Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, September 20, 2017

The Dialectic with Tradition

A few posts ago, I recommended Matthew Crawford's book, The World Outside Your Head. To convince MOJers to pick it up, I wanted to offer an excerpt. From the book's final chapter, in a section called "The Dialectic with Tradition," I pull here the lessons from Crawford's study of organ-makers. (This is transcribed from the audio, so excuse formatting or other mistakes.) 

We moderns have inherited a view that pits the technical spirit versus tradition. Partisans of the first will say it embodies reason and that the latter amounts to little more than inherited prejudice. For their part, partisans of tradition often see in technology a spirit of vandalism that can only destroy meaningful human activity. But to be in conversation with a tradition is a kind of rationality, a mode of thinking that helps us get at the truth about things....

 

The dialectic between tradition and innovation allows the organ-maker to understand his own inventiveness as a going-further in a trajectory he has inherited. This is very different from the modern concept of creativity which seems to be a crypto-theological concept: creation ex nihilo. For us, the self plays the role of God and every eruption of creativity is understood to be like a miniature Big Bang coming out of nowhere. This way of understanding inventiveness cannot connect us to others or the past. It also falsifies the experience to which we give the name creativity by conceiving it to be something irrational, incommunicable, unteachable.... 

 

According to the Enlightenment concept of knowledge we explored [earlier in the book], the exemplary sort of knower is a solitary figure and his knowing happens always in the present tense. He is not encumbered by the past nor does he recognize the kind of authority that operates in communities. His arguments are demonstrative... they float free of any particular historical circumstances or set of lived experiences. Tradition is thus disqualified as a guide to practice. Tradition may convey some truths, it will be conceded. But to be ratified as such, the truths in question must be scrutinized by a mode of reasoning that is independent of what came before. To be rational is to think for oneself. For the most part, this Enlightenment understanding views tradition as a darkness that grips men's minds and a habit of inflexibility to be rooted out. But this view gets a lot wrong.

 

As we saw also in the case of scientific apprenticeship [earlier in the book], in the development of any real competence, we don't judge everything for ourselves, starting from scratch each morning. Rather we have to begin by taking a lot on faith, submitting to the authority of our teachers, who learn from their teachers. The individualist conceit that we do otherwise - and the corresponding discredit that falls on tradition - makes people feel isolated. As we learned from Tocqueville, this isolation brings with it a certain anxiety which we try to relieve by looking around to see what others - our contemporaries - are thinking and feeling. The rugged individualist becomes the statistical self....

In the book, Crawford dives deep again and again into various sorts of expertise (e.g., short order cook, hockey player, glass-maker, motorcyclist, engineer) to show, among other lessons, the reality of the human person as a situated, embodied self who develops competency and independent judgment within the tradition within which he or she works, "going-forward from" but always dependent upon it.  In a word, we are only capable of independent judgment - of thinking for ourselves and innovating anew- when we've appropriated the traditions from which we come. Only then can we look back with reasoned critique. But in making our critique, we best be weary of tearing out root and branch that which has given us the capacity to do so. 

September 20, 2017 in Bachiochi, Erika | Permalink

Democracy Basics: St. Thomas shows us how to have an argument

I am not on social media much, but from what I gather the vitriol that seems often to characterize the medium has heated up on religious matters. Whether it's with regard to the unconstitutional treatment of judicial nominee Amy Barrett, Fr. Martin's new book, Building a Bridge, or Pope Francis (always Pope Francis), online religious warfare is apparently at its zenith. This should concern all who care about faith - but even more broadly, all who care about reason. After all, it is the capacity to offer coherent reasons for one's perspective, as well as the capacity to listen and civilly engage those who differ, that makes constitutional democracy possible--and well, we live in one. 

The founders of our republic took a great risk in presuming human beings could engage in public-spirited dialogue about matters of the common good. But to them, the historical alternative was not all that appealing. And we might be reminded of that from time to time. Religious warfare - even of the increasingly digital variety - leads neither to changed hearts nor minds, and it certainly does not lead to peace among people. It degrades the human person - who by his capacity to reason most distinguishes him from the animals - and it degrades the common life we live together. 

