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.

Thursday, April 2, 2015

A couple of observations from John Marshall on the nature of political debate

By Kevin C. Walsh

I have the good fortune of presenting next week over lunch to the students in my law school's John Marshall Scholars program on the topic of John Marshall's private life. This seemed like a fitting topic in anticipation of their upcoming visit to the John Marshall House. In preparation, I've recently been reading My dearest Polly; letters of Chief Justice John Marshall to his wife, with their background, political and domestic, 1779-1831, by Frances Norton Mason. I came across a couple of quotations from Marshall that seemed worth sharing.

The first is from Marshall's Life of Washington, in his description of the political hysteria surrounding the deeply unpopular Jay Treaty. Marshall's contrast between the deliberate approach of the statesman and the intemperate quickness of populist critics reveals how little has changed since the 1790s in the manner in which public affairs are sometimes considered:

In the populous cities, meetings of the people were immediately summoned, in order to take into their consideration, and to express their opinions respecting an instrument, to comprehend the full extent of which, a statesman would need deep reflection in the quite of his closet, aided by considerable inquiry. It may well be supposed that persons feeling some distrust of their capacity to form, intuitively, a correct judgment on a subject so complex, and disposed only to act knowingly, would be unwilling to make so hasty a decision, and consequently be disinclined to attend such meetings. Many intelligent men, therefore, stood aloof, while the most intemperate assumed, as usual, the name of the people; pronounced a definitive and unqualified condemnation of every article in the treaty; and, with the utmost confidence, assigned reasons for their opinions, which, in many instances, had only an imaginary existence; and in some, were obviously founded on the strong prejudices which were entertained with respect to foreign powers. It is difficult to review the various resolutions and addresses to which the occasions gave birth, without feeling some degree of astonishment, mingled with humiliation, at perceiving such proofs of the deplorable fallibility of human reason. 

The second Marshall observation I thought I would share is from an autobiographical letter to Justice Story written in 1827. This observation, too, is about the debate over the Jay Treaty, from a distance of about thirty years:

As it was foreseen that an attempt would be made in the legislature to prevent the necessary appropriations, one or two of my cautious friends advised me not to engage in the debate. They said that the part which it was anticipated I would take, would destroy me totally. It was so very unpopular that I should scarcely be permitted to deliver my sentiments, and would perhaps be treated rudely. I answered that the subject would not be introduced by me; but, if it should be brought before the house by others, I should undoubtedly take the part which became an independent member. The subject was introduced; and the constitutional objections were brought forward most triumphantly. There was perhaps never a political question on which any division of opinion took place which was susceptible of more complete demonstration, and I was fully prepared not only on the words of the constitution and the universal practice of nations, but to show on the commercial proposition especially, which was selected by our antagonists as their favorite ground, that Mr. Jefferson, and the whole delegation from Virginia in Congress, as well as all our leading men in the convention on both sides of the question, had manifested unequivocally the opinion that a commercial treaty was constitutional. I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly. There was scarcely an intelligent man in the house who did not yield his opinion on the constitutional question. The resolution however was carried on the inexpediency of the treaty. 

Two Items on the State RFRAs Contretemps

By Marc DeGirolami

First, Professor Doug Laycock has a very good piece/interview at the Religion and Politics Blog.

Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn't get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug's interview was apt:

For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.

UPDATE: And a third item, see my colleague Mark Movsesian's thoughts.

Wednesday, April 1, 2015

Convinced?

By Patrick McKinley Brennan

"The Catholic Church is convinced that every human being is created in the image of God" -- so pontificate the Bishops of the Church in Indiana: here.  "Convinced" by whom?  And who/what is the referent "Catholic Church" that has been "convinced?"  The metaphysics of the proposition is risible (and shameful).

A more promising intervention by the Bishops might begin as follows:  "The Holy Catholic Church teaches that . . . ."  And might then go on to observe that the salvation of souls depends on it . . . .

Indiana's Catholic bishops weigh in on the RFRA controversy

By Rick Garnett

Here is a statement from Indiana's five Catholic bishops:

The recent passage of the Religious Freedom Restoration Act in Indiana appears to have divided the people of our state like few other issues in recent memory. We urge all people of good will to show mutual respect for one another so that the necessary dialogue and discernment can take place to ensure that no one in Indiana will face discrimination whether it is for their sexual orientation or for living their religious beliefs.

The Catholic Church is convinced that every human being is created in the image of God. As such, each and every person deserves to be treated with dignity and respect. This includes the right to the basic necessities for living a good life, including adequate healthcare, housing, education, and work. The Catholic Church teaches that the principle of religious freedom also is rooted in the dignity of the human person. Religious freedom is one of the most cherished rights in the U.S. Constitution. The rights of a person should never be used inappropriately in order to deny the rights of another. We are called to justice and mercy.

