Iowa approaches

The Iowa caucuses are just under a week away. It’s not my place to tell anyone for whom to vote, but I will tell you that if I were in Iowa, I would be caucusing for Carly Fiorina.

I rank politicians—bishops, too, by the way—on an unforgiving scale: Rare indeed is one who makes it to “tolerable,” let alone “acceptable,” and only a thin cream at the very top will ever receive the accolade “adequate.” Fiorina is great. I am not only voting for her, I am supporting her, and that’s a very rare thing: To be able to affirmatively support a candidate who’s actually any good at all, rather than simply voting for one who is acceptable is off the beaten path of American politics. Unfortunately, I suspect that my reasons are too idiosyncratic to be of much help to other people. I am acutely aware of the gap between the kind of questions that I ask, the things that I find probative, and the things that apparently everyone else does. (We talked about that on episode six of the podcast in regard to Anglicanism. 1) Nevertheless, I wanted to offer a few comments, for whatever they’re worth. 

I support Fiorina because she is a great fit for my prejudices about how a President’s mind ought to work and what kind of personality a President ought to have. I grew up in Britain, where politics was largely fought in competing manifestos, before moving to the United States, where politics is largely fought in competing campaign promises; what 9/11 taught me, however, is that political promises are poor metrics for assessing a candidate’s suitability for office—and not for the reason you’re thinking. Once elected, officeholders are often overcome by events: President Obama by the financial crisis, for example, or the second President Bush by 9/11. Who would have guessed, when those men won their respective nominations, that those events would define their presidencies? I’m more interested in—I think it’s more important to know—how does this candidate think about the world? How do they process information? What are their instincts, what is their disposition? What’s their likely Myers-Briggs type? 

Seen through that lens, Fiorina is a very comfortable fit for me. In no particular order, she’s calm, intelligent, knowledgeable, quick, forthright, analytical, information-oriented, articulate, and has just the right balances of aggression and relaxation, curiosity and modesty. She has a pragmatic attitude and a conservative temperament. When she doesn’t know something, she seems inclined to woodshed until she understands it better, but without being overcome by the kind of “analysis paralysis” that besets President Obama. (On this, I share David Axelrod’s assessment that voters want a contrast with Obama’s placid, professorial passivity. 2 But there are many stops between that station and Ted Cruz’s arguably-excessive bellicosity.) Her background prepares her to delegate and run a large bureaucracy in a way that, for example, a Senator never could be. I cannot imagine her saying the kinds of things that Pope Francis says about ideas not mattering, or feigning ideological disinterest in the way that Obama does. She’s not a lawyer, but she seems to think (perhaps because her father was a ninth circuit judge, in an earlier time) as I do; we are, so-to-speak, melodies in the same key.

Having said that campaign promises are not strong metrics, however, I must add that they are indirectly useful because they can reveal a person’s substantive ideological views—and those do matter. So far as I can tell, hers are largely a good match for mine, save only that I am rather more pro-Russia than she is. (Politically, I remain in great part a product of Gingrich, Bork, Rehnquist, Hayek, WFB, the elder Kristol, the Sharon Statement, Goldwater, Rossiter, Kirk, Oakeshott, and, ultimately, Burke.) And in terms of the politics, she’s a pro-business, pro-life conservative; she isn’t a populist, but she’s a fighter, and in a climate in which the populists want a fighter, I think that they can get behind her; at the same time, I think that the way that she speaks about big government will keep the libertarians happy. So she checks off all the major constituencies within the GOP.

Lastly, it is not wholly without relevance is that I work for a women’s college that puts a lot of stress on women leaders—so duh I favor women leading. I also favor women stepping up and refusing to waiting their turn or await an invitation, no special privileges, no special pleading, just getting on with it and getting it done. No one invited Fiorina: She saw a problem and she ran toward it. That’s a good thing. That’s a leadership move. And while we’re on this point, I will say on a matter of personal privilege: If you support Mr. Sanders, that’s fine—but realize that you don’t then get to tell me that you’re more in favor of women’s leadership than I am when I’m voting for a woman to actually lead and you’re voting for an old white dude because he’s offering free stuff. The first and only valid meaning of “female leaders” is “females, leading.”

To my mind, Fiorina is the clear frontrunner and the obvious choice. Over to you.

Notes:

  1. See Things old, new, borrowed, and blue. http://simondodd.org/podcast/#1-6.
  2. See Axelrod, The Obama Theory of Trump, The New York Times, Jan. 25, 2016, http://www.nytimes.com/2016/01/25/opinion/campaign-stops/the-obama-theory-of-trump.html?_r=1 (op-ed).

