Mirror of Justice

Monday, June 25, 2012

Cert. Denied in Mount Soledad Cross Case

This is a big day for Supreme Court opinions (not the big day, but a big day). But it's also perhaps worth noting that the Supreme Court has denied certiorari in the Ninth Circuit's Mt. Soledad cross case, Trunk v. City of San Diego.

Justice Alito issued a separate statement regarding the denial of cert. Note that this is not a dissent from the denial of cert., but only a "statement." In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time. The reason is the posture of the case. In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed. Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out. Justice Alito wrote:

Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.

(footnotes and citations omitted).

I have mentioned this before, but if you have not read Judge McKeown's Trunk opinion, you'd do yourself a favor by checking it out. One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method. Or...just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!

You Remember the Recent Religious Liberty Case ...

By Thomas Berg

It was a major one, on a recurring question that, after several years, finally reached the Supreme Court, with the federal government pitted against a religious body. The lower courts decided it on fairly fact-specific issues, but in its SCT brief the Administration surprisingly took a much broader position against the religious liberty claim. Embarrassingly for the Administration, the Court slapped it down 9-0. Even justices expected to the sympathize with the federal laws in question rejected the Administration's broad position. And Chief Justice Roberts's opinion for the Court specifically took a pot-shot at the implications of the government's argument.

The case, of course, is Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006), in which the Court unanimously affirmed a preliminary injunction preventing the Bush Administration from pursuing criminal prosecution of a small sect that used a hallucinogenic drug in a tea that members consumed at worship services. In the lower courts the government had argued that the tea could cause significant harm to worshipers and could be diverted to recreational uses. But in the Supreme Court the Solicitor General claimed it didn't have to make any such arguments. It claimed instead that the mere listing of a drug on the federal schedule of controlled substances conclusively showed a "compelling interest" under RFRA--despite the statute's requirement that the government show a compelling interest in applying the law "to the person" in question. The Chief Justice's unanimous majority opinion commanded the votes of the non-druggies on the Court as well as the druggies. It also derided the government's broad argument as "the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." The Court (correctly) found that the government's "slippery slope concerns" would undermine RFRA because they "could be invoked in response to any RFRA claim for an exception to a generally applicable law." For those who paid attention, it was an embarrassing rebuke to the Administration and its litigation posture.

This term's ministerial-exception case, Hosanna-Tabor, shared the same features, and end-of-term reviews are reminding us how badly the Obama Administration did before the Court in that case among others. The current administration was wrong in Hosanna-Tabor, as was argued by many briefs, including the one Rick and I filed, argued. But in the arguments about whether the Obama Administration is uniquely negative on religious liberty, I would caution against putting too much weight on Hosanna-Tabor. The O Centro tea case shows that administrations of different perspectives can let basically valid law-enforcement concerns it favors (anti-drugs for Bush, anti-discrimination for Obama) go too far and trump religious liberty to a point where all the justices, however sympathetic to the law in question, say "No."

Irony and Humanity: Lear and MacIntyre

By Marc DeGirolami

This is an extended exchange between Jonathan Lear and Alasdair MacIntyre about the value of irony. Both have extremely interesting things to say, and they are perhaps closer to one another on the subject than one might expect (Lear is the author of the recent A Case for Irony, which is excerpted at the beginning). Here's a little bit from Lear's intervention:

[MacIntyre] says, “It is because and only insofar as irony serves the ends of truthfulness and humility that we need it.” Basically, I think he is right; but I want to sharpen the point a little. When an experience of irony is being deployed well, I want to say not merely that it serves truthfulness and humility, but that it itself is a manifestation of truthfulness and humility. This is the form truthfulness takes on this occasion; and thus a “world without irony” would be a world without this form of truthfulness as a human possibility. Thus I agree completely with MacIntyre when he says, “Without irony . . . some of us some of the time would not be shocked into truthfulness.”

