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.

Tuesday, September 17, 2013

McConnell and Inazu Brief in McCullen v. Coakley

By Michael Moreland

Following on Tom's earlier post, Michael McConnell and John Inazu have co-authored an excellent amicus brief (available here) in the upcoming McCullen v. Coakley case challenging Massachusetts' public-sidewalk exclusion zone statute. The brief is on behalf of a range of religious groups, including the Christian Legal Society, National Hispanic Christian Leadership Conference, Christian Medical Association, Ethics & Religious Liberty Commission of the Southern Baptist Convention, National Association of Evangelicals, Institutional Religious Freedom Alliance, InterVarsity Christian Fellowship, Missouri Synod Lutherans, US Conference of Catholic Bishops, and International Society for Krishna Consciousness.

As McConnell and Inazu note, even some sympathetic to abortion rights have roundly criticized Hill v. Colorado (Laurence Tribe has said it was "slam-dunk simple and slam-dunk wrong" and Kathleen Sullivan noted its weaknesses in a Pepperdine Law Review symposium). As I've been working my way through the canonical First Amendment cases in Constitutional Law II this semester, I am struck again by how rarely the government wins in contemporary free speech cases, Hill v. Colorado and Holder v. Humanitarian Law Project being notable recent exceptions, along with a smattering of government employee (Garcetti v. Ceballos) and student speech (Morse v. Frederick) cases. In cases that seemed to pose close questions--Brown v. EMA (violent video game sales to minors), for example--the Court has issued broad, bright-line, pro-free speech opinions. And the four members of the Court appointed since Hill v. Colorado seem at least somewhat more liberal (libertarian) on freedom of speech than their predecessors, all of whom were in the majority in Hill. Chief Justice Rehnquist, for example, was (to put it broadly) often pro-government in speech cases, see Renton v. Playtime Theaters. Hill's author, Justice Stevens, was also (again broadly) frequently pro-government in speech cases and said after his departure that he would have joined Justice Alito's dissent in United States v. Stevens (animal cruelty videos). With Hill's three dissenters (Justices Scalia, Thomas, and Kennedy) still on the Court and by replacing Chief Justice Rehnquist with Chief Justice Roberts, Justice Stevens with Justice Kagan (whose nascent record on the Court and earlier academic work is strongly pro-free speech), Justice Souter with Justice Sotomayor, and Justice O'Connor with Justice Alito, a clean majority to reaffirm Hill looks very unlikely.

Religious Freedom: A moral imperative, yes; but also a practical necessity

By Robert George

I offer some thoughts at CNN on religious freedom as not only a moral imperative, but also a practical necessity around the globe today: 

http://globalpublicsquare.blogs.cnn.com/2013/09/11/fight-terrorism-with-religious-freedom/

 

Monday, September 16, 2013

Comfortable self-preservation rather than mere self-preservation

By Patrick McKinley Brennan

Thanks to Rick for calling our attention to Mike Baxter's characteristically trenchant essay "Murray's Mistake".  Baxter's thesis reminded me of how Boston College's Fred Lawrence made a parallel and overlapping point in criticism of Murray:  "Murray never acknowledged that Locke did not basically disagree with Hobbes's 'artificial law of nature.' He did not recover virtue instead of power as the publicly relevant chief concern of political theory.  Intsead he moderated Hobbes's bottom line of self-preservation into comfortable self-preservation."  The result, as Lawrence goes on to explain, is that "[t]he common good and values not able to be 'costed out' get eliminated from the sphere of political discourse and public opinion.  This de facto privatization of Christian values may just be left obscured, albeit unintentionally, by Murray's famous distinction between public order as the domain of legitimately exercised political power and the common good as the domain of public consensus and of social concern beyond the limits of public order."

I'm not clear on why Lawrence thinks that what Murray obscured he obscured "unintentionally."  Be that as it may, Baxter is surely right that Catholics today are not capable of doing what Murray supposed that they would do.  The solution to the current problem requires that the Church do what Murray refused her constitutional room to do.  I'll commend again in this connection Chris Ferrara's magisterial book Liberty, The God That Failed.  In my view and in Ferrara's, the *problem* is the separation of the state from the Church.  The Church-less state that is remitted, on a good day, to mere natural law cannot think adequately, and, on the bad day that is our era, the state gives up thinking altogether and righteously does whatever the majority happens to covet.   

 

Radio Program on God and Government

By Marc DeGirolami

Here is a radio program where I recently appeared as a guest called "Interfaith Voices." The program is organizing a substantial series for the next several months on "God and Government" whose aim is to explore church-state relations in different countries.

This episode kicks the series off and considers the United States and Canada. There was a broad spectrum of views represented: the other guests are Professors Jacques Berlinerblau (Jewish Civilization, Georgetown) and Lori Beaman (Classics and Religious Studies, University of Ottawa). The editing process cut out some of the more interesting disagreements, but what remains gives a strong flavor of the discussion.

