Check this out. This Spring, Touro is hosting its Second Annual National Moot Court Competition in Law and Religion. The line-up of judges looks excellent. This is a great opportunity for law students!
Thursday, October 23, 2014
Law and Religion Moot Court at Touro
Bishop Kevin Rhoades on spousal benefits, religious freedom, and Notre Dame
Bishop Kevin Rhoades, of (my own) the Diocese of Ft. Waye-South Bend, has this column in the weekly issue of Today's Catholic, in which he discusses, among other things, the recent court decisions involving challenges to states' marriage laws and those decisions' implications for the religious freedom of Catholic institutions. He also addresses, in a thoughtful way, the recent announcement by the University of Notre Dame that it will provide spousal benefits to all legally married spouses of employees.
I should note that some critics of Notre Dame's move have suggested that it is inconsisent (or worse!) for Notre Dame to agree to "comply with the civil law" when it comes to providing benefits to all those who are, under Indiana law, "spouses" while at the same time challenging the contraception-coverage requirements in the Affordable Care Act. I do not quite see the inconsistency, though. It is true, certainly, that in both cases, there is the possibility of causing scandal and demoralization to those who care (as we all should) about Catholic institutions' (and especially Notre Dame's) authentic Catholic character and mission. And, in both cases, the relevant "civil law" -- the HHS mandate, or the Seventh Circuit's decision invalidating Indiana's marriage law -- is vulnerable to criticism as being unsound.
That said, and for starters, it seems to me that the question whether it constitutes culpable cooperation with wrong to provide spousal benefits through a benefit plan (that is, a contract) that uses the term "spouse" and defines that term with reference to Indiana law might not be the same as the question whether providing coverage for the objectionable "preventative services" constitutes such cooperation. (In my own view, the nature of the burden imposed by the HHS mandate on Catholic institutions is best framed not in terms of cooperation, but in terms of mission, character, and authenticity. After all, a law can burden religious exercise even if it does not compel or require wrongdoing.) What's more -- and not to sound like an Unfrozen Caveman Lawyer -- there is the fact that RFRA is available to challenge the mandate while it would not, I assume, be available as a defense in a benefits-contract dispute between the University and one of its employees. (I assume that state and federal law would -- at least for now -- allow the University to change prospectively the terms of its benefits-plans, but I have not studied the issue.)
The University of Notre Dame -- where I am pleased and blessed to teach, study, and live -- aspires to be a distinctively and faithfully Catholic research university that is interesting and excellent precisely because of, and note despite of, the fact that it is distinctively and faithfully Catholic. This aspiration means -- necessarily and unavoidably -- that the University will be called, sometimes, to decisions and actions that put it at odds with the certain features of our culture. It's not easy or comfortable, especially for an intellectual community that -- quite correctly -- wants to be an engaged force for good in the world, to resist or dissent from that which either elites or political majorities declare correct or mainstream but, again, sometimes witness and integrity will require it.
The regulatory and legal landscape -- in addition to the cultural environment -- for authentically Catholic institutions is, certainly, becoming more complicated and less hospitable. Navigating that landscape, faithfully, will become increasingly difficult and will involve close decisions and fine distinctions. Before too long, I - like Bishop Rhoades -- worry that Catholic hospitals, schools, universities, and social-service agencies will be aggressively pushed to the margins, intrusively regulated, and foolishly de-funded. The struggle to vindicate the religious freedom of these institutions is going to intensify and its uphill angle will steepen.
Wednesday, October 22, 2014
A few minor MOJ reflections on the first feast of St. John Paul II
Today's feast day celebration caught me by surprise. When I think of the man, I think "Pope John Paul II," not "Saint John Paul the Great." He was a man, a great man; and he is a saint. But to think of him as Saint John Paul the Great puts him at too much of a distance from my experience of him from a distance. And I hold on to that experience as a source of grace.
---
One source of experience was personal. I attended World Youth Day in Denver in August 1993 and was part of the cheering crowd that greeted Pope John Paul II in Mile High Stadium.
