacious. Even if issuance of the writ of mandamus would have been within the Court's jurisdiction, the Court's determination that Marbury had a vested legal right to his commission would not have been binding on the Administration unless this determination was enforceable via a judicial remedy such as a writ of mandamus.
It very well may be that the Jefferson Administration did break the law in refusing to deliver Marbury's commission (and maybe even for the very reasons supplied by Chief Justice Marshall in the first part of his opinion), but the Supreme Court's first-part say-so on that point would itself have provided no content-independent legal reason to think so as a matter of the Founders' law.
3. The judicially situated nature of judicial reasoning about the Constitution.
Constitutional doctrine applied by courts does not directly map onto constitutional meaning such that a judicial declaration with respect to the constitutionality or unconstitutionality of a law is equivalent to a judicial statement that a law is constitutional or unconstitutional.
A recent high-profile example comes from Chief Justice Roberts's outcome-determinative opinion in NFIB v. Sebelius. Roughly, the Chief Justice's reasoning took the form:
(1) The "individual mandate" exceeds Congress's authority if the relevant provisions are a mandate plus penalty rather than a tax.
(2) Even though the relevant provisions do not most naturally look like they impose a tax, they resemble a tax enough that the judiciary should treat them as amounting to a tax for purposes of refusing to hold them unconstitutional.
(3) The Court therefore should refuse to hold the "individual mandate" unconstitutional but instead treat the relevant provisions as amounting to a tax.
There is nothing about this reasoning that prevents someone who is not a federal judge from deciding that the "individual mandate" really is a mandate enforced by a penalty and therefore unconstitutional. Indeed, one who accepts the constitutional reasoning of Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito under the Commerce Clause and Necessary & Proper Clause probably should reason this way as long as he is under no role-based legal obligation (as Chief Justice Roberts believed he was) that requires a thumb on the statutory-interpretive scale to avoid a determination of unconstitutionality.
Wednesday, June 3, 2015
"Pope Benedict XVI's Legal Thought"
Do you own this book yet: "Pope Benedict XVI's Legal Thought: A Dialogue on the Foundation of Law"? You should. Thanks to John Witte's Cambridge Studies in Law and Christianity, we have with this volume an excellent collection of reflections on church-state relations, human dignity, human rights, and democracy by (to mention just a few) Mary Ann Glendon, John Witte, Joe Weiler, Andrea Pin . . . Run, don't walk . . .
Gender Trouble
I suspect most MOJ readers are not reading Judith Butler, the influential gender theorist who teaches at the University of California at Berkeley. Since I have actually waded through much--but not all--of her fame-making Gender Trouble: Feminism and the Subversion of Identity, I thought I'd share some of it below, to shed some light on the intellectual underpinnings of the American gender/transgender movement. Butler's writing is almost impossible to decode, but the following passages are noteworthy for their unusual clarity. They also provide a decent summary of the rest of the book (or what I've been able to get through anyway).
One note: Butler's radicalism is rightly criticized by some gender feminists for rendering "woman" obsolete, such that there is no subject left for feminists to rally behind. As you will read below, for Butler, not only is (culturally constructed) "gender" a construct, but (bodily) "sex" is too...
Catholics, and especially those like myself who are seeking to give life to a robust articulation of a dynamic "new feminism," have a special responsibility, it seems to me, to defend human embodiedness, and the asymmetry, vulnerability and dependency that follows. Here's are two recent attempts of mine, which focus on asymmetry, one in Christian Bioethics (Oxford), the other a chapter in Mary Hasson's new book, Promise and Challenge. I recently presented a paper on embodiedness, vulnerability and dependency (that relies heavily on the great Alasdair MacIntrye and feminist philosopher Eva Feder Kittay), both at Steubenville and at a conference on women and the Church in DC this spring; publication is (one hopes) forthcoming.
From Judith Butler's Gender Trouble:
Although the unproblematic unity of “women” is often invoked to construct a solidarity of identity, a split is introduced in the feminist subject by the distinction between sex and gender. Originally intended to dispute the biology-is-destiny formulation, the distinction between sex and gender serves the argument that whatever biological intractability sex appears to have, gender is culturally constructed: hence, gender is neither the causal result of sex nor as seemingly fixed as sex. The unity of the subject is thus already potentially contested by the distinction that permits of gender as a multiple interpretation of sex.
