The Peace Cross Case: Has The Court Soured on Lemon?

In The American Legion v. American Humanist Ass’n, Nos. 17-1717, 18-18, argued February 27, 2019, the Supreme Court will decide whether the “Peace Cross” erected in 1925 in Bladensburg, Maryland, as a memorial to 49 soldiers who died in World War I violates the Establishment Clause. The cross is 40 feet tall, is made of stone and concrete, and was erected at a busy intersection. At its base, the words “Valor, Endurance, Courage, Devotion” appear on its four sides, with no religious language on any portion of the monument. At its center, the monument has a large American Legion symbol, identifying the monument’s sponsor.

In the Fourth Circuit decision below, the Court of Appeals found a violation of the Establishment Clause based upon the highly-critized three-part test set forth in Lemon v. Kurtzman (1971). That test inquires if legislation or state-sponsored activity (1) has a secular purpose, (2) whether its primary effect is to advance or inhibit religion, and (3) whether there is “an excessive government entanglement with religion.” The Fourth Circuit found that the average person would believe that the Peace Cross endorses the Christian religion, and thus violates the Establishment Clause.

Based on the oral argument in the Supreme Court, it appears that the likely result will be that the cross is found not to violate the Establishment Clause because it is a 93-year-old war memorial which was erected at a time when there was not as much religious diversity as there is today.

While the Lemon case may not be the basis for the ultimate decision, it nevertheless received significant attention, particularly from the court’s newest members. Justice Gorsuch twice referred to the Lemon tests as a “dog’s breakfast,” and noted that it had been a long time since the court applied it, leading to what he termed “a welter of confusion.” He then asked “Is it time for this court to thank Lemon for its services and send it on its way?”

Justice Gorsuch added that a majority of the justices, at different times, have “advocated for Lemon’s dismissal.” Indeed, Justice Scalia was a long time opponent of the Lemon test. See, e.g., Edwards v. Aguillard (1987) (arguing that abandoning Lemon would be “a good place to start” to get “clarity and predictability”); Lee v. Weisman (1992) (contending that the failure to rely on Lemon represented “the internment of that case” and “the one happy byproduct of the Court’s otherwise lamentable decision.”)

Justice Kavanaugh also criticized Lemon at the Peace Cross argument, noting that the lower courts needed clarity in this area. He questioned the American Humanist Association lawyer who argued that the Lemon precedent was useful, stating “How could it be useful when we haven’t used it in the most important cases that are on point here? ”

While Neal Katyal, who argued for the American Legion, lectured Justice Gorsuch that, if he was concerned about Lemon, this was not the proper case to rule on its continuing viability, Justice Kavanaugh later questioned “What if we think it’s unconstitutional under Lemon? What is your view then?” Katyal replied that, in that case,”you should take a look at Lemon because then it would be necessarily presented.” That response was met with laughter in the court.

Given the many comments by several justices suggesting that the case could be decided on the basis of upholding historic monumental use of crosses, and considering Chief Justice Roberts’ favoring of narrow decisions avoiding constitutional rulings, this may not be the case where Lemon finally, in the word of Justice Scalia, is given its “internment.” Nevertheless, given the critical comments made by Justices Gorsuch and Kavanaugh, I would not be surprised to see a concurring opinion authored by Justice Gorsuch, and joined by Justices Kavanaugh and Thomas, and perhaps even by Justice Alito, calling for Lemon to be overruled.

Posted in constitutional litigation, Supreme Court, Uncategorized, United States Constitution | Tagged , , , , | Comments Off on The Peace Cross Case: Has The Court Soured on Lemon?

Governor Northam and the Democrats’ Double Standard

Ralph Northam, the governor of Virginia, has been the subject of two major controversies lately. First, in commenting upon a proposed Virginia law which would expand the time in which a woman could obtain an abortion up to the time of birth in certain circumstances, a law which he supported, Northam commented that the law would permit a woman, with the approval of her doctor, to permit a baby born alive to be left alone to die. Second, he was assailed as a racist for pictures which appeared in his 1984 medical school yearbook on his homepage. These portrayed one man in blackface, standing next to another man clothed head to toe in a Ku Klux Klan robe and hood.

