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.

Thursday, August 8, 2013

Amicus Briefs in Town of Greece v. Galloway

Many of us were quick to criticize (and vindicated, I hasten to add) the Obama Administration's brief in Hosanna-Tabor v. EEOC, so I should be just as quick to praise the Solicitor General's brief in Town of Greece v. Galloway, the legislative prayer case that the Court will hear this upcoming term. The government argues that the Second Circuit's decision (per Judge Calabresi) holding unconstitutional the town's practice of legislative prayer should be reversed, though, as Lyle Denniston notes here, the SG's brief makes a narrow argument and avoids the thorny questions surrounding either the "limited public forum" doctrine or the application of the endorsement test to the case.

Those looking for a critical perspective on the endorsement test should consult this brief I have joined that was led by Gerry Bradley and aided by attorneys at Paul Hastings. Other signatories include our own Robby George, Helen Alvare, Hadley Arkes, George Dent, Matthew Franck, Mary Ann Glendon, and Steve Smith.

Clarke Forsythe's book on Roe v. Wade

I just read an advance copy of Clarke Forsythe's excellent new book on Roe v. Wade. Here is the Amazon link. http://www.amazon.com/Abuse-Discretion-Inside-Story-Wade/dp/1594036926 Clarke is Senior Counsel at Americans United for Life and has been a leader in the pro-life fight for nearly three decades.

Here is a description of the book from Amazon:

"Based on 20 years of research, including an examination of the papers of eight
of the nine Justices who voted in Roe v. Wade and Doe v. Bolton,
Abuse of Discretion is a critical review of the behind-the-scenes
deliberations that went into the Supreme Court's abortion decisions and how the
mistakes made by the Justices in 1971-1973 have led to the turmoil we see today
in legislation, politics, and public health.

The first half of the book
looks at the mistakes made by the Justices, based on the case files, the oral
arguments, and the Justices’ papers. The second half of the book critically
examines the unintended consequences of the abortion decisions in law, politics,
and women’s health.

Why do the abortion decisions remain so controversial
after almost 40 years, despite more than 50,000,000 abortions, numerous
presidential elections, and a complete turnover in the Justices? Why did such a
sweeping decision—with such important consequences for public health, producing
such prolonged political turmoil—come from the Supreme Court in 1973?


Answering those questions is the aim of this book. The controversy over
the abortion decisions has hardly subsided, and the reasons why are to be found
in the Justices’ deliberations in 1971-1972 that resulted in the unprecedented
decision they issued."

Richard M.

Orientation to the Mission of a Catholic Law School

One of our recurring topics here at MOJ is the mission of Catholic law school, and I'm always curious to see how different schools structure orientation programs so as to introduce students to the Catholic mission in a way that is informative and welcoming to 1Ls, many of whom are new to thinking about it. At Villanova, our incoming 1Ls have been given a reading (reproduced below) by Rick Garnett, which is an adaptation of some remarks Rick delivered to students at Notre Dame. Additionally, we will have an opening Mass (celebrated this year by Father Rob Hagan, OSA, the Associate Athletics Director at Villanova--and a lawyer, as it happens), welcoming remarks by the University President, Father Peter Donohue, OSA, and a panel on student resources in campus ministry with our Associate Vice President for Mission, Father Joseph Farrell, OSA.

Villanova is a Catholic and Augustinian university. The following are remarks by Richard W. Garnett, Professor of Law at the University of Notre Dame, that provide an insightful reflection on the mission of a law school at a Catholic university: 

The late Blessed Pope John Paul II observed that a Catholic university is “born from the heart of the Church.” And we who are blessed to be a part of a law school at a Catholic university like to think that our work is located, in turn, at the heart of a great Catholic university. A Catholic university is called to creativity, to exploration, to the search for truth, and to the transformation of the world. The work and mission of a Catholic law school are essential to this project. 

In our times, a great university must have a global focus – it must reach across boundaries and borders – and law is indispensable to any effort to unite citizens, leaders, scholars, and societies.

In today’s world, research and learning must be interdisciplinary – their aim must be to uncover illuminating connections – and law has always involved identifying the similar features of seemingly different cases and questions.

And, in our current context, it is crucial that the scholars and students be engaged with the world, and with what the Second Vatican Council called the “joys and the hopes”, as well as the “griefs and the anxieties,” of men and women everywhere. The study of law and the formation of lawyers are, necessarily, activities that engage us with the world, its challenges, and its opportunities. The work of a Catholic law school is both theoretical and practical; it involves critical reflection and careful application.

