A Richmond, Virginia man married to another man since 2008 was removed from his job as executive director of a Catholic ministry for low-income elderly this past April. John Murphy worked eight days as executive director for St. Francis Home before losing his job.
According to a news report, "two deputies of Bishop Francis Xavier DiLorenzo told him that he was being fired because his marriage goes against church doctrine."
In an interview with a local news outlet, Mr. Murphy said that his removal from the executive director position at St. Francis Home "was something that was out of left field and totally shocking to me."
According to a story at GayRVA.com, Mr. Murphy had "a little misgiving" during the hiring process when he found out that the nonprofit job he was interviewing for would be "heading up a care facility for low income elderly Richmonders run by the Catholic Diocese of Richmond." A Notre Dame graduate who was raised Catholic and attends church semi-regularly, Mr. Murphy nonetheless went ahead in the process after reportedly being reassured that the board "really wanted [Murphy] to focus on [fundraising and related] kinds of things and less on the religious aspect of it."
Murphy has filed a charge with the EEOC. A statement by the diocese says that, "[a]s a Catholic organization, we expect the employees of the Diocese and its ministries, to uphold and embody the consistent values and truths of the Catholic faith, including those preserving the sanctity of marriage."
If this ends up in federal court, Mr. Murphy will need to plead a prima facie case of discrimination and also overcome Title VII's religious employer exemption. Both will be difficult. Title VII does not encompass sexual orientation discrimination except to the extent that it can be classified as sex discrimination, and discrimination on the basis of being in a marriage that goes against church doctrine is not sexual orientation discrimination even if that were covered.
If Murphy can somehow shoehorn the facts of his claim into discrimination on the basis of sex, the religious employer exemption will also be invoked by the diocese. A news story on Murphy's charge reports that Michigan law professor Sam Bagenstos described the exemption as one that "goes only so far as to allow organizations from refusing to hire people who aren’t part of their religion." But Missouri law professor Carl Esbeck asserts that the Title VII exemption allows religious employers to enforce religiously based codes of conduct, because the operative understanding of religion "is not narrowly doctrinal or creedal but reaches beyond worship and denominations." Esbeck cites multiple cases applying the exemption to shield decisions based on religious codes of conduct. See alsoStanley Carlson-Thies; but seeMarty Lederman & Rose Saxe. (The Esbeck, Carlson-Thies, Lederman, and Saxe analyses are all more directly about the recent executive order, but the authorities they rely on relate to the Title VII exemption.) Other sources of law that may also be relevant are RFRA (depending on how Title VII would otherwise be applied) and the ministerial exception (depending on the facts).
Legal analysis aside, the facts as reported paint a picture of a broken hiring process for this position. One can imagine a situation in which the removal of someone already on the job for something that was known about the person's marriage at the time of hiring is less easily avoided--say, because there has been a leadership change in the diocese. But the reported facts point more toward a process breakdown. The recruiter or the board or both were not aligned with the diocese.
Perhaps facts will come out that tell a different story; only one side is telling its story right now, and it is coming out through advocates and the press. It would be surprising if nobody thought to verify diocesan policy on a matter like this. But if Mr. Murphy had received credible, authoritative, explicit assurances sufficient to overcome his misgiving about how his same-sex marriage might disqualify him for the position, then he deserves an apology. That is, of course, separate from the legal merits, which are unlikely to go in Mr. Murphy's favor. As long as litigation looms, moreover, it is likely that the parties will only be talking through their lawyers and media representatives.
Howard Wasserman finds the term "judicial departmentalism" useful for describing what might also be called bounded judicial supremacy. He says, though, that "judicial departmentalism inevitably morphs into judicial supremacy," and the mechanism is easy to identify. Suppose that non-judicial officials try to follow some approach other than judicial supremacy. They will soon face difficulty. Just about any question of constitutional meaning can be brought within the judicial domain. Once in that domain, the principles promulgated in precedents of the Supreme Court will control. And so we end up with a form of judicial supremacy, but only after time, expense, and strife.
This arrangement of bounded judicial supremacy nonetheless remains different from standard judicial supremacy. On the standard understanding of judicial supremacy, Supreme Court decisions about constitutional meaning control directly for everyone by virtue of being Supreme Court decisions, rather than controlling only indirectly through repetitive litigation governed by vertical stare decisis.
There might not be much practical difference between these two approaches most of the time. But a Supreme Court that operates with a judicial departmentalist mindset may approach matters differently than one that operates with a judicial supremacist mindset. Additionally, the judicial departmentalist framework highlights the legal contestability of the Court's pronouncements within the judicial domain as well as the notion that the judicial domain has boundaries around it.
