The Baltimore Sun has a run a short piece criticizing Justice Kennedy's use of a quotation from Michael Meyerson's excellent book, Endowed by Our Creator: The Birth of Religious Freedom in America, in his opinion for the Court in Town of Greece v. Galloway. (HT: SCOTUSBlog) Says the Sun:
It's not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore's Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers' views on religion made it into Monday's decision on public prayer.
But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.
It is certainly true that Kennedy's opinion for the Court does not square with the thrust of Meyerson's account of how the Framers used religious language in public settings. As to Justice Kennedy's use of the quotation at issue, however, one might note in Justice Kennedy's defense that he was simply quoting Meyerson's book as it was quoted in the Brief for Respondents. Kennedy wrote:
Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that "use overtly Christian terms" or "invoke specifics of Christian theology." Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the `"most general, nonsectarian reference to God,'" id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11-12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32-33.
The opinion here appears to accurately represent the respondents' position, which is all that Kennedy purported to do in this portion of the opinion. Respondents' position is also close to Meyerson's position with respect to Town of Greece, as set forth in the amici curiae brief in support of respondents that he joined. The first argument heading in the brief is that "Leading Framers Widely Believed that Governmental Religious Speech, If Allowed, Should Be Nonsectarian." And, citing Endowed by Our Creator, that brief states:
The words the Framers used in national charters, presidential addresses, and prayer proclamations—that is, speech directed at the public analogous to the speech at issue in this case—demonstrate the Framers’ belief that such religious language should be universal and nonsectarian. To be sure, the early Presidents did not shy from religious rhetoric, but the public religious speech of Presidents Washington, Jefferson, and Madison reflects an overriding concern that religion should unite, not divide, the nation. These Framers sought “to find a civil vocabulary that could encompass all people, regardless of their faith.” Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 12 (2012).
It should be clear by now that the conclusions reached by the majority in Town of Greece differ from the conclusions the Justices in the majority would have reached had they followed Meyerson's lead. But that should have been apparent to anyone who has read both the opinion for the Court and Meyerson's book. The problem is not that Kennedy misdescribed Meyerson's position, as one might think when reading the Sun's claim that Kennedy "took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public." The context of Kennedy's opinion makes clear that he is describing the position that he is about to reject. The problem, instead, from Meyerson's point of view, is that Kennedy's rejection of his position relies on a misunderstanding of the Framers' use of religious language--a misunderstanding that he would not have labored under, one might suppose, if he had read, understood, and agreed with Meyerson's book.
[Update: Last sentence edited for clarity at suggestion of @MarcODeGirolami.]
Over at Legal Theory Blog, Larry Solum recently reposted a Legal Theory Lexicon entry, "The Nature of Law." Solum's helpful and concise Lexicon entries do not aim for completeness or depth, but rather to provide a general overview pitched toward first-year law students with an interest in legal theory. In keeping with that understanding of the scope of the project, I offer a couple of observations by way of supplementation from a natural-law-based understanding of positive law and legal positivism:
- Solum is correct that "[w]hen the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition." He cites Holmes's reference to a "brooding omnipresence in the sky," although Holmes's reference was to the common law, not the natural law. A clearer example appears in what John Finnis has described as H.L.A. Hart's "polemic against lex iniusta non est lex." For one version of Finnis's argument against Hart on this point, see Finnis's entry on Natural Law Theories for the Stanford Encyclopedia of Philosophy (which Solum helpfully links in his Lexicon entry). [In the interest of evenhandness, it may be worth noting that the accusations of misunderstanding and mischaracterization between natural law theorists and legal positivists hava run in both directions. In addressing "5 1/2 Myths" about legal positivism that have given it "a whipping-boy status in so much legally-related literature," legal positivist John Gardner asks: "Have the members of any tradition of thought ever had their actual philosophical commitments so comprehensively mauled,twisted, second-guessed, crudely psychoanalyzed, and absurdly reinvented by ill-informed gossip and hearsay, as the legal positivists?"]