But there are two other points I want to make about truthfulness. First, it seems to me that if we take truthfulness as the fundamental human value, we can see that humility, at least when properly deployed, is itself a manifestation of truthfulness and not some added on value. One cannot be truthful without some humility about one’s ability to understand the world one inhabits or to understand oneself as an enquirer into that world. So, in the deep sense of truthfulness, we do not need to say that “truthfulness by itself is insufficient”: the humility required is itself part of truth’s sufficiency. Second, there is an aspect of truthfulness that MacIntyre does not focus on in his comments: the fullness of truthfulness. When we think, for example, of the true cross or a true friend or a truly religious person, we are concerned not just with accuracy or faithfulness to norms, but with a fullness of being. When I think of my life-long friend Fred, for example, I realize not just that he has been a real friend to me over the decades, but that his friendship fills him up, as it were, expresses who he most genuinely is. Now if we take the fullness of truthfulness seriously, we can see another reason why the possibility of irony can be so important. When it is occurring in the right sort of way it fills one up with an anxious longing to figure out—in a practical sort of way—what the goodness of, say, teaching consists in. When deployed on the right occasion in the right sort of way, the truthfulness that is irony is a fullness of truth.

Saturday, June 23, 2012

FCC v. Fox

By Patrick McKinley Brennan

Thursday's 8-0 decision in FCC v. Fox will come as a mixed blessing to cultural conservatives. In an opinion by Justice Kennedy, the Court vacated the FCC's orders against FOX and ABC, on the not especially compelling ground that on the particular facts of these enforcement actions, the agency had given the networks insufficient notice of what was actionably obscene speech. By deciding the case on Due Process rather than First Amendment grounds, the Court dodged the free speech issues over which it was deeply divided at oral argument. Libertarians had hoped -- and some had predicted -- that the Court would take this occasion to overrule Pacifica, the 1978 case upholding the "most limited First Amendment protection" for broadcasting. By joining an opinion that specifically allows the FCC to continue enforcing, at least for now, a context-specific anti-indecency policy over broadcast media, Chief Justice Roberts and Justices Scalia and Alito avoided a possible reversal of Pacifica and a First Amendment holding that the time has now come for the public privilege of holding a broadcast franchise no longer to be tethered to meaningful standards of decency in the public interest. Thursday's narrow holding buys a little more time for all concerned. It does not conclusively vindicate the public interest. Justice Sotomayor did not participate, and her participation when this litigation returns to the Court, as it so likely will, could well shift the tide in favor of a constitutional impotence to regulate indecency in broadcast media. Justice Ginsburg's concurrence in Thursday's judgment made clear that she has no sympathy for the rule of Pacifica, a lack of sympathy Justice Thomas registered the first time the case came before the Court.

"The Church can never count on peace"

By Patrick McKinley Brennan

I mentioned before my enthusiasm for Christopher Ferrara's new book Liberty, the God That Failed. Here are the first few paragraphs (sans the footnotes) of my Foreword to the book:

The contemporary enthusiasm for democratic regimes that protect “human rights” should not blind us to the deeper lessons of history. The central Western tradition of reflection on the proper constitution of political regimes has rarely purported to identify a uniquely acceptable form of temporal ruling authority. The naturalness of diverse political forms has been widely acknowledged: democracy, monarchy, and aristocracy, among other possibilities, remain candidates for instantiation as time and place dictate, all other things considered. Until recently, however, among the other things to be considered was the supernatural requirement that the holy Catholic Church’s place in the organic unity of political society—whatever its particular form—be given due legal effect. The traditional thesis holds that people were not only allowed, but morally obligated, to institute due political order, most often by accepting and obeying established regimes, and that such order must include legal recognition, first, of the rightful and unique place of the Church and, second, of the obligation of political society—not just of individuals—to offer public worship of the triune God. Such a polity would be a Christian commonwealth.

This ideal was “given the Church’s definitive approval in modern times by Leo XIII in his encyclical Immortale Dei,” as Henri Cardinal De Lubac has explained. In the words of Pope Leo’s restatement of the traditional thesis, “God has divided the human race between two powers. Each of them is supreme in its own field; each is enclosed within the limits perfectly determined and traced out in conformity with its nature and end, and each thus has a sphere in which its own rights and proper activity find exercise.” This, Cardinal De Lubac affirmed, “is the perfect blueprint, and it should be the starting point of all practice. . . . This is, of course, no more than the Gospel requires. But insofar as she persists in reminding the world of the fact,” Cardinal De Lubac continues, “the Church can never count on peace.”