Democrats for Life Amicus Brief in Abortion Buffer-Zone Case

By Thomas Berg

McCullen v. Coakley, currently before the U.S. Supreme Court, is a free speech challenge to a Massachusetts law that puts a 35-foot "buffer zone" around abortion clinic driveways and entrance ways, barring sidewalk counselors from coming within conversational distance while exempting clinic employees "acting within the scope of their employment."  The plaintiff/petitioner sidewalk counselors provide information to clinic patrons about abortion alternatives; financial support, housing, and health care for women and children; parenting training; etc.  They claim that the statute discriminates against anti-abortion speech, and that even if it's "content-neutral," it sweeps too broadly and leaves them inadequate alternative channels of communication like shouting quick slogans, etc., from a distance. 

I've filed an amicus brief for the Democrats for Life of America  and Clergy for Better Choices, a NYC organization of urban clergy concerned about abortion, especially the high rates in minority communities, and seeking to provide alternatives.  The gist of the brief is that a significant number of women would be responsive to the kind of calm, conversational offers of support the plaintiffs seek to provide.  A taste of the argument:

[S]tudies examining the abortion decision-making process have concluded that a significant number of women obtaining abortions experience ambivalence about doing so, even up to the point of the abortion itself. The evidence also indicates that ambivalent women who request an abortion are more likely to be driven to do so by factors such as personal finances, housing, health care, and lack of parenting training. Again, these are precisely the factors on which Petitioners offer information and support. . . .

Petitioners’ unrebutted testimony shows that they are able to speak with far fewer women now, and their speech is far less effective in reaching women, than before the Act imposed the buffer zones. Moreover, speech from outside the buffer zones is inadequate not simply because it is less effective. Petitioners and others like them wish to speak on this sensitive matter in gentle, civil, personal conversations. The manner of speech is crucial to their message of caring assistance. They should not be forced into a different mold—in many ways, a stereotyped mold—of a shouting protester.

I can't get the file with the full brief to upload now (that Typepad function seems to be out), but when the brief gets onto the Supreme Court website or upload starts working, I'll link to the page or file with the full brief.

UPDATE: The brief is here.

Tom

Friday, September 13, 2013

"Murray's Mistake"

By Rick Garnett

"Murray's Mistake" is the title of this essay, by my friend and former colleague, Mike Baxter, who now teaches in Catholic Studies department at DePaul.  A former Hauerwas student, and a longtime critic of liberalism generally and the "Murray project" specifically, argues that:

[A] schism has arisen within the Catholic community in the United States over the proper attitude toward the established polity.  The schism is between those Catholics in the United States who identify with liberal politics and those who identify with conservative politics in the secular sphere. The division is pervasive and deep, and it is tearing the U.S. Catholic community apart.

The division between these groups of Catholics is a consequence of Catholics’ performing the role Father Murray assigned to them. . . . 

[These divisions] are generated by the national policy agenda that he urged Catholics to pursue. The problem is that in setting out to transform politics in the United States, Catholics have been transformed by it. . . . 

The lesson to be learned is this: those who set out to manage the modern state get managed by the modern state. In heeding this lesson, Father Murray’s story of Catholicism and America will have to be revised. . . .

As it happens, Mike also discusses in the paper Murray's "dualistic political theory" and his use of Pope Gelasius's "Two There Are" formulation, both of which have had a great deal of influence on my own thinking.  In fact, my paper on "The Freedom of the Church" was first presented at a Villanova conference, on Murray, at which Mike Baxter also presented.  Time flies . . .

Anyway . . . read the whole thing for Baxter's concluding suggestions (spoiler:  MacIntyre and Aquinas are key).  For my own part, I think almost everything Baxter says is correct, and cannot avoid the force of what I take to be his implicit challenge to folks (like me) who think that Murray's "dualistic" theory regarding religious and political authority still has a lot to offer.  That said, and agreeing entirely with Baxter (and MacIntyre) that the hard work of building authentic human communities has to focus on non-state and / or local and / or pre-political associations, spaces, and activities, I do not see it as a plausible alternative for Catholics to simply walk away from engagement with the modern state (even if Murray was overly optimistic about our place in the "consensus" about how that state should operate). 

Collaboration to Protect the Vulnerable

By Mary G. Leary

This Monday I was fortunate to be able to participate in a panel discussion on child sex trafficking at Microsoft's Silicon Valley campus. The purpose of the discussion was to allow recipients of Microsoft research grants like me to discuss some of our research regarding the role of technology in child sex trafficking. It was a wonderful example of how research universities and private businesses can partner to address such a critical issue as human trafficking.

Why is this relevant to a blog regarding Catholic legal thought? Well, two reasons come to mind. First, I have had occasion recently to review my university's mission statement. Being able to work on such an important issue regarding the inherent dignity of children is an opportunity not possible on this scale without this funding from Microsoft. This kind of collaboration helps researchers work toward and attain one of our University goals: to "discover and impart the truth through excellence in…research, all in service to … the world."

