The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court  has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently.

In an opinion written by our own Janine Geske, it  has chosen to afford strict scrutiny to the substantial burdens on the free exercise of religion.

State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.

First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.

Second, does a more robust protection for religious free exercise require any – or a broader – exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one’s child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.

Perhaps Wisconsin has it right. Maybe the state’s interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.

Cross posted at Shark and Shepherd.

Writing at Mirror of Justice, Rob Vischer responds, arguing that health care is different, perhaps falling into that category – identified by John Paul II in Centesimus Annus - of the “needs and common goods that cannot be satisfied by the market system.”

I am in partical agreement. There is nothing about health care that, in and of itself, frustrates the operation of markets. It is not a natural monopoly and there are no intrinsic externalities or “tragedies” of the commons.

The problem, it seems to me, is that health care is like food. There are many goods that people can do without, but some are necessary for survival. We are reluctant to allow people to starve and we don’t want to simply allow those who get sick to die.

This does, I think, require public and private intervention in the market. My suggestion is that considerations of subsidiarity suggest that increases in subsidies may be preferable to increases in centralized control of the provision of services.

Subsidiarity tells us that a “higher order” of authority should not do what individuals or a “lesser order” can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it’s not that simple either. 

The reasons are that subsidiarity is not simply a jurisdictional principle but reflects a judgment about — or at least emphasis of a particular perspective on — anthropology. It rests on a set of assumptions about the subjectivity of human persons. It is not only that granting freedom to individuals and the voluntary associations that they form will release human creativity, but that the release of creativity is itself an instrinsic good. True development of the human person requires his or her participation.

This suggests a limit on subsidiarity as a jurisdictional principle strictly defining the role of the state and the spheres of higher and lower levels of government. Catholic social thought also emphasizes solidarity. People are connected to one another and each should be committed to the common good of all. It emphasizes the human dignity of all persons and the duty of charity towards all. Every  individual ought to be able to exercise his or her subjectivity and government (or even larger private institutions) are not the only obstacle.

Sometimes intervention of a higher order may be required to make the exercise of subjectivity possible. This may threaten to mire us in indeterminancy. What do we do when the irresistable force of subsidiarity meets the immovable object of solidarity? 

I think that we can do many things. But it seems to me that some guidance is provided by the notion that policy must make space for human creativity and freedom. Although not every social outcome produced by human freedom is acceptable, it is not for the state to impose its view of the best of all possible worlds. Once it has done what it can (and that may be far from a guarantee) to ensure the conditions for human flourishing, it ought to step back and allow human beings to flourish.

I don’t know that this resolves many of the political disputes we have in the U.S., but perhaps it is a useful way to think about them. 

Cross posted at PrawfsBlawg.

Some law professors (and I do not intend to include my colleagues in this group) respond to these conflicted feelings by endeavoring to reduce the stress of law school.  They reject the Socratic method as unnecessarily antagonistic and outdated.  They reduce the workload, and their expectations of the students, in order to leave more room in the students’ lives for the “real world.”  They may even take a rather forgiving view of the grading process.  Their intention is to make the current generation of law students happier during their law school experience than these professors remember being during their own.

The odd thing is that, when law students are provided with this de-stressed version of law school, I have found them to be even less satisfied with their law school experience.  Law students come to law school expecting to be challenged.  They want to have their abilities tested, and even found wanting on occasion.  In some sense, when students find the law school experience to be too easy, the law school experience loses meaning for them.

I believe that it useful for both law professors and law students to view law school as the sort of “hero’s journey” described by the great professor of comparative mythology Joseph Campbell.  For Campbell, all myth serves an important role as a pathway to the understanding of the self.  In particular, mythology serves to help each individual understand their place in the world and in society.  The extended adolescence of modern life (children living with their parents until age 18 or older) makes it essential that the broader society provide rituals or ceremonies that mark the end of dependency and the beginning of the adult society’s acceptance of the adolescent as a fully participating member.  Without such clear markers on the path of self-development, modern man can experience feelings of alienation and self-doubt that were unknown in more primitive cultures.       

In his book The Hero With a Thousand Faces, Campbell describes the archetypical “hero’s journey” that he saw reflected again and again in world mythology as a metaphor for self-enlightenment.  First, an Everyman (or Everywoman) is called to leave their ordinary life and embark on a great adventure.  Then, the hero must journey into a dark world where he must endure various trials and tribulations.  Along the journey, the hero will encounter a teacher who will give instruction in the new skills that the hero needs in order to succeed.  At this point, the hero comes to fully understand, for the first time, the ultimate goal of his quest.  Armed with new skills and knowledge, the hero continues on the journey, facing challenges that push the hero’s endurance to the limit.  Finally, the hero reaches the ultimate goal, and finds that he has been changed by the journey.  The hero now returns to the everyday world, bringing back what he has learned in order to benefit the broader society.

Some critics objected that Campbell’s archetypical journey was so generic as to be meaningless.  The discovery of Joseph Campbell by George Lucas, who wrote Star Wars in a conscious attempt to apply Campbell’s theories, and by other filmmakers, has rendered the “hero’s journey” so familiar to moviegoers that it has become ubiquitous and therefore less powerful.  Nonetheless, there is something in Campbell’s theories that resonates.

We all see ourselves as the hero in our life’s journey.  We want to overcome obstacles.  We seek to acquire new skills and knowledge that will allow us to achieve our goals.  Above all, we desire some sort of tangible sign that we have been accepted by “adult” society.  For some (not all) students, a rigorous law school experience provides a path to accomplish these objectives.  Just don’t call me “Yoda.”

To those who worry that the stress and crushing workload of a traditional legal education can make students unhappy, I would quote the words of Joseph Campbell.  When his students asked, “what is the secret of happiness?,” Campbell replied, “follow your bliss.”  Happiness does not come from the ease with which you navigate through life.  Happiness comes from doing that which makes you happy.  The practice of law can be very difficult, but if you accept the stress and long hours as the cost of spending your career pursuing justice and stimulating your intellect, you will be very happy indeed.