We believe that it is crucial that religious freedom be protected. As Pope Francis wrote in his apostolic exhortation, The Joy of the Gospel: “No one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions” (n. 183).

We support efforts to uphold the God-given dignity of all the people of this state while safeguarding the rights of people of all faiths to practice their religion without undue burden from the government.

Religious freedom "among", not "against", civil rights

By Rick Garnett

Following up on Marc's response to Dale Carpenter's post on the "weaponization" of RFRA:  Dale expresses concern about RFRA-type laws being used as a "sword against civil rights."  It is not my impression that those of us who support RFRA-type accommodation regimes expect or want them to be used in such a way.

As I see it -- and as I tried to set out in this short forthcoming paper -- the conversation about how to manage the conflict between some religious-liberty claims and some equality and non-discrimination claims has to proceed from an appreciation for the facts that "religious liberty" *is* a civil right and that the enterprise of protecting civil rights includes -- it has to include -- care for religious liberty.  Here is the abstract:

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty?

"Weaponizing"

By Marc DeGirolami

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter's recent post: "What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights."

One might have thought, even relatively recently, that religious freedom was a "civil right." But no longer: it is now said to be the enemy of "civil rights." And I suppose that what is "weaponized" will depend on one's perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state's interest in vindicating specific sorts of dignitarian harms, that have been "weaponized." But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here's how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I'll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.

 

Tuesday, March 31, 2015

Another pharmacists' trade group discourages provision of lethal injection drugs

By Kevin C. Walsh

The American Pharmacists' Association has adopted a policy that discourages its members from participating in executions. Here is the news release:

WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.

The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.

This new policy statement joins two policies previously adopted by the APhA House of Delegates:

Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)

  1. APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
  2. APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.

This APhA policy aligns with a recently adopted policy of the International Association of Compounding Pharmacies.

On the merits, I agree with these new non-participation policies. In order for them to be fully effective, there may need to be conscience protection for pharmacists should any governments try to force the issue.

Most people should have no trouble recognizing that pharmacists should not be forced to violate their conscience when it comes to execution drugs. Pharmacists should not lack this protection because they are paid for their services and the drugs they sell. Yet we sometimes hear that people operating for-profit businesses should not have conscience protection.  I hope that people who see the value of conscience protection when it comes to execution drugs can also see the value of conscience protection when it comes to assisted-suicide drugs and abortifacient drugs. 

Monday, March 30, 2015

Ross Douthat's questions

By Rick Garnett

Reflecting on the striking and troubling embrace by so many who should (or do) know better of a false narrative about Indiana's RFRA (and the many other state laws like it), Ross Douthat notes, as several others have, the dramatic extent to which religious liberty has become controversial, contested, and vulnerable.   And, in order to highlight this extent, he poses a number of questions for Indiana's critics: 

1) Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?

2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?

3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?

4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?

5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?

6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?

7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?

These are all questions that those of us in the First Amendment academy and on the law-and-religion conference circuit encounter regularly.  Too often, the answers are not encouraging.

 

Free Exercise By Moonlight

By Marc DeGirolami

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.

  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight. 

Indiana’s RFRA Act

By Robert John Araujo, SJ

 

It should come as no surprise to us of the present age that religion plays a key role in political life. Recently the State of Indiana enacted its Religious Freedom Restoration Act that parallels Federal legislation and statutes of many other states of the Union. Unfortunately, some American citizens or interests are keen on exposing the so-called discrimination or potential discrimination that this kind of legislation may perpetrate against fellow citizens who are part of the sexual orientation and gender identity movement.

Powerful influences including elements of the media, the NCAA, and large corporations that publicly support the political, social, and cultural initiatives of this movement have been adding their objections to this new legislation which reflects what has been the law for some time in other jurisdictions. Could it be that there is something in the text of the Indiana law that is different? I do not think that is the real issue. The real issue resides in the text itself and what the text is supposed to protect, which I shall address in a moment.

The opponents of the new Indiana law are now pressuring the legislators and the governor, who supports the legislation, for clarifications. But are clarifications needed? This is where a careful examination and interpretation of the text are in order. After all, words and their meanings are important to the law as are the entire texts. In my discussion today, I am relying on Indiana Senate Bill No. 568 introduced on January 20 of this year and enacted this past week. The text is HERE:  Download SB0568.01.INTR.

