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, April 13, 2015

"There Are No Abortion Cakes"

Katha Pollitt has done what perhaps might be called the "service" of writing a book that argues unabashedly for what most Americans regard as extreme positions with respect to the issue of abortion.  With this piece, "There Are No Abortion Cakes," she continues that work, and attempts to leverage the recent events surrounding Indiana's RFRA-type law in support of those positions.  She concludes:

It's time for progressives who rallied against the Indiana RFRA to show the same energy and conviction and urgency in support of women's reproductive rights. At least thirty-eight states have feticide laws, after all—this is not an issue for just one state. (Consider, too, that about 10 to 20 percent of known pregnancies end in miscarriage.) If CEOs are concerned, rightly, that their LGBT employees be treated as equals in Indiana, they should show as much concern for their pregnant and potentially pregnant employees. The same RFRA laws that open the door to discrimination against LGBT people lay behind the Supreme Court's infamous Hobby Lobby decision, which permits business owners to use religion to deny their employees health insurance coverage for birth control.

I understand that same-sex marriage and reproductive rights are different: marriage is about love, and abortion is about freedom. There are no abortion cakes. But freedom is a bedrock American value, even when it's for women. . . .

Assisted Suicide and the vulnerable

Debra Saunders raises -- or, reminds us of -- some very important issues and concerns regarding what appears to be the new push in many states for assisted-suicide legalization ("Help the Rich Not Get Too Much Care"):  

Gov. Jerry Brown spent time with Mother Teresa in Calcutta. His office won’t say if he’ll sign or veto an assisted-suicide bill. He knows what he should do. True compassion engenders striving to cure illness, relieve pain and offer warmth to those who are suffering. That is dignity.

Those who say they want the option of assisted suicide, said, Barnes, essentially are “pointing at a disabled person and saying, 'I don’t want to live like that.’” That’s not dignity.

Sunday, April 12, 2015

Religious exemptions and recusants

Here is the post to which I mistakenly referred the other day:  I'm reading-while-running this bookGod's Traitor's:  Terror and Faith in Elizabethan England (which I had downloaded, as it happens, before the enactment, inaccurate depicting, unfair criticism, overwrought villification, and revision of Indiana's RFRA-type law) which includes, in its account of the Parliament of 1571, some interesting examples of very early discussions and debate about exemptions, conscience, and the "belief v. conduct" distinction.  Next up, I think:  Waugh's Edmund Campion:  A Life.  

Law firms, marriage, and moral accountability

In yesterday's NYT, Adam Liptak notes that no major law firm will touch the SSM cases before the Supreme Court.  The explanations offered in the article by firm leaders and industry observers fall into three categories: 1) the issue is so controversial that taking on the representation will impact a firm's attorney recruiting, client retention, and staff morale; 2) firms recognize that there are no meritorious arguments against SSM; and 3) as Michael McConnell puts it, there is a powerful desire to "crush dissent" on the issue of SSM.

Explanation #2 appears to me to be a non-starter. Whether or not SSM is wise as a matter of policy or morally compelled as a matter of justice, I have a hard time believing that the issues surrounding its constitutional status are so one-sided that a firm would see no good-faith basis for litigation. There is, I believe, something to be said for explanations #1 and #3.

I'm reluctant to condemn categorically what's happened here, as we can easily fall into the trap of disclaiming any moral accountability for the cases and causes to which lawyers lend their efforts.  I believe that, at least in civil cases, lawyers bear some responsibility for the choices they make in client selection.  (I have explored these ideas more deeply here and here.)

Indeed, those who applaud the unwillingness of law firms to step up to defend prohibitions on SSM might look to an earlier era of professional ethics as a guide. David Hoffman’s Resolutions, considered by some to be the nation’s first legal ethics code, included the bold statement: “I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right.” George Sharswood’s Ethics considered it “an immoral act to afford that assistance, when [the attorney’s] conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him.”  According to the 1908 Canons of Professional Ethics, the lawyer “advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking the exact compliance with the strictest principles of moral law.”

The inconsistency, of course, is that law firms are not routinely declining other controversial causes, even those that conflict with emerging social norms, nor are they giving even lip service to the existence of accountability to extralegal norms, much less to "the strictest principles of moral law." I'm not suggesting that we should return to the rhetoric of the 1908 Canons (which, I suspect, was empty rhetoric more often than not), just that there is precedent for the notion that lawyers should be morally accountable for the decisions that they, and their clients, make.  Will the SSM cases mark the beginning of an era in which firms, perhaps echoing themes from the Corporate Social Responsibility movement, make client selection decisions that are shaped by moral commitments? 

If our "Hobby Lobby" moment of morally engaged business organizations is going to extend to large law firms and the choices they make regarding the clients they'll serve, this could be a healthy development for the profession and broader society.  If, as I suspect, this is more about firms' unwillingness to court controversy on a rapidly strengthening social norm even when there are important constitutional issues to be resolved, this could be an ominous development for our profession's long tradition of providing a voice for unpopular causes.    

Saturday, April 11, 2015

Has anything (that matters, in the end) changed?