First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the Court’s membership, Catholics on the Court currently exceed their proportionate representation in the general public by a significant amount.  This is an astonishing historical fact, although its significance is not self-evident.

Second, Frank Colucci’s book, Justice Kennedy’s Jurisprudence, was recently reviewed  in the Wall Street Journal by Northwestern University Law School Professor John McGinnis.  Apparently, Mr. Colucci does not adhere to the conventional wisdom that Justice Kennedy is an unpredictable jurist whose primary concerns are the aggrandizement of the Supreme Court and the divination of narrow, fact-based holdings.  Instead, and somewhat unexpectedly, Corlucci argues that Justice Kennedy’s approach to the interpretation of the Constitution is best understood as seeking to advance a moral imperative.

Justice Kennedy’s objective, according to Corlucci, is to vindicate and preserve an ever increasing share of individual liberty within our broader society.  Here is the key portion of Professor McGinnis’ review:

Looking for the sources of Justice Kennedy’s moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae.  In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit ‘irreparable corruption’ – a phrase that a secular judge might not have used.  (Justice Kennedy is an observant Catholic).  It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be – because of his emphasis on individual rights – the decisive vote for preserving the abortion status quo.

It is intriguing to consider whether there is, in fact, a demonstrable connection between Catholic social thought and Justice Kennedy’s interpretation of an evolving liberty interest guaranteed by the Constitution.

Should this matter?  Few people would argue that all religiously observant  judges are necessarily intent on imposing a theocratic rule of law (turning the gavel into a cross, as it were).  Moreover, it is neither possible nor advisable to seek to eliminate all religiously-derived conceptions of morality from the judicial decision making process.  However, the intersection of the Catholic faith and the judicial function remains troublesome for some, perhaps because it takes place out of the sight of the public and within the mind of the judge. 

A third recent event raises this same issue.  There has been a great deal of consternation in the blogosphere over Professor Alan Dershowitz’s intemperate attack on Justice Antonin Scalia’s dissent from the Supreme Court’s August 17 order in the case of In re Troy Anthony Davis. 

In that case, Justice Scalia (along with Justice Thomas) dissented from the Court’s order directing the district court to consider whether or not evidence unavailable at the time of trial now indicated that a convicted felon, presently on death row, was in fact innocent.  Justice Scalia disagreed with the Court’s order, stating in his dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” 

Professor Dershowitz charged Justice Scalia with hypocrisy, claiming that Justice Scalia was willing to impose a constitutional rule of habeas corpus that was in conflict with Catholic teaching.  For Dershowitz, it is self-evident that it is immoral to execute a man who you know is innocent.  Apparently it is similarly self-evident that Catholic moral teaching reaches the same conclusion.

If Professor Dershowitz wanted to start a heated debate on the topic of Catholicism and the Supreme Court, he succeeded.  Some of the more interesting responses to Professor Dershowitz include this post by Professor Richard Garnett and this post by Professor Robert Vischer.

 In Professor Dershowitz’s defense, Justice Scalia raised the issue of his Catholic faith first.  In a 2002 article in First Things entitled “God’s Justice and Ours,”  Justice Scalia admitted that he finds it necessary to reassure himself that his interpretation of the Constitution does not contravene his Catholic faith.  In fact, he goes so far as to assert that, if he ever felt that the Constitution mandated a rule that contravened his faith, he would feel morally bound to resign from the Supreme Court rather than to vote to uphold that rule.

Fortunately for Justice Scalia, he has concluded that there is no conflict between Catholic teaching on the death penalty and the manner in which the United States Constitution permits the death penalty to be imposed.  This is because, as Justice Scalia explains, his interpretation of Catholic teaching on this point differs somewhat from the position of Church authorities:

I do not agree with the encyclical Evangelium Vitae and the new Catholic catechism (or the very latest version of the new Catholic catechism), according to which the death penalty can only be imposed to protect rather than avenge, and that since it is (in most modern societies) not necessary for the former purpose, it is wrong. . . . So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign.  

Professor Dershowitz charges that in dissenting from the case of Troy Anthony Davis, on the grounds that the Constitution does not prohibit the execution of a factually innocent man, Justice Scalia is adopting a misguided reading of Catholic theology.  Some will be tempted to charge Justice Kennedy with a similar offense.

Justice Kennedy and Justice Scalia present the positive and the negative aspects of the same photographic image.  It is the picture of a judge trying to reconcile the role of his faith with his responsibilities on the Supreme Court.  We have long recognized that Justice Kennedy and Justice Scalia have very different conceptions about the proper role of a judge under our Constitution.  It is possible that their differing conception about what it means to be Catholic has had an equally profound influence on the divergence of their judicial philosophies.   

Catholics live their faith in a variety of ways, so it is not surprising that this variety of beliefs can be observed on a Supreme Court with six Catholic members.  Religious beliefs influence all of us in diverse ways, as do ideological beliefs, affinities for cultural traditions, and prejudices or stereotypes.  Each person’s understanding of how the world works (or should work) is comprised of a unique stew of multiple predispositions.

However, what happens when these predispositions come into conflict?  In particular, how do we react when our interpretation of the Constitution, as the embodiment of a fervently held political philosophy, comes into conflict with our understanding of the moral teachings of our faith?   Our sacred and secular belief systems must either align or come into conflict, and Supreme Court Justices are no different than the rest of us in this regard.       

Human nature being what it is, we would prefer to avoid the dissonance that occurs within our psyche when the secular and the sacred conflict.  Therefore, our natural temptation will be to engage in self-delusion.  This occurs when we force the interpretation of either our faith or our secular Constitution in a particular direction in order to bring the two of them into alignment.  Justice Kennedy wants to see his faith’s promotion of human dignity reflected in the Constitution.  Justice Scalia wants to reassure himself that his reading of the Constitution does not countenance the exercise of immoral authority.  Not surprisingly, both men see what they want to see.

 All of us begin the act of interpretation knowing what it is that we hope to find.  Is it any wonder that we often shade our reading of the text and precedent in order to arrive at our hoped for destination?  When our mind shades the text in this fashion, we risk doing violence to the meaning of the words we interpret.  The alternative, however, would be to do violence to our strongly held self-image.  Our subconscious mind will not allow this to occur. 