The reaction to his comments on the proposed abortion law was almost universally negative, particularly among the public at large. The comments were widely seen as condoning infanticide. Conspicuously, however, the overwhelming majority of Democratic politicians went silent on this controversy. Indeed, Democratic politicians across the country have been supporting legislation which, like New York’s recent enactment, permit abortion up to the moment of birth. Support for abortion has become not only a litmus test for Democratic candidates but indeed almost a sacrament in their secular theology. Professor Peter Kreeft has observed that the pro-abortion slogan “This is my body,” mimics the Eucharistic prayer of consecration in the Catholic Church.

By contrast, Democratic politicians across the country, including his own state, Virginia, have called for Northam to resign based upon the racist photographs in his medical school yearbook placed on his specific page. Support for abortion expansion is encouraged and expected for Democratic politicians, but any perception of racism is fatal for both for candidates and incumbents. What the calls for the governor’s resignation fail to consider is how he has conducted his public and private life in the nearly 35 years since his medical school graduation. This should be the relevant inquiry. While Christianity and most other religions recognize the ability of the sinner to repent, to turn his or her life around, and to be readmitted to the community, the secular religion of Democrats takes a different stance. Democrats are modern day Donatists, adherents to an early Christian heresy which taught that Christians who had renounced their religion under Roman persecution could not be readmitted to the sacraments.

If this rigorous template persists, the Democratic Party is likely to be fractured. Consider, for example, that some 20 to 25 Democrats have either announced their candidacy for the presidency in 2020, or are considering doing so. If there is no political statute of limitations for condemned conduct happening many years before, it can be expected that many of these candidates will use opposition research to unearth positions taken by their primary opponents which may have been acceptable then, but are politically incorrect now in their orbit. Thus, statements against same-sex marriage, or transgenderism, or favorable comments about capitalism, Goldman Sachs, Republicans, or incarceration of criminals, will be wielded as axes to cut down candidates such as Joe Biden, Cory Booker, and Kamala Harris, as well as others.

I am reminded of the old adage that the difference between Democrats and cannibals is that “cannibals don’t eat their own.”


Posted in American Politics, Politics, Uncategorized | Tagged , , , , , | Comments Off on Governor Northam and the Democrats’ Double Standard

Can Antitrust Control Amazon, Facebook, and Google?

Technology today exists in highly concentrated markets, dominated by a few industry titans. Most notable among these are Alphabet (the parent company of Google), Amazon, and Facebook. Consider a few statistics. In retail, Amazon sells virtually everything. Starting with books, it has extended into food, appliances, electronics, footwear, household goods, sportswear, cloud storage, movies, and virtually any other product any  consumer might wish to have. Much of Amazon’s dominance has come through 91 corporate acquisitions. Two of the most notable are Whole Foods in grocery, and Zappos in footwear. Amazon is the second largest U.S.-based corporation, measured by market capitalization. Its founder and chief shareholder, Jeff Bezos, is the world’s richest man, and has himself acquired many companies in the electronics and robotics fields. In addition, he controls the Washington Post, a major source of news for the American consumer.

Facebook is the dominant force in social media. It is the fifth largest U.S.- based corporation, measured by market capitalization. Its market domination has been fueled by acquisitions, most notably of Instagram and WhatsApp. In total, according to Professor Tim Wu, a Columbia Law School professor, it “managed to string together 67 unchallenged acquisitions.” Moreover, its CEO, Mark Zuckerberg, is the fifth wealthiest person in the world, according to Forbes.

Google, Professor Wu tells us, “got away with 214” acquisitions, including YouTube and Waze. Google dominates the important area of electronic searches, and its parent company, Alphabet, is the third largest American corporation by market capitalization. Its co-founders, Larry Page and Sergey Brin, are, respectively, the 12th and 13th wealthiest individuals in the world.

As already noted Facebook and Google were able to extend their respective market dominance by acquiring actual or potential rivals. Especially significant were the acquisitions of Instagram and WhatsApp by Facebook. Many market analysts viewed these as major corporate rivals to Facebook in the messaging area. One business analyst, Nicholas Carlson, pointed out that Instagram “allows people to do what they like to do on Facebook easier and faster.” These two acquisitions gave Facebook control over three of the largest messaging services in the world, with a combined total of more than 2 1/2 billion users. Recently, Facebook was discovered to have plans to integrate all three of these messengering services.

Google, in turn, having had a weak entry into the video space with its Google Video, decided to acquire YouTube, its much larger competitor in this area.