So I was happy to see Bishop Barron's address to employees at Facebook earlier this week. Bishop Barron, like Pope Benedict and others before, does even more good in his defense of reason than even in his defense of the faith. His talk, "How to Have a Religious Argument," brings together many of his recurring themes, but most especially that faith is opposed to neither reason nor science. The talk is outstanding as a matter of apologetics. There is simply no one better.

But perhaps the talk is most instructive in its final minutes when he walks the audience through the medieval method of disputation as best exemplified by the great St. Thomas Aquinas. Thomas formulates arguments for atheism far better than the modern atheists, Barron tells his audience; perhaps you might go and read them. No argument is off the table; best to know your interlocutor's argument better than even they do, noting points of agreement when you see them; treat each person with whom you disagree with the respect he or she deserves.

None of us is Thomas Aquinas, and few of us can treat an opposing argument with the charity and dexterity Bishop Barron does, but we can all seek to improve along these lines. As Catholic lawyers, we have an obligation to do so. For if not us, who else will? 

Bishop Barron offers a way forward, but not just for religious argument. The medieval approach to dialogue, disagreement, and debate that Barron recommends would do our republic a whole world of good.  If we cannot restore the capacity for reason-giving, if all disagreement becomes a battle of the will to power, we have seized to be a republic. I, for one, am not ready to give up on that project yet. 

September 20, 2017 in Bachiochi, Erika | Permalink

Call for Papers: Law and Development Conference - The Catholic University of America and Jagiellonian University in Krakow, Poland

Cua-logo.gif   Jagellonian logo

The American Law Program at the Catholic University of America School of Law and the Jagiellonian University in Krakow, Poland are hosting a fabulous conference next year which will be of interest to all MOJ readers and contributors.  They have issued a call for papers and I encourage all to consider a submission.  Here is a summary of the purpose of the conference which will be held in Krakow - a beautiful city if you have not had the pleasure of teaching there.  I have highlighted the specific aspects that may be of interest.

"Academic purpose: The research project’s aim is to look at the concept of ‘development’ from alternative perspectives and analyze how different approaches thereto influence law. ‘Sustainable development’ is about balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept present in Catholic social teaching.

‘Development’ may be seen as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application. It is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker.

This research project is also about how different approaches to ‘development’ and their impact on law may coexist in pluralistic and multicultural societies and how to evaluate their legitimacy. The problem may be analyzed from the overarching theoretical perspective as well as based on case studies stemming out from different legal branches."

The details regarding submission and the opportunity for publication are as follows:

Dates: March 16, 2018

Arrangements: 300-word paper proposals should be submitted by October 10, 2017 at okspo@uj.edu.pl Successful applicants will be notified by October 20, 2017. Accommodation for selected speakers at the university’s hotel will be provided by Jagiellonian University (two nights for speakers from Europe, 3 nights for speakers from outside Europe). Travel costs must be provided by participants.

Publication: The best conference papers will be published with Catholic University Law Review. Final draft will be due by late January 2018 for those who would like to be considered for publication. 

 Should you have any questions, please reach out to my colleagues: Prof. Leah Wortham (wortham@law.edu) and Prof. Megan Labelle (labelle@law.edu)

September 20, 2017 in Leary, Mary G. | Permalink

Tuesday, September 19, 2017

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018


In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
2018.

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the
conference.

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

September 19, 2017 in Garnett, Rick | Permalink

Nussbaum & Thorpe: The "Error has no rights" Error persists

A good read.

Here's a bit:

[T] idea that “error has no rights" . . . has often (and, John Courtney Murray contends, wrongly) been labeled a medieval teaching of the Catholic Church. Whatever its source, the maxim has substantial appeal: Why should a state tolerate error? If civil unity matters, why risk infection from wrongheaded ideas? Many of the darkest moments in church–state relations drew strength from this view — from Calvin’s burning of Michael Servetus to the Inquisition, the beheadings of Bishop John Fisher and Thomas More, and the Saint Bartholomew’s Day Massacre. Legal rights should protect the good — we repeatedly hear. They ought not be asserted in the defense of evil. Fortunately, both church and state in the West generally reject that totalitarian idea.

