What reform looks like

I am sometimes asked whether the reforms that I would implement if placed in charge of a parish’s liturgy are really practical; “is it not true,” they might ask, “that many Catholics can’t sing chant?”

I have an answer to that, but first I want to  provide some context. The seminal moment in my thinking about liturgical reform was the shift to the corrected translation. There were people who praised God for Pope Benedict and a finally-fixed the translation; there were those who cursed them for—well, that’s another story. But the average Catholic in the pews, it transpired, didn’t care. They didn’t care about the old words, they didn’t care about the new words; all they cared about was “tell me what to say and I’ll say it.” 1 They didn’t sign petitions opposing it 2; on the other hand, they didn’t they show up to the catechetical meetings to prepare them and teach them the words, either. They didn’t care—not in the sense that they were apathetic, but in the sense that it just wasn’t a big deal. They just showed up on the first Sunday in Advent and read different words. 3

At the time, this stunned me as much as it probably stunned Tony Ruff and the other would be mutineers, and I have other things to say about that, but for now, I just want to set that there as background. The point is that what happened, happened: The implementation happened with minimal fuss, even from those who weren’t very happy about it. 

With that in mind as background, I must say that I doubt very much that the average Catholic in the pews can’t learn chant. They aren’t being asked to sing the Exsultet—I have complete confidence that they will readily learn the Ordinary chants without any difficulty, just as they readily learn to sing the settings to which those parts are put in most parishes. It isn’t as though Catholics have never been asked to learn to sing newly-composed music at any point in the last five decades. Again, the promulgation of the corrected translation is instructive: The Missal supplies chants for the Ordinary, and our curate started using them at daily Mass. Within a few days, the daily Mass crowd were singing along from memory. It’s not difficult.

But even if I agreed, even if I thought that it would be difficult or that it would take a while, I don’t care. I just don’t think that it matters. Every time a new Mass setting or hymn is adopted by a parish, some, all, or none of the congregation learns to sing it—or they don’t, and no one cares. How many times have you assisted at a Mass at which an excessively-enthusiastic cantor is singing a song substituted for the Introit, and about a third of the congregation is mumbling along half-heartedly? No one seems to think that that’s a problem, or at least not a sufficient one to rethink their chosen musical course. In parishes where a choir sings more elaborate material at any part of the Mass, no one expects the congregation to join in—or cares if they can and do.

So what will happen if I get my way and implement my reforms? Will it ruffle feathers and create serious difficulties? I doubt that. What would happen is that the cantors, instruments, and the ghastly music would go away overnight. On the first Sunday, a schola of between one and ten people (depending on who I can scrounge up after purging the choir) will sing the ordinary (from the Missal) and proper (from the Simple English Propers) chants from the choir loft, where they’re supposed to be. This will be a shock for the congregation, no doubt. 

The following Sunday, the congregation still won’t be singing the propers, I’m sure. But they aren’t now, either: I have never assisted at a novus ordo Mass where the propers are even said, let alone sung, so what is being lost is not congregational singing of the propers, but congregational singing of some trite hymn, substituted licitly or otherwise for the proper chant. No loss. And meanwhile, some of them will pick up on the ordinary parts, and that will grow in time. The schola will have gotten tighter in their performance, and maybe they’ve even had time to rehearse a very simple piece of polyphony that we can slot in—say, the Agnus Dei from Byrd’s four-voice Mass.

My hope would be that after a few months, the schola will be able to sing simple polyphonic ordinaries for at least one Sunday service, and the congregation will be able to sing the chants from the missal for the other services. I suspect that within a year, a good fraction of the congregation will be able to sing along with the propers, but even if they can’t, I’m okay with that. And you know what? There may be people who will praise God for me, and others who rue the day and sign petitions to get rid of me, but what the introduction of the corrected translation tells me is that the average Catholic in the pews won’t care.

Reform is not complicated; it’s not even hard. What it requires is merely will on the part of the clergy.


  1. Cf. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) (“in most matters, it is more important that the applicable rule of law be settled than that it be settled right”).
  2. See, e.g., https://web.archive.org/web/20120201204428/http://www.whatifwejustsaidwait.org.
  3. Some more happily than others, to be sure, but the point is that they just got on with it. See, e.g., http://www.huffingtonpost.com/2011/11/27/new-mass-translation_n_1114948.html.

The strands of Catholic Thought

I have a long-form essay, The Strands of Catholic Thought, now available here.  It responds to (among other things) an analogy proposed by the Remnant last year (subsequently taken up, for the hat-trick, by Marquette’s Daniel Maguire and Fr. Dwight Longenecker). The Remnant‘s notion was that a “rough parallel” for our current divisions (in which there are three distinct Catholic factions, those who reject the “Vatican II project,” those who accept it, and those who accept the text of the council but reject what was done after it in the name of its “spirit”) might be “the division of Judaism into Reform, Conservative, and Orthodox branches.” Finding this powerful, I propose that we adopt that taxonomy and embrace the idea that the three “strands” of Catholic thought since the Council might be usefully denominated “Reform Catholicism,” “Conservative Catholicism,” and “Orthodox Catholicism.”

On November 18th, 2015, the feast of Pope St. Martin I: “Glorious definer of the Orthodox Faith … sacred chief of divine dogmas, unstained by error … true reprover of heresy … foundation of bishops, pillar of the Orthodox faith, teacher of religion…. Thou didst adorn the divine see of Peter, and since from this divine Rock, thou didst immovably defend the Church, so now thou art glorified with him.”

Simon recommends (fall 2015 edition)…

Carly Fiorina for PresidentWunderlist tasklistsOvercast podcast managementLazy Magnolia's Southern Hospitality IPAHello Internet podcast

No one gives me any money or other thing of value for these recommendations, and no affiliation in any direction is implied. These are just things that make me happy that, if you’re like me, might make you happy too.

Primer and thoughts on the Kim Davis saga so far

We consider the plight of Kim Davis, a county clerk jailed (and subsequently released) for her refusal to issue marriage licenses to same-sex couples.

