Mirror of Justice

Wednesday, April 2, 2014

Alvaré on Windsor and a federal definition of marriage

Professor Helen Alvaré testified in March before the Kansas Senate Judiciary Committee in connection with a proposed Kansas Religious Freedom Preservation Act. The written version of her testimony, worth reading in full, touches on an underappreciated feature of Windsor and post-Windsor cases finding a constitutional right to same-sex marriage. Whether explicitly or implicitly, these cases develop and deploy a federal-law-based definition of marriage. A federal-law-based definition of marriage was not necessarily to resolve Windsor, which on its surface only invalidated but did not establish a federal definition of marriage, but such a federal-law-based definition of marriage is necessarily present in the post-Windsor cases extending the decision to invalidate state definitions of marriage that require one man and one woman for marriage.

Alvaré writes:

[A]fter paying lips service to federalism, [Windsor] substituted a new, federal definition of the meaning of marriage--an extraordinary and adult-centric meaning--for the meaning adopted by the vast majority of states, and every one of the relevant, prior Supreme Court opinions treating marriage. To summarize a great deal of material, the Supreme Court defined marriage as: the way people define themselves, as persons committed in a special emotional and sexual way to another person; as an acknowledgment of an intimate relationship between two people; as a protection of a person's "personhood and dignity"; and as a means for same-sex couples to "enhance their own liberty" and equality with opposited-sexed married couples.

Another interesting aspect of Professor Alvaré's testimony was a discussion of the limits of RFRA-style laws in protecting the religious freedom of individuals and businesses "who wish to live freely and conduct their businesses in [a state] with faithful integrity to their deepest beliefs, should legal recognition of same-sex marriage be imposed upon [that state] by a federal court." (Although it is not yet available online, Professor Alvaré's testimony as delivered also included a list of detriments conscientiously objecting individuals or businesses could suffer if same-sex marriage were imposed on a particular state. I will post or link to this list if it becomes available online.)

Tuesday, April 1, 2014

Wolterstorff, The Mighty and the Almighty

By Michael Moreland

I want to echo the enthusiasm from Rick and Marc about the excellent roundtable discussion at Notre Dame last Friday about Nick Wolterstorff's recent book, The Mighty and the Almighty. The meeting was a model of interdisciplinary engagement among law professors, theologians, philosophers, and historians. Building on Wolterstorff's earlier book, Justice: Rights and Wrongs (Princeton, 2010), The Mighty and the Almighty defends a rights-protective, limited, non-perfectionist state based on a creative interpretation of Romans 13 and other texts. As one observer noted, Wolterstorff argues that the state in Christian political theology providentially comes to look like a modern liberal democracy, a view at odds both with the rejection of legitimate political authority in authors such as John Howard Yoder and with Calvinist or Thomist perfectionism about the state in most Reformed and Catholic accounts. From my standpoint, there is much to agree and disagree with in the book--the rejection of "perfectionism," for example, might depend on a certain framing of the perfectionist/anti-perfectionist distinction. But thanks to Rick for hosting such an important and worthwhile conversation about an important and worthwhile book by one of the era's great Christian philosophers.

Wolterstorff Conference

By Marc DeGirolami

Rick has already posted about the excellent conference at Notre Dame discussing Nick Wolterstorff's fine work. I learned a great deal from the participants. In fact, it was just the right mix of people for a very useful exchange of views. Nobody too much on the inside of any discussion, and yet everybody enough on the inside to be able to talk well together.

I've posted a few times about Nick's book, The Mighty and the Almighty. My own small conference ticket focused on a fairly narrow issue in the book--the interpretation of certain lines in Romans 12 and 13 dealing with what St. Paul meant about the justification of state punishment, focusing specifically on what Nick called in the book a kind of expressivism. But I came away from the conference thinking that Nick's expressivism seems actually quite close to some communicative theories of retributivist punishment, and it was a pleasure to work through both some textual possibilities and some more general ideas about the relationship between the text and the justification of punishment. Another very interesting issue was the relationship of protectionist and perfectionist accounts of the state to all of these more particular issues. A wonderful event.

Monday, March 31, 2014

"The Mighty and the Almighty"

By Rick Garnett

On Friday, I had the pleasure and privilege of hosting a roundtable conference sponsored (thanks!) by Notre Dame's Program on Church, State & Society and dedicated to Prof. Nicholas Wolterstorff's (relatively) recent book, The Mighty and the Almighty: An Essay in Political Theology, a work that one of the participants characterized as the "first work in analytic political theology." Prof. Wolterstorff is, of course, both a giant in his fields and a really good guy. The conference's conversations were engaging and rich, and it was exactly the kind of academic "event" that makes one think there is hope for academic events.

