The St. Thomas More Society in Richmond held a belated celebration of our patron's feast day (June 22) this morning. Bishop DiLorenzo celebrated Mass and we had a nice breakfast together afterwards. Among other benefits, this provided the opportunity to catch up with a former student who is practicing in Richmond and enjoying it. We ended up talking a bit about professionalism and about his generally (but not uniformly) positive experience in dealing with opposing counsel. He relayed what he had heard recently about the practice of a greatly respected lawyer at the beginning of cases. This lawyer (a litigator) makes it a practice at the outset of a big case of extending a dinner invitation to opposing counsel (expenses paid by the inviter if acceptable to invitee) at the place of opposing counsel's choice, with the only condition being that they not discuss the case. The idea is that it is easier to treat each other with respect and professionalism if we know each other as human beings and not just as opposing counsel.
The insight behind this practice is on my mind as I reflect on the Annual Law & Religion Roundtable (previously discussed by Rick and Michael Moreland) and the Libertas workshop on religious freedom (previously discussed by Marc and Michael Scaperlanda). For me, a valuable aspect of both conferences was the opportunity to get to know law professors and others with an interest in law and religion on a more personal level. I am grateful for the substantive engagement, analysis, and insight, as well. But personal interactions supply something that no amount of reading and writing and solitary thinking can.
Some of those I met or had the opportunity to renew acquaintance with are people with whom I have disagreed, presently disagree, or will at some point in the future disagree, maybe even deeply, on substantive matters of law and political morality; I hope our time together had something of the effect aimed for by the wise lawyer who dines with opposing counsel at the outset of an engagement. There were also some old friends and other fellow travelers; it was good to reconnect in person. And others fit in neither category, such that the best part was meeting for the first time.
There were different kinds of ideological diversity at each gathering. The differences at ALRR were more ideological than disciplinary, while the differences at Libertas were more disciplinary than ideological. At both there was a kind of unease and sense that things are not going very well, though the reasons why varied among participants. I hope to say more about the content of what was discussed, which was often rich and challenging. For the moment, however, I will stick with expressing gratitude to the organizers of and participants in both gatherings--particularly the organizers. I hope that organizers and participants alike find future gatherings worthwhile, notwithstanding the strong polarizing forces at work and currents of distrust seemingly causing separation and distance.
At first knowing of him only what I read in his piece, it came as something of a surprise to me to learn that the author of the Huff-Po* raising Hobby Lobby-based "concerns about the compatibility between being a Catholic and being a good citizen" has legal training. There is little legal argument and the piece describes as a "fiction" the quaint contention that the Court's application of a federal statute involved "upholding secular law." Yet Dr. Ronald Lindsay has not only a JD (from UVA), but also a PhD (from Georgetown). And he successfully practiced law for a long period of time.
Dr. Lindsay's full-time job now appears to be running an organization designed "[t]o oppose and supplant the mythological narratives of the past, and the dogmas of the present." As Dr. Lindsay has been carrying out this mission for a while, it is peculiar that he describes his loaded question ("Is it appropriate to have six Catholic justices on the Supreme Court?") as "uncomfortable." Surely this question is not uncomfortable for him. His Huff-Po is an organic outgrowth of the culture in which he lives; writing it fits in perfectly with his day job. Given Dr. Lindsay's background and knowledge, what is most uncomfortable is not his question, but his apparent uninterest in actually advancing and arguing for an explicit answer in his Huff-Po.
For whatever it's worth, as a descriptive matter, the Catholic Justices' Catholicism cannot be entirely irrelevant to how they rule. But the way in which Catholicism may or may not influence each Justice differs from person to person, and scholars of judicial behavior have generally not found it useful to use judicial religious identity as a variable in building their models. There are other, stronger influences that matter much more (like ideology).