September 19, 2017 in Garnett, Rick | Permalink

Sunday, September 17, 2017

Becket Fund Constitutional Law Fellowship - call for applications

From the Merry Band at Becket:

Becket is currently soliciting applications for our Constitutional Law Fellowship, to begin in September 2018.


The fellowship gives recent law school graduates immediate, hands-on experience litigating cutting-edge constitutional cases. Under the mentorship of experienced Becket attorneys, fellows will participate in all aspects of trial and appellate litigation, gaining valuable experience in litigation strategy, research, writing, and oral advocacy. The fellowship is an excellent stepping stone to private practice, academia, or a permanent position at Becket.

Applications will be received on a rolling basis starting now until December 31, 2017. Interviews will be conducted thereafter with offers made typically by the end of January 2018. The fellowship begins in September 2018. Fellowship terms are for one year and offer a competitive salary and benefits.

Applications should include a cover letter addressed to Becket's recruitment chair Hannah Smith, along with a resume, transcript, writing sample, and references. Applications should be emailed to Chelise Fox at cfox@becketlaw.org.

September 17, 2017 in Garnett, Rick | Permalink

"The Splendor of Truth in 2017"

I very much enjoyed this essay, in First Things, by Archbishop Chaput.  A bit:

. . . Next year, 2018, marks the twenty-fifth anniversary of the release of Veritatis Splendor, John Paul’s great encyclical on the “splendor of truth.” Written to encourage a renewal in Catholic moral theology and a return to its classical Catholic roots, Veritatis Splendor grounds itself in a few simple convictions. Briefly put: Truth exists, whether we like it or not. We don’t create truth; we find it, and we have no power to change it to our tastes. The truth may not make us comfortable, but it does make us free. And knowing and living the truth ennoble our lives. It is the only path to lasting happiness.

In the years that have passed, the crisis of truth has only seemed to grow. Our age is one of cleverness and irony, not real intellect and character. Today the wisdom of Veritatis Splendor is more urgently needed than ever.

It’s common, even among people who identify as Catholics, to assume that the Church’s moral guidance is essentially about imposing rules, rules that breed a kind of pharisaism. But this is exactly wrong. It’s an error that radically misunderstands the substance of Catholic teaching. It’s also one of the worst obstacles to spreading the faith.

John Paul II knew this. . . .

September 17, 2017 in Garnett, Rick | Permalink

Saturday, September 16, 2017

Amicus Brief in Masterpiece Cakeshop: Protect Both Sides

Doug Laycock and I have filed a brief in the Masterpiece Cakeshop case on behalf of amici who include a variety of religious and religious-freedom organizations: the Christian Legal Society, the LDS (Mormon) Church, the National Association of Evangelicals, the Union of Orthodox Jewish Congregations, the Queens Federation of Churches, and others. The brief has several important emphases, which are to one extent or another distinctive--sometimes quite different from other briefs in the case. Here are four representative passages:
 
From the statement of interest of amici: 
 
     Amici are religious organizations who accept that same-sex civil marriage is the law of the land. But some deeply religious Americans, including some of amici’s members, cannot in good conscience assist with same-sex weddings. Now that the Court has protected the liberty of same-sex couples, it is equally important to protect the religious liberty of these conscientious objectors. Most of these amici are involved in ongoing efforts, mostly unsuccessful so far, to negotiate legislation prohibiting sexual-orientation discrimination while providing religious exemptions. 
 
     Laws protecting the liberty of both sides are extremely difficult to enact in our polarized political environment; too many on each side resist liberty for the other. These amici believe that religious liberty is a God-given right, that it reduces human suffering, and that it is an essential means by which people with deep disagreements live together in peace. A fundamental purpose of the Constitution is to protect the liberty of both sides, and especially so when powerful factions seek to deny that liberty. 
 
From the summary of argument, parts I and II:
 
     The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.
 
     This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding. 
From the summary of argument, part III:
 
     Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). 
 
     A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.
 
     B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....
 
     D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.
From argument section IV, re lack of a compelling governmental interest on these facts:
 
     [Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.
 
     Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.
 
     Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.] 

September 16, 2017 in Berg, Thomas, Current Affairs | Permalink

A comment on the "Masterpiece Cakeshop" case

Here's my contribution to the SCOTUSblog symposium on the upcoming Masterpiece Cakeshop case.  Here is a bit:

. . . One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.