It is of course true that the United States of America was founded on rather different principles and its fundamental law written to give effect to another, very different blueprint. The Constitution of the United States does not so much as mention God (except pro forma in the dating clause: “in the year of our Lord”), and certainly not the blessed Trinity or the Catholic Church, let alone the polity’s obligation to give public worship to the Trinity. The Constitution precludes any hope of a popular transformation of the United States into a Christian commonwealth, moreover, by mandating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (Art. VI). The celebrated First Amendment to that Constitution, furthermore, specifically denies the government the authority either to establish “religion” or otherwise to promote its exercise. The U.S. Constitution, then, is both godless and, for reasons that Christopher Ferrara marshals, not indifferent but actively hostile toward the exercise of religion, as well as agnostic on the question of the true object of religious worship. And all of this declension and derogation from “the blueprint required by the Gospel” was very much the object and boast of most of those who inspired and led the radical revolution against the English Crown and then went on to frame the Constitution and to arrange its ratification—or so Ferrara argues in Liberty, the God That Failed.

This is an uncommon claim, though by no means an unprecedented one, and the reader owes it to himself to judge whether Ferrara has met the relevant burden of proof. Ferrara’s mastery of Catholic doctrine, of Enlightenment philosophy and political theory, and of the facts of history, the clarity and rigor of his argument, and his fairness to counter-evidence combine to make this an account to be reckoned with. To praise Ferrara’s book is easy, but to predict its reception is another matter. Let it be said emphatically, therefore, that it would be a gross injustice to dismiss this powerful counter-narrative on the presumed ground that Ferrara or those who agree with him are unpatriotic or anti-American. . . .

Thursday, June 21, 2012

What’s Truth Got to Do with It?

By Robert John Araujo, SJ

This past Monday, June 18, The Guardian [here] published Professor Lisa Sowle Cahill’s defense of Sister Margaret Farley, R.S.M. and her book Just Love—A Framework for Christian Sexual Ethics. Our friend and fellow MOJ contributor, Michael Scaperlanda [here], recently commented about Sister Farley’s receipt of the notification of the Congregation for the Doctrine of the Faith regarding this book. [here] Professor Cahill, who teaches theology at Boston College, suggests that the Church has directed a “misguided attack” on Farley’s theology; moreover, the “misguided attack” is “not only authoritarian” but is also “out of touch with American Catholic opinion.”

I think that a robust and truthful exchange in the academy, the public square, and the media is a good thing; moreover, these exchanges are an important part of American culture, political institutions, and the law. I also realize that whenever one speaks in the public square, he or she may think the position being advanced is an accurate presentation and truthful statement of the position asserted. In the context of Vatican dicasteries, media presentations, and authors’ perspectives, the truth of the matter is surely of critical concern to informing the public opinion on matters of importance to the res publica and the common good.

Along with many others, I agree that the matters surrounding Sister Farley’s book and the notification she received are of vital concern to Catholics and the public at large. However, I do not think that Professor Cahill’s presentation of the CDF Notification of Sister Farley’s book is an accurate one. A truthful presentation of critical facts surrounding this important matter is absent from her article that is intended to influence and has likely influenced a large readership. In the law: the truth, the whole truth, and nothing but the truth—so help us, God—is something with which the contributors of the Mirror of Justice, Catholics, and the American public in general are familiar. So, what is the basis of my objections to Professor Cahill? Put simply, what is true and what is not about l’affaire Farley presented by Professor Cahill?

In the first place, Professor Cahill begins with an assertion that the notification of Sister Farley’s book is the “latest instance of the Vatican’s censure of American nuns.” There is no censure, to my knowledge, as she characterizes it. Rather there is a doctrinal assessment [here] of the Leadership Conference of Women Religious. The truth of the matter demonstrates that the assessment “acknowledges with gratitude the great contribution of women Religious to the Church in the United States.” To allege and argue that there is an ongoing series of Vatican censures of American nuns is not the truth. What is the truth of the matter, as the doctrinal assessment states, is what the LCWR has done, not what American nuns have done. This is a crucial distinction not found in the Cahill position. It is the words and deeds of the LCWR that are the grounds for the assessment—and as I have argued before, not the actions of all the sisters who belong to the congregations and institutes which are members of the LCWR. This important element of the truth is glossed over by Professor Cahill and many media reports which have discussed the doctrinal assessment.