I. Background.

The Supreme Judicial Court of Massachusetts thrust the issue of same-sex marriage (“SSM”) into the limelight of American politics in November 2003, when it held that the state’s constitution required the state to issue marriage licenses to same-sex partners. 1 27 states thereafter sought to preclude their judiciaries from doing the same thing, enacting constitutional amendments that explicitly precluded SSM, joining Nebraska, Alaska, and Nevada, which had already enacted such language. 2 Those which survived lower-court challenges bit the dust earlier this year when the federal Supreme Court held in Obergefell v. Hodges that if a state issues marriage licenses to opposite-sex couples, the federal constitution forbids that state from denying marriage licenses to same-sex couples. 3

In the Commonwealth of Kentucky, marriage licenses are issued by the  clerk or deputy clerk of the county in which “the female” resides (language, one might note, that was, but is no longer, unambiguous). 4 They comprise, inter alia,  “[a]n authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named; … and the signature of the county clerk or deputy clerk issuing the license.” 5 

Kim Davis was elected as the county clerk of Rowan County last fall. 6 At the time of her election, SSM, which Ms. Davis opposes on religious grounds, 7 was illegal in Kentucky, having been banned by a 2004 state constitutional amendment that was approved by 75% of voters. 8 Like a number of clerks around the country, Davis ignored Obergefell and refused to issue marriage licenses; following litigation by aggrieved same-sex couples to enforce Obergefell, Davis was jailed for contempt of court. 9 

II. The Davis case.

Davis has become a cause célèbre for those who are critical of SSM and/or the Obergefell decision. 10 She is lauded as standing up for “religious freedom,” and sonorous criticisms of Obergefell, the remote cause of the situation, are bruited. But this is the wrong hill on which to die; religious freedom is not at issue in this case, and spinning the Davis controversy as being about Obergefell is unhelpful.

The latter can be dealt with very briefly, and so will be cleared away in limine: Davis’ objection is not to the reason why the law now requires her to issue marriage licenses but rather to actually doing so. She would be in precisely the same position had Kentucky, by the ordinary, legitimate legal processes, repealed its constitutional ban on SSM and enacted a statute authorizing it. In this context, Obergefell is an irrelevant distraction that adds more heat than light. What counts is that the controlling law in Kentucky has changed, obliging Davis to carry out a duty that was not required of her position when she was elected thereto, and that she finds unconscionable.  

The former will require more discussion. The fundamental difficulty with characterizing Davis’ plight as being about religious freedom is that it fails to recognize that she is not acting in a private capacity.

A. The difference between personal and official capacities.

In a certain sense, “the state” does not exist; as an abstract, intellectual construct, it can act only through human instrumentalities: Governors, judges, sheriffs, clerks, etc. To say that “the state” may not or must do something is therefore to say that the humans through whom “the state” acts on that point may not or must do something. To say that “the state” may not refuse to appoint free counsel to criminal defendants is to say that trial judges may not refuse to appoint free counsel; to say that “the state” must read arrestees their rights is to say that policemen must do so; and the personal feelings of the individual judge or constable about Gideon or Miranda can have no relevance to the conduct expected of them. 11 Executive- and judicial-branch officials must follow controlling law even if they believe that that law is wrong, or even illegitimately-made. The rule of law would disintegrate if every government official could decide for themselves what the controlling law was and which cases they recognized as valid. 12 

So, too, if those officials’ personal scruples can exercise a veto over the functions they carry out. Consider a Muslim clerk who does not believe in mixed marriages. Would we think it appropriate for that clerk to refuse a marriage license to a Muslim woman who wished to marry a Jewish man? Or imagine that a Mormon, elected as a state official charged with issuing annually-renewed liquor licenses, refuses to issue any liquor licenses; would that be proper? Government could not function under such conditions and people could not plan their affairs efficiently. To be sure, because these state instrumentalities are human, they have personal beliefs, and I do not slight Davis’—but they cannot control here. When you work for the government, the government works through you; you are an instrumentality. (It is for this reason that R.R. Reno is only narrowly correct to suppose that “Kim Davis poses little threat to the rule of law.” 13 She herself poses little threat thereto, but the principles that are advanced to defend her actions, principles that, if valid, must apply in all similar situations, 14 do.)

And, moreover, whether elected or appointed, your relationship to the government in that context is that the government is your employer, not your government. It strikes me as commonplace that rights you have as a citizen against your government do not automatically become rights that you have as an employee against your employer merely because your employer happens to be the government. That’s why Garcetti v. Ceballos, for example, refused to allow a free-speech claim by a government employee who was fired for speech made in an official capacity. 15 Mr. Ceballos qua prosecutor was not Ceballos qua private citizen; Ceballos had first-amendment rights to speak in a private capacity, but speech produced in an official capacity and incident to his duties was unprotected because, so-to-speak, it wasn’t actually him speaking. In the same way,  Kim Davis qua clerk is not Kim Davis qua private person; she is a hand of the Commonwealth of Kentucky, and the restrictions on what Kentucky may do through her hands necessarily bind her hands. 16 

B. The faulty private-sector analogy.

The comparison has been made between Davis and the private business owners who are now under attack by a campaign that aims to force (for example) bakers to bake wedding cakes for same-sex weddings to which they have religious objections. 17 Whatever one may think of laws that abridge merchants’ absolute right to decide what they sell, when, and to whom (which is simply the obverse of “prevent merchants from discriminating among potential customers”), one cannot doubt that it is more appropriate that government operate under stricter non-discrimination rules than the private sector.

The distinguishing mark of the private sector is the disciplining effect of competitive markets, of supply and demand; if Muhammed’s Grocery doesn’t sell bacon, you simply go to a different store that sells bacon, and if there is no other store that sells bacon, that is an entrepreneurial opportunity: You set up “Jane’s Grocery (we sell bacon),” rake in cash hand-over-pig, and bacon becomes available to local consumers. (Moreover, incidentally, discrimination is inefficient, and businesses that discriminate are at a competitive disadvantage, which means that Muhammed faces strong pressure to either sell bacon or lose market share and moolah. But whether that is a trade-off worth making is, I insist, 100% Muhammed’s business and no one else’s. I support his right to be driven out of business by inefficient choices if he so pleases, and I am appalled by the persistence of laws that abridge his natural right to sell what he likes to whom he pleases. 18)

For that reason, it’s fatuous to talk about a merchant “forcing their views” on someone by refusing them a particular service. Generally, no potential customer has a right to purchase any particular product from any particular merchant, and a spurned customer simply goes to another private company for the same service.