The only solution for a judge placed in this position is to exercise her capacity for self-awareness.  This means pausing before she rules.  During that pause she should self-consciously reflect on her premises, her life experiences, and even her religious beliefs, in order to assure herself that her interpretation of the text is driven by logic and precedent and not by an unconscious desire to rationalize competing belief systems.

Sound familiar?  This is the wisdom imparted by our newest Catholic Justice in her “Wise Latina” speech.

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church’s traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

As a member of a Jesuit law school faculty, I am very proud that the Catholic Church has continued to take such a view on the value of unions and the need to protect historically exploited workers.  I checked with my favorite Jesuit and he tells me this at least the fifth in a series of encyclicals commentating on the importance of labor unions starting with Pope Leo XIII in the late 1800s.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, “legislating from the bench.” Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization’s religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school’s decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a “loophole,” although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court’s criminal law decisions. 

People use the term “loophole” in connection with judicial decisions to imply that the principle of decision is either unimportant or not intended for the purpose to which it has been put. Constitutional guarantees, whether in the criminal law or religious freedom context, are never unimportant and often the question of whether they are or are not intended in the way that the Court has used them is precisely the issue before the Court. I may believe that the Court has misinterpreted constitutional protections for criminal defendants, but it is not helpful to think about loopholes. Although the use of that term in campaign literature might communicate my substantive conclusion, it really doesn’t help me make it.

Third, it is also wrong to suggest that the Court modified its own precedent or preferred the decisions of courts from other jurisdictions to its own. There was no controlling state Supreme Court precedent on the issue. There was a Court of Appeals decision that is not consistent with the method adopted by the Court but that is hardly binding on the Supreme Court. What the Court did was adopt a “functional analysis” approach to the ministerial exception asking whether the duties of the employee is questions are sufficiently “important or closely linked” to “the fundamental [religious] mission of [the] organization.” This test is in distinction to the test used by most courts which is to ask whether the employee’s “primary duties” are religious.

Fourth, it would be fair to say that the Court’s decision demonstrates at least a favorable nod in the direction of New Federalism, i.e., the idea that state constitutional provisions might be interpreted differently than parallel federal provisions. Although it does not appear that the Court’s decision turns on that (and the federal and state provisions at issue here are not identically worded), it is unsurprising. Wisconsin has previously interpreted its freedom of conscience clause more broadly than the United States Supreme Court has interpreted the free exercise clause.

Fifth, Justice Crooks suggestion in dissent that the Court’s decision calls into question its prior decision in Jackson v. Benson, upholding the constitutionality of the school choice program seems rather weak. While Coulee Catholic certainly recognizes the idea that religion is suffused throughout the curriculum of at least certain religious schools, Jackson was not based on any assumption to the contrary and the fact that religious schools are religious does not mean that vouchers to students attending those schools violate the Establisment Clause. In fact, the Supreme Court in Zelman v. Simmons-Harris held that it does not. Thus Jackson could be in trouble only if the state Supreme Court were to hold that the state constitution’s anti-establishment principle is somehow broader than that of the First Amendment. That has not traditionally been the view of the state Supreme Court.

Justice Crooks seems to think that the idea that the state may not interfere with what is “important or closely linked” to the religious mission of schools calls into question a provision in the school choice program requiring that students be permitted to “opt out” of religious activities (as opposed to subjects that are secular, even if taught in service of the school’s religious mission). Perhaps it does. But there is little reason to believe that the outcome in Jackson turned on the opt-out provision. In addition, while Coulee Catholic certainly suggests the rather obvious notion that the state could not compel religious schools to permit students to opt out of religious activities, it is far from clear that such a requirement could not be a condition of state vouchers. That gets us into messy law regarding, among other things, unconstitutional conditions and, suffice it to say, the outcome is hazy.

Sixth, I think that the Court probably got the legal standard right. Even employees of religious organizations whose primary duties are not religious may play a sufficiently important role in their employer’s religious mission that decisions regarding their hiring or firing are inextricably tied up with that mission such that the state could not examine these decisions without having to assess religious judgments.

Cross posted at Shark and Shepherd

I think that the outcome is correct, but the rationale is wrong.

This isn’t the first time that the Ninth Circuit has been called upon to address a resolution by the Board of Supervisors condemning positions taken by a religious group. In American Family Association v. Board of Supervisors, a divided panel rejected a challenge to a resolution condemning an ad campaign conveying a religious message about homosexuality and promoting “reparative therapy.”

Without exploring the niceties of the various tests for Establishment, the Ninth Circuit’s point is that the message and its purpose are “secular.”

For reasons that I explore here and here and in a forthcoming piece in the William and Mary Bill of Rights Journal, I don’t think that characterization of the message as “secular” withstands scrutiny. 

There is no ready distinction between “secular” and ”religious” messages that is not itself predicated on certain theological and sociological assumptions about religion. More fundamentally, a “secular” message’s harm to religious dissenters and impact on religious institutions and the religious choices of citizens  is indistinguishable from messages (prayer at graduation, etc.) that have been found to be unconstitutional. (Judge Noonan, dissenting in American Family Association, took a similar view.)

But the resolution of this can’t be doctrine that would forbid the government from conveying messages that run afoul of the beliefs of some religious dissenters. That would be, to put it mildly, unworkable.

My suggestion has been a less ambitious Establishment Clause, one that requires more substantial injury to dissenters from government speech. With certain exceptions that I won’t get into here , the question in cases like this would not simply be whether the message is religious, but what impact it has on religious dissenters. I offer as an extreme example the Nazi policy of Gleichshaltung, which included systematic vilification of Jews in preparation for and in aid of more coercive policies.

What I find interesting about Catholic League is that Judge Berzon, concurring, recognized that such government speech might well raise Establishment Clause concerns, offering as examples “a pervasive public campaign by a city to condemn Jews for not shopping on Saturday or Muslims from observing Ramadan because of the effect on the economy.” 

The other thing that I found interesting is that it means one more set of changes to a “finished” article over the summer.

