Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, December 8, 2017

Scott Gerber on Law and Catholicism in Colonial Maryland

For your reading and learning pleasure, here's Scott Gerber's new paper on "Law and Catholicism in Colonial Maryland."  Abstract:

Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. Maryland is a compelling case study of Montesquieu’s theory: founded in 1632 by Lord Baltimore as a haven for Catholics, a mere two decades later that animating principle was dead. This article explores why. More specifically, the article examines the birth, death, and resurrection of Maryland’s animating principle by identifying with as much precision as possible the impact of the law itself on regime change in colonial Maryland.

December 8, 2017 in Garnett, Rick | Permalink

Prof. Stephen Sugarman on the constitutionality of religious charter schools

Here's an important piece by Prof. Stephen Sugarman, "Is it Unconstitutional to Prevent Faith-Based Schools from Becoming Charter Schools?":

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. The first section describes the “school choice” movement of the past fifty years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. The second section argues that based on the current state of the law it should not be unconstitutional, under the First Amendment's Establishment Clause, for states to elect to make faith-based schools eligible for charters, and, therefore, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools should be deemed unconstitutional by the US Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

Add to this yet another important paper by Prof. Nicole Stelle Garnett, "Sector Agnosticism and the Coming Transformation of Education Law":

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors — discussed in detail below — that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. As a result, millions of American children now attend privately operated, but publicly funded, schools. This rise in a “sector agnostic” education policy has profound implications for the state and federal constitutional law of education because it blurs the distinction between charter and private schools. This paper explores three of the most significant of these implications.

December 8, 2017 in Garnett, Rick | Permalink

Thursday, December 7, 2017

Clucking Like a Chicken at Faulkner Law

Faulker University Professor of Law Adam McLeod hit a nerve when last month he published a speech he'd delivered to students in his course, Foundations of Law. Impatient with his students' tendency to express "feelings" about topics or assume that they'd made an adequate case against an argument by merely dropping an "ism" such as "sexism," he took the time to lay some ground rules for the remainder of the course. Students were simply not to use "isms" when they contributed to class discussions; they were to define terms that they may have previously assumed admitted of only one definition ("equality" for instance); and, most notably, their professor warned them that if they began a contribution with "I feel," they'd have to cluck like a chicken. 

In response to inquiries about the new ground rules, McLeod said: "I'm training lawyers here, and lawyers make arguments. Arguments consist of propositions and facts, or in other words, reasons...reasons don't always care how we feel about them...." 

The whole speech is worth your time, but here's my favorite part: 

Third, you should not bother to tell us how you feel about a topic. Tell us what you think about it. If you can’t think yet, that’s O.K.. Tell us what Aristotle thinks, or Hammurabi thinks, or H.L.A. Hart thinks. Borrow opinions from those whose opinions are worth considering. As Aristotle teaches us in the reading for today, men and women who are enslaved to the passions, who never rise above their animal natures by practicing the virtues, do not have worthwhile opinions. Only the person who exercises practical reason and attains practical wisdom knows how first to live his life, then to order his household, and finally, when he is sufficiently wise and mature, to venture opinions on how to bring order to the political community.

Cicero would be proud.

December 7, 2017 in Bachiochi, Erika | Permalink

Wednesday, December 6, 2017

Laycock/Berg at Vox on Masterpiece

Doug Laycock and I did another piece, this one at Vox, explaining how the Court can and should rule for the baker, under the Free Exercise Clause, in a way that gives meaningful protection to both same-sex couples and religious objectors. (Several editor solicitations.) Conclusion, after going through the analysis:

We should not have to go through this detailed analysis to protect a simple act of conscience. Same-sex couples should be free to marry, with fancy weddings and wedding cakes, and conscientious objectors should not be required to assist. But under the Supreme Court’s interpretation, the Constitution protects religious conscience only against laws that fail its test of general applicability. Fortunately for Jack Phillips, the Colorado law as it was administered fails that test.

December 6, 2017 in Berg, Thomas, Current Affairs | Permalink

Economics and Catholic Social Thought: A Primer

This seminar, in June, at Notre Dame, looks to be very good.  Spread the word!  Sign up!

