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.

Friday, August 23, 2013

A plea to use the tools in the International Religious Freedom Act

My colleagues and I on the U.S. Commission on International Religious Freedom are working together across party lines to push for the full deployment of the tools provided by the International Religious Freedom Act of 1998 to pressure regimes that are gross offenders against religious liberty to ease up on the individuals, minorities, and sometimes even majorities whom they are persecuting.  My Democratic colleague and dear friend Katrina Lantos Swett and I made the case this week in an op ed piece in the Washington Post:

"When the act was passed in 1998, it made the promotion of religious freedom an official U.S. foreign policy priority and established at the State Department an ambassador-at-large for international religious freedom. The legislation also created a bipartisan and independent U.S. Commission on International Religious Freedom, on which we serve, to monitor this right worldwide and make policy recommendations to Congress, the secretary of state and the president.

"Congress gave the legislation real teeth through a groundbreaking enforcement mechanism: requiring annual administration review and designation of “countries of particular concern,” defined as those governments engaging in or allowing “systematic, ongoing, egregious” violations.

"While the law provides the administration with flexibility in how it will pressure those countries, the review and designation process is not discretionary. The law requires it. Whatever one’s view of appropriate sanctions for violators, there can be little disagreement on the imperative of bearing witness to abuses.

"Unfortunately, neither Republican nor Democratic administrations have consistently designated countries that clearly meet the standard for offenders. The Bush administration issued several designations in its first term but let the process fall off track in its second. The Obama administration issued designations only once during its first term, in August 2011.

"The result? Violators such as Egypt, Pakistan and Vietnam are escaping the accountability that the International Religious Freedom Act is meant to provide." 

The complete op ed is available here:

http://www.washingtonpost.com/opinions/the-uss-lagging-commitment-to-religious-freedom/2013/08/21/87401cb4-0901-11e3-8974-f97ab3b3c677_story.html

Panel on Religious Symbols, Public Reason, the State, et alia

I was fortunate to participate in an excellent panel at William & Mary yesterday, as part of the ICLARS Panel wonderfully massive and variegated International Consortium for Law and Religion Studies conference in Virginia. The overall theme of the conference organized by the marvelous Cole Durham and Brett Scharffs was "Religion, Democracy, and Equality."

Our panel, moderated by Professor Mark Movsesian, was called, "Religious Symbols, Public Reason, and the State," and my co-panelists were Professor Perry Dane (Rutgers) and Professor Javier-Martinez Torrón (Complutense, Spain).

Perry's talk, entitled "Endorsement, Legal Reason, and the Misguided Quest for Reasonableness," was a penetrating and highly persuasive critique of the endorsement test. Perry sharply criticized approaches to law (not only in this context) that highlight feelings and sensibilities, and that ask judges to take on what he (channeling Philip Rieff) called "therapeutic" inquiries by reference to "reasonable" beliefs. He talked about endorsement in part in the context of the upcoming legislative prayer decision that the Court will hear in the new term. As a separationist--and, as I was very interested to learn, as Justice Brennan's law clerk during the term that Brennan dissented in Marsh v. Chambers--Perry was skeptical that he would approve of either the reasons for changes to endorsement that the current Supreme Court might make or the new direction that it might choose (he was specifically critical of the possibility that the Court will apply an originalist methodology).

I was second and presented my co-authored paper (with Kevin Walsh), "Judging Theory." The paper does not address law and religion head on, but it does so at an angle. The core claim of the paper is the comparative thesis that a judge's institutional and role-based self-understanding is more important in constitutional adjudication that the collection of ideas that commonly travel under the banner "constitutional theory." Kevin and I examine the extra-judicial (articles and books) and judicial writing (opinions) of two prominent judges--Judge Richard Posner and Judge J. Harvie Wilkinson III in several controversial and hot-button contexts (Second Amendment, partial-birth abortion, and the Establishment Clause (there's the law and religion!)) to make the claim stick.