The vitality of religious background to a more complete understanding of judicial decisionmaking is made abundantly clear by the findings of our study, at least for disputes involving the very topic of religion and the place of religion in public society. In our study, religion-based variables proved to be steady influences on judicial disposition of religious freedom claims, emerging as statistically significant across multiple models and independent of other background and political variables commonly used in empirical tests of judicial behavior. Indeed, religious affiliation variables—both those of judges and of claimants—were the most consistently significant influences on judicial votes in the religious freedom cases included in our study.
In analysis of demands by religious claimants for exemption from governmental rules or regulations under the Free Exercise Clause of the First Amendment, together with related statutory, free speech, and equal protection claims, Jewish judges and judges from Christian denominations outside of the Catholic and Mainline Protestant traditions were significantly more likely to approve of such judicially-ordered accommodations, while free exercise claimants from Catholic and Baptist backgrounds were significantly less likely to succeed in pressing such claims. In evaluating judicial resolution of challenges to governmental interaction with religion under the Establishment Clause of the First Amendment, Jewish judges were significantly more likely to conclude that governmental interaction with religion breached the figurative wall of separation between church and state. In the particular context of education, Catholic judges were significantly more likely both to respond favorably to religious claimants seeking exemption from governmental rules or regulations (that is, more approving of Free Exercise Clause objections to government controls) and to resist challenges to governmental acknowledgment of religion or interaction with religious institutions (that is, less approving of Establishment Clause claims).
Shifting from a focus upon particular types of claims to analysis of four integrated theoretical models of the Religion Clauses of the Constitution—models that we christened Pro-Religion, Anti-Political, Judicial-Restraint, and Pro- Secularist—the steady influence of religion-based variables again emerged in our study. No significant variables were found among judges who adopted an approach toward the Free Exercise and Establishment Clauses that was most approving and accommodating of religion (the Pro-Religion Model) (although Catholic affiliation for judges closely approached significance). Nor did those judges who fit the antithetical model of insisting upon secularism in public life (the Pro-Secularist Model) fall into any significant patterns (again with the near and negative exception of Catholic judges). However, Jewish judges along with judges from non-mainstream Christian backgrounds were significantly more likely to approve of judicial intervention to overturn the decisions or actions of the political branch that either refused to accommodate religious dissenters or provided an official imprimatur upon a religious practice or symbol (the Anti-Political Model). Likewise, judges from these same religious backgrounds were significantly less likely to adopt a judicial restraint approach (the Judicial-Restraint Model), that is, these judges were less likely to defer to governmental actions that severely impacted religious minorities or that officially acknowledged religious traditions.
Amidst instant opinion analyses and surrounded by Supreme Court surveys, it might be helpful to step back even further and consider more enduring questions. To that end, I've collected below links to the John Courtney Murray Chair Lectures delivered by MOJ's Fr. Robert Araujo, S.J. at Loyola University Chicago School of Law.
As an invitation to enter into Fr. Araujo's Murray-grounded explorations of some of the perennial problems of law, morality, and their grounding in reason, consider Fr. Araujo's answer to the question of how Murray addressed the challenging era in which he lived. The opening paragraphs of Fr. Araujo's inaugural lecture:
Charles Dickens began his Tale of Two Cities with the memorable line, “It was the best of times; it was the worst of times.” Dickens’ great saga takes us back and forth between two very different worlds, one in England and the other in France, during the bloody turmoil of the French Revolution. The juxtaposition of such diverse places existing in parallel fashion suggests something about the times in which Fr. John Courtney Murray lived—in a world of depression, of two global wars, and of a new kind of tension called the Cold War. And how did he address the challenging era in which he lived? It may have been Murray’s training as a theologian that made him understand the best and worst of his times; it may have been the fact that he was a lawyer’s son who understood the importance of the rule of law in governing a society of ordered liberty; it may have been his priesthood which helped him put all of the tumult of his life and times into context. But he was largely a man of hope who was fortified jointly by reason and faith. Perhaps he took to heart Saint Augustine and realized that he was a citizen of—a participant in—two cities: the City of God and the City of Man.