If gender is the cultural meanings that the sexed body assumes, then a gender cannot be said to follow from a sex in any one way. Taken to its logical limit, the sex/gender distinction suggests a radical discontinuity between the sexed bodies and culturally constructed genders. Assuming for the moment the stability of binary sex, it does not follow that the construction of "men" will accrue exclusively to the bodies of males or that "women" will interpret only femal bodies. Further, even if the sexes appear to be unproblematically binary in their morphology and constitution (which will be become a question), there is no reason to assume that genders ought also to remain as two. The presumption of a binary gender system implicitly retains the belief in a mimetic relation of gender to sex whereby gender mirrors sex or is otherwise restricted by it. When the constructed status of gender is theorized as radically independent of sex, gender itself becomes a free-floating artifice, with the consequence that man and masculine might just as easily signify a female body as a male one, and woman and feminine a male body as easily as a female one.
This radical splitting of the gendered subject poses yet another set of problems. Can we refer to a "given" sex or a "given" gender without first inquiring into how sex and/or gender is given, through what means? And what is “sex” anyway? Is it natural, anatomical, chromosomal, or hormonal, and how is a feminist critic to assess the scientific discourses which purport to establish such “facts” for us?9 Does sex have a history?10 Does each sex have a different history, or histories? Is there a history of how the duality of sex was established, a genealogy that might expose the binary options as a variable construction? Are the ostensibly natural facts of sex discursively produced by various scientific discourses in the service of other political and social interests? If the immutable character of sex is contested, perhaps this construct called “sex” is as culturally constructed as gender; indeed, perhaps it was always already gender, with the consequence that the distinction between sex and gender turns out to be no distinction at all.It would make no sense, then, to define gender as the cultural interpretation of sex, if sex itself is a gendered category. Gender ought not to be conceived merely as the cultural inscription of meaning on a pregiven sex (a juridical conception); gender must also designate the very apparatus of production whereby the sexes themselves are established. As a result, gender is not to culture as sex is to nature; gender is also the discursive/cultural means by which “sexed nature” or “a natural sex” is produced and established as “prediscursive,” prior to culture, a politically neutral surface on which culture acts. This construction of “sex” as the radically unconstructed will concern us again in the discus- sion of Lévi-Strauss and structuralism in chapter 2. At this juncture it is already clear that one way the internal stability and binary frame for sex is effectively secured is by casting the duality of sex in a prediscursive domain. This production of sex as the prediscursive ought to be understood as the effect of the apparatus of cultural construction designated by gender. How, then, does gender need to be reformulated to encompass the power relations that produce the effect of a prediscursive sex and so conceal that very operation of discursive production? [Pages 8-10]
...
In this sense, gender is not a noun, but neither is it a set of free- floating attributes, for we have seen that the substantive effect of gender is performatively produced and compelled by the regulatory practices of gender coherence. Hence, within the inherited discourse of the metaphysics of substance, gender proves to be performative— that is, constituting the identity it is purported to be. In this sense, gender is always a doing, though not a doing by a subject who might be said to preexist the deed. The challenge for rethinking gender categories outside of the metaphysics of substance will have to consider the relevance of Nietzsche’s claim in On the Genealogy of Morals that “there is no ‘being’ behind doing, effecting, becoming; ‘the doer’ is merely a fiction added to the deed—the deed is everything.” In an application that Nietzsche himself would not have anticipated or condoned, we might state as a corollary: There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its results. [Page 34]
Read more of Butler's book here.
Supreme Court Decides Head Scarf Title VII Case Against Employer
I have a brief recap of this minor decision over here. The Twitter version:
Motivations, not knowledge, make the engine of antidiscrimination laws hum.
Dorothy Sayers on work and vocation
I imagine many MOJ readers have encountered this before ("Why Work?", by Dorothy Sayers) but, just in case, check it out. The idea/aspiration of "vocation" has long been a subject of interest at this blog, and Sayers's thoughts are, for me, really helpful.
"Transcending Orthodoxies" conference on academic freedom at Notre Dame
Go here for information about what looks to be a fascinating conference this fall at Notre Dame:
Transcending Orthodoxies:
Re-examining Academic Freedom in Religiously-Affiliated Colleges and Universities
A reexamination of the secular principle of academic freedom, and a discussion of how a theological understanding might build on and further develop it.