Finally, Javier discussed religious symbols proper with a particular focus on Lautsi v. Italy. Javier argued that in the European context, where there is no mandated establishment provision that applies to all nations in the Convention on Human Rights, it is wrong to superimpose that mandate through other provisions (provisions guaranteeing equality, for example). Javier further argued--similarly to Perry--that legal claims cannot and should not consist in feelings of "difference" from the majority. As he put it, "What's wrong with being different?"

Thursday, August 22, 2013

"We use the terms 'wedding' and 'commitment ceremony' interchangeably."

Footnote 1 of today's opinion of the Supreme Court of New Mexico in Elane Photography, LLC v. Willock says that "[w]e use the terms 'wedding' and 'commitment ceremony' interchangeably." That posited interchangeability is what allows the court to use the words interchangeably throughout the rest of the opinion, as in the quotable (and quoted) statement that, "when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races." But suppose that there is a difference between a wedding and a commitment ceremony, in that a wedding celebrates a marriage while a commitment ceremony does not. The analogy to inter-racial weddings is then obviously inapt, right?

Consider, also, the following: "Elane Photography is primarily a wedding photography business. It provides wedding photography services to heterosexual couples, but it refuses to work with homosexual couples under equivalent circumstances." Couldn't Elane Photography argue that the circumstances are not equivalent because the commitment ceremony is not a wedding because it does not involve a marriage? The argument would be that because a commitment ceremony is not a wedding, Elane Photography is not discriminating in the "wedding photography business." 

Wednesday, August 21, 2013

Words on gays cost bishop post at Dartmouth

That is the headline of this Boston Globe article from last week few days ago about the appointment and the rescinding of appointment of Bishop James Tengatenga of the Anglican Diocese of Southern Malawi as dean of the Tucker Foundation at Dartmouth College. I find it surprising that one often-astute observer of Dartmouth College affairs praises the college's new president, Philip Hanlon, for not flinching in pulling the appointment. It sure seems to me like he flinched. At least that's what I take away from the comments of the chair of the search committee, Professor Irene Kancades. According to The D's story today:

Calling the decision “bizarre,” Kacandes said reversing a provost and president-approved decision after a seven-month search might deter faculty from volunteering to sit on future search committees.

“The way that the accusations unfolded is something that we should be very alarmed about,” Kacandes said. “This man was tried in a court of partial public opinion, and it was not clear that people who wanted to weigh in could do so.”

Kacandes said she felt the strong reaction was perpetrated by a small group of students, blog posts and in emails between some faculty members.

Maybe there's more to the story, which I am viewing from a distance (though not as much a distance as students in Hanover, NH might view the statements of a Bishop in Malawi). But the way this unfolded is troubling. As an alumnus of Dartmouth and AQ, I appreciate now in a way that I did not appreciate as a student the benefits of the institutional independence of Aquinas House, the Catholic student center at Dartmouth, from the governance of the Tucker Foundation.

For more background: The college's statement on Bishop Tengatenga's initial appointment is here, a statement by Bishop Tengatenga on his views on gay rights is here, and a statement by Dartmouth's new President on rescinding the appointment is here. (See also this story from Episcopal News Service and this story from the Valley News.) Earlier news coverage about the controversy is available from the Valley News and Dartblog

A perspective piece from Patheos, titled "Scapegoating Bishop James Tengatenga," concludes with a quotation from the Globe's coverage and the observations of an unnamed faculty member:

The fears voiced in the Globe article by Zambian exile the Rev. Kapya John Kaoma:

“This is a big blow, because it leaves African activists on the ground wondering if they can work with Westerners,” Kaoma said. “All human rights defenders in Africa are working under very, very hard conditions, and the violence against them is always there. What they have done is exposed Bishop Tengatenga and then dumped him back into Malawi.”