Now in its third year, this seminar is designed as an introduction and immersion into Catholic social thought for graduate students and faculty in economics, finance, or related fields. Participants will cover foundational principles in Catholic social thought starting with the human person, dignity, freedom, subsidiarity, solidarity, and the common good, and moving toward applications of these principles to conceptual understandings and ethical considerations involving economic topics such as utility theory, firm and business ethics, wages, markets, globalization, poverty, and development. Participants will delve into social encyclicals, secondary sources, and relevant economics texts.

This seminar is cosponsored by the Catholic Research Economists Discussion Organization, the Notre Dame Center for Ethics and Culture, and the Kellogg Institute for International Relations.

December 6, 2017 in Garnett, Rick | Permalink

Masterpiece, Free Exercise, and Oral Argument

Thanks to Marc for describing how the free-exercise claim in Masterpiece Cakeshop took on more prominence than most people expected in Tuesday's oral argument. Doug Laycock and I have a piece in the New York Daily News explaining the free-exercise argument detailed in our amicus brief, and how it seemed to attract several justices' interest Tuesday. From the piece:

Justice Samuel Alito called it “disturbing” that the other three bakers could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.”


Justice Anthony Kennedy, likely among the swing votes, raised another piece of evidence. One of the state commissioners who ruled against Phillips stated that “freedom of religion . . . used to justify discrimination . . . is one of the most despicable pieces of rhetoric.”


Not content to criticize Phillips’ traditionalist view of marriage, the commissioner invoked slavery and the Holocaust as comparisons. No wonder Kennedy suggested the case involved “a significant aspect of hostility to a religion.”

I should say that our amicus brief did not emphasize "animus" or hostility as the essence of the free-exercise violation. We focused on the state's objective discrimination in protecting the other bakers and refusing to protect Phillips, while making (in the case of the state court) flatly inconsistent arguments concerning the two situations. If the free-exercise claim indeed prevails, it will be interesting to see how much it depends on a finding of animus and how much on the objective differential treatment.

Our brief also emphasized the importance of protecting both sides in the conflict between same-sex couples and religious traditionalists. Although oral argument is always an uncertain indicator, it was encouraging to see Justice Kennedy, the author of Obergefell, sound that same theme in the oral argument. From our Daily News piece:

On Tuesday, echoing his earlier argument for gay couples, Kennedy summed up this case: “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

December 6, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, December 5, 2017

Animus! (congrats to Tom and Doug)

The Masterpiece Cakeshop case was argued today before the Supreme Court. Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable.

Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day. Those justices were pretty focused on the "animus" exhibited by one of the Colorado Civil Rights commissioners, additional comments in a similar vein by a second, and (especially in J. Alito's questioning--see 58-59) evidence that the Commission found no fault with bakers who refused to make cakes for clients who espoused views critical of homosexuality--indeed, that approved such decisions "in light of the offensive nature of the requested message." See Masterpiece Cakeshop, 370 P.3d at 282 n.8.

I didn't expect the Free Exercise Clause claim to make any headway. But this is exactly what Tom Berg and Doug Laycock emphasized in their fine brief (which was noted by counsel at oral argument). I've got my own reservations about animus arguments. But kudos to the two of them for making this argument. Who would have thought that this might be the case to give the utterly desiccated Free Exercise Clause a little juice?

December 5, 2017 in DeGirolami, Marc | Permalink

Monday, December 4, 2017

"Masterpiece Cakeshop and Protecting Both Sides"

That's the title of a short piece that Doug Laycock and I have posted at the Berkley (Georgetown) Forum about Masterpiece Cakeshop. It summarizes aspects of the amicus brief we filed presenting the free-exercise case for baker Jack Phillips, and it argues that

recognizing a carefully defined right in circumstances like Phillips’s, while applying nondiscrimination laws in most cases of commercial services, would appropriately protect both sides in the conflict between same-sex marriage and religious liberty rights. 

December 4, 2017 in Berg, Thomas, Current Affairs | Permalink

A few general and tentative thoughts about taxation

Like most people, I do not know exactly all that is contained in the tax-related proposals that have emerged from the House and the Senate, and I'm not sure what will be in the tax legislation that eventually is enacted and signed into law -- if anything is.  (Given that things so rarely get "signed into law" these days, it's hard for me to be confident that anything will be.)  These two proposals contain some specifics that strike me as good policy and some that do not.  The process that is producing the proposals and that will (perhaps) eventually produce the legislation is, in my view, impossible to admire, but -- again -- I'm afraid it's been a while since our national legislature did much legislating.

