Mike Dorf has an interesting essay at Dorf on Law speculating on the legal strategy of the Christian Legal Society in its recent Supreme Court case. Why did the lawyers stipulate to the all-comers policy in the lower courts? Why did they run away from the stipulation in the Supreme Court? Why did they distinguish between status and beliefs instead of arguing for a more absolute form of freedom of association? On the latter Mike thinks that McConnell did not want to have the Court think the group was homophobic. I am sure he didn't, but I think the larger worry was that he wanted to avoid a principle that would give racially discriminatory groups unqualified rights to equal status with other groups. I do not know if this was a necessary strategy, but I do not think it hurt his client.
I agree with my friend Rick that what judges (or other legal officials) should do is principally a function of their office, that is, of what the people have charged them with doing. In the case of federal judges, this means, in part, figuring out what the Article III "judicial power" is. Which is why, for example, Ronald Dworkin is wrong to talk about the judicial office without distinguishing between state and federal judges. With respect to federal judges in particular, I'm persuaded by Jeff Powell's argument that the Framers were torn "between a global rejection of any and all methods of construction and a willingness to intepret the constitutional text in accordance with with the common law principles that had been used to construe statutes." But even if Powell and I are wrong about the Framers' intent on this issue, there's another reason to favor an approach to legal texts that "textualism" seeks to rule out. I'll make the point with one of my favorite examples. The APA defines a "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . . ." Commenting on this definition, then-professor Scalia said this: "Since every statement is of either general or particular applicability, and since everything an agency does is 'designed to implement, interpret, or prescribe law or policy, etc.' the only limiting (that is to say, defining) part of the definition of [a rule of law] is 'agency statement . . . of future effect.' that is of course absurd. It means, for example, that an EPA directive that a particular company must, in order to comply with existing law and regulations, install particular emission-control equipment at a particular factory is a rule rather than an order; that the proceeding looking to its issuance is a rulemaking rather than an adjudication . . . . Such an analysis produces a categorization which is . . . contrary to the common understanding of what constitutes a rulemaking . . . ." What to do about this absurdity and violation of the "common understanding? According to then-professor Scalia: "It is generally acknowledged that the only responsible judicial attitude toward this central APA definition is one of benign disregard." So, my position, in relevant part, is that while it is principally a question of positive law what judges can do (with respect to the Constitution, statutes, agency outputs, judicial decisions), the grant of judicial office should be construed, where possible, to favor the conditions that allow for law to be made and implemented. To require judges to give effect to silly texts, such as the APA definition of a rule, would undermine the conditions for making law; implementing silliness is not making ordinances of reason for the common good. Scalia's willingness to ignore the definition at the heart of our second-level Constitution, the APA, is a case in point; judges need a certain measure of flexibility that the wooden application of statutes would eviscerate. I see the question of what access judges should have to the natural law as on a continuum with the question of what freedom judges should have to give intelligent, purposive interpretations to statutes, the Constitution, etc. If my test seems a little flabby (to borrow an adjective that Justice Scalia has used to great effect), that's because I don't think the business of making law, as opposed to giving effect to the will of legislature, admits writ large of a more precise metric. Needless to say, it's the voluntarism lurking behind "textualism" that I think needs to be slain if law is to be understood and treated, as it should be, as a thing of reason.
Michael Sean Winters, at NCR, passes on a story that "[t]he ACLU is mounting an effort to force Catholic hospitals to perform abortions in certain cases and provide other forms of care that violate the Church’s ethical norms." More here.
Jody Bottum argued, in the April issue of First Things, that we "need Catholic hospitals", that they and other "limicole" institutions are important "not for Catholicism, which will survive without them, but for America and its strange experiment in ordered liberty."
I have to admit, while I am passionately (obsessively?) committed to there being a future for (authentic) Catholic schools and universities, I would like to believe that Catholic hospitals have such a future, too . . . but I'm not sure.
MOJ-friend Aidan O'Neill has posted some "reflections" on the recent decision by the U.K. Supreme Court regarding homosexual asylum seekers. Our own Michael S. discussed the case in this post, and in this one.
As Aidan notes, one of the aspects of the Court's decision that could be troubling is that it "rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation." And, this aspect of the decision -- which, if I read the piece correctly, Aidan embraces -- is, of course, highly relevant both to our Court's recent decision in the Christian Legal Society case, but also to the soon-to-announced invalidation by a federal trial court of California's rejection of same-sex marriage.
Aidan concludes with this:
The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge. There is no usurpation of power in the judges so doing in this particular case.