Were echoed by a member of the Dartmouth faculty, who told me:

The idea of the left taking care of their own calls to mind the Republican friendly fire of the Spanish Civil War.  In this case, the left refused even to recognize him as one of their own.  He unwittingly and in circumstances scarcely imaginable here violated their language code; their own moral pride compelled them to relegate him to the status of outcast, unfit to exercise moral leadership in our community.  I don’t think my perception is entirely distorted when I notice a Leninist streak in the American liberal arts left.

Tuesday, August 20, 2013

How should the town's lawyer answer "the Lemon/endorsement question" in Town of Greece v. Galloway?

I am preparing this evening for an argument simulation that we are doing tomorrow for the incoming 1Ls as part of orientation. I have been assigned the task of arguing for the petitioner (the town government) in Town of Greece v. Galloway. The process has caused me to appreciate the difference in perspective that comes from my stance as an academic lawyer rather than a government lawyer. But I find myself in need of orientation because switching between these two perspectives is disorienting.

Michael Moreland posted a little while back about the amici curiae brief headlined by Gerard Bradley that he had joined (along with several other constitutional scholars). Soon after that posting, I read that brief, along with the Obama Administration's brief, and others. I found the Bradley brief refreshing in its insistence that what the brief referred to as the Lemon/endorsement test "is inapposite to legislative prayer." The brief argued that: (1) legislative prayer necessarily has a religious purpose; (2) the concept of neutrality underlying the Lemon/endorsement test makes no sense of legislative prayer; (3) legislative prayer does not comport with the Lemon/endorsement test because that cannot apply to a continuing and perhaps long-time government practice with the same force as it may apply to a single act or display; and (4) applying the Lemon/endorsement test to legislative prayer could itself lead to an unconstitutional result. But considering the arguments from the perspective of the town's lawyer (my role for the simulation), I am not sure that I would or should present the arguments in precisely the same way. I do not want to admit that the town loses if the Lemon/endorsement test applies.

I cannot deny, of course, that the purpose of seeking Divine guidance is a religious purpose. But I will be less willing to treat that purpose as incompatible with the purpose of solemnizing the proceedings. I do not want to have to agree that "[t]o apply [the Lemon/endorsement] test to legislative prayer is simply to overrule Marsh v. Chambers, and thereby to eradicate a practice cherished by Americans since the founding." But maybe I need to, because I need to explain why the town shifted in 1999 from beginning with a moment of silence (which seems sufficient for solemnizing) to beginning with an invocation from an invited volunteer. And in making that explanation, perhaps I will find myself back in agreement with the Bradley brief anyhow. Maybe I should embrace its approach to begin with.

Let us now put aside the simulation and ask the question directly. Suppose the town's lawyer is asked at oral arguments in the actual case: "Does the town lose if the Lemon/endorsement test applies?" How should the town's lawyer answer? The town's brief says that the town wins under any test. But is that right?

Michael Gerson and Thomas Smith on Transitory Goods

Michael Gerson has a typically thoughtful piece at the Washington Post today, but it is much more--a beautiful reflection on the joys and sorrows of parenting and the elusiveness of goods in life: "Parenthood offers many lessons in patience and sacrifice. But ultimately, it is a lesson in humility. The very best thing about your life is a short stage in someone else’s story. And it is enough." My colleague Thomas Smith wrote insightfully about this theme in a lecture on Tolkien's Catholic imagination, recently republished in a festschrift. A bit:

The point is that the transitory goods of this world are beautiful and attractive to us, and yet even as we enjoy them, we have an inkling that they will pass away – just as we will. Our enjoyment is mixed with grief because of the sense of impending loss. This is why the Buddha speaks of existence as suffering. He does not mean that there is no happiness in life. Nor does he mean that sometimes painful moments follow happy ones in turn. Rather, he says that life is like honey on a razor; we are cut as we taste its sweetness. Even in our most joyful experiences, a tragic sense lurks that they shall pass. We tend to push that away, shielding ourselves through various distractions. We also tend to cling possessively to our positive experiences and people, unwilling to let them slip through our grasp. Clearly, the ordinary sufferings of sickness, old age, or mental pain constitute part of the suffering of mortal life. Yet there is also suffering even in our joy because of the flow of time. For the Buddha, at the heart of suffering is a clinging possessiveness that expects the universe to meet all our demands, that refuses to let the world flow on through time because this flow frustrates our wish that enjoyment should last.