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.” 

Although I have argued against Justice O’Connor’s endorsement test in Establishment Clause cases, empathy might help us see that the harms stemming from government endorsement of religious principles flow as well from the government’s disapproval of those principles.

The endorsement test is a useful example, I think, because it also demonstrates the danger in interpretive methods that do not sufficiently bound empathy and the predilections of the judge. As was true of so much of Justice O’Connor’s jurisprudence, the test maximizes judicial discretion. It tells the judge to prohibit endorsement but then defines the concept in a way that alows the judge to completely contruct its presence or absence. The court is not to look at whether real people perceive the endorsement of religion but whether a person of the judge’s imagining – someone who is familar with the text of the first amendment and the history and purpose of the challenged practive – ought to perceive. Not surprisingly the test came to be known by the acronym of WWSD – What Would Sandra Do?

Maybe Catholic legal thought has something to tell us about this as well. Subsidiarity can be a maddeningly elastic notion, but doesn’t it remind us that the courts are only one of the institutions ordained to create justice and that they ought to operate within their sphere of authority. If that’s so, then using, in Orin’s phrase, any “appreciable legal ambiguity” to rule in a way that “furthers whatever normative vision of the law that the judge happens to like” is problematic from the perspective of Catholic legal theory.

Recent decisions of the United States Supreme Court have held that governments who create limited purpose public forums may not exclude even “quintessentially religious” speech that is otherwise within the purpose of the forum. Nevertheless, governments frequently attempt to exclude religious speech that might be characterized as “worship” from such forums and the Ninth Circuit Court of Appeals, in conflict with the Second and (arguably) Seventh Circuits, has upheld such exclusion.

This article addresses whether worship can be regarded as a separate category of speech that may be constitutionally excluded from limited purpose public forums. To assess the idea that worship is “different,” it briefly assesses mainstream Christian theology concerning worship and concludes that worship is likely to communicate ideas about life in the world that are within the boundaries of most broadly defined public forums. Exclusion of such speech would be inconsistent with the Court’s insistence upon neutrality between religion and irreligion and is unnecessary to avoid the risk or appearance of establishing religion.  

The paper is forthcoming in the Mississippi Law Journal. 

Here is the abstract of the second paper, entitled “You Cannot Lose If You Choose Not to Play: Toward a More Modest Establishment Clause”:

Much of our Establishment Clause jurisprudence and commentary strives to achieve neutrality among religions and between religions and irreligion. Moreover, judges and scholars have sought a neutrality that protects religious dissenters from injuries which, however real, are far removed from the coercion and imposition of legal disabilities traditionally associated with the creation of state churches. The ambition of this sort of Establishment Clause neutrality is captured in former Justice O’Connor’s “endorsement” test – a doctrine that seeks to save the dissenter from even exposure to state-sponsored messages that may make her feel like a “disfavored member of the political community. ”

This paper argues that such neutrality is impossible. When “religious” is properly understood as a way of life which impacts and is impacted by ways of life and messages that are not limited to worship or theistic assertions, it becomes clear that modern government can hardly avoid engaging in activities or sending messages that will make some religious dissenters feel “disfavored.”

The paper considers various responses to this failure of Establishment Clause ambition and concludes that the best option is surrender. While neutrality, in the sense of avoiding undue support for or hostility toward religions or irreligion, remains a useful guiding principle, the ambition of Justice O’Connor’s nonendorsement principle (or similar doctrinal formulations) cannot be achieved and the attempt to do so results in unacknowledged bias.

The paper appeared in print at 12 Roger Williams U. L. Rev. 1 (2006).

In 1996, his journal, FIRST THINGS, published a symposium entitled “The End of Democracy? Judicial Usurpation of Politics”. Contributors included Robert Bork, Chuck Colson, Robert George, and Hadley Arkes. The symposium began with a very straightforward and intentionally shocking question question: “The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.” The editorial introducing the symposium gave a tentative answer as well: “What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people.” The symposium launched a heated debate about the role of judges in a constitutional republic, and remains a standard reference point in the modern intellectual discussion of “judicial activism.”

Numerous Neuhaus articles in FIRST THINGS, essays in other journals, and speeches also touched on the matters of law and jurisprudence, often as part of a larger discussion of modern liberal democratic politics. Many times the particular context was his opposition to Roe v. Wade – throughout his life, he was a tireless and articulate champion of the right to life. Among his many writings, Neuhaus is the author of several law review articles: “Law and the Rightness of Things,” 14 Val. U. L. Rev. 1 (1979-1980); “Nihilism without the Abyss: Law, Rights, and Transcendent Good,” 5 J. L. & Religion 53 (1987); “The Moral Delegitimization of Law,” 4 Notre Dame J.L. Ethics & Pub. Pol’y 51 (1989-1990); “Contending for the Future: Overcoming the Pfefferian Inversion,” 8 J. L. & Religion 115 (1990); “A New Order of Religious Freedom,” 60 Geo. Wash. L. Rev. 620 (1991-1992); “Rebuilding the Civil Public Square,” 44 Loy. L. Rev. 119 (1998-1999); and “The Persistence of the Catholic Movement,” 52 Catholic U. L. Rev. 269 (2002-2003).

Much more can and will be said about the tremendous life and contributions of Fr. Neuhaus, and some of it will focus specifically on his legal and jurisprudential arguments. For the moment, though, I
associate myself with the words of Ross Douthat from the Atlantic Monthly: “Every young writer, I imagine, has their first intellectual magazine, whose essays and articles are devoured all the more greedily for being slightly over one’s head. Mine was First Things. . . . Month after month, issue after issue, Richard John Neuhaus — through his writing, and also through the writers he cultivated — demonstrated to my adolescent and early-twentysomething self that it was possible to be an intellectually fulfilled Christian.” Amen to that. RIP, RJN.

A student has filed a lawsuit against Los Angeles City College, claiming that he was giving a class-assigned speech on same sex marriage (which he apparently opposes) and his instructor interrupted him calling him a “fascist bastard.” The instructor then dismissed the class without allowing the student to finish and, on his evaluation sheet, did not enter a final score. Instead, he wrote that the student should  ”ask God what your grade is.”