That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.

This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.

So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience? . . .

 

September 16, 2017 in Garnett, Rick | Permalink

California commemorates the 500th Anniversary of (a version of) the Protestant Reformation

Here's the California Senate's resolution relating to the 500th anniversary of the Protestant Reformation.  It seems to me that some in the Senate need to read, e.g., their Eamon Duffy and Brad Gregory.  A "Whereas" clause about the dissolution of the monasteries (#givebackYorkMinster) is conspicuously absent.  (I kid, I kid.)

September 16, 2017 in Garnett, Rick | Permalink

Wednesday, September 13, 2017

Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood

The annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova University on Friday, October 27. All are welcome to attend, and there is no cost to attend except for those seeking CLE credit.  Details about registering for CLE credit will be posted on the Villanova School of Law homepage as the date of the conference approaches.

The conference, "Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood," will focus on the new (not-yet-published) book by philosopher James Bernard Murphy, professor of government at Dartmouth, Humanhood: Beyond Childhood and Adulthood.  Many readers of MOJ will be familiar with Professor Murphy's earlier The Philosophy of Customary Law (Oxford 2014) and The Philosophy of Positive Law: Foundations of Jurisprudence (Yale 2007).  Here is a taste from the preface to the new book on which the conference will focus:

 

The study of a human life is intrinsically multidisciplinary. Although this book is framed by basic philosophical questions and arguments, I have drawn illustrative material from biology, psychology, political science, sociology, linguistics, biblical exegesis, anthropology, and literary theory. I have attempted to refer to studies reflecting major currents of scholarship in those fields. The questions we shall consider about the shape of a human life are timeless ones, but the empirical illustrations are undoubtedly time-bound. This book is thus perched between the eternal and the temporal, which is the story of every human life.

 

The timorous may stay at home!  

 

Professor James Murphy will deliver the keynote address, and the other speakers will include:

 

Shelley Burtt, Executive Director of the Camphill Foundation

Phillip Reynolds, Aquinas Professor of Historical Theology, Candler School, Emory University

Marya Schetman, Professor of Philosophy and member of the Law of Integrated Neuroscience, University of Illinois at Chicago

Harry Brighouse, Professor of Philosophy, University of Wisconsin-Madison

James Gordley, W. R. Irby Chair, Tulane University Law School

 

 

September 13, 2017 in Brennan, Patrick | Permalink

"The Nation's Premier Christian Law School"?

I see that our good friends at Pepperdine have started to market themselves as "The Nation's Premier Christian Law School."  I certainly agree that Pepperdine is an excellent institution that does a very good job of engaging and meaningfully embracing its Christian character.  I hope, though, that they have not fallen into the old error -- and, knowing so many at Pepperdine, I have to believe they have not -- of excluding Catholics (and, more specifically, certain outstanding Catholic law schools) from their definition and understanding of "Christian"!  Remember, Evangelicals and Catholics Together (on law)!

UPDATE:  Although (as I hope is clear!) I intended this post as a gentle and affectionate bit of teasing, and not a critique, I should add that in various other places and communications of Pepperdine's it is said that the institution "aspires" or has "aspirations" to be the Nation's Premier Christian Law School.  And, Dean Paul Caron has stated:

Since my first day, I have loved working towards our shared goal to become the nation's premier Christian law school by combining academic and research excellence with a deep-rooted commitment to our Christian mission that welcomes people of all faiths and backgrounds. 

Such aspirations are, of course, entirely appropriate and to be celebrated.  Those of us who teach at the Nation's Premier Christian Law School welcome the competition!  =-)  (I kid, I kid.)

UPDATE:    Dean Caron has written a gracious follow-up post which sets everything straight and kindly concludes:

 I am of course a huge fan of Notre Dame and the other great Christian law schools, and of the fine faculties at those schools.  None of us at Pepperdine would in any way ever intimate that Notre Dame or other Catholic law schools should not be considered Christian law schools.  Indeed, we have a large number of Catholics on our faculty (in addition to Jewish, Muslim, ans Sikh faculty).  Like Rick, we believe we are all "fellow laborers in the vineyard."

