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Michael Kinsley’s Confusion

Thu, 01 Dec 2011 00:01:00 -0500

Michael Kinsley’s recent Bloomberg View column, which appeared in the Philadelphia Inquirer as “Bishops are not exactly oppressed” (Nov. 23), makes a number of basic mistakes concerning law as it relates to religious freedom that we, as lawyers and law professors, wish to correct.

Kinsley begins by usefully calling attention to the recent warnings by Archbishop Timothy Dolan of New York and Archbishop Charles Chaput of Philadelphia that there is a drive by some to marginalize religion. Honest observers can no longer blink what Dolan, Chaput, and other religious voices have warned against for years: our law and culture are increasingly hostile to the possibility of living out one’s faith. Civil authority is finding more and more excuses to interfere in the life of believing communities.

As Archbishop Chaput recently observed, in a speech from which Kinsley quotes: “In the years ahead, . . . we’ll . . . also see less and less unchallenged space for religious institutions to carry out their work in the public square. It’s already happening with state pressure on Catholic hospitals and adoption agencies, in lawsuits attacking the scope of religious liberty, federal restrictions on conscience protections, attacks on charitable tax deductions and religious tax-exempt status, and interference in the hiring practices of organizations like Catholic Charities.” There is less religious liberty today, not more. There is no honestly denying it. The alternatives are to ignore it or to justify it. Kinsley tries to do both.

Kinsley’s first move is to counsel, “Don’t worry.” The presence of six Catholic Justices on the United States Supreme Court, he suggests, will surely guarantee the rights of Catholics and others to religious freedom. Catholics are not so crafty and lawless as Kinsley suggests, however. In a 1990 case, Employment Division v. Smith , the Supreme Court, in a majority opinion written by Justice Antonin Scalia, an ardent Catholic, held that the Court had little or no jurisdiction to create First Amendment-based exemptions to neutral laws of general applicability that might in practice burden or bar religious practice. In sum, our Constitution as currently interpreted leaves it almost entirely to the political process”to Congress and state legislatures”to determine the scope of religious liberty, and legislatures are increasingly stingy when it comes to freedom of religion. Kinsley’s first error of law, then, amounts to the demonstrably false claim that Catholics on the Supreme Court will be reliable judicial activists on behalf of religious liberty.

Kinsley’s second error is more subtle and insidious. Kinsley writes that the “spheres [of church and state] aren’t separate and needn’t be.” From this it follows, according to Kinsley, that “the church, like any citizen or institution,” has a right to take positions on law and politics, and use its persuasive power to influence public officials and the electorate as vigorously as possible. And from this it follows finally, according to Kinsley, that when the Church fails to persuade, “the Church cannot then complain””it had its chance, and failed.

The error in this is the idea that laws are valid, indeed beyond reproach, when they emerge from democratic processes and a marketplace of ideas. But everyone’s having had a “voice” in lawmaking does not guarantee good law. Majorities sometimes make laws that deny basic and important freedoms, and American history is replete with examples of this point.

What Kinsley refers to as the Church’s “complaining” is, more realistically, the Church’s contemporary witness to the widening failure, including on the part of the U.S. Supreme Court, to require or even allow law to be based on adequate moral reasoning and respect for religious views. Kinsley closes with a rhetorical ploy that reveals his hand: “One of the social developments that the bishops are most upset about is gay marriage . . . . on gay marriage, the church could have gone either way.” Those who understand the Christian moral tradition won’t have so easy a time of it as Kinsley does.

But Kinsley does have something of an unfortunate legal anchor here. As long as our fundamental enacted law confers a constitutionally enforceable right to a revisable and plastic self and a constitutionally permitted marginalization of religion, Catholics and others will have good ground to call for better law. And so they will. What Pope Benedict XVI said to a group of American bishops in Rome recently establishes that the issue is not complaining bishops, it is the Catholic witness: “The seriousness of the challenges which the Church in America, under your leadership, is called to confront in the near future cannot be underestimated. The obstacles to Christian faith and practice raised by a secularized culture also affect believers.” The issue is, instead, the witness of Catholics and other Christians to a culture whose laws increasingly threaten the possibility of religious belief.

Patrick McKinley Brennan is the Associate Dean and John F. Scarpa Chair in Catholic Legal Studies and Michael P. Moreland is Associate Professor of Law at the Villanova University School of Law.

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Michael Kinsley, Bishops are not exactly oppressed

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The Forms Behind the Laws

Fri, 01 Apr 2011 00:00:00 -0400

Ministers of the Law
by Jean Porter
Eerdmans, 368 pages, $30

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Bologna Revisited

Fri, 14 Aug 2009 09:00:00 -0400

What is the mission of a Catholic law school, and how do we achieve it? Fr. Michael Buckley’s book The Catholic University as Promise and Project sets out”very artfully, to my mind”the ecclesial context in which lawyers in Catholic universities should think about the religious dimensions of the institutions they are, willy-nilly, building up, tearing down, or neglecting, as the case may be. The title of the book also helpfully suggests the proper method in exploring this vital issue. “Promise and Project”: The promise must be specified before the project can have a chance of succeeding.