But government is different. Unsurprisingly, government has a monopoly on government; complications of federalism aside, there is one government, and you have no no choice but to deal with it. If Davis owned a bakery as a side business and refused to bake a cake for a same-sex couple, they go to a different baker, 19 but if the clerk’s office that Davis runs refuses a marriage license to the same couple, they have no alternative means of obtaining it. (Davis’ defenders object that the couple could simply go to another city or county; not so, for as we have seen, Kentucky law tethers licenses to county-of-residence.) There is no alternative, competing provider. That’s why it is appropriate that government be bound down by regulations on how it transacts business that I would find repugnant if imposed on private citizens and firms; conservatives are most apt to favor regulation in cases where the market is incapable of operating efficiently which is why even stringent regulations on natural monopolies are uncontroversial. It’s proper to say, as a general matter, that the state may not discriminate, and that if you have a right to a state service (as, under controlling law, same-sex couples presently do), you have a right to receive that service from the ordinary instrumentalities by which the state provides it.

 C. The better private-sector analogy

What’s more, to the extent that the private-sector comparison has any force, think about how this would normally be received in terms of restrictions not on merchants dealing with customers but employers dealing with employees. Think about what precisely is being claimed and how we would ordinarily react to such a claim.

The law changed after Davis was elected; one sympathizes with anyone who finds themselves in a job that, through no fault of their own, is not the one for which they signed up. But Davis is not saying “I was employed to do A and B; my employer now says that I must do C, and, because of my religious beliefs, I will not do C.” Saying that, and accepting the consequences, would be laudable. What she is actually saying (translating her elected position into the argot of private-sector employment) is closer to “I was employed to do A and B; my employer now says that I must do C, and because of my religious beliefs, I will not do C, and my employer cannot fire me because I refuse to do C.”

In any other context, however, conservatives would be skeptical of such a claim. Imagine that a man is hired by a department store’s photography studio as a child photographer, and the department store subsequently says “due to personnel shortages, you will have to take pictures of adults.” And suppose this man says “well, I’m a Muslim, and it would violate my religious beliefs to take photographs of adult women to whom I’m not related.” Or, if that hypothetical doesn’t appeal, consider the recent story of a flight-attendant who, having converted to Islam, sought to avoid serving alcohol to passengers, and was terminated by the airline for which she worked. 20

What comes next in such cases will usually be a swift firing and an even-swifter Title VII lawsuit. But I think that conservatives would be skeptical of such claims. Why? We believe in equality before the law, and that equity means treating everyone the same, and so we are skeptical of special treatment. When Prof. Louis Michael Seidman told a Federalist Society Symposium that I attended in 2007 that equal protection means treating people similarly to the extent they’re the same and differently to the extent they’re different, I would recall there being an audible collective scoff. 21 Discrimination is one thing, but forcing an employer to keep an employee who will not do the work expected of similarly-situated employees is inefficient. If a reasonable accommodation can be made by which Davis does not have to issue the licenses to which she objects while citizens can still get the services to which they’re entitled (more on this anon), it should be made, just as, if reasonable accommodations can be made by which the flight attendant doesn’t have to serve alcohol while customers can still get the services that the airline is trying to sell them, they should be made. That’s proper in a liberal society. 22 But we tend to think dimly of claims that employers have to bend over backwards to accommodate at all costs.

III. A different iteration: Judges

A different situation obtains when judges refuse to conduct weddings, motivated in some way by the SSM issue. For example: In Oregon, a state judge is now under fire for first “instruct[ing] his staff to refer same-sex couples looking to marry to other judges,” and subseqently “decid[ing] to stop performing weddings altogether,” 23 and three years ago, in Texas, a state judge refused to perform any marriages until SSM was legalized in Texas. 24 

I do not see a problem in this iteration, because my understanding is that while judges are typically authorized to marry people, they are under no obligation to do so. If a state offers marriage licenses, qualified persons have a right to be issued that license by the normal state instrumentalities; that’s the problem with Davis and similarly-situated people. But no one has a right to be married at any particular time by any particular person authorized to conduct the ceremony; the function is (as I understand it) purely discretionary. The judge is no more (or, to be sure, less) functioning as an instrumentality of the state in that context than is a priest, a minister, or, in some states, a private individual, and no one would suppose that I am being deprived of something to which I’m entitled if my minister refuses to marry me to my betrothed, notwithstanding that I was entitled to the marriage license from the state. That, I think, is different.

IV. Endgame.

The honorable way out for a person in Davis’ situation is resignation. It isn’t fair; it isn’t right; but it’s necessary. The character of her job has changed, through no fault of her own, to one that obliges her to behave in a way contrary to her beliefs. I sympathize. But while Obergefell is a deeply, deeply flawed decision, it is controlling law until it is overruled, and it seems to me that executive-branch officials cannot pick and choose without the nation descending into anarchy. For that reason, Davis must issue the licenses, or stand aside.

As a postscript, I must add that as this post goes to press, Davis has been ordered freed from jail, subject to the stipulation that she not interfere with the granting of licenses by her deputy clerk(s). 25 Whether it will prove a durable solution and an acceptable compromise that she delegate the task of issuing licenses to deputy clerks (or at least permit them to do so, under compulsion) remains to be seen. It is to be hoped that some such compromise can be found, but I have doubts about the practicalities. 