My social-media feeds and the commentary I'm reading -- particularly from public Catholics, including bishops -- are largely skeptical, critical, or worse about these proposals.  My sense is that some skepticism and criticism are warranted, but also that some of the denunciations are exaggerated, underinformed, and/or overwrought.  We'll see.

What, if anything, do "Catholic Legal Theory" or the Church's social-teaching tradition have to say about all this?  Judging, again, from my social-media streams, many are confident that the answer  is "a lot of very specific things."  I don't think that's right.  A few thoughts . . . 

First, although it's not a distinctively "Catholic" position, it is a position that Catholics and everyone else should endorse that, generally speaking, that law-making should be characterized by "regular order", due consideration, deliberation, and transparency.  At present, our federal law-making is not. 

Next, I feel confident that the Gospel and the social-teaching tradition do not prescribe any particular mechanisms for political communities' important task of raising the funds necessary to do what political communities ought to do.  As I see it, a political community's taxation policies should be seen as, and should function as, a mechanism for that task, and (pretty much) only that task.  

Third, this mechanism should function well, not poorly.  That is, it should efficiently, justly, and intelligently raise the necessary funds, in ways that do not create counter-productive incentives and wasteful losses, that are constrained by law and due-process norms, and that impose proportionate burdens across the board.

Fourth, political communities should be willing, in normal circumstances (i.e., not war), raise as much money (through taxation and other means) as they want to spend, and should not spend more than they are willing to raise.  

With these four points in mind, I'm inclined to think that the taxation mechanism should not be used for policy purposes other than raising funds, although I realize that, in our world, it is used for other purposes (e.g., encouraging and subsidizing home ownership), even though I wish it were not.  I'd like to see those other purposes pursued in more transparent and direct ways.

December 4, 2017 in Garnett, Rick | Permalink

Movsesian on Masterpiece Cakeshop

My colleague, Mark Movsesian, has done a short and helpful video for the Federalist Society explaining the basic background and issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, on for oral argument tomorrow at the Supreme Court.

December 4, 2017 in DeGirolami, Marc | Permalink

Friday, December 1, 2017

Rienzi & Barclay: In defense of religious accommodation

Mark Rienzi and Stephanie Barclay have posted their forthcoming paper, "Constitutional Anomalies or As-Applied Challenges?  A Defense of Religious Exemptions," on SSRN.  Here is the abstract:

In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.

Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.

The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

December 1, 2017 in Garnett, Rick | Permalink

Thursday, November 30, 2017

Saving Capitalism

An article in the Nation magazine, by William Greider, discusses on an "autopsy" report on "What Killed the Democratic Party?" The conclusion is that the party left behind working people and unions (and minorities as well) in order to chase big donors by giving them more pro-business policies (and, one might add, cultural progressivism, but the Nation would never see that as part of the disconnect). Sanders, of course, was the messenger of the revolt, and:

Many young people are even to the left of Bernie. A YouGov poll in January 2016 found that 43 percent of people under the age of 30 had a favorable opinion of socialism, versus just 26 percent unfavorable. A recent poll of 18-to-29-year-olds by Harvard University found that a majority of the respondents did not “support capitalism.” This was too much for Representative Nancy Pelosi, the House minority leader. At a postelection town hall, she bolted out of her seat to declare: “I have to say, we’re capitalists—that’s just the way it is.” Maybe it’s time for the Democrats to start a conversation with these young lefties.

People shouldn't forget the line (whoever said it) that anyone who's not a socialist at 20 has no heart and anyone who is a socialist at 30 has no brain. But with that said, the great recession, and the long-term instability in the economy and the job market caused by technological revolution, may well make this young generation more hospitable to government intervention for the long term, not just for the moment.

But why does it have to be "socialism, not capitalism"? The New Deal was understood, and won long-lasting support in part because it was understood, as a means not to replace capitalism, but to preserve it by curbing its excesses--excesses that threatened to lead to destructive unrest. Just how much intervention that requires is, of course, a matter of debate and practical judgment. Maybe the meltdown of 2008 showed the need for a lot more regulation in order in order to restore the fair working of a basic market-based economy. (That conclusion seems consistent, BTW, with the Catholic social tradition's affirmation of the need for a "strong juridical framework" to regulate markets--although I agree that CST principles also could support more limited conceptions of the "strong juridical framework.") 