The substance of the legislation is contained in Section 6 that provides that state action or the action of an individual based on state action cannot “substantially burden a person’s right to the exercise of religion, even if the burden results from a law or policy of general applicability.” The same section further provides that a burden to the right of religious free exercise may be lawful and trump the right of religious freedom if the burden is “essential to further a compelling governmental interest” and is “the least restrictive means of furthering the compelling governmental interest.” This language essentially tracks Supreme Court jurisprudence, albeit at times confusing, on the nature of religious liberty.

The first five sections of the legislation contain the definitions applicable to the intent and purpose of the new law. I find two of the definitions crucial to meeting the general opposition to the state RFRA that opponents of the bill are voicing. Section 3 defines the phrase “the exercise of religion.” The definition can be fairly distilled as the practice or observance of a person’s [defined in Section 4] ability to act or to refuse to act in a manner that is substantially motivated by the person’s sincerely held religious belief. Inherent in this protected right is the defense of the person who is acting or refusing to act on the grounds of that person’s religion. This protected right does not impose on the non-believer or someone who adheres to some other faith. It protects the claimant who is exercising a Constitutional and now an Indiana statutory right. It does not interfere with the legal rights of others who may disagree with the religious tenets in issue.

To understand this point further, it is useful to look at the second important definition to which I alluded a moment ago, and this definition concerns the “compelling governmental interest” that can derogate the protected right of religious freedom under specified circumstances. A “compelling governmental interest” is defined as “a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.” I have emphasized two passages with italics.

While the first italicized phrase might profit from a definition, I do not think that a definition essential to the protection of all legitimate interests at stake. The phrase “the highest magnitude” suggests a crucial legal, perhaps even constitutional, principle that is essential to the integrity and survival of the Republic, the State of Indiana, and the commonweal/common good. Opponents to the legislation appear to ignore this element of the text when they argue that the Indiana law “could make it easier for religious conservatives [the legislation does not use the term “conservative” anywhere] to refuse service to gay couples.” What might these services be? The denial of some services to anyone might actually be a lawful act of discrimination rather than an unlawful act of discrimination.

For example, an innkeeper might discriminate against a would-be customer if the innkeeper refuses to serve alcohol to someone who is already intoxicated or underaged. This refusal could be compelled not only by law but also by a person’s sincerely held religious belief that the intoxicated or underaged person should not be served. Might the proprietor of a bed and breakfast refuse to accommodate a single person? Unless the single person is rowdy, a known fugitive from justice, travelling with an animal, etc., it would be difficult for the proprietor to refuse accommodation on the grounds of religious freedom as the law is designed to protect. But what if it is a couple of persons? Does it matter if they are of the same-sex or opposite-sex? Could the proprietor rely on the provisions of this law to deny accommodation to either couple and not trigger the compelling governmental interest standard of the highest magnitude? It would seem that the right of religious freedom (or conscience which is not directly addressed by the statute’s language) as enshrined by the law would protect the proprietor who knows that the opposite-sex couple is not married. Why should the same-sex couple be treated differently by forcing the proprietor to provide them with a room with a large bed? (Perhaps the circumstances would be different if this couple were Queequeg and Ismael from Melville’s Moby Dick, but I digress.) Is there a compelling governmental interest of the highest magnitude that is at stake? Would it matter if the proprietor of the business relying on the religious liberty protection operates a bakery and objects to an opposite-sex couple who want a cake to celebrate their living together out of wedlock or a same-sex couple who order a cake to celebrate their commitment or union under state law?

The point here is this: must a person seeking the protection of this law conform his, her, or its religious conscience and thereby sacrifice his, her, or its religious faith to the sin of someone who desires to have his, her, or its action declared a compelling governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the religious person’s free exercise? It strikes me that, given the context of those objecting to this law, this is precisely the objective that they are seeking. They are pursuing the goal because they see no sin or sin is inconsequential; it is irrelevant to them that they are asking another person to cooperate and participate in their sin. This circumstance parallels what medical providers are now facing from their licensing authorities when they are forced to refer a patient to a medical provider who will provide the service they cannot provide due to their sincerely held religious belief or conscience.

As I keep going over the text of the new Indiana law and consider the objections raised by its opponents, I see strong parallels to what Henry VIII did in England from 1533-35. Both the king and the opponents of the Indiana law will not tolerate anyone who disagrees with their objective from escaping. All must conform to the goals of the law’s opponents, and sincerely held religious beliefs will be no defense. We know what happened during and after 1535 in England. Is this same thing really required under the rubric of a compelling governmental interest of the highest magnitude today? If so, then sin wins once again and virtue is at forfeit.

 

RJA sj  

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