  1. See Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). I recognize that terminology is a disputed point in the debate, but will use the term SSM for reasons of concision.
  2. See Wikipedia, https://en.wikipedia.org/wiki/List_of_former_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type (last visited Sept. 7, 2015).
  3. 135 S. Ct. 2584 (2015).
  4. Ky. Rev. Stat. § 402.080. If the county clerk is “absen[t]” or the office vacant, the county judge or executive is authorized to perform these duties. Id., § 402.240.
  5. Ky. Rev. Stat. § 402.100(1).
  6. See Const. of Kentucky,  § 99 (county clerk is an elected position); Shayla Menville, Davis following her mother as county clerk, Morehead News, Nov. 7, 2014, http://www.themoreheadnews.com/news/local_news/davis-following-her-mother-as-county-clerk/article_29982458-6689-11e4-ad6b-172bf9700635.html (last visited Sept. 8, 2015). As an aside: That article notes that “Democrat Kim Davis defeated Republican John Cox on Tuesday to claim the office of Rowan County clerk as the successor to her mother, Jean Bailey, who has held the position for 37 years.” Talk about a “professional political class”! We always talk about term limits on the national scale, but this kind of unattractive situation in which one person holds a local office for years or decades before exchanging it with an immediate family member is all-too common throughout America.
  7. See generally David Mack, Meet Kim Davis, The Woman Denying Same-Sex Couples Marriage Licenses In Kentucky, Buzzfeed News, Sept. 1, 2015, http://www.buzzfeed.com/davidmack/meet-kim-davis (last visited Sept. 8, 2015). Davis became a believer in 2011, joining an ecclesial group titling itself “Apostolic Pentecostalism” in 2011. See id.
  8. See Wikipedia, https://en.wikipedia.org/wiki/Kentucky_Constitutional_Amendment_1 (last visited Sept. 7, 2015). Similarly-lopsided margins characterized most of the amendments that responded to Goodridge.
  9. See Erik Ortiz, Gabe Gutierrez, & Daniellea Silva, Kim Davis, Kentucky Clerk, Held in Contempt and Ordered to Jail, NBC News, Sept. 3, 2015, http://www.nbcnews.com/news/us-news/kentucky-clerk-kim-davis-held-contempt-court-n421126 (last visited Sept. 8, 2015).
  10. See, e.g., Benjamin Siegel, Mike Huckabee: Jailed Kentucky Clerk Kim Davis Fighting ‘Judicial Tyranny’, ABC News, Sept. 6, 2015, http://abcnews.go.com/Politics/mike-huckabee-jailed-kentucky-clerk-kim-davis-fighting/story?id=33568067 (last visited Sept. 7, 2015); Ted Cruz, press release, Ted Cruz campaign website, Sept. 3, 2015, https://www.tedcruz.org/news/cruz-i-call-upon-every-believer-every-constitutionalist-every-lover-of-liberty-to-stand-with-kim-davis (last visited Sept. 7, 2015).
  11. See Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Arizona, 384 U.S. 436 (1966); but see also Withrow v. Williams, 507 U.S. 680, 711-12 (1993) (O’Connor, J., concurring in part) (noting difficulties with Miranda).
  12. A number of subtleties may be and are here elided; I recognize, for example, that the President of the United States claims authority to decide for himself that a statute of Congress is unconstitutional and what to do about it, see, e.g., Abner Mikva, Memorandum: Presidential authority to decline to execute unconstitutional statutes, Nov. 2, 1994, http://fas.org/irp/agency/doj/olc110294.html (last visited Sept. 8, 2015); cf. United States v. Windsor, 133 S.Ct. 2675, __ (Scalia, J., dissenting), and that this is appropriate in the absence of a final decision by the Supreme Court. In my view, however, it being “emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), a decision by the Supreme Court is binding upon the executive and judicial branches of the federal and state governments unless and until overruled by that court. Cf. Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). The Bush administration, for example, might very well have argued in subsequent litigation that some of the court’s Guantanamo Bay cases were wrong and should be overruled, but it was bound to conform its behavior to the law announced by the court even if it thought the law otherwise.
  13. See Reno, Kim Davis’ conscientious decision, First Things, Sept. 3, 2015, http://www.firstthings.com/web-exclusives/2015/09/kim-daviss-conscientious-decision (last visited Sept. 8, 2015).
  14. See Dodd, A bootnote on vaccinations and the magisterium, Motu Proprio, Feb. 7, 2015, http://simondodd.org/blog/?p=1775 (discussing neutral principles).
  15. 547 U.S. 410 (2006).
  16. But cf. Connick v. Myers, 461 U.S. 138, 143-144 (1983) (noting that courts have long-spurned Justice Homes’ wisdom that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” in favor of the more flexible, sympathetic doctrine reflected in Connick and Garcetti).
  17. See, e.g., Sarah Larimer, Colorado court rules against baker who refused same-sex marriage cake order, Chicago Tribune, Aug. 15, 2015, http://www.chicagotribune.com/news/nationworld/ct-colorado-baker-same-sex-marriage-cake-20150815-story.html (last visited Sept. 8, 2015); Kelsey Harkness, State Silences Bakers Who Refused to Make Cake for Lesbian Couple, Fines Them $135K, Daily Signal, July 2, 2015, dailysignal.com/2015/07/02/state-silences-bakers-who-refused-to-make-cake-for-lesbian-couple-fines-them-135k; Doug Mataconis, Court holds that wedding photographer cannot refuse service to gay couples, Outside the Beltway, Aug. 24, 2013, http://www.outsidethebeltway.com/court-holds-that-wedding-photographer-cannot-refuse-service-to-gay-couples (last visited Sept. 8, 2015); Tim Sweeney, State of the LGB[] Movement – The Challenge of Religious Exemption, address to the 2015 “Out and Equal” forum, http://www.outandequal.org/2015/04/14/state-of-the-lgbt-movement-the-challenge-of-religious-exemption (last visited Sept. 8, 2015).
  18. Unlike the late Senator Goldwater, who voted against the Civil Rights Act because he believed it unconstitutional (as his canonical book Conscience of a Conservative explains with some force), I would have voted for the Civil Rights Act on the stipulation that it contain a sunset clause. It was proper, it seems to me, as an extraordinary and temporary remedy to an extraordinary problem, but it is now, at best, reaching the end of its useful lifespan. As with the Voting Rights Act, the CRA is remedial legislation, and it cannot be renewed indefinitely predicated on the original motivating conditions. CfShelby County v. Holder, 570 U.S. 2 (2013). The systemic evils that the public accommodations provisions sought to drive out have been driven out, and so the balance of equities now tilts decisively in its natural direction: Toward preservation of the right to free contract. The government has no more right to command you to sell to Jones than it does to command you to buy from Smith, cf. NFIB v. Sebelius, 132 S. Ct. 2566 (2012) (Roberts, C.J.); and so it is, in my view, time for us to start rolling back these  would start looking at removing the existing ones on our way back to normalcy.
  19. Given the realities of globalized commerce, the notion that a gay couple will be unable to find someone to bake their cake doesn’t even rise to the respectability of being wrong; it is anachronistic.
  20. Emanuella Grinberg & Carma Hassan, Muslim flight attendant says she was suspended for refusing to serve alcohol, CNN, Stp. 6, 2015, http://www.cnn.com/2015/09/05/travel/muslim-flight-attendant-feat/index.html (last visited Sept. 7, 2015)
  21. Reprinted as Seidman, Gay sex and marriage: The Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory, 31 Harv. J. L. & P.P. 135, 137 (2008). My recollection–don’t quote me on this–is that Seidman’s panel was moderated by my favorite federal judge, the honorable (and excellent) Diane S. Sykes of the Seventh Circuit.
  22. See Friedrich Hayek, Why I Am Not a Conservative, http://object.cato.org/sites/cato.org/files/articles/hayek-why-i-am-not-conservative.pdf (1960) (“what in Europe was called ‘liberalism’ was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense”).
  23. Jon Cooper, Oregon judge refuses to perform same-sex marriages, Associated Press, Sept. 5, 2015, ttp://hosted.ap.org/dynamic/stories/U/US_SAME_SEX_MARRIAGE_JUDGE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2015-09-05-03-09-33 (last visited Sept. 8, 2015).
  24. Christina Ng, Gay Texas Judge Refuses to Perform Marriage Ceremonies, ABC News, Feb. 24, 2012, http://abcnews.go.com/US/gay-texas-judge-refuses-perform-marriage-ceremonies/story?id=15784189(last visited Sept. 8, 2015).
  25. Chris Geidner, Kentucky Clerk Kim Davis Ordered Released From Jail, Buzzfeed, Sept. 8, 2015, http://www.buzzfeed.com/chrisgeidner/kentucky-clerk-kim-davis-appeals-contempt-ruling?utm_term=.eyZ0Gl3Anv#.xiV29BM7xR (lat visited Sept. , 2015).