In any event, the argument about saving capitalism and markets still, today, seems to me to be more effective--reaching a far wider range of people--than the argument pining for socialism as an ideal. (To say nothing of remembering all the problems with how socialism has actually worked.)

November 30, 2017 in Berg, Thomas, Current Affairs | Permalink

Wednesday, November 29, 2017

A Conversation in Chicago about Trinity Lutheran

A few days ago, thanks to the good people at the Lumen Christi Institute at the University of Chicago, I was able to participate in a panel/conversation about last year's Trinity Lutheran case with my friends Andy Koppelman and Dan Rodriguez.  The video of the event is available here.  (As you'll see, the video-producers substituted some bald guy for me but the words and bad jokes were mine.)

November 29, 2017 in Garnett, Rick | Permalink

Sir Roger Scruton's Lecture, "Tradition, Culture, and Citizenship"

Here's a link to the video of the keynote lecture for the second leg of our Tradition Project, given by Sir Roger Scruton on November 2: "Tradition, Culture, and Citizenship."

November 29, 2017 in DeGirolami, Marc | Permalink

Sunday, November 26, 2017

Christ the King, political theology, and Fr. Miguel Pro

Today is the Solemnity of Christ the King.  In my experience, preachers in Catholic parishes don't know quite what to do with this Feast.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

So . . . Here is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.

November 26, 2017 in Garnett, Rick | Permalink

Monday, November 20, 2017

Papers on Liberalism and Catholicism

Just a brief post to collect some of my recent work on liberalism and Catholicism, in various venues and in reverse chronological order of publication.

The University Bookman: “The Ark of Tradition

A Christian Strategy” (or, as I also think of it, “The Esther Option”), First Things

Natural Law, Welfare Economics, and Administrative Law - Mirror of ...TypePad › mirrorofjustice › 2017/05 › n..

The Catholic Constitution”, First Things

Liturgy of Liberalism”, First Things

Kyriarchy and Constitutionalism - Mirror of JusticeTypePad › mirrorofjustice › 2016/11 › k...

November 20, 2017 | Permalink

Garnett & Koppelman on Trinity Lutheran *Today* in Chicago

I'm looking forward to this event -- a discussion about the Trinity Lutheran case and its implications, with my friend Prof. Andrew Koppelman -- in Chicago today.  CLE credit is available.  If you're around, stop by!

November 20, 2017 in Garnett, Rick | Permalink

Friday, November 17, 2017

New Empirical Study on Religious Freedom Cases Post-Hobby Lobby (by Luke Goodrich and Rachel Busick)

Two attorneys at the Becket Fund for Religious Liberty — Luke Goodrich and Rachel Busick — have just posted one of the first empirical studies of federal religious freedom cases since Hobby Lobby.

Some critics of Hobby Lobby predicted that the decision would open the floodgates to a host of novel claims, transforming religious freedom from a shield for protecting religious minorities into a sword for imposing majoritarian values. But this study finds those dire predictions to be unsupported. Instead, it finds that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. The study also highlights several interesting doctrinal developments in recent litigation over RFRA, Trump’s travel ban, and the Establishment Clause. 1st

The most intriguing empirical research tells us something new, such as that the conventional wisdom is mistaken or overstated.  That is true here, as Goodrich and Busick reach this conclusion:

[Hobby Lobby] has not prompted a flood of new litigation by Christians or for-profit corporations. If anything, its main effect has been to provide more protection for religious minorities like the Native Americans who won the right to use eagle feathers in McAllen, or the Muslim prisoner who won the right to grow a beard in Holt. These religious minorities were the main religious liberty claimants before Hobby Lobby, and they remain the main religious liberty claimants afterwards. Ironically, then, the main beneficiaries of the win for Christian claimants in Hobby Lobby may be non-Christian religious minorities.

You can find the full article here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067053. I highly recommend it!  I’m see that it has already drawn more than 150 downloads.  Add to the statistics by downloading it yourself today.