September 13, 2017 in Garnett, Rick | Permalink

Supreme Court Roundup at First Things

Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.

But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.

And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.

September 13, 2017 in DeGirolami, Marc | Permalink

Monday, September 11, 2017

12 September 2001 / Pope John Paul II / General Audience

Link here:

I cannot begin this audience without expressing my profound sorrow at the terrorist attacks which yesterday brought death and destruction to America, causing thousands of victims and injuring countless people. To the President of the United States and to all American citizens I express my heartfelt sorrow. In the face of such unspeakable horror we cannot but be deeply disturbed. I add my voice to all the voices raised in these hours to express indignant condemnation, and I strongly reiterate that the ways of violence will never lead to genuine solutions to humanity’s problems.

Yesterday was a dark day in the history of humanity, a terrible affront to human dignity. After receiving the news, I followed with intense concern the developing situation, with heartfelt prayers to the Lord. How is it possible to commit acts of such savage cruelty? The human heart has depths from which schemes of unheard-of ferocity sometimes emerge, capable of destroying in a moment the normal daily life of a people. But faith comes to our aid at these times when words seem to fail. Christ’s word is the only one that can give a response to the questions which trouble our spirit. Even if the forces of darkness appear to prevail, those who believe in God know that evil and death do not have the final say. Christian hope is based on this truth; at this time our prayerful trust draws strength from it.

With deeply felt sympathy I address myself to the beloved people of the United States in this moment of distress and consternation, when the courage of so many men and women of good will is being sorely tested. In a special way I reach out to the families of the dead and the injured, and assure them of my spiritual closeness. I entrust to the mercy of the Most High the helpless victims of this tragedy, for whom I offered Mass this morning, invoking upon them eternal rest. May God give courage to the survivors; may he sustain the rescue-workers and the many volunteers who are presently making an enormous effort to cope with such an immense emergency. I ask you, dear brothers and sisters, to join me in prayer for them. Let us beg the Lord that the spiral of hatred and violence will not prevail. May the Blessed Virgin, Mother of Mercy, fill the hearts of all with wise thoughts and peaceful intentions.

 Today, my heartfelt sympathy is with the American people, subjected yesterday to inhuman terrorist attacks which have taken the lives of thousands of innocent human beings and caused unspeakable sorrow in the hearts of all men and women of good will. Yesterday was indeed a dark day in our history, an appalling offence against peace, a terrible assault against human dignity.

I invite you all to join me in commending the victims of this shocking tragedy to Almighty God' s eternal love. Let us implore his comfort upon the injured, the families involved, all who are doing their utmost to rescue survivors and help those affected.

I ask God to grant the American people the strength and courage they need at this time of sorrow and trial.

September 11, 2017 in Garnett, Rick | Permalink

Saturday, September 9, 2017

Notre Dame's President, Fr. John Jenkins, writes to Sen. Feinstein to criticize anti-religious questioning

Go Irish.  

 . . . Your concern, as you expressed it, is that “dogma lives loudly in [Professor Barrett], and that is a concern when you come to big issues that large numbers of people have fought for years in this country.” I am one in whose heart “dogma lives loudly”, as it has for centuries in the lives of many Americans, some of whom have given their lives in service to this nation. Indeed, it lived loudly in the hearts of those who founded our nation as one where citizens could practice their faith freely and without apology.

Professor Barrett has made it clear that she would “follow unflinchingly” all legal precedent and, in rare cases in which her conscience would not allow her to do so, she would recuse herself. I can assure you that she is a person of integrity who acts in accord with the principles she articulates.

It is chilling to hear from a United States Senator that this might now disqualify someone from service as a federal judge. I ask you and your colleagues to respect those in whom “dogma lives loudly”—which is a condition we call faith. For the attempt to live such faith while one upholds the law should command respect, not evoke concern. . . .

September 9, 2017 | Permalink

Friday, September 8, 2017

Democrats for Life Statement on the Questioning of Amy Barrett

Democrats for Life have issued a statement criticizing Democratic senators for the questioning of Amy Barrett in her confirmation hearing. Some excerpts:

     Democrats For Life of America (DFLA) expresses its disappointment with Democratic senators and interest groups who are attacking federal court of appeals nominee Amy Barrett for her personal religious views on the dignity of human life at all stages.