Clinging, perhaps bitterly

Do orthodox Catholics “cling to tradition”? You bet. In a storm, one clings on to whatever is attached firmly to the ship, because the alternative is to be washed overboard. You can’t navigate in a storm; can’t fish, can’t philosophize; all you can do is cling on for dear life and have faith that God will calm the waters when it pleases him that the storm might pass. And so, yes, we cling to tradition and the Mass and all of that—and I don’t take that as an insult even though I’m sure it was meant as one.

A thought on novelty

Alfredo Card. Ottaviani’s episcopal motto was “Semper idem”: Always the same. Ottaviani had the right idea. There’s a quote from his successor at the Congregation for the Doctrine of the Faith, Joseph Card. Ratzinger, that I find difficult to understand: “Today, Christianity is seen as an old tradition, weighed down by old Commandments, something we already know which tells us nothing new; a strong institution, one of the great institutions that weigh on our shoulders.” I fail to see the sting in that line; of course the Church has nothing new to say. That’s one of the things that attracted me to Catholicism in the first place, that signaled to me that it was something that merited serious consideration, in such sharp contrast with those groups falling over themselves to be ephemeral, which is a synonym for “relevant.” A Christianity that claimed to tell us something “new” would be a sham; with public revelation having closed centuries ago with the death of the last apostle, the only possible source of new information is the human mind. If one wants something new, go listen to the Medjugorje people! They’ll give you three new Marian messages a week, and an offer to sell you a bridge in NYC, perhaps. But the true Church, the one, holy, Catholic, and apostolic Church has nothing new to say and never will say anything new or different. And if she did, that would be concerning; Bl. John Henry Card. Newman: “[I]t is one of the reproaches urged against the Church of Rome, that it has originated nothing, and has only served as a sort of remora or break in the development of doctrine. And it is an objection which I embrace as a truth; for such I conceive to be the main purpose of its extraordinary gift.”

If you’re puzzled about the Iran treaty

Ordinarily, when a treaty is proposed, the question is “will the Senate ratify it?” So what’s all this “sixty day review period” business in regard to the Iran deal, and why is President Obama talking about vetoing what Congress does? Here’s the skinny. 

In 2010, Congress enacted sanctions on Iran, subject to waiver by the President at his/her discretion. (It has a long, boring title, but we’ll call it “the 2010 act.”) As negotiations heated up, Congress passed another law (the “Iran Nuclear Agreement Review Act” or the “Corker Act,” but we’ll call it “the 2015 act”) which limited the President’s authority under the 2010 act. This latter act required that if the President should conclude an agreement that obliges Presidential waiver of the sanctions pursuant to the 2010 act, the President could take no such action for a period of time while Congress considered whether it approved of the agreement; for reasons that we can skip, the period of time that actually applies is sixty days. The 2015 act then (inter alia) abrogates the President’s waiver authority under the 2010 act “if, during the period for review … there is enacted a joint resolution stating in substance that the Congress does not favor the agreement.” But if no such joint-resolution is “enacted” within the sixty-day period, the President may thereafter exercise his waiver authority under the 2010 act. It is that joint-resolution on which Congress will vote at some point in the next sixty days.

The problem (perhaps unrealized by the 2015 act’s supporters) is that joint-resolutions are subject to Presidential approval or veto. The President may prevent the “enact[ment]” of such a joint resolution by vetoing it, which will preserve the authority he gained from the 2010 act. It is this veto that the President has threatened to wield. 

Finally, you may wonder what happens to the agreement itself, regardless of whatever drama ensues on the hill. The Senate will not consider and vote upon the agreement itself because it is not a treaty. The significance of this distinction depends upon your vantage-point. From the perspective of American constitutional law, an executive agreement is non-binding: There are disagreements over what exactly a treaty, but only a treaty binds. If this deal is a treaty, it might trigger constitutional obligations; if it’s merely an executive agreement, it can’t. You may remember Senator Cotton’s letter to Iran’s foreign minister a few months back underscoring all this. He was right. The irony, however, is that from the standpoint of international law, such an agreement may well be binding on us, and we may well place ourselves in material breach of international-law obligations if we don’t do what we promised. You may also remember the Iranian foreign minister’s response to Senator Cotton, in which he noted that America would, if it defaulted on promises it made in such an agreement, become an outlaw nation. He, too, may have been right. So, great job, there, President Obama: You have created a situation in which Iran could, with some justification, soon be calling us an outlaw regime.