Second, on several occasions Professor Cahill chastises Rome for being out of touch with “modern US Catholic mainstream.” What constitutes this body of persons and how any study was conducted in the context of Sister Farley’s book are not explained. In the hypothetical, if a majority of Catholics were in favor of military interventions against the Baathist regime or Osama bin Laden, how would Professor Cahill express her nuanced positions? And if Amazon and New York Times sales are an indicator of Professor Farley’s status, are the purchases of her book evidence for agreement with her positions or are they evidence of the fact that readers are interested in the sensational? Perhaps both? Perhaps the sensational? For example, other notable best seller lists of recent decades indicate increased sales for books, sometimes sensational, by: Glen Beck, Mark Rubio, Bill O’Reilly, Colin Powell, Ron Paul, Ronald Reagan, Sean Hannity, Ann Coulter, and going back a little more, Richard Nixon. What do the increases in sales of works by these authors indicate about the acceptance of the positions of the authors? Professor Cahill more than suggests that there is a connection between the positions Sister Farley advances in Just Love and reader support when she asserts that recent book-sale “statistics tell the truth.” I, however, disagree. The increase in sales of this book indicate there is public interest, but the nature of why the public is interested cannot be determined by Farley's popularity or, for that matter, Richard Nixon's.

I agree with Professor Cahill that Sister Farley emphasizes the role of personal (or “lived”) experience in Just Love over the Catholic tradition of natural law reasoning. But I do not share Professor Cahill’s apparent agreement with Sister Farley that lived experience trumps the objective formulation of norms and moral precepts based on reliance on the natural law. In the context of sexual morality, Professor Cahill, and by Cahill’s implication Sister Farley, misstate that the Catholic tradition can be relied upon to justify the position that “any truly loving relationship will meet the test of justice” which can then be supported and endorsed by the Church. I have read Sister Farley’s book Just Love, and I do not agree with Professor Cahill that the Farley definition of justice is a correct one given the context of sexual mores, i.e., what is right and what is wrong in consenting sexual activity. Furthermore, I must disagree with Cahill that the subjective standards upon which these two individuals rely is not the tradition of the Catholic Church. The CDF appears to agree with my last statement.

A third important point about the Cahill article needs to be addressed here. Professor Cahill indicates that “the condemnation of [Farley’s] book was predetermined and the investigation [of Just Love] a mere formality.” However, this contention is refuted not only by the CDF but by Sister Farley as well. Looking at the CDF’s refutation, the CDF concerns about Just Love were made known to the author several years ago; consequently, in March of 2010, the CDF wrote the author seeking clarification of the positions expressed in the book. Sister Farley responded in October of 2010, but the CDF found her responses insufficient. But the discussion did not stop here. The discourse among the CDF, Sister Farley, and the sister’s religious superiors continued into 2011. From Sister’s Farley’s viewpoint, none of this extended engagement is denied; moreover, Sister Farley expressed her appreciation of the efforts made by the CDF and its consultors over several years to evaluate her positions as presented in Just Love. From this evidence, the conclusion that “the condemnation…was predetermined” and “the investigation a mere formality” are unwarranted. Sister Farley does allege that the CDF’s Notification did not consider the arguments for her positions. Yet, considering the dialogue that took place between her and the CDF, it does appear that the CDF did consider them. What the CDF did not do was to accept Farley’s justifications as the truth of the matters asserted. As with all due process, arguments and evidence must be heard, but this does not lead to the inevitable conclusion that they must be accepted. In this case, the arguments and evidence submitted by Sister Farley, while considered, were deemed insufficient to convince the CDF.

More can and should be said about Professor Cahill’s Guardian article, but this is enough for one day.

RJA sj

Archbishop Chaput on religious liberty

By Michael Scaperlanda

I am in Indianapolis at the Catholic Media Conference. Last night, Archbishop Chaput gave the keynote. The text will be forthcoming in First Things, but here is a taste:

Here’s my fifth and final point: Politics and the courts are important. But our religious
freedom ultimately depends on the vividness of our own Christian faith – in other words, how deeply we believe it, and how honestly we live it. Religious liberty is an empty shell if the spiritual core of a people is weak. Or to put it more bluntly, if people don’t believe in God, religious liberty isn’t a value. That’s the heart of the matter. It’s the reason Pope Benedict calls us to a Year of Faith this October. The worst enemies of religious freedom aren’t “out there” among the legion of critics who hate Christ or the Gospel or the Church, or all three. The worst enemies are in here, with us – all of us, clergy, religious and lay – when we live our faith with tepidness, routine and hypocrisy.

Religious liberty isn’t a privilege granted by the state. It’s our birthright as children of God. And even the worst bigotry can’t kill it in the face of a believing people. But if we value it and want to keep it, then we need to become people worthy of it. Which means we need tochange the way we live – radically change, both as individual Catholics and as the Church.