Ramsey on the original meaning of “natural-born citizen”

One of my more popular posts from 2015 discussed the eligibility of Republican Presidential candidates Marco Rubio and Ted Cruz. 1 Unlike the attacks on President Obama, which turned on (spurious) allegations of fact regarding the President’s birthplace, the questions raised about Rubio and Cruz involve the discernment and application of law to established facts. As an originalist, 2 I read the presidential eligibility clause as taking “natural-born,” a phrasal adjective that had established meaning in English law by the time of the framing and substituting for the royalist “subject” the more appropriately-republican “citizen.” Under this approach, Senator Rubio is plainly a natural-born citizen, but Senator Cruz’s eligibility is a harder, murkier question.

Michael Ramsey, one of the foremost originalist scholars of our time, 3 takes up the issue a new paper posted at SSRN. 4 Like me (and contra the article by Paul Clement and Neal Katyal that I discussed in my post) Ramsey is unpersuaded by the conventional wisdom; his analysis tracks mine, in the main, although in much more detail, as you would expect. He discusses in much greater detail than did I not only the development of English law—both common law and statute—but also the alternative European view elucidated by Vattel, which he considers and dismisses as a possible source of the original understanding. He also provides a more elaborate explanation of why it is the gestalt of English law that controls, rather than common-law or statute law specifically.

Ramsey takes an unexpected turn, however, and adds a caveat that is relevant to Sen. Cruz’s situation. Ramsey argues that English legal history demonstrates that parliament had assumed the power to modify the common-law, declaring not only that certain persons might be subjects, but even natural-born subjects; from this, he concludes that because Congress is expressly granted the naturalization power, it has the authority to not only “naturalize” in the normal sense, but also to declare who shall be a natural-born citizen. 5 This explains, in Ramsey’s view, why the first Congress seemingly exercised that power in the Naturalization Act of 1790. 6 Nevertheless, that Congress can make natural-born citizens, Ramsey notes, doesn’t mean that it must, or that any particular naturalization statute (such as, oh, say, 8 U.S.C. § 1401(g)) can or should be read as doing so. 7

This is a serious, well-grounded argument. But I am not quite convinced. Ramsey is certain that there is one naturalization power; if Parliament not only made subjects but also modified the common-law on who was a natural-born subject, he assumes, these are each exercises of a single power, the “naturalization power,” which was then conferred on Congress, which may now likewise not only mint citizens but declare natural-born citizens. In support of this view, he observes that the statutes by which Parliament tinkered with the common-law of natural-born subjects generally used the term “naturalize” in their titles. 8 Nevertheless, it seems to me that insofar as the founding generation’s principal authority on the law of England was Blackstone, 9 it is surely of great moment that Blackstone first classified the people within the realm as aliens and natural-born subjects, and then grouped with the former aliens of modified status, i.e. those who had been denizenized or—vitally here—naturalized. 10 As my previous post observed, “[t]he first and most obvious point to take from [Blackstone] is that a ‘natural-born’ subject is distinct from the ‘artificial’ subject, whether denizenized or naturalized.” And critical now to add is that even if Blackstone’s description is mistaken, overstated, or oversimplified as a matter of English law, I am not sure that that would make a difference: Perhaps I am overstating Blackstone’s influence, but it is not the actual content of English law that undergirds the original understanding, but what Americans of the time thought that content to be, and Blackstone, I had thought, was their principal source. If for the framers the naturalization power was the power to make citizens of persons who were not natural-born citizens, it would be be difficult to conclude that the unadorned naturalization power given to Congress included the power to define who was a natural-born citizen.

Moreover, the 1790 act, it seems to me, isn’t definitive. Ramsey concedes that it may not be dispositive, because that provision could, after all, have been unconstitutional; such an interpretation is usually disfavored, but unlike, for example, the chaplains at issue in Marsh v. Chambers, the provision in the 1790 act was repealed only five years later and never returned. 11 But there is another reason to cock an eye at the 1790 act: It’s unclear whether Congress actually exercised the power that Ramsey thinks it did. The act can be explained (plausibly, albeit not necessarily convincingly) by a close look at the text: “[T]he children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens….” 12 That text is ambiguous on its face: Ramsey, like most commentators, assumes that we must parse it as “shall be considered as being natural-born citizens,” but it could also be parsed as “shall be considered as if natural born citizens,” which cuts the other way. A cursory search of materials from the first Congress does not immediately reveal other uses of the key phrase “shall be considered as,” let alone in a less ambiguous context, but the sole use of the phrase in the second congress seems (although not beyond cavil) to cut in favor of the latter. 13

But all this is to dispute over small things. Even if I were beyond persuasion on this difference, however (which I am not), Ramsey’s contribution is a serious and welcome one. Although it doesn’t resolve the remaining difficulties involving Sen. Cruz, it underscores that the question is not frivolous and points to the correct analytic approach. The best resolution of those difficulties, we will leave for another day.