Where was antitrust when all this was happening? As Professor Wu and others have pointed out, the regulators declined to oppose these mergers. Why? As these commentators have noted, antitrust has shifted, under the influence of the Chicago School of Economics and Professor and Judge Robert Bork, from an emphasis on  market concentration and protection of competition, to one on consumer welfare, based on the impact of a particular acquisition on the prices of the products or services implicated.

Even more difficult for antitrust are those mergers, typified by Amazon’s purchase of Whole Foods, which permit corporations with market dominance in one or more areas to enter other areas. Since there were many other national grocery store chains in that space, as well as WalMart’s entry, it was difficult to conclude that Amazon’s acquisition of Whole Foods would itself substantially lessen competition among grocery chains.

Given these obstacles in current antitrust theory, what then is antitrust to do regarding further market concentration and individual firm dominance over important areas in technology? There are several ideas that have been suggested.

  1. Litigation seeking to break up a dominant corporation.

Harking back to the famous Standard Oil litigation, commentators have pointed out that big case litigation seeking to break up a dominant firm has been successful in fostering competition in the past. The AT&T and Microsoft litigations are more recent cases in point. Professor Wu notes that the AT&T litigation permitted new technologies to develop, including online and internet service providers, while the Microsoft case permitted new web browsers to emerge, giving space for Google’s search engine. Indeed, one of the lawyers in the Microsoft case observed that “The trial is the remedy.”

Even where these litigations did not result in a break up order, they nevertheless had important anti-concentration results. The IBM litigation shows this, because IBM stopped much of its anticompetitive conduct, permitting the emergence, as Professor Wu tells us, of independent software, personal computers, and of rivals like Apple and Microsoft.

This approach of break up litigation would work best in the context of Facebook’s acquisition of WhatsApp and Instagram, acquisitions which many commentators have pointed out should have been challenged because of their impact on actual or potential competition in the social media area.

2.  Revivifying old antitrust precedent.

A number of commentators have called for a return to older antitrust precedent. Those cases focussed on market concentration and the protection of competition (not of competitors), rather than on the resulting pricing to the consumer. Thus, if pricing is the focus, Amazon can defeat most attempts to bar it from making a particular acquisition, noting that the prices of books and other commodities it sells are typically, but not always (think of books of small publishers or products of smaller manufacturers), lower than other participants are charging in the relevant markets.

3.  Legal presumptions.

Yet another approach would be to legislate certain presumptions which would put the burden of proof on a dominant corporation to justify a new acquisition. The Federal Trade Commission could hold hearings to develop a standard, based upon such measures as market capitalization or sales volume, which would trigger a presumption against further acquisitions by corporations which hit that size.

The prospects of these three companies becoming so powerful that they eliminate virtually all potential competition in the fields over which they dominate; threaten the privacy of their users; and even have the potential power to corrupt the political process, also suggest that legislation or rulemaking to flesh out what constitutes unfair methods of competition or proper merger analysis should be seriously explored.

References:

Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018)

Mike Isaac, “Zuckerberg Plans to Integrate WhatsApp, Instagram and Facebook Messenger,” New York Times, January 25, 2019.

David Streitfeld, “Amazon’s Antitrust Antagonist Has a Breakthrough Idea,” New York Times, September 7, 2018.

Lloyd Zingales, “Should We Regulate Big Tech?”, Imprimis, November 2018.

Posted in Antitrust Litigation, Business Litigation, Economics | Tagged , , , , , , , | Comments Off on Can Antitrust Control Amazon, Facebook, and Google?

John of Capistrano: Lawyer, Governor, Warrior Priest

Saint John of Capistrano (1385-1456) was born in that city in Abruzzi, the son of a German-born Knight. His early career resembles that of Saint Ambrose. John studied at the University of Perugia, attaining degrees in both church and civil law. After graduation, he practiced law in the courts of Naples. He was well-regarded and was appointed governor of Perugia while he was still in his twenties.

In the course of attempting to end a regional war as a negotiator, he was imprisoned by enemy forces. During his captivity, he experienced a vision of Saint Francis, and radically changed his life. It is reported that in reparation for his sins, he chose to humble himself by riding backwards on a donkey, wearing a cap made of paper on which he wrote his gravest sins in a script all could read.  After his marriage was annulled, he entered the Franciscan Order, learning how to preach from Saint Bernardine of Siena, who had a special devotion to the Holy Name of Jesus. John was an ascetic, walking barefoot, wearing a hair shirt, sleeping little, and practicing a regimen of extreme fasting. Contemporary accounts described him as “a man small of body, withered, emaciated, nothing but skin and bone, but cheerful, strong and strenuous in labour.”

