Plough Quarterly, the journal of the Bruderhof communities, asked me to offer some thoughts on the Biblical conception of justice. Here's a link to the video of the interview:
http://www.youtube.com/watch?v=gwanGYW3LPc
Thursday, October 9, 2014
My thoughts on Biblical justice
Finnis on Posner's acclaimed marriage opinion: "It disgraces the federal judiciary"
Richard Posner, the "economic analysis of law" pioneer and Seventh Circuit Court of Appeals judge, has argued, as the late Ronad Dworkin reminded readers, "that mothers should be permitted to auction off their newborn babies, and that criminal laws prohibiting rape are justified because 'even if the rapist cannot find a consensual substitute… it does not follow that he values the rape more than the victim disvalues it'."
Recently, however, in what surely counts as one of the most bizarre moments in the more than two-decades-long debate about redefining marriage, Judge Posner has emerged as a hero on the Left for his allegedly "unanswerable" case against the argument that states have a valid interest in preserving the historical definition of marriage as the conjugal union of husband and wife.
This morning at Public Discourse, John Finnis examines Posner's case and, to say the least, finds the claim that it is "unanswerable" sorely lacking:
"In truth,"Finnis says, "the argument that Posner is said to have refuted remains compelling. His judgment is one long attempt to hide from that argument and to conceal it from his readers. In its refusal to engage the opposing argument, Posner’s opinion disgraces the federal judiciary."
Professor Finnis concludes that the opinion "constitutes a profound injustice, recklessly imposed."
Here is a link to th article:
http://www.thepublicdiscourse.com/2014/10/13896/
Wednesday, October 8, 2014
Sen. Hatch on Preserving Religious Freedom "As Social Reality and Constitutional Principle"
Sen. Orrin Hatch has been a great proponent of religious freedom, leading the sponsorship of statutes like RFRA and RLUIPA. He just gave the keynote address at the annual symposium of BYU's international law and religion center, where he spoke about both the achievement of religious liberty in America and the sobering, multiplying challenges to it.
I'm gratified that he started off with a quote from me that "one of America’s greatest contributions to the world"--one that must be preserved and strengthened--"has been establishing religious freedom as both social reality and constitutional principle." He goes on:
Nor is religious freedom a uniquely American ideal. In 1948, after the horror of World War II, numerous nations, including the United States, signed the Universal Declaration of Human Rights. Article 18 of that Declaration states that every person has a fundamental right to freedom of religion, including “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
Here again we see the three dimensions of truly robust religious freedom: belief and behavior, private and public, individual and collective. Genuine religious freedom exists when these three dimensions are both social reality and constitutional principle, and are understood as fundamental.
Then he talks about the threats to religious liberty today--many of us know them well, but it's a useful summary. And he ends with some thoughts on how "to strengthen religious freedom as both social reality and constitutional principle," like:
Sixth, we must affirm our own individual faith and devotion. As community leaders, we have the ability to reach and influence broad audiences. By publicly affirming our faith, we both show that faith does have a place in the public sphere, and show community members that their leaders place a priority on religion. This does not mean we should become public pastors. But it does mean we should not be shy about our own beliefs. By demonstrating that religion is important to our own self-identity and desire to serve, we show our community members that religion is a thing of value and source of motivation.
And who knows? Showing others how religion has changed our lives may spark a desire in them to seek greater devotion in their own lives. There can be no greater protector of religious liberty than a society composed of individuals who actually value religion.
Right. Religious liberty protects the ability to have a vibrant, outward-looking, growing faith, but it works the other way too: as John Garvey, Steve Smith, and others have emphasized, religious liberty will be protected if (and only if) there are lots of believers and they can't be ignored. It's also crucial (and I know Sen. Harch would agree) that the manner of doing so be humble and service-oriented, never about the religious believer's "prerogatives."
Movsesian on the Plight of Middle East Christians
You should check out the video of a lecture delievered at the Lanier Theological Library by my colleague, Mark Movsesian, on this important subject. Very informative and, if I may say, quite moving in parts.
Tuesday, October 7, 2014
Should the Sixth Circuit certify the central constitutional questions in its marriage cases to the Supreme Court?
Suppose you are a judge on the United States Court of Appeals for the Sixth Circuit and you believe both (1) that there is no constitutional right to same-sex marriage, and also (2) that five Justices on the Supreme Court of the United States are prepared to hold that such a right exists, how should you vote on the same-sex marriage appeals currently pending before your court?