We believe that a great Catholic law school – that is, one that is meaningfully, distinctively, and interestingly Catholic – not only serves the needs of the profession and the community, it also plays an indispensable role in the high calling of a Catholic university.

As we see it, a Catholic law school is able to be a better law school, and to better form conscientious professionals and leaders, precisely because it is Catholic. It’s well known that law and lawyering get a criticism these days, and much of it is well deserved. Too often, law is seen as a “bag of tricks” to be manipulated by the powerful for their own ends; too often, lawyers are content to regard themselves as “hired guns” or as mere technicians; too often, the formulation of legal rules and policies seems driven simply by partisanship rather than wise and prudent consideration of real-world facts and the needs of the community.

At a Catholic law school, though, we can take comfort, and find inspiration, in the fact that our tradition has taught for centuries that law is an “ordinance of reason” and that its aim is the “common good.” Our faith provides a vision of what law, done right, is supposed to be, and really can be. It is not an exaggeration to say that the study and practice of law is elevated, for us, because we know that our human efforts to develop and implement just and efficient laws are reflections of – they participate in – the very mind of God.

Now, this might sound a bit grandiose or “high-falutin’.” As every lawyer knows, the legal enterprise is not only about philosophical reflections on the nature of justice or the splendor of truth; it’s also about the nuts and bolts of crafting arguments, reaching agreements, finding facts, and solving problems. We lawyers are inspired by the words of our patron saint, Thomas More, who notes – in Robert Bolt’s wonderful play, A Man for All Seasons – that God made men and women to “serve Him wittily, in the tangle of their minds.” The life of the mind is an arena for serving God, and we lawyers like to think that we have a special calling to supply the wits, and help unravel the tangle.

At a Catholic law school, three words, or themes, come up again and again in our conversations about how we should do what we do, how we can strengthen and enrich the wider university, and about what makes us different from the many other fine law schools. Those words are community, integration, and vocation.

We aspire to be not just a collection of individuals, but a true community of teachers, scholars, students, and professionals, united by a passion for justice. The Church has long taught, in its social doctrine, that the human person is social, and flourishes only in and through community. This is certainly true for law and lawyers. At a Catholic law school, our goal is to serve the common good – to put the law and our legal talents in the service of that good – and to do so in community. The word “community” for us expresses both how and why we “do law.” We invite our students not only to three years of technical training, but also to a shared enterprise, a learned profession, and a lifetime of relationships.

We also aim for integration. Too many lawyers are unhappy, and this is in part because they have been taught to radically compartmentalize, and dis-integrate, their lives. A Catholic university is committed to the idea that faith and reason work together – that they are, in the late Pope’s words – “like two wings on which the human spirit rises to the contemplation of truth.” Just as faith and reason can and must be integrated in the search for knowledge, it is also essential for professionals and students that their work, values, commitments, and loves be integrated and coherent. At a Catholic law school, we invite and try to inspire young lawyers to bring their values and religious faith to their studies, and then to carry them into their lives in the law. In our view, we cannot expect young lawyers to think deeply and well about law, justice, and the common good if we tell them to privatize their ideals, or to radically separate their fundamental moral commitments from their law practices. And so, we encourage our students to approach their vocations – as lawyers, spouses, parents, friends, and citizens – as whole persons. We challenge them to integrate their work, their beliefs, their values, and their activism. We urge them always to remember who they are, what they believe, where they came from, and to resist the temptation to “check their faith at the door” of their professional and public lives.

Finally, “vocation.” Many of us, when we hear the word, probably think either in terms of the clergy and religious life, or "vo-tech" classes. We mean something different, though, when we challenge our students to think of their lives in the law in terms of vocation, and calling. We are not naïve. We know that, for many, law is experienced more as a job, and less as an adventure. We know that plenty of people go to law school, and go into law practice, not because they heard a “call,” but because their parents expected it, or because lawyers in the movies seemed glamorous, or because they couldn’t think of anything else to do. Still, we propose to our students and graduates – and to our profession – that we should all wrestle with the question, “what would it mean for my time in law school, and for my life in the law, if I tried to think about the law as a vocation?” We challenge our students and colleagues to ask, “who is calling me, and what am I being called to do?” These are difficult questions to ask, yet alone to answer. Odds are, we won’t get instructions from a Burning Bush, or be blinded by a light on the road to Damascus, or even get the answer from a still, small voice in the night. Still, we try to listen.