Saint John became a noted preacher, drawing hundreds of people to his sermons. After one sermon, it is claimed that 100 who heard him preach sought to enter the Franciscans.

He was a warrior for God, both figuratively and literally. Figuratively, he preached strongly against the heresies of his time in Italy, Germany, Austria, Hungary, Poland, Bohemia, and even Russia. He was named Inquisitor for Italy, Hungary and Bohemia. He was also commissioned by the Pope to preach a crusade against the Turks, who were then invading eastern Europe. Literally, he helped recruit and lead some of the Christian soldiers, mostly peasants, against the Turks in the Battle of Belgrade in 1456, armed only with a standard bearing the Holy Name of Jesus. He also served as a diplomat for the papacy, including service at the Council of Florence, which sought to, and temporarily was successful in, healing the rift between the eastern and western churches.

Saint John died on October 23, 1456, shortly after the successful defense of Belgrade, as a result of an epidemic which struck the area. His feast day is on the anniversary of his death, having been moved from the prior date of March 28. He is the patron saint of military chaplains. The mission and town of San Juan Capistrano in Orange County, California – famous for the return of the American cliff swallows each Spring – was named after him by his Franciscan Brothers in 1776, one of whom was Junipero Serra.

 

 

 

 

 

Posted in Catholicism, Lawyer-Saints, Religion | Tagged , , , | Comments Off on John of Capistrano: Lawyer, Governor, Warrior Priest

Charles Borromeo: Catholic Reformer

The name of Charles Borromeo (1538-1584), a Catholic saint, is often associated with seminaries, and, indeed, the seminary in Philadelphia which was visited by Popes John Paul II and Francis is named after him. But Borromeo should be remembered not only for his work in fostering the establishment of seminaries, but also for the many other things he accomplished in his short life as a prominent member of the Catholic Counter Reformation, along with such saints as Francis de Sales and Philip Neri.

Borromeo was born to a pious and aristocratic family with close connections to the Catholic hierarchy. His uncle became Pope Pius IV in 1559. The new pope was a Medici, as was Charles’ mother, and he named his nephew a cardinal when Borromeo was only 22 years old. Borromeo had by then completed his studies in civil and canon law at the University of Pavia, attaining a doctorate in those fields, but had not then been ordained to the priesthood. His uncle gave him many administrative responsibilities, at which he excelled, and Borromeo spent six years in Rome where his closest friend was Philip Neri. Those two future saints followed an ascetic lifestyle, and Borromeo began a lifelong practice of almsgiving. While in Rome, he also established a Carthusian monastery and a college for poor students at the University of Pavia.

At the age of 25, Borromeo employed his administrative expertise to organize the last session of the Council of Trent. That highly influential council responded to the Protestant Reformation with many new initiatives, including, among others, teachings and definitions on the Eucharist, Holy Orders, and Matrimony, the foundation of seminaries to train priests, the requirement that priests wear cassocks and reside in their dioceses, formation of a universal catechism, and revision of the Roman Missal and Divine Office.

After his service in Rome concluded, Borromeo moved to Milan, where he spent the last 18 years of his life. He served as Milan’s Archbishop and Cardinal for 20 years, and he was the first such prelate to live in that city in 80 years. He preached reform and taught the Catholic Faith all over the diocese, walking, some times in bare feet, to towns that had not experienced an apostolic visitation for hundreds of years. His reforms were not always popular, and a member of a religious order affected by those reforms shot him. When his vestments deflected the bullet, the people of Milan saw it as a miracle and gave him even greater support.

Borromeo had a great devotion to three saints, two of whom were martyrs remembered for their opposition to the kings of their time. Borromeo kept pictures of  the martyred Thomas Becket and John Fisher in his residence, and also had a great devotion to Saint Ambrose. He also supported the reform orders, including the Franciscans and Carmelites, and served as visitor of those orders and of the Knights of Malta, a lay religious order devoted to defending the Catholic Faith and serving the sick and the poor.

He was in contact with other lights of the Catholic Counter Reformation, and the future English martyr and saint Edmund Campion visited Borromeo in Rome for eight days before he returned to England.

