The Washington State Legislature is poised to pass a marriage equality bill, which will likely make it the 7th state (9th US jurisdiction if one includes DC and the Suquamish Indian Tribe) to allow same-sex marriage. http://seattletimes.nwsource.com/html/politicsnorthwest/2017341256_gay_marriage_bill_voted_out_of.html As in Maryland, the Washington bill is sponsored by a Catholic Governor. http://ncronline.org/news/politics/same-sex-marriage-issue-facing-lawmakers-voters-several-states Washington Governor Christine Gregoire has explicitly addressed her discernment process over the past several years. http://www.huffingtonpost.com/2012/01/28/chris-gregoire-washington-governor-gay-marriage_n_1239058.html
Monday, January 30, 2012
Marriage Equality Bill Sponsored by Catholic Governor
The Importance of Institutional Pluralism
As Rick notes, Yuval Levin's piece today and Ross Douthat’s column yesterday are valuable reflections on the importance of institutional pluralism in a liberal society, a point underappreciated by many, including Douthat's colleagues on the editorial board. Yuval and Douthat show that the disagreement over the HHS mandate is a debate over whether and in what circumstances the coercive power of the state should be employed against the institutions of civil society. As Yuval observes, Catholicism (and especially American Catholicism) is a uniquely institutional form of religion, with social service agencies, hospitals, and schools at every level, and Catholic institutions are, not surprisingly, on the front lines of these battles. It strikes me that one’s view of the HHS mandate will often vary depending on whether one embraces “the logic of congruence,” in Nancy Rosenblum’s phrase, or a robust commitment to the freedom of civil society (churches, civic organizations, families, etc.), including toleration for views one sharply disagrees with. If the former, then you just have to bide your time until your side has a grasp on the levers of state power, and so, as Douthat points out, the increased authority of the state in these matters will eventually gore everyone’s ox--liberal or conservative, religious or not--depending on the politics of the administration. As Rosenblum and Robert Post put it in the introduction to Civil Society and Government (Princeton, 2002):
Advocates of congruence fear that the multiplication of intermediate institutions does not mediate but balkanizes public life. They are apprehensive that plural associations and groups amplify self-interest, encourage arrant interest-group politics, exaggerate cultural egocentrism, and defy government. What is needed, in their view, is a strong assertion of public values and policies designed to loosen the hold of particular affiliations, so that members will be empowered to look beyond their groups and to identify themselves as members of the larger political community. The “logic of congruence” envisions civil society as reflecting common values and practices “all the way down.”
All of this was diagnosed by Tocqueville, who saw that individualism and statism are reinforcing over time, crowding out religious and other forms of associational life for the allegiance of citizens:
As in periods of equality no man is compelled to lend his assistance to his fellow men, and none has any right to expect much support from them, everyone is at once independent and powerless. These two conditions, which must never be either separately considered or confounded together, inspire the citizen of a democratic country with very contrary propensities. His independence fills him with self-reliance and pride among his equals; his debility makes him feel from time to time the want of some outward assistance, which he cannot expect from any of them, because they are all impotent and unsympathizing. In this predicament he naturally turns his eyes to that imposing power which alone rises above the level of universal depression. Of that power his wants and especially his desires continually remind him, until he ultimately views it as the sole and necessary support of his own weakness.
It frequently happens that the members of the community promote the influence of the central power without intending to. Democratic eras are periods of experiment, innovation, and adventure. There is always a multitude of men engaged in difficult or novel undertakings, which they follow by themselves without shackling themselves to their fellows. Such persons will admit, as a general principle, that the public authority ought not to interfere in private concerns; but, by an exception to that rule, each of them craves its assistance in the particular concern on which he is engaged and seeks to draw upon the influence of the government for his own benefit, although he would restrict it on all other occasions. If a large number of men applies this particular exception to a great variety of different purposes, the sphere of the central power extends itself imperceptibly in all directions, although everyone wishes it to be circumscribed.
Thus a democratic government increases its power simply by the fact of its permanence. Time is on its side, every incident befriends it, the passions of individuals unconsciously promote it; and it may be asserted that the older a democratic community is, the more centralized will its government become.
Democracy in America, Vol. II, Pt. 4, Ch. 3
more on the Stolen Valor Act
While the Supreme Court is reviewing the Alvarez case from the Ninth Circuit, the Tenth Circuit (featuring a very good majority opinion by Judge Tymkovich) has upheld the constitutionality ofthe Stolen Valor Act. Here. Although Judge Holmes's dissenting opinion does not reach the same heights (or lows) as Judge Kozinski's paean to falsehood, I am still troubled by phrases such as this one--"little white lies (even those knowingly told and designed to deceive) that season are speech, like beneficent salt, ... preserve the grace and dignity of human relationships."