I have to admit that there is part of me that admires the attempt to recruit divine assistance at grading time, but this is a serious matter. It does not appear that the college is defending the instructor and claims that it will take appropriate steps to deal with the instructor and protect the student. It says, however, that the instructor’s privacy must be respected and any disciplinary action may not be made public.

A few things interest me.

The first, of which this is a larger part, is the rancor that has roiled California in the wake of Proposition 8. As I have blogged before, opposition to same sex marriage is viewed, by a portion of the population, as the moral equivalent of racism and something that ought not to be tolerated in civil society. Thus, some have worked to disclose the identity of supporters of the measure in ways that make it easy for others to find them. The American Association of Law Schools deemed it appropriate to refuse to hold meetings in a hotel owned by a prominent Propostion 8 supporter. While I think everyone agrees that the instructor (if the allegations are true) acted improperly, he was merely expressing — at the wrong time — what a not trivial number of Californians seem to believe.

This presents, I think, a variety of difficulties for civil libertarians. Many believe that disclosure of donations to candidates and ballot measures is vital information that assists the public in evaluating the messages they finance. Yet, use of that information to pressure donors threatens to stifle public participation.

Opponents of measures like Proposition 8 have a right to speak their minds and many apparently do believe that opposition to same sex marriage is rooted in hate. But does the choice to frame the issue in this way poison political dialogue in a way that prevents the development of consensus on SSM and related issues? Is any significant degree of consensus even possible?

And what about the college’s insistence on the privacy of the instructor? Let’s put aside the question of whether California law requires this (as general counsel of a national company, I came to learn that California is one huge legal outlier).  If an instructor discriminates against a student on the basis of race, religion, gender, etc., should the university disclose whatever action it has taken in the interest of assuring the student (and the broader community) that it takes such matters seriously?

Finally, there may be a question as to whether the student’s speech was responsive to the class assignment, i.e., that it was persuasive as opposed to informational. Putting that aside, what of the instructor’s objection to its religious content? The instructor wrote on the evaluation form that the speech was inappropriate for a public school. Is that right? Should public schools assume responsibility for protecting student from unwanted religious messages delivered by other students? And, if they should, does this impose on them a duty to protect students from irreligious messages delivered by other students? What if those messages are ostensibly secular, but inconsistent with or, to make the case stronger, derisive of the religious beliefs of the hearer?

I also liked State v. Miller, which asked the question of whether the Amish could be fined for failing to display the bright orange “slow moving vehicle” sign on their buggies despite the fact that its display was inconsistent with their religious beliefs. What I remember most about that case was that on the day of the oral argument, the Wisconsin Supreme Court hearing room was filled with Amish men with their dark clothing and long beards, listening intently to the arguments about the First Amendment. It was a very different scene than we were used to seeing (lawyers in dark suits, white shirts and red ties).  In writing that opinion, I watched a piece of video evidence which showed a very slow moving buggy going off in the distance at night time with white fluorescent tape on the back. The video seemed to last forever . . . but the tape remained very visible. Understanding how what seemed to be a simple factual case intertwined itself with the First Amendment led to a fascinating exposure to the beliefs of the quiet Amish culture. The Amish prevailed on that case because the tape was a reasonable alternative.

Finally, I want to talk about a case that I often refer to when teaching groups about the work of a supreme court justice and an impartial court. In the last ten years, there is a lot of discussion about the partisan nature of decision-making. Many people assume judges take their agendas to the court and then vote accordingly when the cases come up. I often get asked whether a particular judge is a “liberal judge” or a “conservative judge.”  The case I like to tell them about is State v. Matthew Janssen, which was originally heard in Appleton, Wisconsin. Appleton is a very politically conservative community. Mr. Janssen and his friends stole a number of American flags. He defecated on one of them, leaving a highly offensive note in its place. Well, as you imagine, the community was understandably up in arms about this horrible treatment of the flag. The state charged Mr. Janssen with a violation of the Wisconsin flag desecration statute. The trial judge, courageously and despite much public outcry, held that the statute was unconstitutional. The case was appealed to the Court of Appeals, where three judges affirmed the circuit court’s holding. The case then came to our court.

Justice Jon Wilcox was assigned the case and wrote the unanimous decision. Justice Wilcox, often classified as a “conservative” justice, obviously was personally conflicted in writing the decision. He wrote the unanimous opinion which held that the lower courts correctly concluded that the statute was unconstitutional. What is helpful for teaching purposes is that, a reader can sense Justice Wilcox’s pain  in reaching a decision that was legally correct but morally offensive to him. He wrote:

Having reached this conclusion, we pause to note the extreme difficulty inherent in writing a decision such as this . . . . Our final assessment of Janssen’s behavior is no different from our initial, instinctive reaction to the facts of this case: we are deeply offended. Janssen’s conduct is repugnant and completely devoid of social value. To many, particularly those who have fought for our country, it is a slap in the face. . . . But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court, we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their regard. . . .

That unpopular decision made me very proud to be a member of that Court. Despite personal feelings, politics, or desires, the justices did what they had been elected to do. They applied the law, despite public opinion. That is what being a judge is all about.

Americans United has objected to the practice of several Wisconsin school districts to hold graduation at a local church. I have three reactions.

The first is that the fact that AU expends resources on an issue like this should reassure us that theocracy is a long way off.

Second, under existing law, AU may well be right. The Supreme Court has held that a bland nondenominational prayer at graduation violates the rights of those who do not wish to hear it. To listen to a state sponsored prayer as a condition of attending graduation constitutes, at least in the view of Justice Kennedy and four other justices in Lee v. Weisman , may be seen by a reasonable dissenter as participation in a religious exercise. It is certainly not inconceivable that entering a church could be seen as some sort of affirmation of its beliefs or, as Justice O’Connor would have put it, a dissenter might see the choice of Elmbrook Church as an endorsement of religion that makes here feel like a disfavored member of the political community. While I believe that Lee was wrongly decided, I think that there are still five votes for it on the Court and, of course, even justices who would not have joined Lee might be reluctant to overturn it.

