Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, December 8, 2016

David Bernstein's "The Supreme Court oral argument that cost Democrats the presidency"

Noting how evangelical Christians and orthodox Catholics voted overwhelmingly for Donald Trump because they believed religious liberty was under attack by the left, David Bernstein joins other observers who have catalogued the many ways in which the secular liberal victors in the so-called culture wars were piling-on against conservative Christians and how such episodes played a major role in the surprising victory of Trump in the presidential election.

In a post on the Volokh Conspiracy, David Bernstein notes a point made by President Obama's Solicitor General in a Supreme Court argument, a point that got only passing attention in the mainstream media but was highlighted as deeply concerning in media directed to conservatives and religious audiences:  "the time the solicitor general of the United States acknowledged that religious institutions that oppose as a matter of internal policy same-sex marriage may lose their tax exemptions."

The rest of the post made be found here.

As the left is now learning and the right should be reminded as it comes to power, scorched earth politics has consequences.  The side that overreaches when it gets political power and goes beyond implementing its policy agenda to attempt to destroy opponents politically and culturally frequently finds itself being removed from that political power.

December 8, 2016 | Permalink

Leisure and Labor: The Liberal Arts and the Professions - Call for Abstracts

In conjunction with my formal installation as President, St. Gregory's University will host a conference titled Leisure and Labor: The Liberal Arts and the Professions, March 21-22, 2017. We  invite scholars, professionals, administrators, lay leaders, and religious to reflect upon the fundamental relationship between the liberal arts and job preparedness. Because I am just now putting this on MOJ, we will extend the time for submitting abstracts until January 8, 2017.

December 8, 2016 in Scaperlanda, Mike | Permalink

Wednesday, December 7, 2016

"Problems arise even within his [Fr. Murray's] own thought"

I reached the following "editor's footnote" in my re-reading this afternoon of J. Leon Hooper (ed.), Religious Liberty: Catholic Struggles with Pluralism (1993) (p. 226 n. 11); in the footnote, Hooper is describing, analyzing, and judging Murray's "The Issue of Church and State":


Murray's manner of restricting the socially significant meaning of religious freedom to an immunity right works well, if one considers the interaction of the church hierarchy and the executive branch of government.  Problems arise even within his own thought, however, when one considers the role of the laity in shaping governmental legislation.  For his argument to still apply, one would have to presume that the laity could bring no substantive content from their faith commitments to the laws that they shape -- that their faith remains simply motivational.  As discussed in the general introduction to this collection, some question whether Murray has adequately dealt with the laity's attempts to bring gospel values to the juridical structures of the state, much less to what is called the world.

John Rawls's imposition of "the proviso" was published in the very same year as Hooper's footnote was published.  

December 7, 2016 in Brennan, Patrick | Permalink

A fascinating church-autonomy case

MOJ-friend Prof. Michael McConnell shared with me a brief he and some colleagues filed in the Supreme Court of the United States in what strikes me as a fascinating neutral-principles/church-autonomy/religious-questions case.  The case is called Ming Tung v. China Buddhist Association and Michael's brief is available here: Download Ming Tung cert petition.  Also, here's a write-up that Prof. Friedman did, at Religion Clause, a few years ago.

December 7, 2016 in Garnett, Rick | Permalink

Dr. Russell Moore's lecture, "Can the Religious Right be Saved?"

Dr. Moore's Erasmus Lecture is now available, in print, at First Things.   I recommend it very highly.   It was delivered before the presidential election but is no less timely or important for that.  Here's just a taste:

A religious conservatism that sees politics as important but not ultimate is necessary even for our public policy goals. Take the issue of religious liberty. Some, in secular circles, assume that an emphasis on religious liberty is a merely defensive move. Many on the religious right think the same. One pastor told me that he’s all for religious liberty, but wishes that we could do something “more proactive” rather than “merely defensive.” Religious liberty is not a reactive, defensive move. Religious liberty reflects a positive vision of the limitations of the state and the dominant culture, one that frees religious communities to carry on their work. To think otherwise suggests a vision of power and influence in which statecraft is more important than church-craft. Statecraft is important, but good cultures and good laws, important as they are, merely put more resilient shackles on the Gerasene demoniac. The depravity of humanity can be mitigated by law, but humanity can only be renewed and transformed by something transcendent. It’s not just our religion that teaches that; our politics teaches that also, if in fact we are in any meaningful way “conservative.”