Richard M.
Welcome to Mary Leary / "Catholic Schools Week"
First, I'd like to welcome to the MOJ crew Prof. Mary Leary, of Catholic University's Columbus School of Law. Professor Leary is a former AUSA, and her scholarship examines the intersection of contemporary social problems, criminal law, and criminal procedure. (Read more about Mary and her work here.)
Second, here is her inaugural MOJ post, on Catholic Schools Week:
This week marks an important week for the over two million students attending Catholic school in the United States. Of course, I speak of the time honored tradition of “Catholic Schools Week.”
While this annual week of reflection and celebration is reserved for the primary and secondary Catholic schools throughout the country, there is certainly some room for its consideration on the university and post-graduate level. Indeed, many a legal professor has either lamented a particular student’s struggles resulting from inadequate skill development, or praised and reaped the fruits of a well-equipped and inquisitive mind initially shaped in the student’s early education. One could argue that the success or failure of students in law school is directly affected by the effectiveness of many students’ early education.
This week may present an opportunity for us in legal education to think about the importance of Catholic education in the 21st century. This year’s theme is: “Faith, Academics, Service.” Such educational goals are not foreign to many Catholic law schools which seek to provide, not only outstanding academic preparation for the practice of law, but to produce highly ethical lawyers armed with the moral compasses necessary to navigate a challenging profession and serve those most in need. This goal can be more easily achieved when students come to our law schools familiar with such priorities.
The importance of such an educational emphasis at all levels of education can be seen in the highest echelons of the legal system. During the appointment of Justice Sotomayor much was made of the fact that six of the Justices could be categorized as Catholic. However, it is important to note that four of the Justices are also the products of Catholic education at some level.
Of course any law-school-based reflection on what it means to be a Catholic institution brings to mind Judge John T. Noonan’s 1992 Essay, A Catholic Law School, 67 Notre Dame L. Rev. 1037 (1992), where he writes, “[t]he main attraction of a Catholic law school should be the historical, jurisprudential, and ethical dimensions….” (MOJ contributor Patrick Brennan revisited this piece on this blog after speaking at the Catholic University of America’s "Realizing the Promise of Religious Mission in Legal Education" in 2009.
No doubt this is a valid observation, but one more achievable when the previous education of the students possesses these same characteristics as well. The words Pope Benedict XVI shared with Catholic educators during his 2008 address at the Catholic University of America speak to all levels of Catholic education. “It comes as no surprise, then… [that] society in general has high expectations of Catholic educators…. More and more people . . . recognize the need for excellence in the human formation….”
Therefore, as we celebrate and reflect upon Catholic education this week, we may wish to consider the reality of financial burdens on American Catholic schools which are serving some of the most diverse and needy populations in the country. With an increasing number of Catholic schools closing their doors, the resultant cost is not only to primary and secondary education, but also graduate education and the nation itself when fewer students are trained in “Faith, Academics, and Service.”
"Government and its Rivals"
It's common -- and correct, to a point -- to observe that the Catholic Social Tradition is more "communitarian," and emphasizes more the "social," than is and does classical liberalism / libertarianism. At the same time, it is important to remember that the Tradition is not "statist," in the sense that it does not reduce "community" to "government."
Ross Douthat writes, in the New York Times:
WHEN liberals are in a philosophical mood, they like to cast debates over the role of government not as a clash between the individual and the state, but as a conflict between the individual and the community. Liberals are for cooperation and joint effort; conservatives are for self-interest and selfishness. Liberals build the Hoover Dam and the interstate highways; conservatives sit home and dog-ear copies of “The Fountainhead.” Liberals know that it takes a village; conservatives pretend that all it takes is John Wayne . . .
. . . But there are trade-offs as well, which liberal communitarians don’t always like to acknowledge. When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we “do together” as a government, in many cases, the fewer things we’re allowed to do together in other spheres. . . .
. . .
The more the federal government becomes an instrument of culture war, the greater the incentive for both conservatives and liberals to expand its powers and turn them to ideological ends. It is Catholics hospitals today; it will be someone else tomorrow.
The White House attack on conscience is a vindication of health care reform’s critics, who saw exactly this kind of overreach coming. But it’s also an intimation of a darker American future, in which our voluntary communities wither away and government becomes the only word we have for the things we do together.