Another source of experience has been through his writings, particularly his encyclicals. Three that have been influential are Veritatis Splendor, Evangelium Vitae, and Fides et Ratio.
A third source of experience has been Mirror of Justice. The spirit of Pope John Paul II has inspired many contributions to this blog. (Find them yourself!)
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Two John Paul II injunctions that may be particularly appropriate at this time for a blog devoted to the development of Catholic legal theory: Be not afraid! Duc in altum!
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One final thought. The opening sentence of Veritatis Splendor bears some similarities to the well-known opening lines of Gerard Manley Hopkins, S.J.:
VS:
The splendour of truth shines forth in all the works of the Creator and, in a special way, in man, created in the image and likeness of God (cf. Gen 1:26).
GG:
The world is charged with the grandeur of God.
It will flame out, like shining from shook foil ...
Feast Day of St. John Paul II
Today is the first feast day of one of our newest saints, St. John Paul II. (And, in a happy coincidence, the wedding anniversary of not one, but two MOJ'ers: me and Rick Garnett.)
To celebrate, here are some relevant links:
- to the prayer to St. John Paul II issued by the Vatican at his canonization,
- to a number of past posts on his legacy,
- to some symposia on his work.
"Be not afraid!"
Tuesday, October 21, 2014
Notre Dame Ethics and Culture Conference: Oct 30-Nov 1
The annual fall conference of the Center for Ethics and Culture at Notre Dame is a jewel in the crown of Catholic higher education. This year's conference topic, inspired by Pope Francis, is "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor." Plenary addresses will be given by Nobel Laureate James Heckman (Chicago), Cardinal Gerhard Müller (Prefect of the Congregation for the Doctrine of the Faith), Alasdair MacIntyre (Notre Dame), and John Finnis (Notre Dame and Oxford). A concluding colloquy on whether Catholic social teaching and American capitalism are compatible will include Patrick Deneen, Hadley Arkes, James Mumford, and John Tomasi. A detailed schedule is available here.
Monday, October 20, 2014
The Supreme Court of Pennsylvania's messy suspension of Justice McCaffery
By a four to one vote, five out of seven justices on the Supreme Court of Pennsylvania have temporarily suspended one of their own from his judicial duties. The court's order is here; a concurring statement by the Chief Justice is here; and the dissenting statement is here. An earlier statement of the now-removed justice and an earlier statement of the Chief Justice are here.
I have not followed all of the underlying matters closely enough to have confidence in this judgment, but my impression from afar after reviewing the order, the accompanying statements, and press reports is that the Supreme Court of Pennsylvania looks worse after this order than before. Justice Todd's dissenting statement seems sensible. Chief Justice Castille's description of his colleague as a sociopath is discreditable. Judicial ethics is not defined by rules only, but also by virtues such as temperance and judiciousness.
Sunday, October 19, 2014
Susman Godfrey, the Houston subpoenas to nonparty pastors, and the utter ordinariness of burdensome third-party civil discovery
The City of Houston has filed a preliminary response to the motion to quash subpoenas it served on five nonparty pastors seeking discovery, among other things, of these pastors' sermons. Like the mayor's initial "blame it on the pro bono lawyers" defense, the response is hard to credit as anything other than a public relations move. The response removes the word "sermons," but even as amended, Houston's subpoenas are still asking for sermons and for much more.
Consider request number 4: "All communications with members of your congregation regarding HERO or the petition." Now consider the definition of "communications": "[E]very direct or indirect disclosure, receipt, transfer, or exchange of information, inquiry or opinion, however made, whether oral, visual, in writing or otherwise, including without limitation any conversation or discussion by means of letter, note, package, invoice, statement, notice, memorandum, inter-office correspondence, telephone, telegraph, email, telex, telecopies, text message, instant message, cable communicating data processors, or some other electronic or other medium."
There is no hard and fast rule at work here, but generally speaking discovery requests like these begin with the broadest claims and then narrow from there. The word "sermons" was originally in request number 12. By the time the recipient would have arrived at that point, however, it would have been obvious that even coming close to full compliance with these broad requests would take dozens of hours. If you don't believe me, take a look at request number 1 yourself.