     Vigorous questioning of President Trump's judicial nominees is needed to ensure that if confirmed to the court, they will follow the law and protect civil rights and liberties.  But Senator Dianne Feinstein (D-CA) stepped over a crucial line when she told Barrett in Wednesday's confirmation hearing: "The dogma lives loudly within you. And that's of concern when it comes to big issues." 

     Feinstein really means one issue, of course: abortion.  And what she denigrates as "dogma" is the Catholic teaching that a human being is a person with dignity from the moment of conception--a belief held by millions of Americans, including believers of all faiths and nonbelievers alike. 

     But Senator Feinstein has no basis for holding this "dogma" against Professor Barrett.  The nominee repeatedly made it clear that as a judge on a lower federal court, she would follow her oath to decide cases not by her personal views, but according to the law as set forth by the U.S. Supreme Court.  Sen. Feinstein had no evidence with which to question those assurances.  So instead she suggested that Barrett's statements could not be trusted because "the dogma lives loudly within [her]." ...

     Unbelievably, senators and interest groups have attacked Barrett with a 20-year-old article she co-wrote--not about abortion, but about Catholic judges conscientiously opposed to the death penalty!

     That article noted the strong Catholic teaching against capital punishment, and it said that a Catholic judge who opposed issuing a death sentence might have to remove ("recuse") herself from the case, which is a well-established practice. The article made it clear that recusal would be the proper step: The judge may not stay on the case and rule according to personal beliefs instead of the law. 

     Yet Democratic senators and supposedly "progressive" interest groups are claiming that Barrett said she would impose her beliefs upon the law—when, in fact, she said the exact opposite.

     In other words: Barrett said that a judge should never contradict the law but should remove himself from a case if he, in conscience, believes that ordering the execution of a human being would be immoral.  And Democratic senators are expressing "concern" about that.  When did our party--which once stood up for the conscientious claims of civil-rights marchers--become so fearful and dismissive of personal moral conscience? ...

     Democratic leaders remain so committed to protecting abortion from even minimal threats that they'll trample on other principles to do so.  A nominee repeatedly makes it clear that she won't impose her personal beliefs as a judge--that she'll remove herself from a case if she faces a conflict of conscience.  But Democrats still reject her because they think that she has strong personal religious beliefs ("dogma").

     It's another example of how the Democratic Party loses its way when it focuses on protecting rigid abortion-rights ideology to the exclusion of all other principles.  That same misguided focus has caused the party to lose all branches of the federal government and, in the last eight years, 1000 legislative seats around the country....

September 8, 2017 in Berg, Thomas, Current Affairs | Permalink

Thank you, Senator Feinstein!

In considering Senator Feinstein's revealing TV performance the other day, its openness is the only thing surprising about her open hostility to what a politician who panders to pro-abortionists seems to think of as Professor Amy Coney Barrett's "living dogmatism." The hostility is familiar.

Discerning viewers may have detected an element of unspoken envy as well. ("You have deep convictions. I have to perform for powerful factions. Poor me.") 

It is likely to be several months, though, before we may look back to see that the longest lasting and most powerful effect of Senator Feinstein's revealing phrase was to significantly increase the likelihood that the next Associate Justice of the Supreme Court of the United States would be Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit.

President Trump and his advisers are well aware of the power of the "But Gorsuch!" Effect. And Senator Feinstein has inadvertently created a new celebrity federal judge. 

In our forthcoming Supreme Court round-up for First Things ("A Less Corrupt Term"), Marc and I discuss some ways in which the "reality-TV-ification" of our governing institutions has reached the Supreme Court. The "dogma lives loudly within you" merchandise that has already appeared (reminiscent of the "Notorious RBG" merchandise that has popped up in recent years) suggests the emergence of a certain celebrity factor from unexpected quarters. And that factor will be unquestionably attractive for an Executive Producer looking to revive a flagging series through the Introduction of a New Character to the Show. 

A nomination like this might not be enough to get the Executive Producer invited to speak at Notre Dame's graduation, but it would certainly be good for ratings ... and isn't that what matters these days? So while I agree with Rick that Senator Feinstein's comment was "disgraceful," we might instead consider it "deplorable."