On the other hand, perhaps Justice Kennedy would see this case differently. Perhaps entry into a church with religious symbols on display is not the same as standing or remaining silent during a prayer that is part of the graduation ceremony itself. That doesn’t strike me as a particularly persuasive distinction but then I wasn’t persuaded by Justice Kennedy’s opinion in Lee so I may not be in the best position to plumb his thinking on the matter.

There is, incidentally, Wisconsin precedent on the matter. In State ex rel. Conway v. Joint School Board No. 6, a 1916 decision, the Wisconsin Supreme Court held that holding graduation ceremonies in a church does not violate Wisconsin’s version of the religion clauses, Art. I, sec. 18 (which is worded differently than the federal provisions). Should this issue go to court, the United States Supreme Court’s interpretation of the United States Constitution will take precedence.

Third, I think Conway is nevertheless instructive. As I have argued here, the (understandable) desire to protect dissenters from discomfort cannot be implemented neutrally. The Conway court seemed to recognize this when it said that “[t]he fact that certain persons desire to attend graduation exercises with their children, and that they say that being compelled to enter a church of a different denomination from that to which they belong is violative of their assured rights of conscience, does not make it so” – at least not in a way that the law must recognize. In attempting to do so, our current Establishment Clause jurisprudence is overly ambitious. As I argue in a forthcoming paper, because it is overly ambitious, it has become asymmetrical, i.e., it fails to protect religious dissenters from the comparable harm that arises from certain forms of secular speech and this infringes upon religious liberty in ways that ought to concern us. My solution is to both expand and contract the idea of nonestablishment. If the state must be sensitive to the claims of religious dissenters who believe they are coerced or made to feel disfavored by the state’s secular messages, we cannot provide the type of exacting protection called for by Justice Kennedy’s opinion in Lee.

Cross posted at Shark and Shepherd.

I think this passes constitutional muster for two reasons.

First, it seems (and I could be wrong here) that some governmental body would have to decide to make a grant to an institution for renovating a religious purpose. Cases upholding the use of public funds for sectarian uses (e.g., vouchers) rely on an independent choice of the recipient to direct it to religious uses. Unless there is some neutral and secular criteria for the selection of grant recipients who would then direct the funds to religious uses, the direct funding of a sectarian use would be problematic.

Second, in Locke v. Davey, the Court upheld a scholarship program that excluded use of the scholarships for the study of devotional theology. Scholars differ on what Locke really means, but it may support exclusion of religious uses here.

But the breadth of the prohibition may create problems. If, as some critics argue, the exclusion applies to buildings in which there is any religious use then it could be read to command state universities who operate limited purpose public forums in these buildings to exclude religious uses that are otherwise within the purpose of the forum — something that has been held to be unconstitutional viewpoint discrimination.

I suspect we’ll see a narrowing construction.

H/T: Religion Clause Blog.

But, as important as that may be to me, the larger issue is more interesting. The National Catholic Reporter has put up a story on comments by Catholic University historian Leslie Woodcock Tentler who criticizes the recent emphasis of many Catholic bishops on abortion and contrasts it with earlier treatment of social welfare policies and artificial contraception. Dr. Tentler argues that bishops in the first half of the twentieth century “didn’t push a single-issue approach to politics” and “spoke a pragmatic rather than a religious or doctrinal language” that “consistently framed the debate in terms of values that nearly all Americans shared.”

Dr. Tentler’s purpose was not only descriptive, but prescriptive. She seems to believe that a more multi-faceted episcopal role in politics communicated through something like Rawlsian public reason is preferable to the more sectarian privileging of life issues that we see today.

While I am not enthusiastic about clerical pressure on politicians, let me play, to use an inapt phrase, the devil’s advocate. It is not clear to me why bishops ought to invoke their authority and credibility as religious leaders to engage in broad political advocacy using secular arguments. As Dr. Tentler concedes, early twentieth century promotion of what Protestants called the social gospel (which, she says, sounds socialist to a 21st century Republican) “mostly ignored the wealth-generating capacity of the market and policies that might support this.”

Just so. Theology can tell us what values to pursue. One cannot be a Christian and be indifferent to the plight of the poor.

But theology cannot tell us what will best serve those values. There is no reason to believe that bishops will understand the “pragmatics” of social and economic policy by virtue of their episcopal authority. Nor is their any particular reason to believe that they further their pastoral role by engaging in secular argument about public policy.

Life issues may be different – at least when the overriding value is a particular view of the nature and sanctity of human life rooted in revelation and theological reasoning.

Seen in this way, the current episcopal emphasis on abortion (if that’s a fair description) is a more modest position than the earlier approach that Dr. Tentler describes.

Just how aggressive the Church should be in insisting that Catholic politicians follow Church teachings is a topic that has been debated for as long as I can remember (a period that has come to be distressingly long) and I am not sure that I can add anything to on this cold January morning. I am a confirmed opponent of privileged status for public reason and a staunch supporter of political moderation by the church.

But I do think that the Freedom of Choice Act presents the possibility for political total war. The key, it seems, is whether there will be 41 votes in the Senate to block it and how aggressively the administration and pro-choice movement pushes for it. Whatever the outcome, a concerted effort to pass FOCA will energize the pro-life movement in a way that may help GOP candidates in 2010.

At a larger level, potential controversies over abortion, assisted suicide and stem cell research and certain other biomedical developments can’t be dismissed as “childish things” or “wedge” issues designed to take our eye off the economic ball. The Catholic Church supports (often wrongly, I think) much of what might be characterized as a “liberal”position on economic issues, yet insists on a view of the human person that is inconsistent with what seems to be the consensus view of political liberals. This difference will continue to be contentious because it matters.

Cross posted at PrawfsBlawg and Shark and Shepherd.

The prior decision seems distinguishable to me given the statute’s explicit reference to closing for a religious purpose. It’s hard, in light of that, not to see the statute as violating current Establishment Clause doctrines.