The specific mention of "sermons" was an unforced error that allowed recipients to provide a hook that would draw public attention to the burdensome nonparty discovery requests sent by the city. But getting rid of that one word does not change the substance of the city's requests one bit. They remain as burdensome as they were from the beginning.
An underreported angle of this whole story thus far is the nature of the legal representation provided to the city. In particular, the Mayor's "blame the pro bono lawyers" response is hard to take seriously when the pro bono lawyers include a lead counsel team from Susman Godfrey, L.L.P. The subpoena request posted by plaintiffs' counsel went out under the signature of a Susman Godfrey associate and two partners. According to Susman Godfrey's website, the more senior partner is "lead counsel for the City of Houston in its lawsuit against a Xerox affiliate for breach of contract, fraud, and other wrongdoing in connection with billing and collection for hundreds of millions of dollars of emergency medical services provided by the City's Fire Department" and also "lead counsel for the City in its multi-hundred million dollar lawsuit against actuarial firm Towers Watson for gross negligence and professional malpractice in connection with benefits under the Houston Firefighters' Relief and Retirement Fund." The other partner is a former EIC of the Texas Law Review and law clerk for Fifth Circuit Judge Jerry Smith, currently serving as "Susman Godfrey's docket partner with responsibility for staffing client engagements across our five offices." These are very capable, experienced lawyers. At least one of them is currently handling litigation involving hundreds of millions of dollars for the city. Whether Mayor Parker was previously aware of the specific wording of specific subpoenas is beside the point. She knows full well how lawyers like these, with the kinds of practices that they have, would have approached third-party discovery in the City's HERO case. It is therefore not credible for Mayor Parker to put distance between herself and the city's litigation strategy as pursued by Susman Godfrey. The cosmetic and minuscule amendment offered by the city in its preliminary response after Mayor Parker's attention was drawn to these particular subpoenas suggests that the city's overall litigation strategy includes deliberately imposing substantial burdens on the plaintiffs' allies.
Mayor Parker and the city's lawyers seem to have been frustrated for months by what the city's lead counsel from Susman Godfrey has termed "the public hoopla" surrounding their case. (This characterization, for example, came in an August 2014 press release.) And by the standards of the typical business litigation dispute handled by the firm, this case does seem a bit of a circus on both sides. But the dispute over "sermons" in the subpoenas is itself a sideshow against the utter ordinariness of the burdens that lawyers inflict on nonparties every day through broad civil discovery requests. When everything settles down and the culture-war commentariat moves on, one can only hope that firm judicial management will lessen the burdens imposed by Houston's requests.
Coeur D'Alene compelled marriage celebration lawsuit a sign of things to come
The City of Coeur D'Alene is a defendant in a federal lawsuit brought by Donald and Evelyn Knapp, a husband-wife team of ordained ministers who perform wedding ceremonies in their family business, The Hitching Post, LLC (also a plaintiff). The City has said that the Knapps' refusal to perform a same-sex marriage ceremony would violate the City's nondiscrimination ordinance. The Knapps contend that the City's threatened punishment of them would violate the First and Fourteenth Amendments and Idaho's Religious Freedom Restoration Act.
The complaint quotes a deputy city attorney as setting forth the city's stance and explaining how that stance depends on the Ninth Circuit's recent judicial redefinition of marriage in Idaho to require inclusion of same-sex couples:
“For profit wedding chapels are in a position now where last week the ban [on same-sex marriages] would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit… If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.”
It is noteworthy that this deputy city attorney describes the celebration of marriage ceromonies as just another "service," and the Knapps' refusal to celebrate a same-sex marriage ceremony as a refusal to provide services on the basis of sexual orientation. States that have statutorily redefined marriage to be an institution open to same-sex couples have included statutory exemptions for churches and clergy that would not require them to solemnize same-sex unions. Generally speaking, they distinguish between solemnization and other services related to marriage. Because Idaho's marriage redefinition has been accomplished by the judiciary instead of the legislature, the scope of obligations that may be imposed by state law (with which municipal law must typically comply) is unclear. To be sure, it is also unclear whether the Knapps' business--in contrast with the Knapps themselves--would have fallen within a statutory exemption even if there had been one in Idaho. But cases like this highlight the kinds of questions that will arise over the next several years as cities, states, and everyone else negotiates the changes that come from the federal judicial redefinition of marriage.