As he had done from his earliest days, Borromeo spent virtually all his considerable wealth in almsgiving and care for the poor. When a plague broke out in Milan, he remained in the city through the entire two-year outbreak of bubonic plague from 1576 to 1578.

Cardinal Borromeo had a great interest in Church architecture, and composed a treatise applying the teachings of the Council of Trent to the design of churches. Among other things, he favored removal of the screen (“rood”) which blocked the congregation from the altar, replacing it with an low altar rail. He also suggested a direct line of sight from the church entrance to the tabernacle, and a high dome meant to evoke the journey to heaven in the eyes of the faithful. Borromeo also favored a separate church space for what we now call confessionals, enclosing the penitent to respect his or her privacy.

Borromeo died from a fever in 1584 at the age of 46, weakened from his continuous practice of asceticism. Evelyn Waugh described Borromeo in his later years as “living in ascetic simplicity, among the lavish retinue, eating his thin soup, sleeping on his folding bedstead, wearing his patched hair shirt, moving with halting gait, chilly even in the height of summer, speaking in a voice so subdued that it was barely audible, [and] grave and recollected as a nun.”

Borromeo was canonized in 1610 by Pope Paul V. His feast is commemorated on November 4, and he has been named patron saint of seminarians.

It is said that God raises up saints in times of crisis. The Catholic Church, in particular, needs such new saints today, to reform the church and especially to protect victims of priest abuse, including the seminarians for whom Charles Borromeo serves as patron saint.

Further Reading:

See Chapter 6 of Jerome K. Williams, True Reformers: Saints of the Catholic Reformation (Augustine Institute, 2017), on which I have relied for this post.

The quote on Borromeo’s asceticism from Evelyn Waugh appears on page 94 in his Edmund Campion: A Life (Ignatius Press, 2005), on which I have also relied.

On Borromeo and church architecture, see Elizabeth Lev’s wonderful How Catholic Art Saved the Faith: The Triumph of Beauty and Truth in Counter-Reformation Art (Sophia Institute Press, 2018), at 19-22, 44-47.

Posted in Catholicism, Lawyer-Saints, Religion | Tagged , , , , , , | Comments Off on Charles Borromeo: Catholic Reformer

The Law Professor Who Became a Saint

Few law students would think of any of their professors as saints. Nevertheless, one such professor did attain the status of sainthood. His name was Turibius of Mogrovejo, and he was born in Spain to a prominent family in 1538. Too few know of the remarkable story of this holy lawyer made bishop.

Turibius graduated with a law degree from Spain’s celebrated University of Salamanca, and spent many years at his alma mater teaching law. While teaching law, he was named by King Philip II chief judge of the ecclesiastical court of the Inquisition in Granada. In 1581, Turibius was tapped against his will to be the Archbishop of Lima, Peru, a mission territory. In their Lives of the Saints, Alban Butler and Herbert Thurston explain that “he seemed to be the one person who had force of character sufficient to remedy the serious scandals which stood in the way of the conversion of the Peruvians.” Like Saint Ambrose, Turibius was then a layman, and was quickly ordained a priest and bishop before he undertook the lengthy boat trip to Peru, landing some 600 miles from Lima.

The Archdiocese was comprised of approximately 170,000 square miles, and was then experiencing both secular and clerical scandals. Turibius spent 26 years in Peru, during which time he made three lengthy walking visitations of the entire diocese, teaching the native population, whose cause he championed against repression and discrimination, as well as the Spanish settlers. In his visitations, he learned the natives’ languages, and baptized about half a million souls, including future saints Rose of Lima and Martin de Porres. He also began the first seminary in the Americas, reformed the clergy, held councils of the priests and other bishops in his diocese, arranged for the construction of schools and hospitals,and gave alms to the poor and needy, often going without food himself.

Turibius died at the age of 68 during his third visitation of the diocese, after traveling for some 14 months. He was canonized by Pope Benedict XIII in 1726, and his feast day is celebrated on March 23. Cardinal Pietro Ottoboni commissioned a painting of the new saint, The Miracle of Saint Turibius of Mogrovejo, by Sebastiano Conca. The painting is now housed in the Vatican Museums in Rome. It celebrates a miracle attributed to Turibius in which he struck a dried up riverbed which was critical for the water supply to a town. The waters immediately began to flow in the shape of a cross.