For someone, like me, who thinks about the church-state nexus primarily as a lawyer and from a perspective strongly shaped by the Catholic social tradition and thinkers like Murray, it was a challenge and a treat to work through the "big questions" with trained philosophers, historians, theologians (and lawyers!) from a variety of religious backgrounds. Among other things, we considered Wolterstorff's rejection of "perfectionism", of the Gelasian "two rules" model, and of (a version of) the retributive theory of punishment. And (natch), the group spent a fair bit of time with the whole "are religious institutions more than groups of religious individuals?" question that's been in air quite a bit lately.

Dignity as a Constitutional Principle

By Robert John Araujo, SJ

This past Sunday, March 30, The New York Times published an op-ed piece by Bruce Ackerman, the well-known professor of law and political science who has taught at Yale for many years. Ackerman’s contribution to the ongoing Constitutional debate was published under the title “Dignity Is a Constitutional Principle.” The focus of his opinion essay is on the same-sex marriage issue. The essence of his thesis, echoing the perspectives on human dignity found in cases such as Windsor v. United States and Lawrence v. Texas (relying on Planned Parenthood v. Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”), is that laws prohibiting same-sex marriage are unconstitutional as they constitute an “assault on human dignity.” Professor Ackerman concludes his essay by quoting the Biblical Golden Rule cited by Senator Hubert Humphrey in the debate surrounding the passage of the Civil Rights Act of 1964: “Do unto others as you would have them do unto you.”

As an aside, it appears that Biblical references do not get automatically excluded from political and legal debate if they serve the interest, in some fashion, of the goal of the speaker who might otherwise argue that such a reference runs afoul of the Establishment Clause of the First Amendment. But let me return to my fundamental point for today.

Both Professor Ackerman and the resources upon which he relies do not define the important term dignity. Does an important term like this one which is used for advancing Constitutional claims require a sound definition so that when the term is used in political and legal discourse its meaning is clear to all who use it? Or is it assumed that the term needs no definition because there is universal understanding and acceptance of the term’s import? As friends and readers of the Mirror of Justice may recall, I, for one, think the clear and agreed meaning of language is critical to civilization and to the law that is a servant instrument of civilization. If the meaning of crucial language used in legal and political debates remains ambiguous, our legal and political discourse will be pointless.

If it is assumed that dignity is that which is due to anyone’s views, regardless of whether the views possess objectively reasoned merit, we are in trouble. We are in trouble because the position of the most aggressive totalitarian will be equal in dignity to the position of the most virtuous saint. If language’s meaning is relevant to legal theory, what is the Catholic take?

One can begin with a general understanding that human dignity has to do with qualities of the possessor that are worthy, have worthiness, and have worth. Worth (the root word used along with two of its derivatives in the previous sentence) means that there is honor in the holder who claims the dignity. Worth means that there is character or standing of a person in respect to that person’s moral and intellectual qualities and abilities. Jacques Maritain offered helpful insight about the sense of human dignity when he defined it this way: it “means nothing if it does not signify that by virtue of the natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.”

The first sentence presents the fundamental role of the natural law in defining dignity. I consider that natural law is the exercise of objective human intelligence comprehending the intelligible reality of the universe, which includes the nature of the human person. The third sentence of Maritain’s formulation is also crucial because human dignity is nothing if the claim to rights that are aligned with human dignity ignores the complementary and correlative moral responsibility that must attend all rights claims. These thoughts are absent from Professor Ackerman’s op-ed in yesterday’s Times. Although he cloaks his dignity argument in equality claims, he does not mention that while everyone is equal in certain fundamental ways (hence the equality between races in the contexts of voting and public accommodation) not everyone shares the same talents or interests. Hence, people do have differences that distinguish them from one another without these differences assaulting their human dignity and without undermining the importance of human dignity in rights discourse.