Secondly, I was pleased to see that within the audience of stakeholders working on the front lines of this issue were people from Catholic organizations. In the audience was the Director of the Office of Social Ministries for the Diocese of San Jose. I learned from her that Bishop McGrath has prioritized the eradication of Human Trafficking. She shared with me the Diocese's mission statement on this issue which beautifully states in part:

"As a Catholic faith community we value the dignity and rights of all persons and we endeavor to educate, influence public policy, and engage our community for the purpose of eradicating human trafficking in all its forms.  We work in collaboration with other faith communities, law enforcement and established organizations addressing the issue."  (emphasis in original)

Also in the audience was a sister from the Sisters of the Holy Names of Jesus and Mary. Those of us who have been working in this field know that well before human trafficking reached public consciousness, women religious were working in the trenches providing direct care to victims and calling for social change. The work of organizations as diverse as Microsoft's Digital Crimes Unit and this network of front line workers are strong reminders of the potential social impact we can all have when we collaborate to defeat indignities inflicted on our most vulnerable children.

Reflections from the City of God: On the Dilemmas of the Judge

By Marc DeGirolami

This week's selection from the City of God comes again from Book XIX, this time from Chapter 6. The City of Men context is the broad theme elaborated in Chapter 4--that though the virtues of this life are "its best and most useful possessions," they are in the end only constant reminders of the miseries of this life and cannot be the final good: "Salvation, such as it shall be in the world to come, shall itself be our final happiness." The immediate chapters that follow Chapter 4 represent particular ruminations on and applications of the theme. Chapter 6 considers "the error of human judgments when the truth is hidden."

The problem for judges in the earthly city is that they are required to pass judgment but that they "cannot discern the consciences of those at their bar." Their judgments are therefore "melancholy and lamentable." All the more so because judges are driven to use coercive methods to compensate for their ignorance of the truth, which in turn drives the innocent to confess falsely, "[a]nd when he has been condemned and put to death the judge is still in ignorance whether he has put to death an innocent or a guilty person....[C]onsequently he has both tortured an innocent man to discover his innocence, and has put him to death without discovering it." Augustine paints a dark picture of justice in the earthly city in this chapter.

The problem, moreover, is not one of the specific coercive methods used by the judicial systems in particular earthly cities (though several sources note Augustine's opposition in several letters to torture and capital punishment). As Oliver O'Donovan puts it: "We shall miss the point of this if we confine ourselves to observations about the barbarous laws of evidence which obtained in the late empire....For [Augustine] it is a universal problem about judicial process everywhere. It is a guess as to which party is lying and which telling the truth, and any inquisitorial process adopted to reduce the element of hazard may backfire and defeat its own ends." Oliver O'Donovan, "The Political Thought of City of God 19," in Bonds of Imperfection: Christian Politics, Past and Present 70 (2003).  An interesting feature of Augustine's discussion about torture in this context is that it emphasizes consequentialist considerations--the trouble with torture that Augustine targets here is that it does not assist, and in fact may be counterproductive, in ascertaining the truth. See Henry Chadwick, Augustine of Hippo: A Life 140 (2009). And yet, the problem of the elusiveness of truth is not resolved by a refusal to give judgment. Thus arises the dilemma: the necessity to give judgement in the earthly city together with the knowledge that ignorance of the truth will infect the judgment.

I was especially struck by Augustine's focus in the very last part of this selection not on the substance of the judgment, or on the methods to be used in judging, but on the mood or cast of mind that the dilemmas of the judge ought to inspire in him ("wise" is not an honorific here). Augustine is interested in what the miseries of judgment do for the character of the judge--and what they ought to do--as he contemplates the fulfillment of his duties (his "necessities") in the earthly city:

If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty. And he thinks it no wickedness that innocent witnesses are tortured regarding the crimes of which other men are accused; or that the accused are put to the torture, so that they are often overcome with anguish, and, though innocent, make false confessions regarding themselves, and are punished; or that, though they be not condemned to die, they often die during, or in consequence of, the torture; or that sometimes the accusers, who perhaps have been prompted by a desire to benefit society by bringing criminals to justice, are themselves condemned through the ignorance of the judge, because they are unable to prove the truth of their accusations though they are true, and because the witnesses lie, and the accused endures the torture without being moved to confession. These numerous and important evils he does not consider sins; for the wise judge does these things, not with any intention of doing harm, but because his ignorance compels him, and because human society claims him as a judge. But though we therefore acquit the judge of malice, we must nonetheless condemn human life as miserable. And if he is compelled to torture and punish the innocent because his office and his ignorance constrain him, is he a happy as well as a guiltless man? Surely it were proof of more profound considerateness and finer feeling were he to recognize the misery of these necessities, and shrink from his own implication in that misery; and had he any piety about him, he would cry to God: "From my necessities deliver Thou me."

Delahunty's Series on Tocqueville and Religion

By Marc DeGirolami

I've noted some of Professor Robert Delahunty's superb posts on Tocqueville before, but now that he has completed his series, I thought to aggregate them all in one place. For those with an interest in Tocqueville's thought, they are well worth exploring:

Mr. Putin, the United States is indeed an exceptional nation

By Robert George

Vladimir Putin, in his New York Times op ed yesterday, warned against the idea of American "exceptionalism." Let me repost a lecture I gave at Grove City College a few years ago explaining the idea and defending it:

http://vimeo.com/29409149

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