I understand that the government’s role in litigation is to defend, well, the government. But the Obama Administration’s brief in Hosanna-Tabor v. EEOC (the upcoming Supreme Court term’s blockbuster ministerial exception case) goes beyond the narrow issue of whether the ministerial exception should apply to the facts of the case and takes the extravagant position that there is no general ministerial exception (no "categorical" or "prophylactic" rule, to use the brief's peculiar formulation) under the First Amendment’s religion clauses. (There’s been some speculation that the brief’s argument is limited to the ADA anti-retaliation claims of the employee, but it’s difficult to see why the logic of the brief’s argument is so limited.) As pointed out by Ed Whelan, this puts the Administration at odds not only with the U.S. Conference of Catholic Bishops, the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod, and the Union of Orthodox Jewish Congregations, but also with (among others) the Episcopal Church, the Presbyterian Church (U.S.A.), the United Methodist Church, the United Church of Christ, the Evangelical Lutheran Church in America, the American Jewish Committee, the Union for Reform Judaism, the Muslim-American Public Affairs Council, United Sikhs, and the Society for Krishna Consciousness, all of which filed amicus briefs on behalf of Hosanna-Tabor arguing for a robust ministerial exception as a necessary component of religious freedom. (See especially the brief by our own Tom Berg and Rick Garnett, the brief by Christopher Lund for the Lutheran Church-Missouri Synod, the brief by Michael McConnell for a consortium of Protestant churches, and the brief by my former colleagues at Williams & Connolly for the USCCB, the LDS Church, the Orthodox Union, and the Episcopal Church.) Indeed, the Administration takes a position more hostile to religious freedom than the ACLU and Americans United for Separation of Church and State, which acknowledge the ministerial exception in their amicus brief but argue that it should not apply to cases in which the alleged discrimination or retaliation is unrelated to religion.
What remains of the right of religious groups to select their ministers? Don’t worry, the Administration says:
Under different circumstances, a religious employer would be able to successfully invoke a freedom of association defense to application of the civil rights laws. The availability of such a defense provides a full response to petitioner’s concern that the operation of generally applicable employment discrimination laws “would prohibit many common religious practices,” including, for example, “the all-male clergy among Catholics and Orthodox Jews.” Pet. Br. 18. As an initial matter, it is unclear whether Title VII would permit claims challenging such gender-based qualifications because gender could well be considered a bona fide occupational qualification for such positions. See 42 U.S.C. 2000e2(e)(1); Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977). But assuming arguendo that the statute otherwise permitted such claims, religious employers could defend against them on the ground that compelled ordination of women would be impossible to square with their religious view that only men should occupy such roles. In light of the deeply embedded and long-standing nature of such ecclesiastical rules, the government interest in enforcement of anti-discrimination laws would necessarily give way. Cf. Dale, 530 U.S. at 656659 (state interest not sufficiently compelling to outweigh Boy Scouts’ right to shape message on homosexuality); see also Smith, 494 U.S. at 882 (“[I]t is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.”). Brief for Federal Respondent, 31.
There’s a lot to say about this argument and much else in the brief, but I’ll make two points for now. First, if this is really EEOC’s position (it’s “unclear”) about the scope of the bona fide occupational qualification exception to a Title VII gender discrimination claim, I’d like to hear more from EEOC about how an all-male clergy requirement meets the prevailing (and ordinarily quite narrow) standard for a BFOQ (the cite to Dothard v. Rawlinson—a prison guard disparate impact case—doesn’t help much). Is EEOC's position that a religious employer doesn’t have a constitutional defense against a claim of gender discrimination in a ministerial employment decision, but the religious employer can self-define the qualifications for ministers in such a way that consideration of sex is essential to the employment function of a minister and thereby get the benefit of a BFOQ defense? And in what other contexts would that argument for a BFOQ pass the laugh test?