The op-ed article presents the view that there are no differences between opposite-sex unions and same-sex ones. Nonetheless, the distinction that many people still make between opposite-sex and same-sex couples demonstrates the need to consider legitimate distinctions when the topic of human dignity is under discussion. The rhetoric that these two kinds of relationships are the same for the purposes of marriage and human dignity does not, in fact, make them the same. Dignity may well be a Constitutional principle when it concerns the fundamental equality of humans on the basis of thoughts that correspond to the Maritain formulation. But it is not a Constitutional principle when the dignity/equality argument fails to consider and acknowledge the differences between people that are acknowledged not by human caprice but by objective intelligence comprehending the intelligible reality of differences in the nature and essence of the human person. Authentic human dignity is based on the truth about the human person and not the falsehood of political claims and the rhetoric used to justify these false claims. Objectively reasoned distinctions are critical to understanding equality claims and human dignity when they are considered Constitutional principles. Politically popular claims that do not take account of the reality of our objective intelligence that acknowledges authentic human nature do not advance but, rather, impede human dignity. Moreover, opinion polls siding with views that claim to be “on the right side of history” do not always serve authentic democracy, especially when they simply confirm the empty promises of a totalitarian regime.

RJA sj

Toobin: Hobby Lobby Challenge Is About Hurting Poor People

By Marc DeGirolami

Jeffrey Toobin has an article in The New Yorker (no, not the one about how Justice Thomas is incompetent because he is overweight) that expresses the view that the challenge to the contraceptives mandate in Hobby Lobby is really just part of a larger effort to deprive poor people of needed medical care. Here's his evidence:

The political nature of the case was an open secret during the argument at the Court. Sotomayor told Paul Clement, the lawyer for Hobby Lobby, who was a solicitor general under George W. Bush, “You picked great plaintiffs.” (Customarily, of course, it is the plaintiffs who pick the lawyers.) Elena Kagan pointed out to Clement that he was really attacking the entire law. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

It comes as news to me that what Hobby Lobby objects to is the concept of a legislative subsidy, rather than a government regulation--and not a statute--that decides how the subsidy will be financed. And I'm sure Hobby Lobby will be surprised to learn that it doesn't care about poor people--say, the poorer of its own employees for whom it provides health plans--health plans that some have urged it simply to abandon if it feels so strongly about its religious objections.

And here is a line from Peter Berger's latest column: "I am not overly fond of The New Yorker magazine with its incongruous mix of politically correct articles and advertisements for outrageously expensive goods."

"Here comes everybody"

By Robert George

Those of us who are Catholics have had a rough few years. Well, make that a rough few decades. Horrific abuse scandals. Some weak, sometimes feckless, bishops. Wacky theologians. Boring homilies. Dreadful music. Widespread dissent, often rooted in appalling ignorance. I could go on. We envy our Evangelical friends for the vibrancy of faith in their communities. (Causing our Evangelical friends to wonder whether we've been hitting the communion wine too hard.) We envy our friends in the historically black churches for their great preaching and singing. We envy our LDS friends for having strong and inspiring leaders. We envy our Eastern Orthodox friends for having a beautiful liturgy. We envy our Orthodox Jewish friends for understanding the value of tradition, instead of throwing it overboard in pursuit of "relevance."

We feel sorry for ourselves.

But sometimes, one notices the little things that make it great to be Catholic. Like diversity. Diversity? I know what you're thinking: "My goodness, Robby really has been hitting the sauce. He's not usually the sort who goes for this p.c. diversity business."

But, no, I mean it. Diversity. I was sitting at mass today, listening to the homily (which actually wasn't all that boring, truth be told) and looking around at my fellow worshippers. I mean to tell you, it was glorious diversity. The Catholic Church really is "here comes everybody." There were people I know who are Irish, Polish, Italian, Mexican, Filipino, Guatemalan, but also African, Indian (the kind from India), Korean, Vietnamese, Colombian, Russian (why they don't go to the Orthodox Church, I'm not sure; but there they were), Lebanese, Japanese, Jamaican, Chilean, Ecuadorean---all in the same local parish.

And that's only the beginning.

There were the folks from the Western section of Princeton who work in financial services in NYC and have a net worth in the tens or even hundreds of millions. And there was the guy who owns the local bakery. And the woman who has one of the florist shops and another who has (or works in, I'm not quite sure) one of the few remaining travel agencies. There was the little old man with the amazingly bad toupee. (He'd be better off with some black magic marker.) There were the laborers who work with the local landscapers and builders. They and their families were sitting there alongside the rich people from the Western section and the University professors. One of the professors (who, as it happens, is one of the world's leading scientists) was kneeling next to the wife of my tailor---she's an immigrant woman whose simple southern Italian spirituality is of the sort that gets Catholics labeled Mary worshippers by our Protestant friends. Then there was the guy--late 60s or 70s in age, with the classic looks of the 1940s male movie star, right down to the pencil thin moustache---who kneels through the whole mass counting his beads and saying the rosary. He does it every Sunday.