In essence, the dual citizenship concept suggests that Murray was both a contributing member to the public square and an ardent American citizen. But he was also a faithful Catholic and obedient son of the Church. For some individuals, it is hard to imagine that such a person could exist, yet this is how he served the common good and the public interest during his relatively brief life. But because of his formation as an American and a Catholic, Murray demonstrated that American Catholics can simultaneously be faithful members of the Church and contributing members of the American republican democracy. Indeed, their greatest contribution to our democracy may be in recalling America to the understanding of the human person and human institutions that animated the founding of the country—an understanding whose greatest expositors include Fr. Murray, John Paul II, and Benedict XVI.
In my contribution to the SCOTUSBlog symposium on Hobby Lobby, I address the Court's "substantial burden" reasoning and pick out a few footnotes of interest. Some more general thoughts also, including this:
For analytic purposes, it is convenient to break down the Hobby Lobby decision on RFRA into three parts: (1) Who can bring a claim under RFRA? (2) How does the “substantial burden” inquiry proceed? (3) How strict is strict scrutiny under RFRA? In each of these three areas, Justice Alito’s opinion for the Court sets forth an answer and analysis that should ensure greater solicitude for religious liberty in the administrative state. Federal government lawyers advising agencies on the regulatory implementation of statutory schemes that hold the potential to impinge on religious freedom should take three clear lessons from Hobby Lobby: (1) The Supreme Court will enforce RFRA’s comprehensive coverage as broadly as its capacious text reaches; (2) the “substantial burden” trigger for RFRA’s protections should be understood from the point of view of the sincere religious believer asserting a burden, with no “attenuation” escape hatch allowing legal recharacterization of these beliefs by government lawyers or federal courts; and (3) strict scrutiny under RFRA really is strict.
The Supreme Court's unanimous judgment yesterday in McCullen v. Coakleywas correct: Massachusetts violated the First Amendment by prohibiting peaceful speech on public sidewalks outside of abortion clinics. The Chief Justice's opinion for the Court puts some real teeth into narrow tailoring and should be very speech-protective in application to a range of speech restrictions down the road. I was disappointed, however, in the Chief Justice's content-neutrality ruling.
Justice Scalia's concurrence in the judgment powerfully sets forth the case for understanding the Massachusetts law as content-based, and therefore deserving of strict scrutiny. Lest this be viewed as just another episode in the series which the Chief Justice refuses to overturn a problem precedent while Justice Scalia lambastes the Chief's faint-heartedness/moderation (readers' choice), it is worth taking note of a couple ways in which this case departs from that pattern. First, Justice Alito wrote separately from the Chief Justice to take the even stronger First Amendment position that the Massachusetts law was viewpoint-based. (Contrast that with a case like Hein v. Freedom from Religion Foundation.) Second, Professor Laurence Tribe agrees with Justices Scalia, Kennedy, Thomas, and Alito, while disagreeing with Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. How often does that happen?
On this last point, I can't help but add a personal perspective on the decision in McCullen. Yesterday's decision marks the culmination of the first "real" federal litigation I have been involved in. As a law student, I was there at the beginning, helping out with the earlier First Amendment challenge (McGuire v. Reilly) to the (also-unconstitutional) predecessor to the law held unconstitutional yesterday. And I've had the opportunity to help out some with the McCullen case along the way as well. It has been a professional privilege to work with excellent lawyers who never gave up on meritorious First Amendment claims over the course of well over a decade. But perhaps the most encouraging aspect of the litigation for me has been to see Professor Tribe and Justice Scalia agree on the application of core First Amendment principles in a case like this. More than once, I've received strange looks and skeptical questions from people who wonder how anyone could have worked for both of these men. Yet there are a handful of us. And though I can't speak for the others, it's fair to say that I agree with Justice Scalia more than Professor Tribe about matters of constitutional law. The occasions that they agree on constitutional substance, even while many others disagree, are occasions that give me confidence in the capacity of legal principle (often more fragile in application than it should be) to direct sound reasoning about difficult and divisive issues.