Second, there’s something striking (and downright odd) about an argument that the religion clauses of the First Amendment don’t protect the right of religious groups to select ministers, but the right of free association somehow does. I am all in favor of a robust freedom of association, but, as argued by John Inazu, current freedom of association doctrine rests on a tenuous constitutional basis somewhere amid freedom of speech. And while I agree with Dale, it’s remarkable that the Administration is arguing that a hotly contested decision that has been subject to substantial scholarly criticism somehow provides the authority for what remains of the freedom of the church with regard to selection of ministers. Alas, instead of a constitutional limitation on the power of the state to interfere in the ministerial employment decisions of religious bodies and rooted in nine centuries of Western political theory, the Administration's view implies that such freedom--in those rare instances where it exists at all--is merely the provisional outcome of weighing the state’s anti-discrimination interest against a religious institution's right to expressive association.
At Public Discourse, Chris Tollefsen has an essay that should -- given his treatment of the moral-anthropology question that is necessarily at the heart of any legal-theory enterprise -- be of interest. Tollefsen argues, among other things, that what he calls the "Essential Dignity" view -- i.e., the view that human beings possess "essential, underived, or intrinsic dignity . . . in virtue of the kind of being they are" -- supports (and, if I read him correctly, requires) the conclusion: "no intentional killing of human beings."
Chris is comfortable in action-theory waters that are too deep for me. That said, it seems to me that the "no intentional killing, ever" rule requires a stylized definition of "intentional" -- one that does not include, say, shooting a charging enemy soldier (in, let's assume, the context of a just war) in the chest. (The idea, as I understand it, is that a soldier does not, or need not, "intentionally" kill, because his or her "intent" may be, and should be, to disable, and not to kill.) Also, it is not obvious to me that the Essential Dignity view necessarily includes or travels with a rule that it is per se wrong to intentionally kill a human being. Tollefsen engages closely the claim that a human being may, by virtue of having lost or alienated his or her dignity, deserve to be killed and therefore may be killed. But, could it be that a person may deserve to be killed, and therefore may be killed, without losing or alienating his or her essential dignity? I have always appreciated the argument, in C.S. Lewis's little essay, The Humanitarian Theory of Punishment, that respect for the dignity of human beings should lead us to punish those (and only those) who deserve it. (And so, again, the question is whether capital punishment a permissible sanction for those who deserve to be punished.)
Like I said . . . deep waters! (By the way, and in case it matters, unlike both Gov. Perry and Pres. Obama, I oppose capital punishment.) And, I have tried to explore, in this paper, the implications for the capital-punishment debate of what Blessed Pope John Paul II called the "moral truth about the human person."
Thursday, September 15, 2011
Last week, Rob Vischer asked whether we should be concerned that the audience at a presidential debate cheered the death penalty and that Governor Rick Perry said he never struggled or lost any sleep over the possibility that an innocent person might be executed. Others carried forward that discussion (here and here). Perry also insisted that Texas provided a rigorous criminal process to ensure that such a travesty would not occur.
In today's Minneapolis Star-Tribune, two prominent Minnesota lawyers who had worked on post-conviction remedies in a Texas death penalty case begged to differ (here). Tom Johnson (who is a former county attorney for the county in which Minneapolis is located) and Greg Merz told the story of the case in which they worked, in which the prosecution offered either of two friends a pass from the death penalty if he would testify against the other, an offer accepted by the defendant's friend who subsequently recanted (but that didn't matter under Texas procedures).
The defendant's trial lawyer in this capital murder case failed to object to a juror who expressed the opinion that executing a few innocent people to speed up criminal justice might be better for society, failed to cross-examine the primary witness against him, called no witnesses for the defense, failed to adduce any evidence about the defendant's mental disabilities, and made a closing argument in the apparent mistaken understanding that it was the sentencing phase and guilt was already established. Even with mental, cultural, and educational limitations, the defendant could tell his attorney was incompetent and asked the judge repeatedly for a new lawyer, to no avail. The end of the story, of course, given that this happened in Texas, was that he was convicted, sentenced to death, post-conviction remedies were denied, and, under Perry's watch, he was put to death.