This very well may be the question that Judge Sutton and Judge Cook are asking themselves today. To be sure, today is not the first day they would have asked this question. By now, tentative votes have been cast, opinion drafts have been written, and much work has been done on the appeals argued before their three-judge panel (with Judge Daughtrey as the third). But the question may appear differently to these judges now than it appeared before the Supreme Court denied certiorari yesterday in similar cases from the Fourth, Seventh, and Tenth Circuits.
Before yesterday's certiorari denial, the judges' duty to decide based on their best legal understanding, as they would decide any other appeal, seemed plain. But yesterday's certiorari denial calls into question the Supreme Court's willingness to do the same.
The question of a constitutional right to marry a person of the same sex is both important and unsettled. And surealy at least one of the cases in which the Court denied a petition for certiorari would have been a suitable vehicle, legally, for resolving this question. But at least six of the Justices may believe that the American people are not ready for the "yes" answer that five are likely poised to give. That is the reason some observers have given for the unwillingness of the Windsor five to vote for certiorari. Noah Feldman, for example, has written that "[t]he great worry of the Supreme Court – or at least of Justice Kennedy -- is that a premature gay-marriage decision would produce the kind of substantial public disagreement that followed Brown v. Board of Education and Roe v. Wade." And Dahlia Lithwick has suggested that, lurking beneath the surface of yesterday's certiorari denials, is at least some Justices' "fear that they need to time these marriage decisions around some magical moment in the ebb and flow of public opinion." Geoffrey Stone has made a similar suggestion.
Whether framed in terms of fear of backlash, or understood as good care and feeding of a living Constitution, this kind of thinking is inappropriate for shaping the institutional approach of the federal judiciary to the issue of same-sex marriage. (On this, I agree with Lithwick and Stone, with whom I often do not agree on matters of culture-war constitutionalism.)
According to an Associated Press report from a few weeks ago, Justice Ginsburg has signaled one-way urgency on the issue, specifically mentioning the pending Sixth Circuit's pending appeals:
She said "there will be some urgency" if [the Sixth Circuit] allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.
She said if the appeals panel falls in line with other rulings there is "no need for us to rush."
This kind of thinking makes the enterprise of constitutional law seem like a game of tactics and strategy. I'm inclined to think that the Sixth Circuit should not play along and should instead send the issue directly to the Supreme Court by certifying questions. Congress has long provided such a path to Supreme Court review, now codified at 28 U.S.C. 1254(2). This would encourage the Supreme Court to have the courage of its constitutional convictions, and would provide the type of expeditious ruling that all the parties to the pending cases deserve.
Constitutional law is not poker; and neither the parties nor the lower courts should be played by the Court. Yet it sometimes feels as if the Court is playing not only them, but all of us.
The Supreme Court has disfavored certification, stating that "[i]t is ... the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business." United States v. Wisniewski, 353 U.S. 901, 902 (1957). Although I have not fully thought through the question, this appears to be one of those "rare instances ... when certification may be advisable in the proper administration and expedition of judicial business." Id. If a panel majority is prepared to find a constitutional right to same-sex marriage, then certification would be inappropriate; the court should just rule on the merits and vindicate its perception of the rights of the parties before it. But if a panel majority believes both that there is no such right, and that the Supreme Court will say that there is, "the proper administration ... of judicial business" is the "expedition of judicial business."
Gordon College's accreditation review
The story is here:
The regional body that accredits colleges and universities has given Gordon College a year to report back about a campus policy on homosexuality, one that may be in violation of accreditation standards.
The higher education commission of the New England Association of Schools and Colleges met last week and "considered whether Gordon College's traditional inclusion of 'homosexual practice' as a forbidden activity" runs afoul of the commission's standards for accreditation, according to a joint statement from NEASC and Gordon College. . . .
There's a lot going on here, obviously. The premise of the one-year review, it appears, is that a body like the NEASC is now authorized to declare, and to enforce the declaration, that the mission and practices of a Christian college or university must conform with -- must be, as some put it, entirely "congruent" with -- (the current understanding of) the mission and practices of the liberal state in order to actually be a "college" or a "university." But, this premise seems wrong to me. (More here on that point.) It is, it appears, not only that governments and officials and laws are constrained by the Lawrence decision but that civil-society institutions are (or should be), too.
Check out John Inazu's recent paper, "Confident Pluralism," here, for a different take.
current
Holt v. Hobbs and the Third-Party-Harm Establishment Clause Theory
Readers may recall that during the course of the Hobby Lobby litigation, some contraceptives mandate supporters argued that religious accommodations that impose "significant" harms or burdens on third parties constitute violations of the Establishment Clause. In this post, I argued that this view of the reach of the Establishment Clause was not convincing. It was based on a misreading (and substantial extension) of the relevant case law but also on a controversial conceptual view of the permissible scope of religious accommodation that, I claimed, should be rejected.