Having recently posted Thomas Mann Randolph's critical comment about the Supreme Court treating the Constitution as a "mystical writing," I thought it would be fitting to post something in a related vein, but more constructive than critical. In 2009, Professor Samuel Levine published in the Michigan State Law Review an interesting essay that suggests that the Ninth Amendment may serve a similar function in constitutional law to that served by close analysis of legal scenarios that some Talmudic authorities believe will never occur. Here is the abstract for Levine's essay, Of Inkblots and Omnisignificance: Conceptualizing Secondary and Symbolic Functions of the Ninth Amendment, in a Comparative Hermeneutic Framework:
In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the Torah and the United States Constitution contain sections that, notwithstanding a textual appearance of actual implementation, have been interpreted by at least some legal authorities as not susceptible to practical application. Specifically, in the case of the United States Constitution, the Ninth Amendment appears on its face to serve as a basis for the identification of constitutional rights not enumerated elsewhere in the Constitution. In practice though, the Ninth Amendment has not served such a function; its harshest critics have characterized the amendment as the functional equivalent of an inkblot, while the United States Supreme Court, though not as dismissive in tone, has resisted arguments that would rely on the Ninth Amendment as a source for the derivation of unenumerated, individual constitutional rights. In an effort to reconceptualize the function of the Ninth Amendment in American constitutional interpretation, Levine looks to the analogue of the Biblical account of the “stubborn and rebellious son,” one of three legal scenarios in the Torah that, in the views of some Talmudic authorities, will never occur. According to a number of Jewish legal scholars and philosophers, the Talmud ascribes to these sections of the Torah considerable legal significance, albeit of secondary or symbolic legal value. Although these legal scenarios may never occur, the lessons derived from the text have both pedagogical and practical implications for understanding and interpreting the laws of the Torah. Likewise, perhaps the Ninth Amendment functions neither as a primary source for the derivation of unenumerated constitutional rights nor as an inkblot. Instead, the Ninth Amendment may serve a secondary role, providing both practical and symbolic lessons for understanding and interpreting the United States Constitution.
[M]uch of what the Court does with the Constitution simply does not make sense except on assumptions similar to those that inform the interpretation of scripture– such as the assumption that the text is ultimately not the product of merely finite and mortal authors but rather the expression of some more transcendent mind whose meanings exceed the grasp of either the flesh-and-blood enactor-scribes or the judicial interpreters
Earlier today I came across another quotation that reminded me that the idea that the Supreme Court has taken up magisterial authority is no recent development. The Marshall Court garnered comparisons to papal authority, and the language of constitutional heresy and constitutional orthodoxy was not uncommon. Consider, for example, how Virginia governor Thomas Randolph in December 1821 discusses the Supreme Court's decision earlier that year in Cohens v. Virginia. He contends that the Constitution is a monument to the wisdom and harmony of the past; its imperfections are a testimony to the need for good faith in the present and future. And he criticizes the Court for mystically pretending the Constitution is something better than what it is:
The constitution of the United States is a durable monument of the wisdom and harmony of times past. Its very imperfections constitute an impressive memorial of the necessity for good faith in the passing and in future times. It is not a mystic writing given in charge to the federal judiciary as to a priesthood to be enveloped in a studied obscurity, consulted through mazes, and made to give such responses as may suit the peculiar views of political expediency, of incumbents of any political sect, at any period.
Thomas Mann Randolph, Richmond Enquirer, December 4, 1821, p. 3.
Thanks to Google Books and a pointer from a helpful guide, I've recently had occasion to take a look at an early nineteenth-century guide- and sourcebook for judges on inferior state courts and justices of the peace dealing with federal matters: Samuel Bayard, An abstract of those laws of the United States which relate chiefly to the duties and authority of the judges of the inferior state courts: and the justices of the peace, throughout the union; illustrated by extracts from English law books. To which is added, an appendix, containing a variety of useful precedents (1804).
Prior to giving evidence in a cause, a witness in all cases, must be sworn or affirmed to declare "the truth, the whole truth, and nothing but the truth."