The Call to Action includes a paragraph that acknowledges the supremacy of the Supreme Court within the federal judicial system, even while differentiating that supremacy from other ways of understanding judicial supremacy:
The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.
That paragraph seems just right, though I did not see any corresponding acknowledgment of intra-judicial supremacy in the scholars' statement. And the pledge at the end of the call to action, as well as the request of officeholders at the end of scholars' statement, includes a position that in tension with the idea that "the Supreme Court is supreme in the federal judicial system."
The pledge in the call to action asks presidential candidates to "refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as precedent." And the scholars' statement calls on "all federal and state officeholders ... to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case."
In legal terms, these statements call for the rejection of vertical stare decisis. This phrase captures the notion that the decisions of a superior appellate court create precedent that is binding on lower courts within the system. This idea that Supreme Court decisions create binding precedents for all other courts in the United States deciding questions of federal law is a widely accepted feature contributing to what makes the Supreme Court "supreme in the federal judicial system."
The vertical stare decisis effect of Supreme Court decisions is largely, though not entirely, uncontroversial. Another way of thinking about the Supreme Court's supremacy focuses on the Court's authority to exercise appellate jurisdiction to reverse decisions that depart from its precedents.
There is not much practical difference between these two positions at the moment because the Supreme Court's appellate jurisdiction is pretty expansive. But a practical difference could emerge if the Supreme Court's appellate jurisdiction were taken away.
As long as the Supreme Court's appellate jurisdiction remains intact, those calling for resistance to Obergfell should recognize the practical and legal obstacles that follow from the Supreme Court's supremacy in the federal judicial system. To the extent that an officeholder's refusal to treat Obergefell as law injures the legal rights of individuals in a way redressable in federal court, the matter will end up there, and then the officeholder will lose (at least for the time being). Direct confrontation with judicial supremacy in the realm of practice therefore seems like a bad idea.
Somewhat analogous to how Lincoln approached slavery or the United States approached Communism during the Cold War, a containment strategy seems more appropriate. The idea behind containment is to limit the damage that comes from erroneous Supreme Court decisions by confining them as much as possible to the federal judicial domain and then cabining their reach through legal argument within that domain.
Containment should be joined with an effort at conversion. Don't just oppose judicial supremacy; give judicial supremacists a better alternative. In my view, that alternative is judicial departmentalism.
“Judicial supremacy” is a name for the claim that the Constitution means for everybody what the Supreme Court says that it means in the course of resolving a case or controversy. By contrast, “judicial departmentalism” is the idea that the Constitution means within the judicial department what the Supreme Court says it means in resolving a case or controversy.
Judicial departmentalists may disagree about details, even important details like vertical stare decisis. But their program is not entirely negative. It affirms a truly judicial form of judicial supremacy. And apart from sweeping and erroneous dicta in a few extraordinary constitutional cases, judicial departmentalism fits within our legal structure right now. In many ways, the judicial departmentalist understanding already matches the self-conception of federal judges when they are thinking like judges in normal cases rather than when they are under attack and defensively invoke judicial supremacy. Judicial departmentalists have no problem with judicial supremacy when it is truly judicial.
So, by all means, count me in the anti-judicial supremacy camp. But join me in the judicial departmentalist camp instead.
In keeping with the structure of the scholars' statement, I conclude with a short list of take-away assertions:
Containment and conversion are the best way to transform "judicial supremacy" as it now exists into truly judicial supremacy.
Containment and conversion to judicial departmentalism are the best way to contribute to constitutional supremacy.
Confrontation in the realms of theory and of law is needed. But in the realms of practice and politics, we should be content to contain and convert.
It's kind of sad when the solace one takes in reading of such an unfortunate development is that the LA Times at least chose not to use the political language of "aid-in-dying" law that the newspaper had previously used. (Headline: "Governor sends aid-in-dying bill to Gov. Brown")
Another form of solace in the category of "at least there's that" comes from the fact that this unfortunate change at least came through the appropriate political branches.
The judicial sensibility that brought us Washington v. Glucksberg was sound. When there's no law on a matter, the lawful decision is to decline to pretend there is. This may mean that the Court is unable to save us from ourselves, and we are stuck with laws we'd rather not have. But a Court that won't save us from ourselves when it can't do so lawfully is to be preferred to a Court anointed to save us even if that requires making up the law.
With the ascendancy of the Obergefell identity, we may not much longer enjoy the sting of an honest loss.