Friday, May 29, 2015
Catholic Legal Theory and the Legislative Enterprise
A few days ago The New York Times published an article entitled “Four Words that Imperil Health Care Law Were All a Mistake, Writer Now Says.” [HERE] A major point presented by this article is that these four words in the Patient Protection and Affordable Care Act of 2010 are at the heart of the legal difficulties associated with this legislation. These words are: “established by the State”. I do not think that this is the only source of interpretative problems in the law, but I digress. This phrase appears over a dozen times in various contexts throughout the bill that was enacted into law. The Times article offers the opinions, of several well-placed individuals involved with the efforts to promulgate the bill, that these words are: “the most contentious” of the bill; “a product of shifting politics”; “inartful”; “a drafting error”; or, “inadvertent language”.
Back in March of 2010 prior to the enactment of this legislation, I offered some thoughts about it HERE at the Mirror of Justice. As I said at that time,
I am one of those folks who thinks that the parliamentary process of legislation necessitates the deliberation of texts so that legislators and citizens can know, if they read it, what pending legislation says and what it does not say. This is a point I have been making in my legislation courses that I have taught over the past twenty-four years. I find it of great concern when legislators do not know on what they are voting regarding the content of the text. I realize that there are occasions, especially when legislative proposals are hundreds or thousands of pages long (such as the stimulus package of last year) that legislators’ familiarization with the text is difficult to master. But this is not a good pretext to excuse legislators from having the opportunity to know on what it is that they are committing the nation whom they represent. Texts and familiarization with what they contain are vital to law-making and to the democratic process to which we citizens entrust to our legislators.
I also noted in my March 2010 contribution that the meaning of words and their implications are important to legislators and citizens. They are clearly important to lawyers, administrators, and judges, too. I also argued in my earlier posting that there could well be issues raising the requirements of Article I of the Constitution. One of them is: did each house pass the bill in the same form? What was the “same form”, if it ever existed? One veteran legislator involved with the enactment has suggested that the four words “established by the State” “clearly contradicted the main purpose of the legislation.” The purpose of legislation is vital to legislative enactment, but so are other issues. Is it clear what the “purpose” of the Patient Protection and Affordable Care Act is? Another person familiar and involved with the background of the bill’s enactment stated in the Times article that the pending case before the Supreme Court dealing with the meaning of the “four words” involves language that is “so contrary to the intent of those who had written the legislation.” I agree that legislative intent is also quite an important matter in ascertaining the meaning of bills and, therefore, the meaning of laws which incorporate the text of the enacted bill. But what was the intent of this legislation? There is no published legislative history, i.e., committee or conference committee reports, to help us answer these questions about purpose and intent. This is where Catholic legal theory could well have a role to play, but a sound approach to legislative drafting and interpretation also do, too.
Throughout my almost thirty years as a law teacher, I offered courses in legislation. I have long considered that a fundamental course in legislation, especially its interpretation, is crucial to legal education. Not every dean, academic dean, or faculty member has agreed with me. But once again, I make my appeal for the inclusion of this kind of course in indispensable legal education. The “Catholic element” of my view is that the human law has to be founded on objective human intelligence comprehending the intelligible reality; moreover, this stated foundation reflects the principle that the law is a servant not the master of society and all its members. Thus, the words of laws—statutes—need to be clear about what is expected and what is not. After all, fair notice to all members of society about the scope and meaning of the law is vital. Hence, it is critical that lawyers have a fundamental grasp of the tools of statutory construction.
These tools begin with a careful evaluation of the plain meaning of the text; then they consider the intent (what were the legislators, or at least those responsible for bills and their committee consideration, thinking and generally discussing amongst themselves); closely related to intent but sufficiently distinct to merit a different discussion is the purpose or what are the purposes of the proposed legislation, i.e., what objective is the text designed to achieve. Once these issues are addressed, the lawyer must consider the coherence of this legislation with the other laws (e.g., the Constitution, related statutes, and pertinent regulations) that have a bearing on the subject matter of the legislation. There are other considerations as well, but these are the fundamental ones. For those who may be interested in what I consider to be these other issues, you may look at my article in Volume 68 of the Mississippi Law Journal beginning at page 225 (1998)—which develops two earlier essays I wrote that were published in Volume 16 of the Seton Hall Legislative Journal (1992).
I believe that one of the continuing difficulties that this law will face stems from the conflict, internal and external, with the laws dealing with patient care and health. While this is not the only one, I suggest that the meaning of Section 1555 dealing with the freedom not to participate in federal health insurance programs will be another source of legal disputes. If my prediction proves to be an accurate one, the occurrence of these disputes may well be a source of how to teach legislation and its interpretation in the future. In the meantime, the interpretative exercises of the Patient Protection and Affordable Care Act will likely continue.
RJA sj
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