These cases tend to turn on some ascription (often fictional) of a religious or secular purpose to the state.  FFRF will have to show that the recognition of the Good Friday holiday has a religious purpose or amounts to an endorsement of Christianity. It may well lose because a court will conjure some secular justification for recognition of the holiday, e.g, that the day also known as Good Friday has become a traditional opening to the spring vacation.

My own view is that there is no sense to this. Spinning some secular justification for what is a religious holiday is unseemly, at best, and disrespectful of the religious tradition in question, at worst. The colleges are recognizing that this is a day with religious significance for most of its employees and is responding to their desire to have that day off.

My own view is that this ought not to raise Establishment Clause concerns. While it may raise an issue regarding accommodation of the religious holidays of other faith traditions, it does not advance or endorse religion in a way that ought to be constitutionally proscribed. A non-Christian suffers some burden because a state facility is closed on a day when the majority is observing a religious holiday, e.g.,  annoyance at the unavailability of certain services or confirmation of one’s minority status.

But this seems to me to be indistinguishable from the harm that religious adherents claim when the state, for secular reasons, acts in a way that is inconsistent with their beliefs and practices. It cannot be prevented in an even handed manner and we ought not to try.

Cross posted at Prawfsblawg and Shark and Shepherd.

Some have read Good News Club (incorrectly in my view) to recognize a distinction between worship and other forms of religious uses. In this paper (forthcoming in the Mississippi Law Journal), I draw on the theology of Christian worship (which I think broadly applies to many other religious traditions) to argue that worship, while sometimes seen as noncommunicative and deliberative, is, in fact, both and ought not to be excluded from broadly defined forums.

Here’s a related question.

Of course, one response to the inability to exclude worship and other forms of religious worship is to close or limit the scope of the forum. That’s apparently what happened here (although the proposed use was not worship). A public library that made its facilities available to the community for a variety of uses refused to make it available to someone who wanted to give what I take to be biblically themed financial planning. They were sued and responded by limiting its facilities to library uses.

I wonder (and I do not pretend to know or even have a view on the matter) whether there ought to be a remedy for this. Is it like Palmer v. Thompson, in which a sharply divided Court rejected a challenge to a town’s decision to close municipal swimming pools rather than integrate them? What if a plaintiff could establish a “discriminatory” purpose? What would that amount to in a case like this? Given that the Court has held that it is viewpoint discrimination to exclude religious uses, does a decision to close a forum for the purpose of preventing a religious use permissible? Or is this case like Locke v. Davey, in which the state can refuse to provide a subsidy to religious uses (something which is hard to reconcile with Good News)?

My instinct is that a municipality can close its forum although I am not sure that many will choose to do so. What is less clear to me is how close a question it can be made to be.

Cross posted at PrawfsBlawg.

The priest’s action against the diocese (alleging, among other things, racial discrimination) was dismissed based upon the ministerial exception. No surprise there.

The charity then sued the Bishop for tortious interference and defamation. As noted above, these claims were also dismissed based upon the ministerial exception. The exception has been applied in contexts other than claims based upon employment. In my home state of Wisconsin, for example, it has been applied to claims for the negligent hiring, retention and supervision of priests who committed sexual abuse.

But should it be applied here? The tortious interference claim seemed easier. The Bishop certainly had a right to order his priest not to raise money for it and certainly should be privileged to tell advise his congregants that they should not donate to it.

But what about the claim for defamation? Should he be privileged to make what were alleged to be false statements of fact about the charity? Does the assessment of whether or not those statements are false really implicate canon law? Doesn’t it depend upon what they were?

Is the idea is that regard for free exercise requires allowing the Bishop breathing space to explain his decision to parishioners or to enforce canonical requirements that fund raising appeals be “truthful and forthright…?” Could that need be accommodated by something like an “actual malice” standard or would the application of that standard result in excessive entanglement?

H/T: Religion Clause Blog

Cross posted at PrawfsBlawg.

In response to the Hines piece, Patrick McIlheran points out an obvious problem. Under current law, it is unclear that schools could effectively incorporate religious perspectives on morality into values education. (There is some room for schools to teach “about” religion, but, in the type of normative education that President Hines is calling for, that distinction — and the lack of clarity about just where it ought to be drawn — would probably preclude any deep inclusion of religious perspectives.)

Marquette alum Tom Foley (the blogger known as “Illusory Tenant”) can’t wait to dismiss Patrick as a “tin pot philosopher,” but he is wrong to do so for at least two reasons.

First, our current notions of disestablishment require neutrality between religion and irreligion and, in the two most frequent doctrinal formulations, forbid the state from advancing or endorsing either. Teaching values and morality while excluding the religious perspectives that believers contend are indispensable to those concepts will almost certainly be perceived by believers as inhibiting religion and advancing or endorsing irreligion. While scholars and courts have, from time to time, suggested that they “should not” have that perception, that suggestion is, in itself, rooted in a particular view of the role of religion in community life.

For that reason, I have argued that neutrality ought not be the sine qua non of disestablishment and, in a forthcoming paper, suggest that there ought to be greater room for religious perspectives in government speech.

Second, while one can discuss values and morality from a secular perspective, it is unclear that the resulting conversation will adequately reflect and develop the values that most of us hold that, whether we believe or not, are rooted (for us in the U.S.) in the Judeo-Christian tradition. One can, I suppose, offer Rawlsian and other secular justifications for values such as equality or personal autonomy, but that is not really how we came to honor them and may not be sufficient to sustain them. While it is too much to say (as some want to do) that an abandonment of religious perspectives will inevitable lead to the secular totalitarianisms that marred the twentieth century, a discussion of values without reference to the grounds in which they are historically rooted would be quite thin and can’t help but alter the way in which we see those values.

There is, even under existing law, some room for values education in public schools and in the delivery of social services. My own sense, however, is that it is inevitable that schools and other governmental bodies will want to move beyond that into areas that are religiously sensitive. Because I believe that it is improbable, in the twenty-first century, that government will refrain (or can be restrained) from intruding on those areas of life with which religion is concerned, there needs to be more room to incorporate religious perspectives.

Cross posted at the Shark and Shepherd.