Party like it’s 1899: Dodd for President, 2016

A week ago, with Governor Jindall’s admission of his candidacy, I promised that if one more Republican ran for President, I, too, would seek the GOP nomination. I’m a man of my word. Given Governor Christie’s entry into the race three days ago, I hereby announce my candidacy: I will walk for the Presidency. (My heart, like Governor Christie’s, aches at the mere thought of running.) I am taking this step partly because I love my country, but mostly because everyone else is doing it and I don’t want to be the last Republican in America who isn’t. Besides, if there’s one principle on which we can all agree in our divided nation, it’s this: You all want to be sarcastically told what you’re doing wrong by a guy with a plummy British accent.

Now, admittedly, I will never be President; as a naturalized American, I can’t take office: “No person except a natural born citizen … shall be eligible to the office of President….” So what’s the point of seeking the nomination? For one thing, because far too many Americans don’t know the meaning of the word “quixotic,” and it’s about time that we changed that. But seriously, folks, I have two answers to that. First: If you’re fed up with the capacity of a functioning government to hold a knife to the jugular of American freedom, perhaps a constitutional crisis is just what the doctor ordered? Second, and more to the point, my ability to seek the nomination paired with my inability to take office makes my choice of vice-president—well, let’s just say, in the immortal words of former-Governor Blagojevich, “a fucking valuable thing.” Cash donations to my campaign will not hurt your chances. Wink wink. 

Enough about me; let’s talk about the issues. President Roosevelt promised a new deal; President Hoover promised a chicken in every pot; the first President Clinton promised a blue dress in every winsome girl’s wardrobe; what can you expect from President Dodd?

* * *

For today, I won’t want to bore you with my plans to veto any piece of legislation that lacks a sunset clause, period; and do you really want to sit through a long-winded speech about ending corporate welfare, a flat-rate income tax (flat percentage, mind you, not flat dollar), repealing the Seventeenth Amendment, retroceding most of DC to Maryland, getting the federal government out of its wars on drugs, law-abiding gun-owners, and education, imposing the death penalty on people who don’t use the oxford comma, a second season for “Caprica,” and so on? You can xerox Newt Gingrich’s manifesto and stick my name on it for yourself. 

But I do want to talk to you about the issue that, in my view, matters the most. Listen: We’ve had some fun in the last few paragraphs, so I think I’ve earned your indulgence to be serious—not too serious, I promise—for a few minutes. Like all naturalized citizens, and like those of you who have served our nation in the armed forces or other capacities, I took an oath to support and defend the Constitution. That oath now demands a few words, because I fear that the Constitution and indeed the very rule of law that it presupposes is under siege.

The distinguishing mark of the anglosphere is its commitment to what we have called “the rule of law.” Lon Fuller thought that the rule of law meant that “the acts of a legal authority toward the citizen must be legitimated by being brought within the terms of a previous declaration of general rules,” and that’s good enough for me. But it’s a little abstract. Concretely, what the rule of law entails in America is this: There is no law binding upon Americans that was not ratified by Americans, and the law that was ratified by Americans rules America. We ratified a Constitution, and we elect a Congress and a President; Congress makes statutes which are executed by and govern the president, and both (and the states besides) are governed by the authorities and limits of the Constitution. For example: The people decided that Congress would have the power to impose federal taxes; until we change section 8, Congress, and only Congress, has that power. Likewise, when Congress says that the tax rate on widgets is x%, it’s x% until Congress says otherwise. Or, to take another example, we decided that Congress, even when otherwise acting within its authority, would not have the power to abridge the freedom of speech; until we change the First Amendment, Congress can’t do that—and neither, by law and by custom, may the states or the federal government more broadly.  

Sometimes, however, they try. And when they do, Americans are apt to sue. For example, when the District of Columbia infringed Richard Heller’s right to keep and bear a handgun—notwithstanding that we had decided that they can’t do that, and have never authorized a change in the second amendment—he sued. Unfortunately, few cases are as straightforward as Heller. Some of these restrictions on what government can do—we call them “rights”—are not necessarily apparent on the face of the text, and this requires that courts interpret the Constitution. But the rule of law demands that constitutional interpretation, of its very nature, be backward-looking: It asks not “should Congress be able to do x,” but “have the people, through the Constitution, prevented Congress from doing x?” If the answer is yes, the courts are obliged to say “you can’t do that,” even if a majority today really wants to (or vice-versa). The answer is found in the bone of text and the flesh of tradition, an approach exemplified this year in cases such as Johnson v. United States and the Kerry v. Din plurality.

Any criticism of judges must (but rarely does) recognize that the dictionary is not a fortress, and that words can be ambiguous. My example is United States v. Santos, in which the Supreme Court tackled a statute that referred to the “proceeds” of an enterprise—but did that mean net proceeds or gross? There was no answer to be had in the word itself. Nevertheless, suppose that the statute had specified “net proceeds,” and my administration decided to start enforcing criminal penalties against those who used not only net proceeds, but gross proceeds? Would we think that authorized by the statute, and thus consistent with the rule of law?

Or imagine that Congress authorizes a national sales tax on wine of five percent. If my administration chooses to apply that tax to beer, or to tax wine at six percent, is that consistent with the rule of law? No. But listen: Put down your glass of wine (or beer) and ask yourself: Why not? Because the law is in words and words have meaning. Beer isn’t wine; that the statute authorizes and obliges me to tax a given liquid at 5% doesn’t authorize me to tax any liquid at 5%, or that liquid at a different rate. The actions that the statute authorize are defined and bounded by the meaning of its the words. Could Congress define “beer” as wine for purpose of the statute? Sure. Could beer count as wine if there were a longstanding common-law equation of wine with beer? Sure. But absent such things—and without denying that sherry presents a more difficult case—it is an assault on the rule of law to argue that the word “wine” means something beyond the range of meanings foreseeable to the drafters.