Notes:

  1. Dodd, Eligibility questions about Cruz and Rubio, Motu Proprio, March 23, 2015, http://simondodd.org/blog/?p=1842, 5 MPA __ (2015).
  2. See generally Antonin Scalia & Bryan Garner, Reading Law § 7 (2012); cf. Dodd, Party like it’s 1899, Motu Proprio, Jul. 3, 2015, http://www.simondodd.org/blog/?p=1948, 5 MPA __; Dodd, Judicial Conservatism and the Obamacare Cases, 2 MPA 26, 33 ff. (2012).
  3. I have cited his work before in, for example, For the record: Netanyahu’s visit, Motu Proprio, Jan, 29, 2015, http://simondodd.org/blog/?p=1743, 5 MPA __.
  4. Ramsey, The Original Meaning of “Natural Born.” Available at SSRN:http://ssrn.com/abstract=2712485 or http://dx.doi.org/10.2139/ssrn.2712485.
  5. Ramsey, pp.29-33.
  6. Id., pp.31-32.
  7. Id., p.34 n.126.
  8. Id., p.31; see id., pp.14-17.
  9. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 712 (1997).
  10. See 1 William Blackstone, Commentaries on the Law of England 354, 361-62 (1765).
  11. Ramsey, supra, p.34 n.126.
  12. 1 Stat. 103, 104 (1790).
  13. See Journal of the Senate of the United States of America, available at http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(sj0011)), p. 365 (Jan. 10, 1792):

    And be it further enacted, That it shall and may be lawful for the Postmaster General to enter into contracts, for a term not exceeding five years, for extending the line of posts, and to authorize the person or persons so contracting to receive, during the continuance of such contract, according to the rates by this act established, all the postage which shall arise on letters, newspapers, and packets, conveyed by any such post; and the roads therein designated shall, during the continuance of such contract, be deemed and considered as post roads, within the terms and provisions of this act….

Russia: The good, the bad, and the ugly

This term, I look an economics class, and our final papers afforded an opportunity for me to revisit a subject that used to be nearer and dearer to me than time now allows: The travails of the Russian economy following the collapse of the Soviet Union, and the lessons for us of that experience. Demands of time and rubric (and, frankly, end-of-term exhaustion) mean that it’s not as good as I’d hoped—personally I’d rate it as “acceptable”—and it finishes a little flat, but I enjoyed getting back into this headspace and writing something outside of my wheelhouse. For my sins, I plead Gaiman’s Sixth Law: “Remember that, sooner or later, before it ever reaches perfection, you will have to let it go and move on and start to write the next thing. Perfection is like chasing the horizon. Keep moving.” Those interested can download it here.

A tentative stratification of the categories of “teaching”

Jurisdiction, several justices of the Supreme Court have bemoaned, “is a word of many, too many, meanings. This variety of meaning has insidiously tempted courts, this one included, to engage in less than meticulous, sometimes even profligate … use of the term.” 1 In Catholic parlance, a similar difficulty bedevils the word “teaching.” What in the Church is amenable to change? Can teaching change? Is Francis simply repeating what previous popes have said in the area of “social teaching”—“surely that makes it okay,” this line of reasoning means to say, “for surely we cannot fault a pope for saying what another pope said twenty years ago!”—and if not, can it change? Defenders of the Synod underscore that it has changed no teaching; defenders of the Kasper proposal before the Synod insisted that they wanted a change only in discipline, not teaching. 

The common issue between these conversations and others like them is classification. I want to suggest that it may help to think of the Church as having five different bodies of material that are sometimes called “teaching,” with varying degrees of validity.