Religious liberty is a means to an end, and the end is not political. The Gospel frees consciences that cannot be coerced. The end we rightly seek is a society in which religious communities are free to serve and to persuade. If we are to be honest, the threat to this freedom comes as much from the collapse of cohesive church communities, especially in what once was the Bible Belt, as from Washington, D.C. When faith is not shaped by community, Rabbi Lord Jonathan Sacks points out, religion becomes politicized and politics become religionized. The collapse of well-defined, disciplined congregations in the South has been politically disastrous, and not merely theologically disastrous. Consider the way Latter-day Saints have approached the moral questions raised by the 2016 election in contrast to Evangelicals, even when the voting patterns were not substantially different. The difference between the two rests, I believe, in the contrast between intentional, cohesive, conscience-shaping communities of identity and social solidarity, not only in Utah but in the Mormon minority communities around the country, and Evangelical communities that are too often influenced by raging pundits, talk radio, and TV shout-shows—and these voices sometimes drown out the pastor’s. A Christianity without visible churches is backward-looking and seething with rage. Christianity loses its Gospel-centered character, Marilynne Robinson tells us, indeed any religion loses its distinctive identity, “when its self-proclaimed supporters outnumber and outshout its actual adherents.”

December 7, 2016 in Garnett, Rick | Permalink | Comments (0)

Saint Ambrose, Doctor of the Church (and Lawyer)

Reposting from 2011:

Thomas More is, to my knowledge, the only common lawyer ever canonized by the Catholic Church, but a number of civil and canon lawyers have been. Today is the Feast of Saint Ambrose, one of the four great doctors of the early Church (along with Augustine, Jerome, and Gregory the Great), who was trained in the law and an imperial governor under Valentinian before he was elected bishop of Milan by acclamation in 374 (Ambrose was a catechist at the time, so he was baptized and ordained bishop in the course of just a few days). In addition to his important contributions to Christian theology (particularly the refutation of Arianism) and music, he was also instrumental in the conversion of Augustine, who wrote that Ambrose "was one of those who speak the truth, and speak it well, judiciously, pointedly, and with beauty and power of expression" (On Christian Doctrine, IV.21).

December 7, 2016 in Moreland, Michael | Permalink

Tuesday, December 6, 2016

Remarks on the "Future of Religious Freedom"

Here's a link to the video of the panel discussion, at the recent Federalist Society conference in Washington, on "the future of religious freedom."  My remarks -- about 10 minutes long -- start at about 15:45.  There was also a lively Q & A session.

December 6, 2016 in Garnett, Rick | Permalink

Sunday, December 4, 2016

Fr. Stanley Rother, First U.S. Born Martyr

An Oklahoma farm boy has been declared a martyr by Pope Francis, making him the first U.S. born person to receive such designation. To read more about this humble farm boy, read Maria Ruiz Scaperlanda's biography, The Shepherd Who Didn't Run, which was published last year.


Maria book cover

December 4, 2016 in Scaperlanda, Mike | Permalink

Friday, December 2, 2016

The High Church Temptation

Among the many interesting features of church-state political and social relations probed by Anthony Trollope in his novels are the various temptations to which adherents of the several Anglican groupings in mid-19th century England might become prone. The following passage from "Barchester Towers," which tells of the early scholarly and ecclesiastical career of one Reverend Francis Arabin (now rector of a small parish called St. Ewald's), describes very effectively one of the chief temptations for High Churchmen...eventual collapse into Roman Catholicism. Note, in particular, Trollope's reference to Sir John Henry Newman (and his favorable comments about schismatics!).