The same goes for the Constitution; its guarantees are empty if its words are protean. (The’s a ten-dollar word for “can mean anything.”) Think about the right to a jury trial, for example. Precisely because the dictionary is not a fortress, that right is meaningless unless the word “jury” has definite content: If my administration can define “jury” as anything it likes, including a bench of military judges whom I hand-pick, in effect, you have no right to a jury trial. Similarly, our attempt to safeguard that right by enacting Constitutional text protecting it would be thwarted if that definite content is anything other than the meaning that the word was understood to encompass at the time that we enacted it: If society’s evolving consensus decides that it’s more efficient to have a jury with only three people, and if that can pass muster because courts think that rights must be kept up-to-date with current fads, in effect, you have no right to a jury trial. The hard truth is this: The rule of law is an empty promise if it does not entail what we today call “originalism.”

All to often, however, the courts have placed the rule of law in jeopardy rather than upholding it, whether by inventing restrictions on Congress that we never approved, by failing to enforce those which we did, or by discovering powers of Congress that we never approved, or by failing to allow it those which we did. Consider Korematsu. It does not matter a whit if an opinion poll might have found broad public support for the Japanese-American internment; the law was clear, internment violated it, and the court was wrong to allow it, even if the public might have approved. Or consider Brown v. Board of Education. Imagine that the justices, fearing the disapproval of a public that perhaps felt differently, had come out the other way; the law was clear, segregation violated it, and the court was right to strike it down, even if the public might have disapproved. Judicial failure to enforce the law because the law is inconvenient to the government or unpopular with the public, or vice versa, threatens the rule of law.

In just the same way, judicial corruption or invention of law, perhaps because the law as it exists is inconvenient to the government or unpopular with the public, also threatens the rule of law. Consider Roe v. Wade. Should there be a right to “choice”? A right to “life”? In dubiis, libertas? America was and remains divided on abortion, and so it is little surprise that we have not been able to agree on a constitutional answer that settles the question. Recalling that the rule of law demands that constitutional review be a past-tense exercise in which judges ask whether Americans have enacted a particular right rather than a present-tense exercise in which judges ask whether there should be such a right, the answer in Roe should have been “no law on that one. Figure it out for yourselves.” We should think of cases such as Furman v. Georgia and its progeny and Obergefell v. Hodges and its antecedents as further examples in the same category. America was and remains divided on the death penalty; she is less and less divided on gay marriage, nothwithstanding that it was, for most of us, an unthought thought just twelve years ago. But the idea that a previous generation of Americans have settled this question with an answer that must, perforce, have lurked unnoticed in the text yon these many years is preposterous and at odds with the rule of law. The answer in such cases must be: “No law on that one.” (This is particularly obnoxious in cases such as Obergefell or Kennedy v. Louisiana where the court pretends that the Constitution demands a result on which legislatures were rapidly converging, which, even for those who support the policies at issue, leaves timing as the sole entry on the “benefit” side of the ledger, with no offsetting diminution of cost.)

When the courts crash through the limits of their proper lawsaying role and exercise what Justice White called “raw judicial power, … an improvident and extravagant exercise of the power of judicial review,” when they set aside the text and tradition to tell Congress, the President, or the states that they may do something that the Constitution does not allow or even forbids  (Morrison v. Olson, for example, Hamdi v. Rumsfeld, Central Virginia Community College v. Katz, or NFIB v. Sebelius) or may not do something that the Constitution allows  (United States v. Stevens, for example, Lee v. WeismanStenberg v. Carhart, or United States v. Virginia), the rule of law suffers. The rule of law is not a token to be bartered lightly for the temporary convenience of what one generation wants—let alone of an intellectual elite that thinks it knows what that generation wants.

With this in mind, my priority as President will be vigorously safeguarding, tending, and extending the rule of law by attentively, assiduously, and aggressively filling judicial vacancies with women and men who understand the proper role of the judiciary. (In the event of a Supreme Court vacancy: Diane Sykes, call your chambers.) I cannot promise you that I will nominate judges with whose rulings you will always agree. The dreaded phrase “judicial activism” all to often means nothing more than “I don’t like it.” But I do promise you that I will nominate to the bench only those whose proven track-record gives us confidence that they understand the proper role of the judiciary—judges who will assertively protect rights that we have protected in the Constitution and will not bind the people’s hands with made-up rights that that we have not (yet) protected in the Constitution; who will strike down popular legislation that the Constitution does not allow as fearlessly as they uphold unpopular legislation that it does. I will aggressively lobby Congress to abolish the out-of-control U.S. Court of Appeals for the Ninth Circuit, along with all its judgeships, and their replacement with new 12th and 13th circuits (along with, incidentally, a new Court of Immigration Appeals to alleviate the docket pressure on our courts, in which such cases composed, in 2014, nearly 90% of agency appeals).

* * * 

This weekend we celebrate the anniversary of our nation’s momentous decision to break from King George III’s British empire. Our forefathers did so not simply because they thought that George’s decisions were mistaken, but because they believed that Americans should make those mistakes; it wasn’t about whether the decision was right or wrong but who decides. Shall we rule ourselves, given that we may sometimes rule poorly? Or shall we be ruled by a king, given that he may sometimes rule wisely? Given fellow-colonists who stubbornly refused to convert to your opinion, would you have instead sided with the crown had King George promised you same-sex marriage? Or abolition of the death penalty? If so, you and I have different ideas of what we are celebrating this weekend.  

My first job as your President is your freedom—to protect America from foreign threats and to get the government out of your way so that you can follow whatever lawful pursuits you like. But my job is also to keep the promise  that we made ourselves at the time of the founding: That Americans will be ruled by the laws of Americans, not the guesses of weak judges or the preferences of masterful judges. If it is to remain our “proud boast” that we are a nation of laws, not of men, as it has been since the Massachusetts Constitution of 1780, we must have originalist, textualist judges who honor what the people have already decided and otherwise leave the people free to decide for ourselves.

Thankyou—and may the United States of America bless God,  as we hope that He will in turn bless us.