Virtually all accommodations impose harms or burdens of some kinds on others, though both the nature and the degree of the harms will vary. Some harms are financial, others are symbolic, and still others are to value systems more generally. Some harms are acute and others are mild. Yet it would reflect an impoverished conception indeed of what is valuable in life to claim that only financial costs are real or cognizable harms: it simply isn't true that the only way in which a person can be harmed or burdened is through the pocketbook. Some financial burdens may be much less harmful than some symbolic harms, and vice versa, depending on factors too numerous to list. Whether money is involved or not, choices to accommodate or not to accommodate are often choices between ways of life that specify totally different virtues, or if they specify the same virtues, weigh them completely differently. In Goldman v. Weinberger, for example, a choice to accommodate Goldman would have been a choice against the set of values that the military was bringing to bear, and there were many of them. Ultimately I disagree with the outcome in Goldman. But the reason is not that the military would not have been harmed at all by accommodating him. In fact, it's only by ignoring, flattening out, or misdescribing the military's interests and concerns that we can say that the only issue in the case was accommodating Goldman, and the military was simply being obtuse. Perhaps there are rare situations in which the costs on third parties are so small as to be invisible (O Centro?). But in the main, it is in the nature of these kinds of conflicts that when one side loses, so does its way of life to some greater or lesser degree. The Hobby Lobby majority discussed the third-party-harm theory briefly at footnote 37, where it made the point that if all that was required to invalidate a religious accommodation was that a law conferred a benefit on a third party, and consequently that the deprivation of that benefit would be a burden, then the effect might (depending on what exactly "significant" means) be to destroy RFRA and render many religious accommodations unconstitutional.
Now that Holt v. Hobbs is in the offing (argument is scheduled for today, I believe), I am curious why nobody is making the third-party harm claim. Perhaps it is because the degree of deference ostensibly due to prison authorities in the Arkansas system is so great. Still, I would have thought that for somebody who subscribed to the third-party-harm theory of the Establishment Clause, Holt v. Hobbs would present a far clearer case than Hobby Lobby in which there might be serious, or significant, or at the very least cognizable, or tangible, harms to third parties--and easily identifiable third parties at that. I am writing this in haste (for a much more thorough treatment, see this excellent student note by Taylor Stout, The Cost of Religious Accommodation in Prisons), but I can think of three:
1. Increased risk of prison escape, harm to other inmates, and harm to those who must be in physical contact with the prisoner. This is a particularly vicious prisoner, who has shown himself capable of very violent behavior using a knife. He slashed a woman's throat with a knife. And while in prison, he held a knife to another prisoner’s throat as a result of a religious dispute. Though Arkansas prisons do not themselves have experience with prisoners hiding weapons and other contraband in their facial hair (naturally, since they don’t allow beards) other state prison systems do (see page 25 and following of this brief). Again, I recognize that it is perhaps the total deference to prison administrators which makes this particular prison policy specially objectionable. But I would have thought that these sorts of harms—harms to the personal security and safety of other people in physical proximity to the prisoner—are not obviously less “significant” than the harms to third parties in Hobby Lobby.
2. Administrative and financial harm to the prison system. The administration of religious accommodations in a prison system is burdensome. It requires more decision-making, more exercise of discretion, more manpower in the monitoring of the exceptions, and therefore more cost. One can dismiss these costs as de minimis, or unimportant, but that seems to me a cavalier view that can be bought rather cheaply at a great distance (which is where most of us are privileged to live) from the actual operations of prisons.
3. Symbolic harm, including harm to the idea of equality in the treatment of prisoners. A prison’s legitimacy depends in part on treating its prisoners equally and fairly, without privilege or favor. Dissimilarity of treatment can breed resentment on the part of the “disadvantaged” prisoners and on the part of the prison population more broadly. Moreover, prisons have important interests in uniformity of treatment that go not to equality concerns, but instead to order and discipline. Prisons are dangerous places. They are populated with people who have been convicted of crimes. Sometimes, as in the case of this particular prisoner, those crimes are extremely violent. Prisons therefore need systems to regularize and impose discipline on such people. It is at least a symbolic harm—but quite possibly much more than that—to burden the efforts of prisons to cultivate uniformity in the service of prison discipline.
To be clear, I believe that the prisoner should win in this particular case. But the reason is certainly not that the prison is simply being obtuse inasmuch as accommodations of this kind are harmless or nothing at all to it. Yet the absence of the third-party-harms theory of the Establishment Clause in general public debate has puzzled me. Setting aside the issue of the remoteness of the potential harms, the nature of the potential harms relating to accommodation under RLUIPA in a case like this goes to deeply important interests in personal and institutional safety—interests that do not seem categorically less important than those of the third parties at stake in Hobby Lobby.