An interesting religious-accommodation case from the CTA7

Here is the CTA7's opinion (per Judge Hamilton) in Adeyeye v. Heartland SweetenersAs The Indiana Lawyer puts it, "[a] Nigerian employee who asked his employer for time off work to attend his father’s burial rights and was fired when he returned is entitled to a day in court, the 7th Circuit Court of Appeals held Wednesday."  Of particular interest, I think, is what the court had to say about the suggestion by the employer that the employee's religious beliefs were not "sincerely" held:

“The prospect that courts would begin to inquire into the personal reasons an
individual has for holding a religious belief would create a slippery slope we
have no desire to descend. Has the plaintiff had a true conversion experience?
Is he following religious practices that are embedded in his culture and family
upbringing? Is he making Pascal’s coldly rational wager to believe in God based
on his self-interest? These questions are simply not an appropriate or
necessary line of inquiry for courts.”

In my view, Judge Hamilton put the matter well:  It is true that Title VII
only requires accommodation of employees’ religious beliefs, obligations, and
practices if the employee is “sincere”, but it is also true that courts wisely
avoid getting into psycho-analyzing or finely parsing the reasons *why*
a religious belief is held.  (After all, isn't the answer, in the end, often "grace"?)  The “sincerity” inquiry functions as a filter, to weed out sham and disingenuous claims for accommodation, but it is not supposed to authorize a judicial inquiry into the genealogy of a claimant’s religious beliefs.

Tuesday, August 6, 2013

More on the Hobby Lobby Case

OSV recently published an article by Anamaria Scaperlanda Biddick (yes, I'm the proud dad) on Hobby Lobby's recent victory at the 10th Circuit and then in District Court in its challenge to the HHS mandate. In the article, Kyle Duncan, general counsel at the Becket Fund for Religious Liberty and lead attorney for Hobby Lobby, discusses the significance of the 10th Circuit's en banc decision.

OSV coupled the article with its editorial, which emphasized the irrationality of the administration's provisions.  According to the editorial, Hobby Lobby would face a $26 million annual fine ($2,000 per employee) for dropping health coverage altogether (this figure is much smaller than the cost of insuring its employees) but faces a $475 million fine ($100 per employee per day) for insuring employees but not complying with the HHS contraception coverage mandate. 

Pope Francis, evangelization, and freedom

In his message for World Mission Day, Pope Francis affirmed that "publicly witnessing to Christ" should not be seen -- as it sometimes is, by those who would regulate conversions, missionary work, "proselytism" and the like -- as an "assault on others' freedom."  (Story here.) 

Francis commented on an obstacle to evangelization that comes from the idea that "proclaiming the truth of the Gospel means an assault on freedom."

Quoting Paul VI in Evangelii Nuntiandi, he said: "It would be ... an error to impose something on the consciences of our brethren. But to propose to their consciences the truth of the Gospel and salvation in Jesus Christ, with complete clarity and with total respect for free options which it presents ... is a tribute to this freedom."

Francis said we must always have "the courage and the joy of proposing, with respect, an encounter with Christ."

This is important, I think.  A few years ago -- two papacies ago! -- I wrote a short essay called "Changing Minds:  Proselytism, Religious Freedom, and the First Amendment", that dealt with some of these same issues.  The abstract:

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are
increasingly framed not merely in terms of piety and zeal; they are seen as
matters of geopolitical, cultural, and national-security significance as well.
Indeed, it is fair to say that one of today's more pressing challenges is the
conceptual and practical tangle of religious liberty, free expression, cultural
integrity, and political stability. This essay is an effort to unravel that
tangle by drawing on the religious-freedom-related work and teaching of the late
Pope John Paul II and on a salient theme in the law interpreting the Free Speech
Clause of the First Amendment.

Running through and shaping our First Amendment doctrines, precedents, and values is a solicitude for changing minds - our own, as well as others'. Put differently, the Amendment is understood as protecting and celebrating not just expression but persuasion - or, if you like, proselytism. There are, therefore, reasons grounded in our Constitution and traditions for regarding proselytism and its legal protection not as threats to the common good and the freedom of conscience, but instead as integral to the flourishing and good exercise of that freedom. This same solicitude for persuasion and freedom pervades the writing of Pope John Paul II, who regularly insisted that the Church's evangelical mission does not restrict freedom but rather promotes it. The Church proposes - thereby inviting the exercise of human freedom - she imposes nothing. The claim here, then, is that proposing, persuading, proselytizing, and evangelizing are at the heart of, and need not undermine, not only the freedoms protected by the Constitution, but also those that are inherent in our dignity as human persons.