In re Laudato si

Sometimes the day’s gospel reading is so apropos that you’d think it planned. Today, we hear from St. Mark, where we find disciples fearful of the weather. They cry out in terror; perhaps one of them composed a short encyclical about the storm, I don’t know. What does our Savior say to them? “Why are you afraid,” he asks them; “do you not yet have faith?”

Do you not yet have faith? It is a fitting rebuke to Laudato si, the pseudo-encyclical released this week in which Francis, the incumbent bishop of Rome, discusses “ecology.” To be sure, some conservative Catholics—unable to free themselves from the reflexive ultramontanism learned under previous popes, 1—have embraced Laudato. That, I think, is error, although it is surely a more laudable and noble error than the breathtaking cynicism and opportunism of reform Catholics who, having insisted for five weeks short of 47 years that an encyclical is nothing more than a papal op/ed, now ascribe to this one a level of authority exceeding scripture itself. Others, however, have been more chary. I think that it’s important to be clear about why Laudato is a dead-letter; why that is, Catholics may and should ignore it.

That task is necessary because some critics have floated flimsy and problematic justifications for ignoring it. Catholics may not ignore an encyclical because we don’t like the pope who promulgates it or because of some alleged formal defect; nor may we dismiss an encyclical out-of-hand simply because we disagree with it on the merits. Nor may we dismiss it because, as some have said, because “it” wasn’t given ex cathedra. (A dangerously-imprecise use of the term, incidentally.) It wasn’t, of course, but the notion that all teaching that isn’t is optional is a dangerous and erroneous notion. 2 That’s a gateway to cafeteria catholicism.

Instead, the reason that Catholics may and probably should dismiss this encyclical is because of its subject-matter. Technically, encyclicals themselves do not bind; that is a category-error. Just as it is not the opinion of the court itself that binds, the ink and paper, but rather the holding (and arguably, to some extent, dicta) contained within that opinion, 3 an encyclical is just a form, a vehicle. What can bind, what is capable of commanding assent of one degree or another, is the papal magisterium, the teaching authority, which may be exercised in an encyclical letter just as it can be in any other form. That distinction is important because while form may imply intended character (when we read a document labelled “apostolic constitution,” for example, for example, we expect it to deal authoritatively with some important matter) any question of assent must pertain to teaching, not form. To ask whether a given statement in a given document is binding to some degree presupposes that the statement is teaching, which in turn presupposes magisterial competence to promulgate teaching. And popes have magisterial competence over only two categories of question: Faith and morals. 4 Ineffabilis Deus, for example, addressed faith; Humanæ vitæ, morals. We are able to meaningfully discuss the extent to which they are binding because, as teaching, they have the capacity to bind. By contrast, a pope’s offhanded comments about the weather, baseball or his favorite food do not command assent, not because he makes them in a particular forum, but because they are not magisterial statements.

A simple example will illustrate. Imagine that a private letter in which a pope expresses his opinion on the designated-hitter rule is leaked. Does it command assent? No, because the pope has no teaching authority pertaining to baseball. Now suppose that the pope publishes the same text as an op/ed in the Times. Does it command assent simply because it is now a public document? No. Now suppose that the pope takes the same text and slaps the label “encyclical” on it, topping-and-tailing it with the various formularies thereof. By doing so, by upping the level of solemnity, has the pope created for himself teaching authority over baseball?

With these considerations in mind, it is clear why dissent from Humanae vitae can’t be analogized to disagreement with Laudato—indeed, why it is a category-error to speak of “dissent” from Laudato. “Dissent” is predicated on the existence of teaching; one can dissent on the question of the immaculate conception, for example, only because Ineffabilis Deus has promulgated binding teaching on the subject. Before 1854, there was no teaching and so no possibility of dissent. The vital question is not form, or even intent, but content. The “baseball encyclical” has no more authority that Justice Blackmun’s paen to the game in Flood v. Kuhn—dicta, nothing more. To speak of assent or dissent, of agreeing or disagreeing with Francis is to miss the point: There is nothing binding to which one might assent vel non.

There are, to be sure, counterarguments, and most of them go to the inescapable truth that the word “morals” has some play in the joints. Nevertheless, the word “morals” must have some content—irreducible scope and inexceedable limits—or the petrine teaching authority can be expanded or contracted at will. And it would further seem to follow that we should be wary of logical gymnastics that separate the magisterium from that skeleton. If “morals” is wholly protean, if it is able to mean anything one wants it to mean, the upshot is that the petrine ministry is not actually limited to morals—it directly reaches any issue. Similarly, if we say that it reaches the morality of actions that are concededly beyond the direct reach of papal teaching authority, we get the same result: An unlimited papal authority to reach any issue, just through the back door. It seems to me that if “faith and morals” is meant to be a limited jurisdiction, we can’t interpret “morals” in a limitless way. The surest guide to the proper scope of “morals” is tradition: What kind of moral issues has the Church always understood the magisterium to reach? 5 Could (name any more pope than a century ago) have issued this document without raising eyebrows? If the answer is no, there’s probably a problem.

Today, as always, Jesus would say to our political anxieties about forces beyond our control: “Why are you afraid? Do you not yet have faith?”


  1. See Simon Dodd, The New Ultramontanes, http://simondodd.org/blog/?p=1318.
  2. Cf. Humani generis 20; Lumen gentium 25.
  3. Cf. Simon Dodd, Ordinatio sacerdotalis and its limits, http://www.simondodd.org/blog/?p=1359, n.6 and accompanying text.
  4. See, e.g., 1983 CIC 750 § 2.
  5. Tradition, custom, and usage are what give definite form and limits to amorphous, general propositions. Take the bible, for example: Five centuries of protestantism have demonstrated that you can create several completely different religions out of its text. Only by remaining within the tradition of the Church can we know that the “Christianity” that we practice is the same Christianity our ancestors practiced, founded on the apostolic faith rather than upon “the bible.”

Huge news out of Virginia

“Sweet Briar College will stay open next academic year under a mediation agreement announced today by the state attorney general’s office,” and its “president will resign as will at least 13 members of the college’s current board of directors under the agreement, which will be presented Monday to Bedford County Circuit Judge James Updike for approval.”

Thus reports the Richmond Times-Dispatch this evening; my previous coverage appears at this link.