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Saturday, September 05, 2015

God's authority, religious accommodation, and civil judges

Following up on Howard's and others' posts on the Kim Davis matter:  About 25 years ago, I remember being disappointed that some of then-Judge Clarence Thomas's critics insisted they were nervous about -- or, in some cases, were simply snarky about -- statements and writings of his regarding the importance and relevance of the natural law.  It seemed to me at the time (and still does) that there was nothing particularly remarkable or weird about these views, considered in the broad context of the American legal and political traditions.  But, again, for some of Thomas's critics -- including, interestingly, some of the same people who had, a few years before, professed concern about Judge Bork's statements against the relevance of the natural law -- the fact that Judge Thomas (like Dr. King, etc., etc.) believed that the natural law is real and relevant was thought to be worrisome.

It is similarly disappointing, to me, that some of those (not here!) criticizing Kim Davis's refusal to issue marriage licenses are doing so on the ground that she is not only required by her job description but also -- again, to hear some argue it -- by foundational principles of political morality to comply with every duty imposed on her by the positive law, regardless of any conscientious or religious objections to compliance she might have.  This seems too strong.  I think we can all think of fairly recent instances in which officials have declined to comply with what seemed to be the positive law duties attached to their offices and avoided the kind of condemnation that Davis has been attracting.  

This piece, by Robert Barnes, provides a helpful overview of at least one aspect of the debate ("Legally, 'God's Authority' Is a Tough Issue.")  I spoke with Mr. Barnes -- who is, I think, an excellent reporter on legal and constitutional matters -- for a little while yesterday.  At one point in the piece, I'm cited in the following way:

. . .  Such compromises can be difficult to find. Appeals to “natural law,” and morality, as Davis and Bunning discussed Thursday, are difficult for a judge to assess, said Richard Garnett, a Notre Dame law professor who specializes in religion and the law. . . .

The citation is accurate. It seems to me that, generally speaking, an official who objects on moral grounds to carrying out a positive-law duty should recuse herself or resign (and not refuse to comply with a court order or injunction).  That said, my observation about the difficulty any secular/civil judge faces in dealing directly with a claimant's invocation of natural law came in the context of a broader (and fun) conversation in which, among other things, I said that I see nothing spooky or innovative, in the American tradition -- nothing requiring scare-quotes -- about invoking higher-law standards in the course of morally evaluating the positive law.  As I discussed with Mr. Barnes, it seems to me that a large part of the human-rights enterprise has involved precisely (even if not always overtly) this kind of evaluation.  I believe that the natural law is real and morally binding and that it is entirely appropriate for citizens to do what we reasonably can to make it the case that positive law and policy are consonant with (which, of course, does not mean they should fully capture) the natural law.  In other words, to criticize Davis simply for invoking a higher-law standard is, I think, misguided, even if, in the end, we think that Judge Bunning's rulings are correct. 

Prof. Mark Rienzi, who is also quoted, put things pretty well: 

It is better to base legal arguments on constitutional protections and statutes such as the Religious Freedom Restoration Act, said Mark Rienzi, a Catholic University law professor who is fighting the contraceptive mandate but is not involved in the Davis case.

Judges may have their own ideas of morality, he said, “but I don’t think any of them have the authority to enforce their own moral preferences.”

Posted by Rick Garnett on September 5, 2015 at 12:56 PM | Permalink

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