The first class of material is properly “Teaching” in the strict sense—one meriting a nice, big, capital T. The “deposit of faith,” the revelation handed down to the apostles by Jesus, and in turn handed down by them to us through apostolic succession 2; this is “the Catholic faith” in the narrower sense of that phrase. This is what converts confess when we come into the Church: This is “teaching” in the sense meant in the reference to that which “the holy Catholic Church teaches, believes and proclaims to be revealed by God” and that we in turn “believe and profess.” And this class of material, these “teachings” never change. If Jesus said “divorce is a mortal sin,” “there are seven sacraments,” “only men can be priests,” etc. such things become fixed stars in the sky: The Church has no power to change them and has never hitherto pretended otherwise.

The second class of material that the Church has is often called “teaching” but is better called “Doctrine.” This is the authoritative elaboration of the deposit of faith and its application to moral questions, most prominently but by no means exclusively in councils and ex cathedra pronouncements. 3 A familiar example might be the elaboration of the elements of mortal sin: That which is latent and tacit in Teaching is made explicit in Doctrine. Now: Does doctrine change? As Cardinal Newman showed, doctrine does in a certain sense develop (perhaps it would be more precise to say that as our understanding of the objects of doctrine evolves, so the sophistication of the language addressed to them increases) in an organic, contiguous process of development. 4 Development is a kind of change, so, in that sense, doctrine changes; in another, more profound sense, however, doctrine does not change: Indeed, it is a lack of substantial change that Newman makes a marker for authentic development as contrasted to corruption. 5 What is later understood is always present ab initio, even if latent and glimpsed dimly if at all. So, by way of analogy, Michelangelo said that he sculpted David by recognizing the figure already in the marble and setting him free; did the block of marble change? Yes and no: Its beauty and elegance have increased, perhaps its mass has decreased and its dimensions have changed, some inessential parts have sloughed off, but is, after all, still marble. Our doctrine of the papacy, for example, is more sophisticated (or at least more elaborate) than that of St. Irenaeus, but one sees in his Adversus Haereses a view of the papacy that is consistent with our own; similarly, it is more precise than that which was pressed by the ultramontanes before Vatican I.

(Here we might note that Teaching plus Doctrine compose “the Catholic faith” in the broader sense of that term.)

The third class of material that “the Church” has is “Discipline,” which includes ritual, devotion, canon law, etc. (Here, I put “the Church” in scare-quotes because the kind of thing referred to under this heading are usually to be found at the level of the churches sui iuris rather than the Church universal.) This is in no sense “teaching,” and no one with any real familiarity with Catholicism would seriously suggest that it is. But sometimes it gets called teaching anyway, whether as a sincere shorthand or out of confusion. And of course, not uncommonly, people find it helpful to pretend otherwise in order to advance particular agendas; items that belong properly to discipline are misappropriated and labelled as teaching, sometimes in order to insist that those items cannot be changed, and sometimes—by an entirely different set of persons—to “prove” that “teaching” has and therefore can change. Discipline has changed throughout time. Orthodox and Conservative Catholics would urge that this happen rarely and organically, Reform Catholics would urge that it happen whenever they see fit, 6 but almost everyone—almost—concedes the basic reality that discipline is man-made, and therefore can change. 7

The fourth thing that the Church has is words. I realize that this class stands uneasily with its stablemates, but I want to underscore the importance and independent personality of words. Teaching and doctrine can be transmitted only through words, and these words, these formulations, can be changed. But changes in words are a sharp and double-edged sword. When traditional words are replaced with novel words, as Pius X foresaw, there is a great danger that something important will be lost, that traditional understandings will become shaky or that misunderstandings will creep in. (Worse yet—if the spirit of the age is a constant and pervasive changing of words, a sense will inevitably develop that it is not only words that are malleable, but substance, too. John XXIII unleashed great mischief by saying—not incorrectly but inopportunely—that “the substance of [teaching] … is one thing; the formulations in which it is presented are another”; how much of the catastrophe of the last five decades could have been avoided but for the plastic spirit of the age?) At the same time, however, when ambiguous or misleading words are replaced with clearer words, when conflict and disagreement has been predicated on misunderstandings arising from misinterpretations of words, there is a great opportunity that something important might be gained. An example that I have cited before is Ladislas Orsy, SJ’s suggestion that “infallibility” was an infelicitous choice of word to describe the charism that protects the extraordinary petrine magisterium. So words can be and have been changed—but they should be changed only with enormous care and delicacy and after lengthy reflection and discussion.