How will this one turn out? We'll have to stay tuned all season to see.

September 8, 2017 in Walsh, Kevin | Permalink

Thursday, September 7, 2017

Paul Horwitz on religious tests, animus, and judicial nominations

Worth a read (as per usual).

September 7, 2017 in Garnett, Rick | Permalink

Some quick thoughts on "Land O'Lakes" at 50

A few days ago, at Notre Dame, the Cushwa Center convened an event to mark the 50th anniversary of the "Land O'Lakes" statement.  Included in the event was a very thoughtful talk about the event, its context, and its implications by my friend and colleague, Dean John McGreevy (author of, among other things, this great book).  To simplify, Dean McGreevy described the statement as ambitious, not naive, and as reflecting a commitment to deepen Catholic institutions' Catholic character, not to secularize.

The address is not yet available online, but I expect it will be soon.  I enjoyed and appreciated the presentation and -- for the most part -- agreed with it.  Two quick thoughts:  First, I think that discussions of the effects of Land O'Lakes should not focus on the University of Notre Dame.  I agree with Dean McGreevy that Notre Dame is in most respects more meaningfully and interestingly Catholic than it was 50 years ago -- and, as the Statement's writers hoped, it 's certainly better and more important.  I also think that this is, at least in part, a product of the commitments and aspirations expressed in the Statement.  That said, the critics of the Statement, and of the state of Catholic higher education generally, seem to be on solid ground when they say that at many Catholic institutions, this deepening and improving has not happened, and there has been a tendency to secularization, a loss of distinctiveness, etc.  

Next, with respect to the Statement's famous and much discussed opening claim that Catholic universities must have "a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself":  My sense is that many of those who invoke and endorse the Statement frame this claim as being almost entirely about resisting clunky and ham-handed interventions by bishops in matters of university policy and governance.  Such interventions are, indeed, unhelpful.  However, in today's world, it seems pretty clear to me that the "external" interferences we should be more worried about come in the form of regulations, research-funding conditions, "Dear Colleague" letters, student-loan eligibility, employment law, NCAA policies, and -- increasingly corporate sponsorships.  It seems much more likely that the Department of Education, or the NCAA, or UnderArmour are much more likely to undermine a Catholic university's appropriate autonomy than is the local ordinary.  I see no pressing need for Catholic universities to shy away from healthy, constructive, deferential relationships with the "institutional Church"; I do have serious worries about the implications of our increasing entanglements with ideologically oriented corporations and with regulators.

September 7, 2017 in Garnett, Rick | Permalink

Wednesday, September 6, 2017

Paul Blanshard lives . . . in the U.S. Senate

I was very proud of my friend and colleague, Prof. Amy Coney Barrett, during her excellent, clear, and composed presentation before the Senate's Judiciary Committee today.  The performance of several of the senators, however, was disgraceful.  Sens. Feinstein, Durbin, Hirono, etc., basically served as a living Thomas Nast cartoon.  I'm hoping that Democrats for Life and others who profess to desire civility, dialogue, and charity will repudiate the tactics employed by these senators. 

UPDATE:  And in Steve Bannon's head.

September 6, 2017 in Garnett, Rick | Permalink | Comments (0)

Tuesday, September 5, 2017

Oren Cass on "Reforming Labor Unions"

In the latest print issue of City Journa(a great publication), and also in this podcast, Oren Cass discusses ways that labor unions themselves, and our labor-regulatory framework, could be reformed to better account for changed realities since WWII and also to strengthen unions -- he proposes "labor coops" -- to make them more meaningful civil-society institutions (rather than primarily partisan actors).  Check it out.  

And, in case you don't have it handy, here's Laborem exercens (1981).

September 5, 2017 in Garnett, Rick | Permalink

Thursday, August 31, 2017

Dumb Anti-School-Choice Sound Bite

OK, this may be shooting fish in a barrel, but I can't resist....