This morning, Carter Snead (Notre Dame), Rita Joyce (General Counsel for the Pittsburgh Diocese), and I followed up with a panel on Religious Liberty in light of the lawsuits filed against the HHS mandate. I contextualized the debate within a) the broader contemprary threats to religious freedom and b) historical threats to religious liberty; Rita gave us great insight into the lawsuits themselves; and Carter addressed broader public policy issues and provided a rejoinder to some of the false claims surfacing in the public debate. The overflow crowd of Catholic journalists asked some penetrating questions, including one that raised the threats to religious liberty from the spate of state anti-immigration laws and anti-Sharia law laws.

The Vatican Secret Archives

By Marc DeGirolami

Yesterday, Mark Movesesian, our dean Michael Simons, and I went to the Capitoline Museums in Rome. The Capitoline is one of the most famous of Rome's museums, but we actually spent most of our time at the absolutely incredible exhibition of the Vatican Secret Archives (there was an amusing note explaining that in Italian "segreto" just means "private," not "secret"...but they felt pretty secret to me). For those interested in law and religion, you really couldn't ask for a more exciting exhibit.

Among the many highlights:

The Dictatus Papae of Pope Gregory VII
A petition from many members of the House of Lords asking Pope Clement VII to grant Henry VIII's divorce from Catherine of Aragon, to which they attached their individual seals
Leo X's papal bull excommunicating Luther, and Charles V's corresponding imperial edict divesting Luther of any civil protection
A surprisingly obsequious letter by Voltaire to Pope Benedict XIV telling him in ornate terms how great he was (in fact, he was pretty great)

I surreptitiously ('segretamente') took a few pictures of some additional documents of special relevance to MOJ readers and writers, which I'll put up when I get back.

Tuesday, June 19, 2012

Democrats for Life Comment on the Contraception Mandate

By Thomas Berg

I'm off to enjoy Marc's and Mark Movsesian's conference and some teaching in Rome, but one thing beforehand....

The Democrats for Life have filed a comment in the latest round of the contraception-mandate dispute, arguing that the administration's proposed compromise is inadequate and conscience protection must be expanded. (I sit on DFL's board, as many know, and contributed to the analysis in the comment.) The comment focus attention on two points: (1) the especially serious conscience problems posed by medications that may reasonably be thought to cause abortions of new embryos in some cases, and (2) the bad precedent set by inserting HHS's narrow definition of "religious employer" into federal law. Here's a taste of the argument on point 2:

The definition, unprecedented in federal law in its narrowness, fails to give equal respect to the activities of service, mercy, and justice that lie at the core of religious practice for many faiths. President Obama has spoken eloquently of the “millions of Americans who share [this] view of their faith, who feel they have an obligation to help others. . . . [W]hile these groups are often made up of folks who’ve come together around a common faith, they’re usually working to help people of all faiths or of no faith at all.” But remarkably, under the HHS “religious employer” definition, these very acts of service to non-adherents that the President commended are the basis for denying an organization exemption as a “religious employer.”

In its March 2012 advance notice (the ANPRM), HHS proposed to retain this deeply objectionable definition while extending a more limited accommodation to a broader category of “religious organizations.” But even assuming that a limited accommodation could be developed that protected organizations’ claims of conscience, it would still be wrong and dangerous to insert the narrow definition into federal law. The adoption of this language in the Code of Federal Regulations, even as part of a two-tiered set of accommodations, would legitimate it in future situations. The March ANPRM also stated that “whatever definition of religious organization is adopted will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.” This assurance is inadequate, as the history of this debate teaches. [Some case analysis here...] Just as the mandate with minimal exemption was bootstrapped from narrower state laws to a far broader federal mandate, it likely will be bootstrapped later to other federal statutes. HHS, having legitimized the minimal exemption by introducing it into federal law, will have no way of stopping others from using it as a precedent.

Gerson on "culture wars," pluralism, and religious freedom

By Rick Garnett

I think this piece, by Michael Gerson, is excellent. A bit:

In a free society, which should have priority: pluralism or the advance of liberal values?

The advocates of pluralism believe that a political community should consist of many communities pursuing different ways of life. Some will be consistent with liberal, democratic conceptions of equality and choice. Others will be exclusive and traditional — defined by sectarian beliefs and hierarchal authority. They may oppose contraception or forbid women from serving in some leadership positions. A pluralist view of freedom requires tolerance for some ways of life that other citizens find oppressive or unreasonable. . . .

I tried to make some similar points in this Public Discourse piece, "Confusion About Discrimination."