The fifth and final class of materials that the Church has (and perhaps the most controversial when summarized this way) might be called “commentary.” This category is hard to label but easy to describe, and it is problematic, not only because a habit of labeling it “teaching” has a propensity to improperly merge it into Teaching proper, but also because such a label, taken in a looser sense than the one used above, is not wholly unwarranted. The Church’s “social teaching” is a prominent example: A body of commentary in which the Church or particular agents within her have taken principles from Teaching and Doctrine (or derived second-order principles thence) and applied it to concrete situations of modern life. 8 It is a homily writ large. 9 And it is, inherently, wholly unlike Teaching and to a great extent quite unlike Doctrine. Like Discipline, it is human-created, lacks any divine protection, and it rests entirely on the presuppositions and knowledge that its authors bring to it—and, worse yet, those creating it do not bring the professional expertise or training to those subjects that, for example, a bishop can be presumed to have in subjects more directly within the episcopal ambit. For example, popes have written about labor unions in certain times, under certain pressures, presupposing certain facts, and having marinated in a particular political outlook: The rise of socialism, for example, the nature of work, the nature of the economy, the position of the individual, and so forth. Changes in the reality of industry have obsoleted many of those notions in some places just as they have obsoleted Marx, and to pretend that the assumptions that guided popes when writing about workers on a moving assembly line hold good for those of us who work in the Western information economy—even though they may continue to apply to those who even today work on moving assembly lines—is fantasy.

People often bridle when I use the term commentary to describe social doctrine (among other things); they imagine it as a crosshairs and project their favorite encyclical into the reticle. But the point here is not to eliminate or elide social doctrine so much as to label it in a way that its proper weight and office is understood. Moreover, popes and bishops routinely offer commentary that is not intended to be binding. My example is St. Paul , the last of the itinerant bishops, who, in a letter to St. Timothy, bishop of Ephesus, says that he does not permit women to teach or assume authority over men, preferring that they be silent on such matters. 10 Is that statement Teaching, in the strict sense, binding then and now? Doctrine, binding then as now? Certainly it was not discipline, because Paul doesn’t tell Timothy “you must do this,” he says only “I do this.” It’s commentary.

Thus, it’s very important, when someone says “the Church changed x,” first to unpack the verb (who did what, precisely) and second to understand precisely what x was and to properly categorize it. This is even true (perhaps especially true) at the acme of temptation: When x looks like teaching. Examples on this point might include usury and religious freedom. 11 This is why a clear taxonomy is necessary to assigns each item to its proper office: One cannot argue that teaching can change predicated on examples of discipline changing—priests marrying and so on—because discipline isn’t teaching. Nor can one predicate such an argument on examples of commentary changing—on the death penalty, for example. But while commentary is, as we have seen “teaching” in a broad, rhetorical sense, both idiomatically and in literal application of the language, it is not “teaching” in the narrow, technical, binding sense. This also means that yesterday’s social doctrine cannot baptize today’s; when people defend Francis by saying that he’s just saying what social teaching already says, that is not saying an awful lot.

The Church speaks in many ways and capacities, and unpacking the context is critical. It also suggests that while commentary may be useful, it cannot (wisely) ever be made the Church’s focus, for that would confuse a body of non-authoritative, human, time-bound materials for that which can properly be called the inheritance of the faith: The Catholic faith, the disciplines that shape and give it concrete forms, and the traditional formulae in which it is transmitted. It is upon those things that the bishops must focus.

Notes:

  1. Bowles v. Russell, 551 U.S. 205, 215 (2007) (Souter, J., dissenting) (alteration in original) (citations and internal quotation marks omitted).
  2. See, e.g., 1st Clem., cap. 42 (circa 95) (“The apostles have preached the gospel to us from the Lord Jesus Christ … thus preaching through countries and cities, they appointed the first fruits [of their work], having first proved them by the Spirit, to be bishops and deacons of those who should afterwards believe”); Tract for the Times no. 15 (Palmer, with Newman) (1833) (“if it is plain that the Apostles left successors after them, it is equally plain that the Bishops are these Successors. For it is only the Bishops who have ever been called by the title of Successors; and there has been actually a perpetual succession of these Bishops in the Church, who alone were always esteemed to have the power of sending other Ministers to preach and administer the Sacraments”).
  3. Cf. Ratzinger, Introduction to Christianity 279-80 n.4.
  4. Compare John Henry Newman, An Essay on the Development of Christian Doctrine (1845) with Pius X, Pascendi (1907).
  5. See Newman, ch. 5.
  6. See The Strands of Catholic Thought for more on this taxonomy.
  7. An example of dissent on this point would be those who insist that Quo primum has permanent, binding effect that cannot be modified or augmented (still less abrogated) by later popes.
  8. Cf. Dodd, In re Firearms debate, 3 MPA 23, 25 (2013) (“Outside of the privileged categories of faith and morals, our shepherds’ views are always entitled to respectful consideration, but they are not controlling” (footnotes omitted)).
  9. Cf. GIRM 65-66.
  10. 1 Tim 2:12.
  11. See, e.g., Jay Richards, Did the Church change its doctrine on usury, Crisis Magazine, Dec. 8, 2014, http://www.crisismagazine.com/2014/church-change-doctrine-usury; Thomas Pink, Conscience and coercion, First Things, Aug. 2012, http://www.firstthings.com/article/2012/08/conscience-and-coercion.