Eugene Volokh has provided a persuasive analysis concluding that the city's application of its nondiscrimination ordinance to the Knapps and The Hitching Post, LLC would violate the First Amendment's prohibition of compelled speech and the Idaho Religious Freedom Restoration Act. I continue to believe that an initial question in cases like these is whether a refusal to perform marriage premised on one's understanding of what marriage is amounts to discrimination on the basis of sexual orientation so as to violate an anti-discrimination law. This is a question of the relevant municipal, state, or federal anti-discrimination law; here, a question of city law. I think that the city should reconsider its position on the meaning and application of that law. I further think that the city should reconsider its position on both First Amendment and state RFRA grounds. The best outcome very well could be a promise not to prosecute or impose liability under municipal law when doing so would violate federal law or state law, as would be the case here.
To the extent that this lawsuit is a sign of things to come, as I think it is, it would be nice if city and state officials could get the limits of anti-discrimination law right in the first instance without the need for judicial involvement. That said, it is a good tactical move to proceed directly to federal court. If one waits for prosecution in state court or to defend in state administrative proceedings, it will be much more difficult to get a federal forum for one's federal claims.
Saturday, October 18, 2014
Lethal Injection, Politics, and the Future of the Death Penalty -- 10/24 Symposium at University of Richmond
The University of Richmond Law Review has put together a superb symposium that is to take place in just under one week. The topic is "Lethal Injection, Politics, and the Future of the Death Penalty":
America's death penalty is in a tailspin. That much is clear from headlines about botched executions and untested lethal injection protocols. In this symposium, we bring together a diverse group of individuals--all experts with a unique viewpoint on the death penalty--to share their expertise and spark a thoughtful, engaging conversation with each other and our audience. We hope you will join us.
Participants include Stephen Bright, Deborah Denno, Joel Zivot, Eric Berger, Frank Green, Mark Earley, Richard Roper, Corinna Barrett Lain, Stephen Smith, John Douglass, Brandon Garrett, and Richard Dieter. Free and open to the public (with advance registration). 4.5 VA MCLE pending approval.
Full details available here.
Friday, October 17, 2014
The answer to this question is "no"
"Should Religion Be Blamed for the World's Bloodiest Wars?", is the title of this book review in The New Republic. The review is John Gray's, of Fields of Blood: Religion and the History of Violence, by Karen Armstrong. Here's a taste:
Consistently surprising and illuminating, Fields of Blood should be read by anyone interested in understanding the interaction of religion with violence in the modern world. Relying on detailed historical analysis, Armstrong argues convincingly against the prevailing idea that religion is uniquely prone to acting violently. She is less sure-footed in her account of secular faith and the violence that has been committed on its behalf. When she refers to the “secularist bias” of modern thinking, she seems to endorse the conventional perception of the modern world as having moved away from religion. Yet the logic of her argument pushes in another direction.
Few movements have been as single-minded in their commitment to modernization as Lenin’s Bolsheviks, and few have been so virulently hostile to mainstream faiths. Yet as Bertrand Russell observed in his forgotten 1920 classic The Practice and Theory of Bolshevism, written after he travelled to Russia and talked with Lenin, Soviet communism was from the beginning as much a religion as a political project. Oddly, though it was a rerun on a vaster scale of the French revolutionary terror that she analyzes so penetratingly, Armstrong says practically nothing about the Soviet experience, or about Maoism. Yet, together with Nazism, these 20th-century state cults plant a question mark over the very idea of secularization. Certainly there has been a decline in the old authority of churches, but that does not mean religion is becoming weaker. Simultaneous with the retreat of the mainstream faiths, there has been a rise of a plethora of political religions and an explosion of fundamentalism, sometimes fused in a single movement. . . .
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