November 17, 2017 in Sisk, Greg | Permalink

Wednesday, November 15, 2017

Podcast on Religious Freedom, with Leith Anderson

There is now online a podcast conversation on religious freedom that I recently did with the Rev. Leith Anderson. Leith is the president of the National Association of Evangelicals, a wonderful and prolific writer on Christian living, and the former senior pastor of Wooddale Church in the Twin Cities. He has been interested in religious-freedom issues, and commenting thoughtfully on them, for some time. It was great fun to have this conversation with him. A sample comment of mine, in response to Leith's question "Why should Christians work on protecting people of other faiths in the U.S.?":

Two kinds of reasons. One is a matter of principle: Christians know that a commitment of faith, a relationship with the Divine, is a matter of the heart; it can’t be real and valid if it’s coerced by government. Human dignity means that the soul should be free to seek and respond to God, even if its response is mistaken. The second reason is pragmatic: If Christians want to preserve freedom for their own religious exercise, they have to recognize it for others. You won’t get sympathy for your plight if you don’t show it for others.  

November 15, 2017 in Berg, Thomas, Current Affairs | Permalink

Ethics at the Edges of Law

That's the title of a new book by Cathy Kaveny.  The subtitle:  Christian Moralists and American Legal Thought.  The book, published by Oxford University Press, "proposes new methodological approaches to Christian ethics-using law as a source and conversation partner; shows how religion can move beyond treating law as a locus of the culture wars to seeing it as a source of moral knowledge and wisdom; and demonstrates how examples from secular law can help us integrate special ethics, like medical ethics, with broader questions of social justice."  You can read about the book--and about Cathy--here.  Highly recommended:

"Cathleen Kaveny's new work brilliantly demonstrates not only that law can be a fruitful conversation partner for theological ethics, but that it is a necessary one. Her mastery of the fields of law, ethics, and theology is marshaled throughout as she probes perennially vexing problems and explores new questions. Highly original, sometimes provocative, always illuminating, Ethics at the Edges of Law is a tour de force." --Linda Hogan, Professor of Ecumenics and former Vice-Provost of Trinity College Dublin

"Ethics at the Edges of Law is one of the most important recent books at the intersection of law and theology. Kaveny's thoughtful and at times unconventional engagement with some of the major twentieth-century figures in these two disciplines offers glimmers of both tragedy and hope-and a reminder that our lived experiences unfold in the shadow of both."--John D. Inazu, Sally D. Danforth Distinguished Professor of Law and Religion, Washington University in St. Louis

"Cathleen Kaveny is one of the most important scholars in the interdisciplinary field of law and religion since the field began to flourish about forty years ago. Ethics at the Edges of Law is a superb book. In it, Kaveny succeeds in doing precisely what she set out to do, namely, 'jump start . . . a complementary interdisciplinary conversation . . . centered in religious studies and theology and reaching out to the legal field.'"--Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University

November 15, 2017 in Perry, Michael | Permalink

Tuesday, November 14, 2017

David Brooks on the "Siege Mentality"


[The Siege of Lisbon, by Roque Gameiro (1917)]

David Brooks has published an insightful warning of the mutually repelling characteristics of the true believers on both extremes of the political spectrum today.  In today’s New York Times (here), Brooks calls this behavior the “Siege Mentality,” which “starts with a sense of collective victimhood” that feeds “a deep sense of pessimism” and “floats on apocalyptic fear.”

This approach is seductive, offering a kind of a false high that, like other misguided addictions, proves self-destruction:  “The odd thing is that the siege mentality feels kind of good to the people who grab on to it. It gives its proponents a straightforward way to interpret the world — the noble us versus the powerful them.” But, in the end, “[g]roups smitten with the siege mentality filter out discordant facts and become more extreme versions of themselves, leading to further marginalization.”

Worst of all, those who surrender to the Siege Mentality lose their own souls, becoming the opposite of what they sincerely believed themselves to be at the beginning.  “Evangelical Christians, for example, had a humane model for leadership — servant leadership — but, feeling besieged, they swapped it for Donald Trump, for gladiator pagan leadership.”

As Catholics, we need to remember that faithfully standing by what we think is right need not fall into a hateful disregard for those who disagree or a willingness to compromise our principles by temporary political alignments with those whose past conduct and present behavior display contempt for those very principles.