Statute 2016/01 for the Diocese of Starling City

It is, of course, very easy to fault our bishops as weak, useless, spineless, ineffectual bumblers, the best of whom might, on a good day, rise to the dizzying height of “acceptable.” Very easy. Cf. St. John Chrysostom, Homily 3 on Acts. In response to such criticisms, I am sometimes asked to say just what it is that I would have them do. To answer that in the most direct possible way, this post will engage in an imaginative exercise: If I were to have been this afternoon installed as the Ordinary of Starling City, the following is the statute that I would promulgate this evening establishing new particular laws for the diocese. I would use every ounce of my authority and influence to end the postconciliar crisis in my diocese, and have little time for those clerics who could do likewise (spare a thought for curates and auxilliaries) but who choose not to. 

“As High Priest responsible for divine worship in the particular Church” to me entrusted, it is my task to “order[ ], promot[e,] and safeguard[] the entire liturgical life of the diocese….” AS 145. Considering, therefore, my “responsibility for divine worship to be [my] pre-eminent role,” AS 142, and mindful of the authorities and concerns of General Instructions of the Roman Missal 22, 92, 387, and 397, Sacrosanctum Concilium, nos. 22, 26, 41, and 114, Redemptionis sacramentum, nos. 19 et seq. and 176 et seq., Apostolorum successores, nos. 158-60 and 162, Ecclesia de myesterio, art. 8, and of canons 375 et seq. and 838 et seq. in the 1983 code, and in order that there be no “doubt about the law,” 1983 CIC 14, I do now ordain and establish the following as particular law for this diocese of Starling City.

Article 1: Particular laws

a) The physical arrangement of churches.

i) No parish of this diocese may erect a freestanding altar, nor demolish an existing high altar or communion rail. Cf. GIRM 192, 294. In cases where there is reasonable doubt as to the meaning of “freestanding” and “high,” the parish and the deanery representative of the Diocesan Commission on the Sacred Liturgy shall brief this office, which shall decide the question before any action may be taken. 

ii) Each parish without an extant high altar, in which there exists a freestanding altar constructed after December 4, 1963, is to anticipate the removal of that freestanding altar and construction of a new high altar as part of their next anticipated or scheduled renovation, with all deliberate speed. Cf. GIRM 299, 301; AS156.

iii) In parishes in which a high altar has been retained in addition to a freestanding altar constructed since December 4, 1963, use of the high altar shall resume immediately. Such parishes shall, within 365 days from the publication of this statute, remove the freestanding altar or show cause why this is not physically possible.

iv) In parishes where it is not physically impossible, the tabernacle is to be situated at the apse or natural apex of the church, and marked by a lit sanctuary lamp. 

v) Each parish that lacks an altar rail, where construction thereof is not physically impossible by reason of the general arrangement of the church building,  shall construct a temporary altar rail within two months, and  is to anticipate the construction of a permanent altar rail as part of their next anticipated or scheduled renovation, with all deliberate speed. 

b) The celebration of the liturgy.

i) It is the expectation of this diocese that the celebrant of a parish’s principal Sunday Mass will sing the ordinary chants of the Mass, that incense will be used, cf. GIRM 276 et seq., and that such Mass be celebrated at the high altar, with six lit candles thereupon, cf. GIRM 117. See generally AS148; art. 1(a)(ii), supra. 

ii) Provided that natural or candle light is sufficient, no parish is obliged to use electric lighting during the celebration of Mass. Adequate lighting for safe ingress and egress, however, must be provided before and after the Mass.

iii) The celebration of the Liturgy of the Eucharist in vernacular translations is suppressed in all circumstances whatsoever. Cf. GIRM 30, 352, 365; SC36.1; RS112; LA13. 

1) When celebrating the Holy Sacrifice of the Mass in the Ordinary Form, priests shall say or sing the Eucharistic Prayer in Latin, with due attention to the relevant rubrics.