I agree. And, I tried to elaborate on similar themes, about ten years ago, in this article, about the mediating, educating, and formative role of associations:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.
In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyaltiesthat is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.
UPDATE: Yuval Levin sets out a similar argument -- about the civil-society dimension of the HHS mandate debate -- here.
Archbishop Chaput on school choice and Catholic Schools Week
Philadelphia's Archbishop Chaput kicks off Catholic Schools Week with a punchy essay in support of school choice. He ends with this:
When vouchers stalled, yet again, in the Pennsylvania house last fall, a frustrated Catholic school teacher friend of mine said “Catholics are suckers.” I don’t believe that. But then, I’m new in town. If we Philadelphia Catholics love our Catholic schools, and we obviously do, then the time to get active and focused is now. We need to begin pressing our state lawmakers to pass the school choice legislation — including vouchers and expanded EITC credits — that’s currently pending in Harrisburg. And we need to do it this week, today, right now. I plan to do that. I hope you’ll join me.
Indeed.
Dana Dillon on the mandate and cooperation with evil
At the Catholic Moral Theology blog, Dana Dillon helpfully (to my mind) walks through the cooperation-with-evil analysis with respect to the HHS mandate.
Authority and the Law
As you may recall from yesterday’s readings at the Fourth Sunday of Ordinary Time, the theme of authority was addressed in the reading from Deuteronomy and St. Mark’s Gospel. Authority is an important subject common to both Christianity and the civil law. What should Catholic legal theory’s take be on the matter?
Law that we encounter daily in civil society is a mechanism for exercising authority through the development of human norms that should be: (1) an exercise of human intelligence exercising objective reasoning that (2) takes stock of and responds to the needs of the intelligible reality that surrounds us. These two factors combine to formulate prudent normative principles that become the human law of the society for which they are promulgated to further the common good—the good of each individual and the good of everyone.
Of course, authority does not always proceed in this fashion. I suppose one reason that it does is because it possesses a sense of freedom to do what the authority wills. But this kind of freedom can be divorced from the exercise that comprehends and serves the common good. An illustration of this might be the recent HHS promulgation of regulations that will have a deleterious impact on Catholic institutions.
Here is where a thought borrowed from Lord Acton could help the authority that exercises its freedom in the promulgation of law: freedom is not what the authority wants to do; rather, freedom is what the authority must do in spite of what it wants to do. It is this latter context where human intelligence comprehending the intelligible reality has its best chance of making laws that further the common good.
RJA sj
Religious liberty and SSM in the State of Washington
Here is a letter (Download Washington letter), from Prof. Robin Fretwell Wilson, Tom Berg, Carl Esbeck, and others to legislators and officials in Washington, urging them to include meaningful protections for religious freedom in that state's pending same-sex-marriage legislation.
Sunday, January 29, 2012
The Taming of Employment Division v. Smith
When Employment Division v. Smith was decided, it had committed opponents and supporters. Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions. There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.
The informed readership at MOJ of course knows that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional. The first exception dealt with the idea of hybrid rights. The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable. Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways. The second exception has proved to be far more important: where the law at issue is not truly a law of general application -- where a system of individualized assessments with respect to exemption from the law has been adopted -- then the law is again subject to strict scrutiny. I've looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it). It turns out...a whole lot. Indeed, the latest example of the application of the individual assessment exception appears in a case just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim. The court held that the school's "no referral to other counselors" policy was not one of general application, because referrals for secular reasons had been permitted. For more on the case, see this item. You might wonder just how powerful the individualized assessment exception is...you will have to wait for my book to see just how much!
The third exception carved out by Smith was for the church autonomy cases, and at one time it was not clear whether the ministerial exception would fall into that exception. In Hosanna-Tabor, the Court made clear that it did. And now (courtesy of the excellent Professor Friedman at Religion Clause blog), it seems that the South Dakota Supreme Court has extended Hosanna-Tabor to apply outside the employment context to a case about the potential dissolution of a particular religious group. It is too early to tell what will happen...but...it may be that because of Hosanna-Tabor's uncertain scope, lower courts (state and federal) will extend it in unexpected directions -- and directions which differ one from another.
If this does happen, I think we may witness (in conjunction with the continuing expansion and complication of some of the other exceptions) the taming of Employment Division v. Smith. Smith will not be overruled, but it may be substantially chipped away in various ways. And so what appeared once -- to opponents and supporters alike -- to be a rule of iron predictability, will in fact become something very different.
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