Telling the truth and the Truth

The National Catholic Reporter is running an opinion piece by Charles Reid that he originally published at a blog called Religious Left Law, so the source itself promises left-wing bias, not objectivity.  The aim of Reid's piece is to do a hatchet job on the Archbishop of Philadelphia, Charles J. Chaput, while at the same time preaching the "imitatio Christi" (which he introduces in Latin and then translates into English for the benefit of his unlettered readers), which he then fleshes out as love, forgiveness, and hope.  I don't know any Christian who opposes love, forgiveness, or hope, but I honestly don't see the love in Reid's piece.  What I do see in the piece, however, is an unjust portrait of an exemplary bishop.  Reid's piece plays on an interview of Chaput by John Allen (here), and anyone interested in objectivity should compare what Chaput actually said, in context, with the false portrait Reid paints.  

The thrust of Reid's piece is that Chaput is distressed by Pope Francis's "popularity."  First of all, I'm not sure why we should assume or conclude that popularity is a positive thing in a pope.  The news reports from Rio kept saying that the crowds were treating Pope Francis "like a rockstar."  Our Lord was not treated like a rockstar; He was crucified.  It's not humanly possible objectively to judge Pope Francis's effect on the one thing that ultimately matters, the salvation of souls.  We can only draw tentative inferences, but the implications of the "rockstar" phenomenon worry me.  I am, however, hopeful about this pontificate.  For example, I recently met Bishop Michael Barber, S.J., the new bishop of Oakland, and one of Pope Francis's first appointees.  Bishop Barber's beatiful homily, which moved everyone in the small group for whom he said Mass, was about the need to approach our Lord in silence of the desert and in the sacraments.  Pope Francis will do his greatest good, in my view, by appointing great bishops whose love for the Lord and for all will be attractive to all people of good will and will, in particular, attract good men to the priesthood and confirm them in the work of saving souls.

Second, anyone who knows Archbishop Chaput would recognize immediately what a distraction Reid's comparison amounts to.  Chaput is all about serving the flock, even if it means being unpopular.  In the places in Philadelphia where he is arguably unpopular, it's because he's having to close churches and schools that should have been closed years ago.  I have great regard for his predecessor as Archbishop of Philadelphia, Cardinal Rigali, but Chaput is now bearing the brunt of doing unpopular work that Rigali refused, thus retaining a certain popularity among many of the faithful of Philadelphia.  

Third, Chaput tells the truth.  He is exactly correct when he observes that "conservative" Catholics "generally have not been really happy about [Pope Francis's] election." But does Chaput encourage or approve such disaffection?  On the contrary, in a portion of the interview with John Allen that Reid elides, Chaput decisively counters this disaffection. He does so by stating unequivocally the following:  "I think he's a truly Catholic man in every sense of the word."  What better could be said about a person?  

I would just add that that cannot be said of the many prelates whose lies, falsehoods, and evasions got the American Church in the current state of wide devastation.  Chaput and a few other courageous bishops are rebuilding a basis for trust in the hierarchy.  Cardinal Mahony talks a big game about immigration and compassion, but he also tells lies, decade after decade after decade, about children and priests and rape.

I could go on, but I'll conclude by quoting something Archbishop Chaput wrote in the Villanova Law Review: "For Christians, the trinity of virtues we call faith, hope, and charity should shape everything we do, both privately and in our public lives. . . .  By love I don't mean 'love' in a sentimental sense or indulgent sense, the kind of empty love that offers 'tolerance' as an alibi for inaction in the face of evil.  I mean love in the Christian sense; love with a heart of courage, love determined to build justice in society and focused on the true good of the whole human person body and soul."  Chaput practices what he preaches, and I would venture to say that if we had variations on Chaput at the head of every diocese, it wouldn't take too long before the empty churches would be filling back up and the churches' ministries were again thriving.