2) The chancery shall procure and make available altar cards for Eucharistic Prayer I in Latin to all parishes so requesting, at no cost to the parish.

3) Priests are encouraged to use Latin for any fitting parts of the Ordinary of the Mass, due attention being given that, “[i]n Masses which are celebrated with the people, a suitable place … be allotted to their mother tongue.” SC54 (emphasis added).

4) No pastor shall fault or penalize any curate for celebrating any part of the Mass in Latin, or for celebrating Mass in the extraordinary form.

iv) Whether at a freestanding or high altar, the Liturgy of the Eucharist is to be celebrated versus apsidem, except where the physical arrangement of the church building makes this physically impossible. Cf. art. 1(a)(ii-iii), supra. At the discretion of the celebrant, the introductory and closing rites and the Liturgy of the Word may be celebrated versus populum and in vernacular languages. Cf. SC54. General Instruction of the Roman Missal 310 notwithstanding, the sedelia or celebrant’s chair is to be located in an unobtrusive location within the sanctuary, perpendicular to the principal axis of the church.

v) “The Church acknowledges Gregorian chant as specially suited to the Roman liturgy: therefore, other things being equal, it should be given pride of place in liturgical services.” SC116. Accordingly, parishes are to make use of the proper chants in Latin or the vernacular from the Missal, in Latin from any of the books of longstanding approval, such as the Roman Gradual, or in English from the Simple English Propers. Cf. GIRM 41, 45, 48. Parishes are encouraged to form scholas for purposes of singing sacred choral music, and also to foster a participation by the congregation in the proper chants of the Mass. Cf. GIRM 40; SC 54, 118. It is the hope and expectation of this office that the congregation will within a reasonable time be able to sing the Gloria, Credo, etc., as anticipated and directed by the Second Vatican Council. Cf. SC54, 114. The liturgical use of instruments other than the pipe organ is therefore suppressed for this diocese. Cf. GIRM 352, 393; SC112, 120; RS57; MS12, 28-30.

vi) Allowing that the use of a cantor is “fitting,” GIRM 104, such use is available in this diocese where useful, but is by no means required, and a the use of a schola or choir is to be preferred.  Cf. MS19, 21. Where a choir loft is available, the schola or choir should be situated in it so as to avoid creating a focal point other than the liturgical action. Cf. GIRM 312.

vii) At the discretion of the celebrant, the presentation of gifts (“praiseworthy” but not required, GIRM 73, cf. GIRM 140), may be omitted. The offertory and communion chants shall not be amenable to substitution: If the assigned chant is not sung, the offertory shall be conducted pursuant to GIRM 142, and communion shall be conducted in silence. Cf. GIRM 45; contra MS32.

viii) The illicit practice of congregations holding hands during the Pater Noster is deprecated. Cf. SC22.3.

ix) The communal pax is hereby deemed to be “[never] appropriate,” GIRM154, in this diocese, ipso iure, and is therefore suppressed in this diocese. Cf. RS71.

x) Redemptionis Sacramentum and Ecclesia de mysterio require that all Extraordinary Ministers of Holy Communion have personal approval by the bishop. RS155; EM art. 8. In this diocese, only a person who has been personally commissioned for service as an EMHC by this office, in writing, for a specified period of time not exceeding six months, that has not expired, may serve as an EMHC, and all such approvals lapse at the end of each calendar year without regard to any other timeline or provision of the law. All standing approvals predating this statute are hereby declared null and void. If no deacon or other assistant is available, the celebrant may elect to distribute under a single species only. Cf. GIRM 281; RS102.

xi) For purposes of communion:

A) The adaptation of General Instruction of the Roman Missal 160 for dioceses of the United States is declared null and void in this diocese.  Cf. art. 3(g), infra.

B) The norm for reception of Holy Communion in the diocese of Starling City is on the tongue, kneeling at the altar rail (if one is present; standing if not). Cf. GIRM 160 (approved US adaptation); art. 1(a)(v), supra.

C) Nevertheless, communicants should not be denied Holy Communion because they stand or choose to receive in the hand. Rather, such instances should be addressed pastorally, by providing the faithful with proper catechesis on the reasons for this norm. Cf. GIRM 160 (ET).