The hard part, I guess (and I'm sure Aidan agrees), is identifying what those "absolute moral values" are that are appropriately "captured in the concept of 'human rights.'" He and I agree, I think, that it is unobjectionable to characterize (in the right context -- see my post, below, on judges and the natural law) s "misguided" an action by a non-state institution (including a religious institution) that "contravene[s] fundamental human rights." (It is, for example, "misguided" for mainline Protestant churches in America to support our country's abortion-rights regime.) What is worrisome (to me), though, is the ongoing attempt to exclude moral arguments made by religious people from the debate about what are "fundamental human rights."
Patrick and I have talked often about the matters discussed in his fine reviewof Hadley Arkes' new book, and so he knows that I persist in thinking that Justice Scalia is right to insist that *federal* judges, who get their "judicial power" from *our* particular constitution should not attempt to "give effect" to the natural law in their decisions interpreting and applying the Constitution. To say this is not, of course, to say that "law" has nothing to do with "morality" or anything like that. And, I think my reluctance is not rooted *only* in what Patrick concedes is a "(justified) fear that liberals on the bench will find in the natural law different contents than conservatives might find there[.]" I would supplement that "fear" with (a) the (related) awareness that, for better or worse, judicial constructions of the Constitution have come to be seen as supreme, ultimate, and unrevisable; and (b) a sense that federal judges are given by our Constitution a power to decide "cases" and "controversies" that is not necessarily co-extensive with all that "judging" could, under another Constitution, involve. So, it is not that "judging", in the abstract, cannot or should not include "giving effect to the natural law"; it is, instead, that *our* federal judges, all things considered, ought not to attempt to give effect to it (except, of course, insofar as it is reflected in our positive law -- and, I believe, it often is).
Hadley Arkes's new book, Constitutional Illusions and Anchoring Truths (Cambridge, 2010), raises (in that elegant Arkes way) lots of interesting questions, including the one about judicial access to the natural law. Arkes and I disagree, to some extent, on how to frame the issues concerning judges and the natural law, but we are united in bebunking the default legal positivism of much contemporary American conservativism. You can read more here.
Fr. James Martin believes that Catholics, including bishops, are more afraid of speaking out these days that in past eras:
Today in the Catholic Church almost any disagreement to almost any degree with almost any church leader on almost any topic is seen as dissent. And I'm not speaking about the essentials of the faith -- those elements contained in the Apostles Creed and the Nicene Creed -- but about less essential topics. Even on those topics -- for example, the proper strategy for bishops to deal with Catholic politicians at odds with church teaching, the new translations of the Mass, the best way for priests to address complicated moral issues, and so on -- the slightest whiff of disagreement is confused with disloyalty.
Fr. Martin doesn't indicate whether this pressure to conform is simply a form of self-censorship, whether it emerges from the laity, or is the product of a conscious effort by Church hierarchy. As a relatively new Catholic who hasn't experienced much in the way of pressure to conform, I'm hardly qualified to compare today's climate with the past. It's always a tricky project, though, to uphold a meaningful sense of community based on shared beliefs without jeopardizing the healthy forms of disagreement that contribute so much to any community's vitality.
I don't know if it's more of a comment on my own state of mind or on the state of Hollywood, but the only films that stand a good chance of bringing me to tears these days are from Pixar. Toy Story 3 is a marvelous film, with some soul-searching dimensions. As John Anderson observes:
These toys have no life expectancy and no heavenly expectations. For them ultimate happiness means having a child to love and amuse. Being put in a bag in the attic for an indefinite period of inactivity/disconnection apparently holds no terror for the toys. But it does for us. What would eternity be like for a conscious being with no hope of a hereafter, no purpose, no contact? Is there anything more terrifying? What the toys represent is not something human or subhuman, but superhuman: beings for whom the only salvation is an existence rooted in charity itself, without other reward, without freedom through death. Children won’t get it. But it’s hard to imagine adults who won’t.
As a longtime member of various YMCAs, I'm interested in the institution's history and ongoing health. As a Christian and as a longtime fan of civil society, I'm interested in the gradual (or not so gradual) secularization process that hits many Christian institutions. The Young Men's Christian Association stopped emphasizing the "Men's" and the "Christian" long ago, and now apparently they're going to make it official by droppingthe MCA completetly.
UPDATE: Maybe the "C" was a bit narrowly defined? A reader points out that the Catholic Church traditionally viewed the YMCA with suspicion.
A friend and former colleague of mine is working on the case of Teresa Lewis, who is the only woman on death row in Virginia. It is likely that an execution date will be set for the Fall. The case has (as these capital cases almost always seem to) some troubling dimensions. In particular, Ms. Lewis received the death penalty while the actual triggerman was given a life sentence. Take a few minutes to learn more at this website.