Posted in Catholicism, Lawyer-Saints, Religion | Tagged , , , , , | Comments Off on The Law Professor Who Became a Saint

How to Spot a Faithful Theologian

Social media today is ablaze with the conflicting views of professional theologians on important matters of faith and morals. How is a faithful believer to determine who is right? Of course, our own personal studies of these important matters, fortified by our faith traditions and teachings, is the key. These studies may be supplemented, however, by looking at the personal qualities of the professional theologians who choose to opine on issues of faith and morals. What should a faithful believer look to in making such an analysis?

In his excellent book, A Little Book for New Theologians (IVP Academic, 2012),Kelly Kapic assists us in our search by identifying several important qualities that a theologian should embrace. These include the following:

  1. Personal holiness. Kapic quotes Gregory of Nazianzus, who stated that for “one who is not pure to lay hold of pure things is dangerous, just as it is for weak eyes to look at the sun’s brightness.”
  2. Use of reason, fortified by faith. Kapic argues that “Faith expands the parameters of reason without needlessly sacrificing it.”
  3. A devotion to prayer. Kapic quotes Saint Anselm: “a theological thought can breathe only in the atmosphere of dialogue with God.”
  4. Personal humility and repentance. As Kapic notes, “Revelation and repentance often come together, as God draws people to a deeper knowledge of himself.”
  5. Compassion. Here Kapic argues that “If we are to pursue theology faithfully, we must contemplate the value God places on those who are most vulnerable and in need.”
  6. Respect for tradition. Kapic states that while tradition should not be blindly followed, nevertheless faithful theologians should “seek the counsel of the saints from both the past and the present.”
  7. Love of Scripture. Kapic states that “good, orthodox and worship-inducing theology must be rooted in, sustained by and continually nourished through Scripture.”

This is an impressive list, and theologians who manifest these personal attributes should be looked to for guidance when their writings are consistent with our Faith traditions and teachings.

Posted in Catholicism, Ethics, Religion | Tagged , , , | Comments Off on How to Spot a Faithful Theologian

Ambrose of Milan: From Lawyer and Governor to Bishop and Saint

Those who have heard of Saint Ambrose of Milan most probably remember two or three things about him. First, they may recall that he was responsible for the conversion of Saint Augustine, who came to the Faith after years of rejecting Christianity, but only after hearing Ambrose preach. Augustine was impressed by Ambrose’ intelligence in explaining the Scriptures and by his skill in oratory, which was also Augustine’s strength. The second thing many may remember about Ambrose is that he was acclaimed as Bishop of Milan while still a 35-year-old unbaptized layman when a small child (more likely the people of the city) allegedly cried out “Ambrose, Bishop” when he entered the cathedral after the death of the prior bishop. Indeed, he was ordained bishop only eight days after his baptism. A third fact the more sophisticated may know is that Ambrose fought the Arian heresy, which was adhered to by the prior bishop of Milan and which divided the Milanese faithful at the time he became that city’s bishop.

There is much more to Ambrose than these few points. To begin with, Ambrose was a successful lawyer and the governor of the province in which Milan was located prior to starting his service to the Church. He was noted for his expert legal work and was said to have “argued cases so splendidly” that he was selected to sit in the government council. He used his legal skills in both his preaching and in his many theological works, acting as a lawyer would when taking on a new case. When he became bishop, for example, he undertook a study of the Scriptures and the Greek Fathers, with particular reliance on Origen, and he also consulted expert priests and theologians. Ambrose also studied the Arian beliefs and the Nicean opposition in depth, writing five books, “On Faith,” which were addressed to the Roman Emperor Gratian to refute the Arian doctrine. As a good advocate, he employed colorful analogies in his writings. Here is one example: “The overshadowing of the divine Spirit does not darken, but reveals secret things to the hearts of people. It is a luminous cloud that soaks us from the dew that sprinkles the minds of people with faith sent by the voice of almighty God.”

Ambrose wrote a great deal on Scripture. He is recognized as a great synthesizer and organizer of prior works, and is remembered for the coherence of his writing. We may attribute this, at least in part, to his legal training.

Ambrose was also a great exponent of the allegorical reading of the Scriptures, which he employed to plumb the depth of scriptural passages, going beyond a simple literal reading. This particular approach was influential in converting Augustine, who recoiled from the literal meaning of some verses, finding them unbelievable. Indeed, Augustine called Ambrose the “father” of his conversion.