D) Although communicants generally retain the right to receive Holy Communion in the hand, Ministers of the Eucharist should take special care to ensure that the host is consumed by the communicant in the presence of the minister, so that no one goes away carrying the Eucharistic species in his hand. If there is a risk of profanation, pastors should suspend the giving of Holy Communion in the hand until such time as they are satisfied that the risk has passed, or for other good cause. Cf. RS91-92.

xiii) The addition of announcements preceding the closing rights, foreseen by GIRM 90 and 166, is suppressed. In Masses in both the ordinary and extraordinary form, such announcements and presentations as may be deemed necessary are to be given before the opening rites or after the closing rites. Cf. RS74.

Article 2: Implementation

a) Transitional indults and other provisions

i) An indult permitting the celebration of Holy Mass using an existing freestanding altar in parishes in which there exists a high altar, contrary to article 1(a)(iii) of this statute, shall be in force for 48 hours from the publication of this statute.

ii) An indult permitting the Liturgy of the Eucharist to be said in the vernacular shall be in force for 10 days from the publication of this statute.

iii) An indult permitting the congregation to sing (according to the chants provided by the Missal, cf. art 1(b)(v), supra) or recite the Sanctus and Agnus Dei in vernacular languages shall be in force for 4 weeks from the publication of this statute.

iv) An indult permitting recitation of the the Pater Noster and its response in the vernacular, shall be in force for 6 weeks from the publication of this statute.

v) In order that an orderly transition might be completed, parishes may, if necessary, celebrate Sunday Masses sine musica for up to 2 weeks following the publication of this instruction, presuming that appropriate steps to return chant to its “pride of place” are ongoing.

vi) Parishes are encouraged to engage in all appropriate instruction and catechization to ensure a smooth transition, but this statute comes into effect upon publication, and implementation is to proceed immediately, except as provided for in this article. The time limits on the indults provided above are not subject to tolling or discovery rules.

vii) Cake, and grief-counselling, will be available from the Chancery.

b) Enforcement

i) All persons in this diocese, lay, religious, or cleric, shall have recourse to the Diocesan Liturgy Office and the Diocesan Commission on the Sacred Liturgy for remedies against liturgical abuses and violations of this statute. 

ii) The bishop and the director of the Diocesan Liturgy Office shall be members of the Diocesan Commission on the Sacred Liturgy. The commission may meet, but may not vote on any question in their absence.

iii) An administrative fee of $1,000 shall be included with all applications filed pursuant to article 1(b)(x). All monies collected shall be immediately donated to programs for the the relief of the poor. 

Article 3. Additional provisions and general policies and norms

a) The policy of this diocese is that all souls be saved, that all persons should be converted to the Catholic Faith, and that, upon their arrival, they should find in their local parish a Mass celebrated in a manner consistent with the tenets of the Catholic Faith regarding the Holy Sacrifice of the Mass.

b) Priests who feel that the number of Masses that they are required to celebrate during the course of a weekend are encouraged to contact the Diocesan Liturgy Office. Where possible, it is to be expected that the bishop will personally and willingly take on as many as is feasible.

c) All practices in which celebrants place a congregation in the position of choosing between obeying an immediate instruction of the celebrant and the liturgical law of the Church or of this diocese are reprobated. Cf. GIRM 95.

d) A parish that is financially burdened by compliance with this statute may apply to the deanery and/or the diocese for assistance.

e) The policy of this diocese is to foster warm relationships with the Personal Ordinariate of the Chair of St. Peter, the Priestly Fraternity of St. Peter, and the Society of St. Pius X, and to maximize the number of available confessors within he diocese. Accordingly, all priests in good standing with those orders who are not under penalty of excommunication from legitimate ecclesiastical superiors, may apply for faculties to hear confessions in this diocese, which will be granted liberally. Cf. 1983 CIC 969, 972-73.

f) The policy of this diocese is to foster vocations and to encourage experimentation calculated to achieve this effect. This office stands behind those pastors who choose to make use of female altar servers, but also behind priests who abjure female altar service for purposes of fostering vocations. The clerk is directed to disregard all complaints on this point. 

g) Directives and decisions of the United States Conference of Catholic Bishops are null and void within this diocese unless:

1) The conference was exercising an authority of the Holy See that has been explicitly delegated to it by the Holy See;

2) The instrument was adopted by the unanimous vote of all bishops, including the bishop of this diocese, in open session, after December 30, 2015, and the full text of the instrument is available publicly (lex occulta lex nulla).

3) The instrument separately receives the mandate of this office, or that of the Holy See.

Published 13:00 MST, Dec. 29, the year of our salvation 2015.
Simon +Dodd
3rd Bishop of Starling City, MT

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.

Notes:

  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. 

Notes:

  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.