We have the Princeton University undergrads and graduate students headed for big things, and the people with Down's Syndrome and other handicaps. We have the crying infants and squirming toddlers (not to mention the adolescents who, I'm sure, are giving their parents fits) and the people (mostly women, but a few men) who are certainly in their 90s. My sense is that the congregation as a whole is made up of fairly orthodox Catholics, which I doubt is always the case in university towns. When my former student, Fr. Mike McClane, preaches, only one or two people usually get up and walk out. Given that he often says things that cause massive heartburn to Catholics who strongly dissent from some of the Church's moral teachings, that's pretty surprising for a parish in a town like Princeton, but there it is. Anyway, if we're missing ideological (or whatever you want to call it) diversity we sure have lots of all the other kinds, including, I'm sure, plenty of sinners like me, and even, I would be wiling to bet, a few saints.

Saturday, March 29, 2014

Another pro-life Democrat caves

By Robert George

One of the great tragedies of the past three decades has been the collapse of support for the pro-life cause among leaders of the Democratic Party. There are still many pro-life Democrats, but few who hold national or statewide office.

West Virginia Governor Earl Ray Tomblin is (or, in any event, claimed to be) one of the few. But last night, as West Virginia Right to Life has holding its annual Rose Dinner, Tomblin vetoed a bill enacted by lopsided bipartisan majorities in both houses of the state legislature to prohibit abortions after twenty-weeks, when the child in the womb can feel pain.

I do not know Governor Tomblin, so I cannot comment one way or another on his honesty or good faith. But if he is being truthful about his pro-life convictions, I am puzzled as well as disappointed by his decision to veto a piece of legislation that would have protected unborn babies from being killed by abortion after twenty-weeks. He says that he was advised by lawyers that the bill was unconstitutional and by medical professionals that it was a threat to women’s health. But only lawyers and medical professionals who were already committed to the radical pro-late-term abortion ideology the Governor claims to reject would have made such claims. So the question naturally arises: Is the Governor hiding behind bad “advice” that he deliberately procured to provide cover for a veto that serves no interest other than those of the powerful abortion industry and its lobby?

Griffiths on Rodriguez

By Michael Perry

Paul J. Griffiths is the Warren Chair of Catholic Theology at Duke University. Richard Rodriguez is ... well, if you don't already know but follow the link below, you will know.

In First Things, Griffiths has a wonderful review, here, of Rodriguez's new book, Darling: A Spiritual Autobiography. An excerpt from Griffith's review:

_________________________

Among the impurities the Church might want to cleanse herself of is people like Rodriguez, he thinks, because he prefers to share his love and his bed and his life with a man rather than a woman. He takes the Church to be wrong doctrinally about homosexual acts, and often wrong, too, in what it teaches about women. He would like the Church to take instruction on these matters, as Jesus also did, from Mary, another darling in these pages. And he thinks that if it did, the Church’s self-shrouding fear might grow less and its loving embrace of pain might show itself more clearly.

I don’t agree with every position taken in Darling, or with every argument offered. On Islam, I suspect that what’s needed at the moment isn’t emphasis on the similarities among the three so-called Abrahamic religions as desert faiths, real though these are, but rather on difference and complementarity. The recent work of Rémi Brague on this, especially On the God of the Christians (and on one or two others), is especially instructive. On homosexuality and homosexual acts, by contrast, I think Rodriguez much closer to being right than not. Insofar as such acts are motivated by and evoke love, they are good and to be loved; insofar as they do not, not. In this, they are no different from heterosexual acts.

There are other interesting differences between the two kinds of act. But if you think, as Rodriguez seems to, and I do, and all Catholics should, that we live in a devastated world in which no sexual acts are undamaged, free from the taint of sin and death and the concomitant need for lament, then the fact that homosexual acts have their own characteristic disorder is no ground for blindness to the goods they enshrine. Gay men should, of course, darling one another; those of us whose darlings are of the opposite sex should be glad that they do, and glad of instruction in love by the ways in which they do. Love is hard enough to come by in a devastated world without encouraging blindness to its presence.

_________________________

Again, the entire review, in First Things, is here.

Friday, March 28, 2014

Must-read from Prof. Michael McConnell on the Hobby Lobby case

By Rick Garnett

Here, at the Volokh Conspiracy / Washington Post. In the piece, Prof. McConnell engages four questions that came up during oral argument and that the justices will likely have on their mind as they meet in conference this morning:

(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?

(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?

(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?

(4) Has the government satisfied the least restrictive means test?

Prof. McConnell explains why the answer to each of these questions is "no."