In the warm afterglow of Pope Francis's visit to the United States, Michael's posting of the prayer to St. Michael the Archangel reminded me of some reactions a while back to Justice Scalia's "I even believe in the devil" interview. Pope Francis's insistence on the reality of Satan has sometimes led to expressions of incredulity and scorn like those that greeted Justice Scalia's remarks. Not as many such comments, of course, because Pope Francis is way more popular than Justice Scalia. But enough to notice, I suppose.
Another take that may be of interest is the New Republic's April 2015 story by Elizabeth Bruenig: "Pope Francis's Populist War with the Devil." Bruenig writes that "perhaps the most promising aspect of Pope Francis’s wholehearted belief in the Prince of Lies is the way it unites all of humankind in a single struggle."
What does this have to do with Catholic legal theory? I'm not entirely sure. But this idea that awareness of a common enemy can unite an embattled group probably helps to explain some of Chief Justice John Marshall's success in holding the Justices together in unanimous opinions in some of his Court's controversial cases.
Suppose one thinks that the way the Living Constitution works these days involves some judicial leading-from-behind emboldened by shifts in public opinion that have themselves been partially prompted by bolder, earlier attempts by other judges to shift public opinion. And further suppose that one supports the policy outcome pushed by the judicial norm entrepreneurs, but opposes their legal reasoning and the very idea of a Living Constitution.
This is something of the frame of mind I bring to abolition of the death penalty.
I advocate legislative abolition of the death penalty at the state level. As a matter of political prudence, this seems more likely to occur if the death penalty at the federal level remains available. And while abolition at the federal level also would be desirable, a gradual transition appears more feasible and more likely to prove enduring.
Whether my assessment of the political landscape is correct (it often isn't, after all), legislative abolition of the death penalty is more likely to occur if public opinion supporting abolition grows. So I'd like to see that happen.
But we've learned that Justices of the Supreme Court also have been known to take shifts in public opinion as permission to implement their policy preferences through appeal to the Living Constitution. I don't like to see that happen. It is contrary to the bedrock idea of fixed, authoritative, superior law that underwrites judicial enforcement of the Constitution in the first instance.
So the shift in public opinion I'd like to see regarding the death penalty is not as simple as "death penalty, bad." It's more like "we (the people ... of Virginia, of Pennsylvania, of Indiana, and so on) should get rid of our death penalty."
As an aside, the headline is a little misleading. Justice Scalia said he "wouldn't be surprised" if his colleagues were to find the death penalty unconstitutional. That is not a prediction that Justice Scalia's colleagues will do so, just a statement that he would not be surprised if they did. And there may not be much that some of his colleagues would do with the Constitution that would surprise Justice Scalia, anyway. With respect to the parallel to same-sex marriage suggested in the article, there is an important difference of degree. Justice Scalia's language in Lawrence v. Texasand United States v. Windsor was much stronger, explaining that the Court was dismantling the justification for understanding marriage as requiring a man and a woman. Justice Scalia did not need to be a prophet to see where the Court's logic was leading.
Put aside, though, problems with the headline. The possibility of an emboldened judiciary using the Living Constitution to find the death penalty itself cruel and unusual is a plausible one.
Anyone who would celebrate this, though, should beware that the Living Constitution can take as well as give. Consider one of the article's main sources:
The ACLU’s national legal director, Steven R. Shapiro, told reporters in Washington Thursday that he, too, sees momentum toward a Supreme Court ruling ending the death penalty. Pointing to the abolition of capital punishment in Connecticut this year, Shapiro likened the cause to the gay marriage movement, which won victories at the state level before the court legalized it nationwide in June. "We may see a repeat of the same-sex marriage playbook," Shapiro said. "We can now see in the future a moment when the death penalty will be declared unconstitutional."
Now consider the evidence that Mr. Shapiro cites: "the abolition of capital punishment in Connecticut this year." The reference is to a Connecticut Supreme Court opinion from earlier this year. That opinion eliminated the death penalty judicially for people who remained subject to capital sentences after the Connecticut legislature abolished the death penalty prospectively in 2012. It was a judicial clean-up effort, further evidence of a leading-from-behind judiciary emboldened by shifts in public opinion. By placing prospective legislative abolition of the death penalty off the table, the opinion's reasoning makes it harder in other jurisdictions to undertake abolition legislatively; a powerful compromise for the transition is declared unconstitutional.
Another problem for anti-death-penalty, anti-Living-Constitution people like me is posed by Eighth Amendment doctrine that counts legislative abolition as evidence of "evolving standards of decency" used to underwrite judicial abolition.
Is there any way to abolish the death penalty in one's state without providing more grist for the evolving standards of decency mill? Nothing comes to mind, but I sure would like to know.
For now, I'll simply express regret for, and opposition to, the way in which current Eighth Amendment doctrine makes it more difficult and more costly to accomplish abolition appropriately under our law.