Monday, October 6, 2014
Same-sex marriage petitions denied ... wow
SCOTUSBlog is reporting that the Supreme Court has "denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage." This is a surprise. It is also irresponsible. To allow the redefinition of marriage for such a large segment of the American population on the basis of emanations from Windsor is not right. It's true there is no circuit split yet, but there seems little question that the Fourth, Seventh, and Tenth Circuits have "decided an important question of federal law that has not been, but should be, settled by [the Supreme] Court."
The Study of International Law
Over the last two days, various editions of The New York Times have published an article by Christopher F. Schuetze entitled “A Bigger World of International Law.” This intriguing article discusses the growing interest in the study of international law across the globe; however, it mentions the prevailing role and influence of certain universities—especially Oxford, Cambridge, and east coast universities in the United States—in this critical educational enterprise. While Mr. Schuetze notes that the field of public international law “is gradually spreading globally,” a small number of universities in Europe and the US “hold a disproportionate sway when it comes to training the international-law elite.” In my own post-JD legal education, I pursued graduate legal studies at Oxford under the late Sir Ian Brownlie, then the Chichele Professor of Public International Law. He was a great legal theorist and superb teacher, but he was also an accomplished legal practitioner who thoroughly comprehended the inextricable nexus of legal concepts and their application to the people’s of the world in the context of the rule of law.
To this day I am grateful for the experience of learning under Sir Ian for I saw under his tutelage that it is not simply where public international law is taught that makes it a worthy pursuit but, more importantly, what is taught given the vital subject matter. This is the challenge to all those who are involved in the teaching and learning of public international law today; in particular, it is a challenge to those who teach law in the Catholic academy as my friends and colleagues who teach in institutions that rely on the moniker “Catholic” possess a substantial opportunity to mold what is taught about public international law.
In the early twentieth century the Canadian-born American practitioner and legal academic James Brown Scott recognized the significant contributions to public international law made by the sixteenth century Dominican Francis de Vitoria and Jesuit Francis Suàrez. It was not so much the “where” but the “what” that was important to Scott. In addition to circulating his own commentaries on these early fathers of public international law, Scott was instrumental in having their works published by the joint effort of Oxford University Press and the Carnegie Endowment for International Peace in the Classics of International Law series.
Due to the influences of Brownlie and Scott, I saw a need some years ago to bring students to an awareness of the de Vitoria- Suàrez contributions not only to public international law but to the idea of natural human rights. In order to take action on this need, I taught at several different institutions a course I dubbed as “Natural Law and Natural Rights.” It was ambitious in the sense that it required a good deal of reading each week; however, in studying with Sir Ian, I realized that reading a sizable corpus of primary sources every week was and remains essential to the task. As my course evolved, I came to the further realization of the bond between the work of the early Catholic pioneers of public international law and the evolution of American republican democracy. Should anyone be interested in seeing how my syllabus and reading list matured, I would be pleased to share these texts with anyone who may inquire. And who may be interested? Surely those of the Mirror of Justice community who support the view that there is such a thing as Catholic legal theory that is relevant to teaching law and to contributing to the rule of law. While most institutions that are considered part of the Catholic academy may not be viewed as members of “the international law elite,” to borrow from Mr. Schuetze’s phrase, international law is taught in these schools, and they are in an excellent position to provide those interested in this important subject matter with something of far greater substance than the name of the institution, i.e., the “what” is to be taught, which has a critical bearing on the progress of public international law and the durability of the rule of law.
RJA sj
Sunday, October 5, 2014
Watching the spectacle, replete with incense ... and soaring choir music
There were six Justices in attendance at today's Red Mass in D.C. It's safe to say that they were not all there for all the same reasons. But if the news hook just is that six Justices were there, then it becomes journalistically expedient to attribute at least one common function or reason for their presence as a group. According to Tony Mauro in National Law Journal, "Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer and Elena Kagan were in the front pews of the Cathedral of St. Matthew the Apostle to watch the spectacle, replete with incense, bishops and priests in scarlet vestments and soaring choir music." I'm glad they were all there, though the spectacle, incense, and music were not for them.
The article reports that the homily (or "sermon") would not have been offensive to Justice Ginsburg. Perhaps the readings did not lend themselves to an "outrageously anti-abortion" message. In light of some of Justice Ginsburg's recent interviews, I wonder if there are any "anti-abortion" messages that are not "outrageously" so.
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