I encourage readers to get to know the real Chaput, not the false Chaput confected by Reid and dividers of the Church who think that "left" versus "right" is a substitute for asking whether the man tells the truth. Chaput, for his part, tells the truth and the Truth.  I thank God for Pope Benedict's sending him to Philadelphia. 

The Texafication of American Catholicism

Texas Attorney General Greg Abbott announced earlier this summer that he is running for Governor, but a neglected aspect of the coverage was that Abbott (the favorite in the race next year) would, to my knowledge, be the first Catholic to hold major (Governor or US Senator) statewide office in Texas (Lorenzo de Zavala, Vice President of the Republic for a few months in 1836, notwithstanding). While this is only one small indicator, there is a major and still somewhat unappreciated shift underway in American Catholicism away from its historic geographic core in the belt running from Saint Louis and Chicago across the Great Lakes up to Boston (with outposts in places such as New Orleans and the major cities in California), one that I think is interesting to contemplate for the future of Catholic culture (in law and otherwise) in the US. But because many of us live in the vestigal culture of American Catholicism and read media (First Things, Commonweal, and America) produced out of it, the change is easy to ignore for now.

As dioceses in Northeastern cities close parishes, sell real estate, and face financial difficulty, the Church in Texas (as Rocco Palmo pointed out last year) is booming. Galveston-Houston is now a cardinalate see (occupied by a Pittsburgher), while Detroit and Saint Louis may never be again. What will emerge is a Church different in important respects--more influenced by Latino Catholicism and Evangelical Protestantism and much less dependent on large Catholic institutions. The liturgical forms of American Catholicism will likely become more mega-church than Tridentine. The massive system of universities, hospitals, and parishes of Midwest and Northeast Catholicism will probably not be replicated in Texas. Consider there are about 7.2 million Catholics in Texas and about 3.4 million in Pennsylvania (source: Pennsylvania and Texas Catholic Conferences), but Texas has seven Catholic colleges or universities and Pennsylvania has 26 (source: ACCU). While Catholics build up some institutional presence (under the presidential leadership, for example, of former Illinois and UST law dean Tom Mengler at St. Mary's in San Antonio), they will also be entrepreneurs in non-Catholic institutions, such as the outstanding Catholic campus ministry at Texas A&M. And just as Catholic social teaching in America for the last century was shaped by (and shaped) the New Deal and the Great Society, Texas is, to put it mildly, more libertarian and distrustful of the state, and this will surely affect how the Church thinks about social problems.

Now, I happen to love Texas and think this is all great (if disruptive and inevitable) for the American Church. The major institutions of higher education in Midwest and Northeast Catholicism--Boston College, Georgetown, Villanova, Notre Dame, Fordham, and so on--will endure, in part by educating the burgeoning Catholic population of Texas. But as we think about how Catholicism and its social doctrine contibute to our public life in the United States, we would do well to consider how the exuberant and "strange genius" (to lift a phrase from former Economist reporter Erica Grieder's recent book) of Texas and its religious and political culture may soon be the dominant force in the American Catholic Church.

Welcome to Prof. Kevin Walsh

I'm pleased to welcome to MOJ Prof. Kevin Walsh, who teaches and writes about a variety of public-law subjects at the University of Richmond School of Law (go, Fighting Spiders!).  Kevin taught previously at Villanova, and blogs at the excellent "Walshlaw" blog.  Welcome aboard!

Short Conversation on The Tragedy of Religious Freedom

My colleague, Mark Movsesian, asks me a few questions about The Tragedy of Religious Freedom over at the Center for Law and Religion Forum in our "Conversations" feature. The Q&A may be helpful as a little introduction either to induce you to buy the book, or to induce you not to.