The Board of Professional Conduct for Ohio lawyers and judges has issued an advisory opinion interpreting the relevant authorities within the Board's authority to prohibit judges from refusing to perform marriages for same-sex couples.
The weakness of the opinion's reasoning is evident near the outset, starting with the paragraph purporting to bring the issues addressed within the Board's jurisdiction:
In Ohio, municipal, county, and probate judges are specifically authorized by statute to perform civil marriage ceremonies. R.C. 1907.18(C), 1901.14(A)(1), 2101.27, and 3101.08. Whether judges are mandated or authorized by the Ohio Revised Code to perform civil marriages is a legal question and beyond the scope of the advisory opinion authority granted to the Board by the Supreme Court of Ohio. Gov. Bar R. V, Section 2(D), BPC Reg. 15(B)(1). 1 However, the General Assembly has granted judges the authority to perform marriages because of the unique public office that they hold. When a judge performs a civil marriage ceremony, the Board concludes that the judge is performing a judicial duty and thus is required to follow the Code of Judicial Conduct in the performance of that duty.
Notice how this trades on different meanings of "judicial duty" at different times. It starts by saying that judges are "authorized" by Ohio statute law to perform marriages. It then disclaims authority to decide whether Ohio statute law actually mandates judges to perform marriages, or instead simply authorizes them to do so (the position staked out in the first sentence). The opinion then says that Ohio statute law grants judges authority to perform civil marriages "because of the unique public office that they hold." And then the opinion brings the decision whether to perform a civil marriage within the scope of the Code of Judicial Conduct by asserting that the judge is performing a judicial duty when a judge performs a civil marriage ceremony. Notice, though, that these are two different moments in time. The decision whether to perform a civil marriage ceremony precedes the performance of a civil marriage ceremony. Although the opinion disclaims authority to decide whether judges are mandated or merely authorized to perform any marriages, the opinion ends up determining the judges are, indeed, mandated to perform certain marriages.
And this is just the beginning of the opinion. It gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that "[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages."
The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges "apply the law without regard to whether the law is 'popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'" Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges' personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.
The title of a new First Things article on Obergefell v. Hodges is "False Enlightenment at the Court." Its opening paragraph asserts that "[t]he basis of the decision is a claim to special enlightenment (we shall not say 'revelation') about the meaning and import of liberty ...."
That sounds close to correct, though I will go further and say that Justice Kennedy's opinion for the Court purports to be a revelation for the rest of us. In it, the five Justices in the majority claim to possess a new awareness and an improved understanding that enables them to carry out their judicial duty of responding to the petitioners' stories, and the petitioners' hopes, and the universal fear of loneliness (among other things), by enforcing the central meaning of a fundamental right that is now manifest in our basic charter. Behold:
"[C]hanged understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations ...."
"When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed."
"Marriage responds to the universal fear that a lonely person might call out only to find no one there."
"The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."
"The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."
"The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understandingof the hurt that resulted from laws barring interracial unions."
"[I]n interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged."
"Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage."
"It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality."
"This [decades-long process of legislation, litigation, and debate] has led to an enhanced understanding of the issue--an understanding now reflected in the arguments now presented for resolution as a matter of constitutional law."
"The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter."
"The petitioners' stories make clear the urgency of the issue they present to the Court."
"Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions."
A current exhibition about the Supreme Court building calls it "America's Temple of Justice." If we take Justice Kennedy's language seriously--and we should since his opinion purports to supply the public justification for the Court's decision--Justice Kennedy apparently takes this temple idea literally. Sitting behind the Supreme Bench for almost thirty years now, he may have been gazing too intently at the West Wall Frieze opposite his judicial perch. Seeing himself in its story of Good versus Evil, he is not just a judge, but Justice herself, discerning and disseminating Divine Inspiration.
The filing of this case made a big media splash; its dismissal, not so much. Compelling factual allegations are more interesting than careful dissection of a novel legal theory, I suppose.
The court concluded that it lacked personal jurisdiction over the USCCB and that plaintiff failed to state a claim upon which relief can be granted against the other defendants. There is some discussion of what the court describes as ecclesiastical abstention, which the court found would have applied to the elements of breach and proximate cause. But the plaintiff would have failed to state a claim upon which relief can be granted even in the absence of that doctrine. The court held that plaintiff failed to identify a legal duty owed plaintiff by the individual defendants. In the court's words, "Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network."
I am already seeing expressions of dismay and outrage in various quarters one would expect to see them. But the court's application of plain-vanilla legal principles seems unobjectionable. People who want to express their opinion should probably read the court's opinion first.