- The Lexicon entry observes that "[i]t is difficult to know where the positivist tradition begins." In addressing this issue, it is helpful to distinguish between (a) theorists of positive law, and (b) legal positivists. My teacher James Bernard Murphy makes this useful distinction in his discussion of "Legal Positivism and Natural Law Theory" as part of the Natural Law, Natural Rights, and American Constitutionalism project. In his book, The Philosophy of Postive Law: Foundations of Jurisprudence, Murphy describes St. Thomas Aquinas as "the first major theorist of positive law" (pp. 55, 81). But Aquinas is no "legal positivist." According to Murphy, "it is only in the twentieth century that some influential legal theorists began to call themselves 'positivists' and their doctrines 'legal positivism,' notably Hans Kelsen (1945), H.L.A. Hart (1961), and Joseph Raz (1986)." Once this distinction between theorists of positive law and legal positivists is in place, we can see why "the positivist tradition" can mean two different things, each of which has a different starting point.
[Update: At the sound suggestion of Matthew Lister, I've removed a potentially misleading reference to Jeremy Bentham that appeared in an earlier version of this post.]
Tuesday, May 13, 2014
The Fourth Circuit has posted the audio of this morning's argument in Bostic v. Schaefer. I have excerpted below some highlights from the judges' questioning that provide a sense of the dueling arguments. While the arguments of counsel are thought to be primary, it is sometimes useful to listen just to what the judges were saying. In what follows, I've tried to transcribe some of the important parts of what they said. These excerpts do not provide the full picture and should be understood in context, but they are also interesting in themselves. While I've tried to get the transcription right, I've also not had the opportunity for leisurely review. Please let me know if there are any corrections to be made.
Continue reading
I attended argument this morning in Bostic v. Schaefer, an appeal from a judgment declaring Virginia's marriage laws unconstitutional insofar as they deny marriage to same-sex couples and refuse recognition to out-of-state same-sex marriages. The panel consisted of Judge Niemeyer, Judge Gregory, and Judge Floyd.
In keeping with standard practice, the panel's identity was not released until the morning of argument. Going into the argument after learning its composition, the advocates probably estimated that Judge Gregory would be harder on the laws' defenders, that Judge Niemeyer would be harder on the laws' challengers, and that Judge Floyd would be leaning toward affirmance. And that is how the argument seemed to play out.
Judge Gregory described the essence of marriage as individual choice and autonomy while Judge Niemeyer described marriage as a relationship that requires a man and a woman. Judge Floyd's questions focused on the effect on Baker v. Nelson of the line of cases leading up to and including Windsor.
Predicting the outcome of an appeal from the short glimpse provided by oral argument is inherently speculative and not very reliable. But my best guess is that a split panel will hold Virginia's marriage laws unconstitutional; that Judge Gregory will write an opinion that Judge Floyd joins in part (and Judge Floyd might write a short opinion explaining why he does not need to join the entirety of Judge Gregory's opinion); and Judge Niemeyer writes a dissent. I have the least confidence in assessing Judge Floyd's likely vote but base this assessment on the number and tenor of his questions (a handful of more challenging questions for the defenders and a couple of not-too-difficult questions for the challengers) as well as the understanding of Windsor by other lower-court judges.
(More to come later; original post was eaten by my computer. Signing off for now from Padow's.)
Monday, May 12, 2014
The United States Court of Appeals for the Fourth Circuit will hear oral arguments tomorrow morning in a case challenging Virginia’s legal definition of marriage as limited to couples of the opposite sex. The Virginia Catholic Conference is organizing a “Stand and Pray for Marriage” event during the argument.
Somewhat to my surprise, I plan to attend. I am surprised because the idea that I intend to be at a rally related to a pending appeal at the Fourth Circuit clashes with some fundamental views I thought I held--and still do, at some level--about constitutional law, about politics, and about prayer. Even mentioning such an idea on a blog raises questions for me about the relationship between the public and the personal.
I am more of a law person than a “rally to show the court what we think” person. I tend to think that on matters of fundamental law we need more law than we need judicial temperature-taking of the populace. And I have no intention of praying for “my team” to “win.”
My prayer, rather, will be that God’s will be done ... and I don’t pretend here to know what God’s will is.
So why go? I’m not sure I fully understand or that I ever will. But if I do come to a better understanding in a way that I can explain on a blog post, I will aim to do so here.