As Johnson and Merz conclude:
On nights when the Texas executioner is at work, there is good reason for Perry to go sleepless.
Greg Sisk
MOJ-friend Aidan O'Neill has started, with some of his colleagues, a new blog on EU law and policies. It's called "eutopialaw" (St. Thomas More!). Check it out!
Over at Public Discourse, William Carroll has an interesting essay on the assumptions that the news media bring to questioning Rick Perry and other GOP presidential candidates about their views on evolution and global warming. Here's an excerpt:
My point here is not to enter into complex issues about various evolutionary theories and the scientific support for them, but rather to note the fascination that reporters like [Chris] Matthews have with raising simplistic questions such as: "Do you believe in evolution?" It continues to be easy to conclude that there is some fundamental conflict between "belief in evolution" and traditional religious faith: This conclusion is often shared by all sides in the controversy. But once one recognizes that evolutionary biology has as its subject the world of changing things, and offers explanations for change among living things on a grand scale, and that God's creative act is the source of the existence of things, not of changes in and among things, then much of the controversy fades away. God, as transcendent cause of being, is the cause of all causes in nature, including those causes at work in evolutionary history. This analysis, however, involves important distinctions in science, philosophy, and theology; it does not fare well in political debates or popular journalism.
Carroll later suggests that "[t]he candidates are asked such questions because there is the lingering suspicion that they inhabit a world long since left behind."
I have a hard time seeing how a reporter's question, "Do you believe in evolution?," reveals any particular conclusion about the inherent relationship between science and religious faith. The fact is that many voters in this country do not believe in (macro) evolution despite some pretty good evidence of the theory's validity, and some political candidates express similar skepticism. Especially in light of the federal government's role in education, this should be fair game for reporters. The fact that most political candidates both believe in God and believe in the theory of evolution -- and that this is apparently considered unremarkable by the news media -- seems to suggest that reporters don't cling too tightly to the notion of an inescapable religion-science conflict. Sometimes religion and science do conflict. If you're a "young Earth" creationist because you take Genesis 1 literally, you have to disregard science (or at least explain it creatively). We need to take the President's views on science seriously, whether they pertain to fetal pain, stem cell research, vaccines, climate change, or genetically modified foods. (This is not just the GOP's problem: when it comes to some of these issues,the left appears to be more skeptical of science than the right does.) Posing the questions does not necessarily suggest anything about the questioner's underlying view of the relationship between science and religion. And in those situations when the questioner implies skepticism about the compatibility of a particular candidate's religious views with the known scientific evidence, it might be because there is, in the end, a conflict.
Wednesday, September 14, 2011
Several events came together over the past week that seemed to have significance. The first was the announcement by Bishop Michael Burbidge of the Raliegh Diocese of a new cathedral campus. The new cathedral is to be named Holy Name of Jesus, will hold over In making the announcement, the Bishop noted that over the period from 2000 to 2010, the Catholic population grew by over 40%.
Continue
reading
The most recent issue of Commonweal includes a conversation among Peter Steinfels, Dennis O'Brien, and my colleague Cathy Kaveny about the morality and regulation of abortion.
O'Brien insists, as others sometimes do, that strong opposition to abortion (such as that expressed by those called to serve and lead the Catholic Church) is rendered less convincing by the fact that most who strongly oppose abortion are, in O'Brien's view, reluctant to use the law to punish those who perform or procure abortions in the same way as those who intentionally kill persons who have been born. I've never thought this was a powerful argument, and Steinfels does a good job of responding to it.
In Cathy's essay, she helpfully reminds her readers of something that, in my experience, is often forgotten in the abortion debate, namely, the radical character of the Roe decision, and the extent to which it is Roe, more than the witness of those Bishops with whom O'Brien apparently disagrees, that has made it so hard to "talk about" abortion.
There's more . . . Check it out.
regulate abortion in the same way that