Ruan posits an inconsistency between the emerging willingness of the Supreme Court to protect religious expression in public spaces (as illustrated by the Ten Commandments cases of 2005) and its rather narrow reading of the requirements to accommodate religious expression in the workplace under Title VII, where employers need incur no more than a de minimis burden to accommodate religious expression and practice.

I am sympathetic to Ruan’s arguments for greater accommodation of religious expression in the workplace. She does a nice job of advancing the notion that religion is fundamental to individual identity, although I would have added, as I have in recent papers, the notion that mandated secular spaces harm religion.

But I want to comment on her claim of an inconsistency between the recent trend toward toleration of religion in the public square and the treatment of religion in the workplace.

She emphasizes the jurisprudence of Justice Antonin Scalia using as an epigraph his statement in McCreary that morality is essential to society and that religion is the best way to encourage morality. She also focuses on the Court’s cases permitting greater religious speech in public, emphasizing McCreary and Van Orden, which involved government speech in the guise of Ten Commandments displays.

I don’t think either emphasis suggests an inconsistency. Scalia does believe that the government may endorse monotheism (although not any particular form of monotheism). But he has not been sympathetic to the claims of religious people to exemptions from generally applicable norms and for special accommodations for religious practice. In fact, he wrote for the Court in the (to many, infamous) decision in Smith holding that the Free Exercise Clause, contrary to the suggestion of earlier cases, required no such accommodations or exceptions from neutral laws of general applicability.

Scalia, then, is, if not correct, perfectly consistent. Government may engage in certain sort of religious speech, but it is not required to and is not obligated to make exceptions from general norms for contradictory religious practices. One could criticize this as overly solicitious of the majority and as insufficiently accommodating of individual conscience, but I don’t know that inconsistency is a particularly telling objection. That Scalia believes that religion encourages morality does not imply that it must be accommodated in areas where the government or those who set the terms for a private relationship believe that it should not be.

Of course, much of the impetus behind Smith’s presumption against required accommodations is the parade of horribles. Once we start, how can we ever end? The universe of potential accommodations is cabined only by the limitations of men and women as to the nature of the ineffable.  In addition, one woman’s request for accommodation might be another man’s act of hostility. If I must wear a button with a picture of a fetus, am I creating a hostile environment for those who do not share my religious views — some of whom may have had an abortion. Ruan attempts to distinguish between respectful and disrespectful expression with, I think, only limited success, although I think she does get at the idea that there is a difference between an expression of one’s own views and an attack on someone else’s.  As she acknowledges, however, there is no bright line.

A more fruitful line of cases (which she cites but does not emphasize) is the Court’s limited public forum cases. They hold that, if the state is to create a forum for expression, it may not exclude otherwise permissible expression because it is religious. Perhaps if employers permit individual expression, they may not exclude expression that is religious.

Part of the problem here is that an employer will inevitably be stuck between the rock of discrimination and the hard place of harassment (I’m eschewing references to Greek mythology this morning). The inevitable response to being placed in that kind of a trap is to avoid hiring people who will create it. That’s not what we want.

I am sure that I have not done Professor Ruan justice in this brief response. It’s a good article. Read it.

My final post is, in fact, the abstract of a piece I have just posted to SSRN. Earlier this year, you may have seen that Fordham’s law school received some heat from Edward Cardinal Egan, Archbishop of New York, for its decision to confer an award on pro-abortion Justice Stephen Breyer.  The story led me to do some investigating, drawing in part on my own experiences as a Marquette student, and voila, an essay emerged. I hope to begin shopping it around to law reviews in the spring submission season.

Here’s the abstract:

In the fall of 2004, the U.S. Conference of Catholic Bishops promulgated a statement titled Catholics in Political Life , which included this provision: “The Catholic community and Catholic institutions should not honor those who act in defiance of our fundamental moral principles. They should not be given awards, honors or platforms which would suggest support for their actions.”

Since the statement’s adoption, a number of Catholic institutions, including law schools at Catholic universities, have issued invitations to speakers and honorees who are pro-abortion or pro-gay marriage. In several instances, the local bishop gave a public or private rebuke to the law school for doing so. These episcopal criticisms often lead to a news story and an outcry from students, alumni, and area Catholics, bringing further embarrassment to the school.

My hope is that this essay will help law school deans and other university administrators navigate the tensions inherent in making these invitations, all with an eye on avoiding awkward situations. The essay begins by recounting the history of the statement’s passage by the USCCB. It then collects a number of examples where bishops and universities have clashed over invited speakers and honorees. Finally, it offers lessons for law school deans, urging them to pursue dialogue with stakeholders before making invitations that could come within the statement’s scope.

Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1 (2008) (SSRN version here).

Scott A. Schumacher, MacNiven v. Westmoreland and Tax Advice: Using Purposive Textualism to Deal with Tax Shelters and Promote Legitimate Tax Advice, 92 Marq. L. Rev. 33 (2008).

Michael W. Loudenslager, Giving Up the Ghost: A Proposal for Dealing With Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (2008).

Barbara O’Brien & Daphna Oyserman, It’s Not Just What You Think, But How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making,  92 Marq. L. Rev. 149 (2008).

Joan Shepard, Comment, The Family Medical Leave Act: Calculating the Hours of Service for the Reinstated Employee, 92 Marq. L. Rev. 173 (2008).

Charles Stone, Comment, What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes Towards What the West Calls Intellectual Property, 92 Marq. L. Rev. 199 (2008).

Congratulations to the student editors of Volume 92 for the successful completion of their first issue!

During the second semester of my 3L year, I wrote a paper for my Non-Profit Law class, taught by Profs. Werner and Boynton, evaluating which category fits the ELCA. I have since taken the paper, lengthened it, updated it, beefed up the footnotes, and submitted it for publication. It will be coming out this spring in the Texas Review of Law & Politics. For the moment, however, I have posted the working draft on SSRN. If you’re looking for some light reading on your train ride home for Christmas break, I’d appreciate any thoughts or improvements you might suggest. The paper is titled, “On the Freedom of a Congregation: Legal Considerations When Lutherans Look to Change Denominational Affiliation.”