Bishop Ambrose was also one of the first people to read scripture by himself silently, when the prevailing practice at that time was to read scripture aloud. He was fond of silent contemplation, common today, but rare in the Milan of the fourth century. In the words of Augustine, “In reading, [his] eyes scan the page and the heart penetrates the meaning; but his voice and tongue remain at rest.”

Ambrose also vigorously defended the church against the Roman emperors and leaders. On several occasions, they demanded that he deliver one of the churches in his diocese to the Arians. Despite death threats, and the stationing of troops outside one of the churches, the people defended him and he prevailed against the Arian demands.

In an even more significant rebuff to the Roman authorities, Ambrose stood at the doors of the Milan Cathedral to bar Emperor Theodosius from entering the church. This was because the emperor had ordered the massacre of thousands of citizens in Thessalonica in reprisal for an uprising there. Ambrose ordered the emperor to perform public penance, a demand with which the emperor complied. Ambrose had written a letter to the emperor in which he observed that “A deed has been perpetrated at Thessalonica, which has no parallel in history. Put away the sin from your kingdom. You can do that by humbling your soul before God…. Tears and penitence alone can take away sin. I dare not offer the Sacrifice [of the Mass] if you attend. For can it possibly be right, after the slaughter of so many, to do that which may not be done after the blood of only one innocent person has been shed?”

Finally, the good bishop left a significant musical heritage through his composition of many hymns, some of which remain today in the Roman Breviary.

When Ambrose left public life, he devoted himself completely to the Church and the people. He gave away his wealth to the Church and to the poor. He wrote, preached, served the people in multiple ways, and became an ascetic, being described as “a man of great abstinence, of many vigils and labors…[weakening] his body with daily fasts.” He was  also said to be “assiduous…in prayer day and night.” It was through this thorough passage from lawyer and governor to bishop that the lawyer became a saint.

Source Note:

Most of the quotations in this post are taken from Cesare Pasini, Ambrose of Milan: Deeds and Thought of a Bishop (St. Pauls, English ed., 2013; Robert L. Grant, translator)

The quotation from the letter to Emperor Theodosius is taken from Steve Weidenkopf, Timeless: A History of the Catholic Church (Our Sunday Visitor, 2018), at 120.

Posted in Catholicism, Lawyer-Saints, Religion | Tagged , , , , , | Comments Off on Ambrose of Milan: From Lawyer and Governor to Bishop and Saint

Why Masterpiece Cakeshop Was Correctly Decided

The Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No.16-111 (June 4, 2018) disappointed both sides by failing to address the the key question presented for decision, namely whether sincere religious objections to same-sex marriage justified a baker in refusing to create a wedding cake celebrating such a marriage. Instead, the court ruled that the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment by demonstrating a “clear and impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection.” In my view, the case was correctly decided for the following three reasons.

First, as I urged in my blog post of September 14, 2017, the court properly crafted “a narrow opinion which will garner the greatest number of justices who will join it.” One reason for my recommendation was to “Let the free exercise claims develop further in the lower courts.” This approach, which the court chose to follow, wisely avoided a premature adjudication of an important and sensitive constitutional issue, and relieved the court from the criticism it has experienced from its decisions making early determinations declaring a constitutional right to an abortion, Roe v. Wade (1973), as well as to same-sex marriage. Obergefell v. Hodges (2015).

Second, by strongly declaring that religious objections need to be treated fairly by government decision makers without any bias demonstrated toward religious practice, the court sent a strong signal that the current, increasing hostility shown to religious institutions and their practitioners is not acceptable in government decision-making. In one passage, among several others, Justice Kennedy emphasized that “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” To take just one of many examples of a pervasive hostility to religion in some government circles, the City of Philadelphia recently revoked the ability of one Catholic and another Christian agency to continue to place children with foster parents because of their faith-based opposition to same-sex marriage. These two agencies placed nearly 400 children in foster homes in 2017. The city’s action was based on a bias against the two agencies’ religious beliefs, and was implemented despite the city’s making an urgent call to recruit 300 families to provide foster care because of an increasing number of children coming into that system because of the opioid epidemic.