A Jew may be sworn on the books of the Old Testament; a Mahometan on the Alcoran; pagans, or infidels of any description, also persons of any religious denomination may be sworn according to the ceremonies of the religion they profess, and are admissible witnesses in any cause ....
In the courts of Great Britain, in pursuance of an express act of parliament, the affirmation of a quaker cannot be received in any criminal case; but in the United States, where the religious principles, and pure morals, of this respectable denomination of christians, are well known, and where sincere scruples of conscience are more respected; their affirmation is in all cases, regarded as equivalent to the oath of other christians. It is considered as an appeal to Heaven for the truth of what they declare, and by our laws, where taken falsely, it is punished in the same manner, as where a false oath is taken. (p.216)
* * *
An atheist, who professes to have no belief in the existence of a God, and of course disbelieves a future state of rewards and punishments; also a person who has no idea of a God or religion, who is altogether ignorant of the obligations of an oath; ought not to be sworn. (p. 217)
* * *
[There are also some more explicit directions later:]
NB. The witness having laid his right hand on the Bible or New Testament, then kisses the same.
If a Jew, he should be sworn on the five books of Moses, with his hat on.
If a Roman Catholic, there should be a cross on the book.
A Mahomedan must be sworn on the Alkoran, and other witnesses according to the ceremonies of their respective systems of faith (or mode of worship). (pp. 252-53)
* * *
[The appendix also contains a "special form of an oath used by some denominations of christians."]
"I, A.B., do swear by Almighty God, the searcher of all hearts (or by the ever living God) that the evidence I will give, &c. and that, as I shall answer to God, at the great day." (p .253)
Rick's recent link to his "Complicating the Common Narrative" post on the Cornerstone blog of the Religious Freedom Project at Georgetown's Berkeley Center brought to mind Charles Hammond. Or maybe Rick's post just prompted a link to Hammond, who was already on my mind.
I'd wager most people now have never heard of Charles Hammond (he doesn't even have his own Wikipedia page!), but he was one of the best constitutional lawyers and journalists of his time (b. 1779, d. 1840). One of my projects this summer is to start making Charles Hammond better known to people who ought to know about him. Much of Hammond's public writing was for the Cincinnati Gazette, which is not presently accessible in electronic form. But Google can still help one to acquire some knowledge of the man, his life, and his thoughts. For example, one can find a monograph on Hammond's life by Francis Phelps Weisenburger, first published in Volume 43 of the Ohio Archaeological and Historical Quarterly.
Near the end of this biographical sketch, Weisenburger discusses Hammond's response to a proposal to eliminate the transportation of mail on Sundays, a controversy that Rick mentions in passing in his "Complicating the Common Narrative" post. Here's Weisenburger on Hammond on Sunday mail transportation:
Another matter of religious implications on which Hammond expressed himself arose out of the attempt on the part of certain zealous persons to prevent the transportation of mail on Sunday. Richard M. Johnson of Kentucky attracted attention by a report which he submitted to the Senate, disapproving of the practice. Hammond was moved to sarcastic language on the mistaken enthusiasm of "Sabbath observances, Sabbath schools, Bible societies," and the like, and at least one subscriber threatened to withdraw his subscription as a result. Hammond, nevertheless, stood his ground, observing that the Sabbath was intended for social intercourse as well as religious ceremonies, that an ill-advised zeal was of all the enemies of vital religion the most dangerous, and that every effort to sustain religion by legal enactments must be doomed to failure.
Among the reasons I would like to investigate Hammond's writings is to understand the extent to which arguments like these were carried on in constitutional terms. When Hammond objected in 1833 to the proposal to prohibit the transportation of mail on Sundays, did he invoke the Establishment Clause? I don't know now, but will report when I do.
For whatever it's worth, Hammond's observations at the conclusion of the quoted material seem to be a good jumping-off point for sound thinking about legislative prayer policies in the wake of Town of Greece v. Galloway. Legislative bodies should not let "ill-advised zeal" persuade them to attempt to "sustain religion" by policies that privilege the particular religion for which they possess zeal.