Lest this exploration remain, as they say, at the level of abstraction, let me make a concrete claim my point of departure: Erie v. Tompkins (1938) was wrongly decided. On the surface, the issue in this landmark case concerned the body of the law on which a federal (as opposed to a state) court should reach its judgment. The Supreme Court of the United States held in Erie that the lower federal courts had erred when they decided liability in this tort case according to what had long been known as “general law” or “common law.” In deciding according to such law, the lower courts had dutifully followed the venerable case of Swift vs. Tyson (1842), in which the Supreme Court established the federal statutory duty of federal courts, when deciding cases in which there was neither federal law nor state statute law on point, to decide cases according the federal courts’ own judgment of what the general law was or should be, even to the point of ignoring the state supreme court’s holdings as to the general law in that state. According to Erie , however, the lower courts should have decided according to the “local” law of Pennsylvania, the state in which the incident in question occurred.

Right below the surface of this apparently arcane dispute was the all-important question of whether general law is, as it had been thought for millennia to be, truly law . Writing for the majority, Justice Brandeis declared the coming theory of law by quoting from the gold standard of twentieth-century American jurisprudence, Mr. Justice Holmes: “[L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it . . . . The authority and only authority is the State.” The general law stretching back to the time, indeed to the very language, of Cicero turned out, at a stroke of the Brandeisian-Holmesian pen, not to be law at all, for it lacked the authority of a modern state. No state, no law.

Heavens. Lurking in the midst of a technical disquisition on the law to be followed by federal courts is a theory of the City of Man, in other words, of man, the state, and who is God. My sampling, moreover, confirms that many who teach Erie today do so more or less in the spirit of Judge Henry Friendly, who waxed rhapsodic in his famous essay “In Praise of Erie ”: “[ Erie ’s] complementary concepts . . . seem so beautifully simple, and so beautifully simple, that we must wonder why a century and a half was needed to discover them, and must wonder even more why anyone should want to shy away once the discovery was made.”

Thus Friendly. But can a Catholic say amen to that, at least not without hesitating long and then doing a lot of distinguishing?

In answer to Friendly I can suggest a number of reasons to shy away from Erie ’s logic, the chief of these being enthusiastic commitment to the jurisprudential method Judge Noonan identifies as “the preferred approach of that nascent and vigorous Catholic culture” that was born in Bologna in the mid-twelfth century. This approach, which consisted of “collecting authorities, critically comparing them, and challenging their conclusions” is not a quaint foreign tradition of merely academic interest, but is in fact “a common Anglo-American patrimony.” It was this patrimony that Louis Dembitz Brandeis and those for whom he spoke wished to discredit and demolish.

Let me be clear. I do not suggest that there exists “a Catholic position” on Erie . No straight line runs rail-like from Nazareth to the exact source of the liability in tort, if any, of the Erie Railroad Co. The Catholic tradition of reflection on the City of Man, however, raises questions that might lead to different results from a jurisprudence according to which law is all and only what the civil authority declares. Specifically, the method from Bologna assumes that there exists”or, to assert the point denied by the jurisprudence of Erie , there should exist”a ius commune , that is, a truly common law that transcends the acts of legislatures or even the decisions of courts within particular jurisdictions.

Yet how many experts in Federal Courts have even heard of the ius commune ? Some, but not enough. How many contemporary law professors are in control of the “method of collecting authorities, critically comparing them, and challenging their conclusions?” Some, but most people today live in flight from authority and authorities. In order not to be insufficiently provocative, I would add that textualism, too, though championed by great jurists whom I respect, is in derogation from the best of the legal tradition I have in mind. The principal announced aim of the textualism advocated by Justice Scalia is to keep things simple, yet things were acknowledged as far from simple at Bologna. But these are just examples, which could be multiplied, and none of them is dispositive of the more basic point: Catholics sometimes ask different questions and, therefore, sometimes reach different answers.

With this in mind, we can return to our main question. What is the mission of a Catholic law school, and how do we achieve it? Judge Noonan asserts that “the law studies are the same whatever the denominational label of the school,” but I suggest that, in limning the distinctive Bolognese tradition, he himself to some extent contradicts this assertion. After all, the Civil Procedure lecture that challenges Erie on Bolognese grounds is fundamentally different from the one that rhapsodizes with Judge Friendly. Bolognese students-become-judges might well feel compelled by elementary legal logic to overturn Erie . And, short of such a radical shift in pedagogical perspective, there is at least the possibility that law students will be given the opportunity to discover the Bolognese dialectical method.

But how will students be able to make this discovery? Here I shall be blunt: Personnel is policy. On this point, Noonan is incisive:

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To Beginning Law Students

Sun, 01 Dec 2002 00:00:00 -0500

Regardless of what each of you has come to law school to do, allow me to suggest a complementary or perhaps an alternative aspiration: take these three years to learn how to do law well; even more, learn that the point of doing law well is to do good; still more, learn that doing good through law is about using power to achieve love’s ends. “The central problem of the legal enterprise,” Judge John Noonan has suggested, “is the relation of love to power.” Rather than of love, we could talk today about this or that, just as we can use the power of law for this or that, for good or for evil, for life or for death. Let us, rather, talk and think about what place law has in love and love has in law.

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