Given (as it must be) that the coercive power of law will be used, even as I write (and in future), to punish men, women, and perhaps even children because they have been convicted of crimes, I wonder how those who will read and popularize Pope Francis's "Bull of Indiction of the Extraordinary Jubilee of Mercy" (here) will alter their own conduct and its authoritative effect.  I don't conflate or confuse divine law with human law.  The perpetrators of crimes matter, but so do the victims.  How should the higher law of "mercy" inform reasonable judgments concerning the operation of human law?  Should anyone think that God's mercy has recently been enlarged by the actions and/or words of a Pope?  I doubt it.  But, if I am incorrect, on what basis?  Is the divine law still authoritative?  Of course it is.  Nothing has changed, except the changeable.  The changeable is how the Church should minister to the modern world, but of course the Church's task has always been to serve the world she is given to save.  It's possible that the "Jubilee of Mercy" will turn out, sub specie etc., to have been the better or even best way to assist souls to get to Heaven.  Charity, however, requires that we never allow easy rhetoric in favor of "mercy" to occlude what makes it exigent in the first place, the divine judgment.  I simply don't understand the rhetorician who today claims that the Church "closes the door to mercy."  Two cheers for mercy, but mercy does, by all credible accounts, correct or complement what it presupposes.  

Thursday, April 9, 2015

"Of a Contented Spirit"

Following up on yesterday's post (UPDATE:  Which, for some reason, was not posted!  Sorry!) about the possible contemporary relevance of the English recusants, here are some lines from Lord Thomas Vaux, "Of a Contented Spirit":

WHEN all is done and said, in the end this shall you find:
He most of all doth bathe in bliss that hath a quiet mind;
And, clear from worldly cares, to dream can be content
The sweetest time in all this life in thinking to be spent.
 
The body subject is to fickle Fortune’s power,         5
And to a million of mishaps is casual every hour;
And death in time doth change it to a clod of clay;
Whenas the mind, which is divine, runs never to decay.
 
Companion none is like unto the mind alone,
For many have been harmed by speech,—through thinking, few or none;         10
Fear oftentimes restraineth words, but makes not thought to cease;
And he speaks best that hath the skill when for to hold his peace.
 
Our wealth leaves us at death, our kinsmen at the grave;
But virtues of the mind unto the heavens with us we have:
Wherefor, for Virtue’s sake, I can be well content         15
The sweetest time of all my life to deem in thinking spent.

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve's even as his politics and mine differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause--that is, its arguably indefensibly broad modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It's an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

Wednesday, April 8, 2015

Pioneers and Police: Archetypes in Constitutional Law Scholarship

Increasingly I am coming to believe that much scholarship in constitutional law, at least as respects commentary about contemporary controversies, may be characterized as the opposition of pioneers and police.

The pioneers see the Constitution as essentially limitless territory meant for exploration. Like the explorers of the Age of Discovery, they believe that what they bring to new shores--their values, aspirations, ideals, and other political and cultural desiderata--is more important than what they find. The role of pioneering scholarship is to articulate these desiderata and attempt to explain how they actually represent an improved--indeed, an ever-improving--topography of the constitutional territory. But part of their role is also to elude and outfox the police, with whom they disagree fundamentally in perspective and disposition.

The police see the Constitution largely as mapped terrain--their terrain. True, a few points on the map are not well known--unsettled outposts to which few people travel. But the general geographical metes and bounds are fixed and have been established for years. The role of policing scholarship is to study and gain expertise about that map. Whatever desiderata the police bring to their office they are disposed to locate in the historical map itself. But their role is also to prevent the pioneers from fulfilling their own projects--to monitor the pioneers' new map-making and to disrupt it at those strategic moments when the police believe it to be improper, unwise, or worse.

Of course there are all kinds of scholarship in constitutional law that are not captured by these archetypes. But when it comes to the large body of scholarship that attempts to intervene in some contemporary controversy, the metaphor holds up tolerably well.

Tuesday, April 7, 2015

Princeton follows Chicago's lead to defend academic freedom

At campuses across the country, traditional ideals of freedom of expression and the right to dissent have been deeply compromised or even abandoned as college and university faculties and administrators have capitulated to demands for language and even thought policing. Academic freedom, once understood to be vitally necessary to the truth-seeking mission of institutions of higher learning, has been pushed to the back of the bus in an age of "trigger warnings," "micro-aggressions," mandatory sensitivity training, and grievance politics. It was therefore refreshing that the University of Chicago, one of the academic world's most eminent and highly respected institutions, in the face of all this issued a report ringingly reaffirming the most robust conception of academic freedom. The question was whether other institutions would follow suit.

Yesterday, the Princeton faculty, led by the distinguished mathematician Sergiu Klainerman, who grew up under communist oppression in Romania and knows a thing or two about the importance of freedom of expression, formally adopted the principles of the University of Chicago report. They are now the official policy of Princeton University. I am immensely grateful to Professor Klainerman for his leadership, and I am proud of my colleagues, the vast majority of whom voted in support of his motion.

At Chicago and Princeton, at least, academic freedom lives!

Here are the principles we adopted:

“'Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom' . . . . .   Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the University, the University of Chicago fully respects and supports the freedom of all members of the University community “to discuss any problem that presents itself.” Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

"The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. In addition, the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas. In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

"Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission. As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression. Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it."

Friday, April 3, 2015

Oman Blogging at CLR Forum

We've got Nate Oman (William & Mary) blogging with us for the month at the Center for Law and Religion Forum. Come on over and have a look at his very fine first post, Indiana and Doux Commerce, which responds to various reflections of the political theorist Jacob Levy (McGill) on the relationship of religious freedom and commerce.