Illinois has passed a new school funding law that embodies a significant compromise deal by Democrats and Republicans. Among other things, the law reworks the funding formula to rely less on property taxes, thereby increasing the share of funding allocated to poorer districts. It also includes a school-choice measure: a 5-year pilot program of tax credits for people who donate to provide scholarships for modest-income students to attend private schools. Democrats wanted the first of these; Republicans wanted the second. My first reaction, as a temperamental and philosophical moderate, is that it's great simply that the two sides came together. My second reaction is that both of these measures are good for the poorest students: on the one hand, money matters, and on the other, Catholic schools (the largest group of private schools) do an especially good job of educating disadvantaged children.

But some Democrats (I think some Republicans too) didn't go along. They were willing to vote against the funding-allocation changes, and see them defeated, in order to stop a relatively modest school-choice program. One of them, Rep. Will Guzzardi, D-Chicago, offered one of the sillier sound-bites against school choice that I've heard. He told the Chicago Sun-Times: that the program was "unconscionable" because:

“Eventually hundreds of millions of dollars of our public money is going to be diverted away to give tax breaks to very wealthy people and big businesses who are contributing to private school scholarships and that’s wrong to me."

Yes, it's unconscionable to provide a tax break to line the pockets of wealthy people with money that they must give to assist poor people. Indeed, that whole tax deduction thing for gifts made to charities that help the needy--what an unconscionable giveaway to the privileged. 

If you oppose school choice, make your arguments under the real issues: how to get the best educational quality, how to teach kids respect for differing races or religions, etc. Don't mindlessly thrown in progressive-sounding but irrelevant phrases like "tax breaks to very wealthy people and big business."

August 31, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, August 29, 2017

Infranca on "(Communal) Life, (Religious) Liberty, and Property"

I really enjoyed this new paper by John Infranca (Suffolk).  Here is the abstract:

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalves, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state. 

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

 

August 29, 2017 in Garnett, Rick | Permalink

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility


Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the eighth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility, with submissions limited to those that have a publication date of calendar year 2017. The prize will be awarded at the 2018 AALS Annual Meeting in San Diego.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu<mailto:slevine@tourolaw.edu>.  The deadline for submissions and nominations is Sept. 1, 2017.

August 29, 2017 in Garnett, Rick | Permalink

Monday, August 28, 2017

The pardon of ex-Sheriff Joe Arpaio

The other day, on Twitter, my friend (and fellow Prawfsblogger) Daniel Rodriguez tweeted a plea ("[W]here is the Holy Father where you need him?")  for Pope Francis to weigh in on the current President's decision to pardon former Maricopa County Sheriff Joe Arpaio of his criminal contempt conviction.  I'm not sure, actually, I want the Pope to weigh in on specific matters like this, but put that aside.  A few, decidely not-papally-endorsed thoughts:

First, I take it that there is no "Catholic" position on the questions (a) whether our Constitution gives the President the power to grant this pardon and (b) whether our Constitution authorizes federal judges to review this (or any other) pardon.  I assume the answer to (a) is "yes" and the answer to (b) is "no."  

Second, I believe, and have often said publicly, that executives should use their pardon and commutation powers, to correct injustices or to show mercy, more often and more generously than they do.  Yes, the power has often been abused (e.g., Marc Rich should not have been pardoned, in my view, and Chelsea Manning's sentence should not have been commuted when and as it was), but it should be prudently and meaningfully exercised.  

Third, it seems to me that the pardon of ex-Sheriff Arpaio is a gross misuse of the pardon power.  (My family moved to Arizona in the mid-1980s, and I'm very familiar with Arpaio's record, which is not "conservative" so much as it is petty, cruel, grandstanding, and ugly.)  The pardon, like the President's responses to the events in Charlottesville, sends a terrible message and reveals (or, rather, confirms) the President's unfitness for the office he holds.  The remedies for this abuse are political (e.g., public criticism, elections, impeachment, etc.) not judicial, but an abuse it still is. 

Fourth, we should distinguish entirely warranted criticisms of Arpaio and his record from broader questions about the content and enforcement of immigration law and policy.  One can (easily) think that Arpaio's record is indefensible and that it is not racist or contrary to Catholic Social Teaching to (reasonably and humanely) enforce borders and immigration laws.  Of course, to the extent this latter position is identified with Arpaio and his record, it will lose credibility in the minds of many.

So, when the Holy Father calls, Dan, that's what I'll say!  =-)

August 28, 2017 in Garnett, Rick | Permalink