Third, it is questionable whether the baker would have won his case if the broader issue had been reached. Opinions by Justice Kagan and Justice Ginsburg, joined respectively by Justices Breyer and Sotomayor, make it clear that those four justices would have decided that the baker had to conform his practices to a generally applicable anti-discrimination law absent the hostility shown to his religious beliefs by the Colorado Civil Rights Commission. By contrast, Justices Thomas’ concurring opinion, joined only by Justice Gorsuch, would have found that the baker’s free exercise claim would have protected him from being forced to create a cake for a same-sex wedding. In addition, in a separate opinion by Justice Gorsuch, joined by Justice Alito, there is a suggestion, without any explicit declaration, that the baker would possess such a right. It is of interest that Justice Alito did not join in Justice Thomas’ broader concurring opinion, and that Chief Justice Roberts was silent on the issue. As such, there is no evidence that a broader opinion would have resulted in a decision in favor of the baker. This is particularly so since Justice Kennedy, the court’s strongest advocate of gay rights, has several statements in his majority opinion recognizing the necessity “to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods and services.”

Given the majority opinion’s recognition that the proper adjudication of cases pitting religious objections to providing goods and services against the dictates of  anti-discrimination laws requires a close look at all the facts and circumstances, the court was wise to limit its opinion, and to permit the lower courts to decide particular cases based upon their specific facts and circumstances. As such, if and when a conflict arises, the court can revisit the broader questions, with the advantage of insights from the lower courts.

Posted in american business, American Politics, Business Litigation, Civil Rights Litigation, constitutional litigation, Politics, Religion, Supreme Court, United States Constitution | Tagged , , , | Comments Off on Why Masterpiece Cakeshop Was Correctly Decided

Alexander Solzhenitsyn and the Masterpiece Cakeshop Case

In an article in the current issue of Touchstone magazine, L. Joseph Letendre discusses the famous commencement speech of Alexander Solzhenitsyn at Harvard University in 1978. One of the points that Solzhenitsyn makes in his speech regarding the decline of the West has application to the situation presented in the Masterpiece Cakeshop case.

Solzhenitsyn criticized the West’s reliance upon what he described as its “legalistic life.” He explained that “Every conflict is solved according to the letter of law, and this is considered to be the ultimate solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right,  and urge self-restraint or a renunciation of these rights, call for self-sacrifice and selfless risk: this would simply sound absurd.”

Some of the commentators on the Masterpiece Cakeshop case paint a factual picture which, if true, present an example of what Solzhenitsyn was criticizing.  They point out that there were other Colorado bakers conveniently located who would have been willing to create a special cake for the same-sex couple’s upcoming wedding in Massachusetts.  See, e.g., Thomas C. Berg and Douglas Laycock, “Masterpiece Cakeshop and Protecting Both Sides,” Georgetown University Berkley Center for Religion, Peace and World Affairs, posted December 4, 2017.(“The harm to the couple here is also limited because numerous other bakers were easily available in Denver.”) Indeed, the couple did in fact obtain a specially-designed wedding cake from another bakery. (See picture of their cake in “The Case of Masterpiece Cakeshop,” https://appelletesquawk.wordpress.com, posted December 27, 2017.)

Without deciding whether the denial of the Christian baker to create a specialty cake to celebrate this same-sex wedding was an actionable episode of discrimination (and I do not believe it was), the point made by Solzhenitsyn is squarely on point. In his words, the “legalistic life” followed in the West concludes that “If one is right from a legal point of view, nothing more is required,” and no one is permitted to “urge self-restraint or a renunciation of these rights.” Thus, in the “legalistic” view, the legal recognition of same-sex marriage mandates that all must honor it no matter what, and that those who wish to enter into such a marriage are right to force their beliefs on the others who do not share their views. Self-restraint is not required, and indeed would be “absurd.”

As he is most likely to have the decisive vote in Masterpiece Cakeshop, we give Justice Kennedy the last word. He observed at the oral argument that: “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual… And –because accommodation is, quite possible, we assume that there were…other good bakery shops that were available.” (Transcript of December 5, 2017 Oral Argument, No. 16-111, at 62.)

Reference:

L. Joseph Letendre, “Schism in Harvard Yard: Solzhenitsyn’s Blunt Sermon Still Cuts Deep 40 Years Later,” Touchstone May/June 2018, at 30-35.

 

Posted in Business Litigation, Civil Rights Litigation, constitutional litigation, Ethics, Politics, Religion, Supreme Court, Uncategorized, United States Constitution | Tagged , , | Comments Off on Alexander Solzhenitsyn and the Masterpiece Cakeshop Case