November 14, 2017 in Sisk, Greg | Permalink

In City Journal: "Taking the Catholic out of Catholic universities"

A bracing, sobering read, here, about the state of Catholic higher education and some of the forces that are shaping it.  I share many of the author's concerns about many of the particulars mentioned, though I think it sweeps a bit too broadly in places and also neglects the good things that are happening -- and, in many respects, the Catholic-identity improvements that have happened in recent years -- at my own University of Notre Dame.  The author writes:

Still, despite all the evidence that most Catholic colleges and universities have lost their way, cause for hope exists in the flourishing of Catholic colleges—Christendom, Franciscan, Ave Maria, the University of Dallas, Wyoming Catholic, John Paul the Great, St. Thomas More College in New Hampshire, California’s Thomas Aquinas, and others—that remain committed to a Catholic identity.

I share this admiration for much of what's happening at these newer, smaller, intentional Catholic colleges.  At the same time, "cause for hope exists in the flourishing" of, e.g., the McGrath Institute for Church Life, ND Vision, Echo, the Alliance for Catholic Education, the Program on Church, State & Society, the Center for Ethics & Culture, the Tocqueville Program, etc.  As I've said before, if one cares about Catholic higher education (and, in my view, we all should), then one should care about, and pray for, Notre Dame (and not just the Fighting Irish!). 

November 14, 2017 in Garnett, Rick | Permalink

Monday, November 13, 2017

Law & Religion Moot Court competition at Touro

Touro Law Center is pleased to announce the Fifth Annual National Moot Court Competition in Law and Religion.  More info is available here

November 13, 2017 in Garnett, Rick | Permalink

A Putative Right in Search of a Constitutional Justification

I've recently posted on SSRN my forthcoming article, "A Putative Right in Search of a Constitutional Justification: Understanding Planned Parenthood v Casey's Equality Rationale and How it Undermines Women's Equality." In the article, I argue that women's equality is the key interpretative lens through which to understand Casey's controversial reaffirmation of Roe but one that has not been understood adequately by those most critical of Casey. The article aims to fill the void - and specifically critiques the "reliance" arguments made in Casey.  It could be understood as a companion to my 2011 HJLPP article, "Embodied Equality." 

The Federalist Society at Harvard and Yale law schools have had me to campus to speak on the article in recent months. I'll be out at Stanford in February doing the same. 

Also, happy to announce I am beginning a year-long fellowship at Harvard Law School in February as a Visiting Scholar, under the faculty direction of Mary Ann Glendon. I am working to complete a book on women's rights that most prominently features her work.

November 13, 2017 in Bachiochi, Erika | Permalink

Friday, November 10, 2017

Falsehoods on Barrett (Will) Continue

Two days ago, Rick offered reflections on the successful confirmation process of Amy Barrett to the 7th Circuit. This morning in  the New York Times, former federal judge Shira Scheindlin (now on the board of the Lawyers Committee for Civil Rights under Law) serves notice that the false assertions against Barrett will continue long after her swearing-in. Scheindlin's op-ed attacks several of Trump's lower-court nominees and appointments, including, sadly but I guess inevitably, Barrett.

There's the same old, willfully misleading claim that "[i]n a 1998 article, [Barrett] criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith." For the umpteenth time, what Barrett and her co-author criticized (in a very indirect, gentle way) was Brennan's apparent suggestion that he would stay on a case and rule in a way that violated his faith. Barrett wrote then, and said this fall, that in case of an unavoidable conflict, the Catholic judge should follow her faith--and the law--by using the option of recusal that the law itself offers. That is the exact opposite of that Scheindlin and the other critics imply: that Barrett advocated ruling based on one's faith rather than the law. A former federal judge, more than anyone, knows better.

There's other wrong or distorted stuff in there, too, about Barrett's views on precedent. The same stuff that's been rebutted before.

So far as I can tell (and I haven't looked at it closely), Trump's nominees include a few strange and dubiously qualified names. (As well as some very strong ones, including David Stras, whose nomination to the 8th Circuit remains tied up.) Barrett is plainly among the very strong ones. But some of the critics will keep trying to stick her in the dubious group, not because of what she would actually do on the court of appeals, but because of their fears that (1) she is a dangerous symbol of a highly qualified woman who takes her Catholic faith (including the controversial parts) seriously and (2) she might get on a short list for the next step up.

November 10, 2017 in Berg, Thomas, Current Affairs | Permalink