Lund on Church Autonomy after Hosanna-Tabor

Prof. Chris Lund is one of the best younger scholars working on law and religion questions, I think -- I'm also delighted that he'll be visiting and teaching at Notre Dame this coming semester! -- and he has posted a very good new paper on SSRN.  Here is the abstract for "Church Autonomy Reconceived:  The Logic and Limits of Hosanna-Tabor":

Last term, in Hosanna-Tabor v. EEOC, the Supreme Court held that the First Amendment precludes ministers from bringing employment-related claims against their churches. In some ways, Hosanna-Tabor changed little. The lower courts had all reached that conclusion already, though the Supreme Court slightly expanded the breadth of the so-called ministerial exception. More important is how Hosanna-Tabor reconceptualized things, especially in how it pushed back somewhat against the Supreme Court’s imperial decision in Employment Division v. Smith, where the Court had broadly held that the Free Exercise Clause did not entitle religious believers to exemptions from generally applicable laws. 

Hosanna-Tabor could end up an isolated anomaly, a peculiar concession to the importance of ministers and the intrusiveness of employment discrimination laws, a railroad ticket good for one day and train only. But the Court’s opinion speaks of a broader principle, a principle whose boundaries it consciously puts off defining. And when one looks at the cases being decided in the lower courts, one is struck by how so many decisions seem to fall within Hosanna-Tabor’s principle. From employment discrimination law to labor law, from contract to tort, lower courts regularly dismiss all manner of cases in ways incompatible with Smith and for reasons akin to those given in Hosanna-Tabor. This Article looks at that universe of cases, reflects on some patterns that emerge, and works toward an explanation for what is happening and how courts should handle these issues across the board.

Now, my own view is that the contradiction that many see between Smith and Hosanna-Tabor is overstated.  (See this essay of mine, "The Political (and Other) Safeguards of Religious Freedom", for more.)  But, I'm in the minority . . . so I guess I'm wrong!  In any event, check out Prof. Lund's paper.

"Catholic Conservatives and the Republican Party" and libertarianism (again!)

Here is a post, at "ReligiousLeftLaw," by MOJ-friend Steve Shiffrin.  The post follows up on an essay by Rusty Reno, the editor of First Things, called "Our Challenges."  Steve's political priors and premises are not -- at least, some of them are not -- mine, but I'm interested in the exchange not for what it says about the Democratic and Republican parties, or about the "which party should Catholics support?" question, but because of the interesting, shared concern (shared, that is, by Reno and Shiffrin) for "libertarian excesses."  (Such "excesses" exist, of course, in both of America's major parties.)  And, in recent days, an entertaining, even if not edifying, public debate -- involving Rand Paul, Chris Christie, George Will, and others -- about "libertarianism" and its alleged dangers.

For purposes of Mirror of Justice's mission -- i.e., "developing a Catholic Legal Theory" -- it seems important to consider working through the important and difficult question, "to what extent and in what way should our positive laws be 'libertarian'?"  The quick response, "they shouldn't be" seems wrong, for the usual Aquinas / Murray reasons.  Catholicism proposes -- at the heart of the Church's social teachings -- an account of the person that is in tension, to be sure, with the premises that inform some versions of libertarianism.  We are all familiar with these points of tension.  At the same time, and as Prof. Patrick Clark discussed not long ago at the Catholic Moral Theology blog, there are important and valuable ways in which "libertarianism" -- or a libertarian sensibility -- can check and constrain statism, monism, collectivism, and the like.  Identifying those ways and implementing them in prudent ways that support rather than undermine the Gospel's moral anthropology -- that's the challenge.

Delahunty blogging on Tocqueville's faith

Over at the Center for Law and Religion Forum, Prof. Robert Delahunty has started (what I gather is going to be) a series of posts -- "short essays dealing with the great French nineteenth century thinker Alexis de Tocqueville" -- and here is the first.  Among other things, Delahunty reminds us that "however valuable Tocqueville remains as a student of culture and society [RG:  very valuable, in my view], his thinking pivots on religion and its varied relationships to political regimes." 

And, while I'm at it, here's another in the series ("Tocqueville on Religion and the Limits of the Political Imagination"), in which Delahunty considers the "unsettling paradox" that Tocqueville "seems to be saying both that Christianity informs, shapes, limits and constrains the political beliefs of the Americans, and that the Americans' political beliefs inform, shape, limit and constrain their Christianity."    

Confusion about corporations and religious freedom

This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places.  Read it for yourself but, for what they're worth, here are two thoughts of mine: 

First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them."  The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations.  Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way."  But third-parties are "affected" by the exercise of legal and constitutional rights all the time.  Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions.  The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.

A second thought:  Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?"  The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm."  The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have).  It's a command to the government:  Don't violate "the freedom of speech"; don't burden the "exercise of religion."

It is obvious that some regulations of corporations violate "the freedom of speech."  And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization.  It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment.  Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).