And what of Low Church temptations? In what might those consist? That is for another post. Here is Trollope on the Rev. Arabin (from Chapter XX):

He had been a religious lad before he left school. That is, he had addicted himself to a party in religion, and having done so had received that benefit which most men do who become partisans in such a cause. We are much too apt to look at schism in our church as an unmitigated evil. Moderate schism, if there may be such a thing, at any rate calls attention to subject, draws in supporters who would otherwise have been inattentive to the matter, and teaches men to think upon religion. How great an amount of good of this description has followed that movement in the Church of England which commenced with the publication of Froude's Remains!

As a young boy Arabin took up the cudgels on the side of the Tractarians, and at Oxford he sat for a while at the feet of the great Newman. To this cause he lent all his faculties. For it he concocted verses, for it he made speeches, for it he scintillated the brightest sparks of his quiet wit. For it he ate and drank and dressed, and had his being. In due process of time he took his degree, and wrote himself B.A., but he did not do so with any remarkable amount of academical éclat. He had occupied himself too much with high church matters, and the polemics, politics, and outward demonstrations usually concurrent with high churchmanship, to devote himself with sufficient vigour to the acquisition of a double first. He was not a double first, nor even a first class man; but he revenged himself on the university by putting firsts and double firsts out of fashion for the year, and laughing down a species of pedantry which at the age of twenty-three leaves no room in a man's mind for graver subjects than conic sections and Greek accents.

Greek accents, however, and conic sections were esteemed necessaries at Balliol, and there was no admittance there for Mr. Arabin within the lists of its fellows. Lazarus, however, the richest and most comfortable abode of Oxford dons, opened its bosom to the young champion of a church militant. Mr. Arabin was ordained, and became a fellow soon after taking his degree, and shortly after that was chosen professor of poetry.

And now came the moment of his great danger. After many mental struggles, and an agony of doubt which may well be surmised, the great prophet of the Tractarians confessed himself a Roman Catholic. Mr. Newman left the Church of England, and with him carried many a waverer. He did not carry off Mr. Arabin, but the escape which that gentleman had was a very narrow one. He left Oxford for a while that he might meditate in complete peace on the step which appeared to him to be all but unavoidable, and shut himself up in a little village on the sea-shore of one of our remotest counties, that he might learn by communing with his own soul whether or no he could with a safe conscience remain within the pale of his mother church.

Things would have gone badly with him there had he been left entirely to himself. Every thing was against him: all his worldly interests required him to remain a Protestant; and he looked on his worldly interests as a legion of foes, to get the better of whom was a point of extremest honour. In his then state of ecstatic agony such a conquest would have cost him little; he could easily have thrown away all his livelihood; but it cost him much to get over the idea that by choosing the Church of England he should be open in his own mind to the charge that he had been led to such a choice by unworthy motives. Then his heart was against him: he loved with a strong and eager love the man who had hitherto been his guide, and yearned to follow his footsteps. His tastes were against him: the ceremonies and pomps of the Church of Rome, their august feasts and solemn fasts, invited his imagination and pleased his eye. His flesh was against him: how great an aid would it be to a poor, weak, wavering man to be constrained to high moral duties, self-denial, obedience, and chastity by laws which were certain in their enactments, and not to be broken without loud, palpable, unmistakable sin! Then his faith was against him: he required to believe so much; panted so eagerly to give signs of his belief; deemed it so insufficient to wash himself simply in the waters of Jordan; that some great deed, such as that of forsaking everything for a true church, had for him allurements almost past withstanding.

December 2, 2016 in DeGirolami, Marc | Permalink

Tuesday, November 29, 2016

Kyriarchy and Constitutionalism

On November 20, the Feast of Christ the King, a coronation ceremony took place at the Church of Divine Mercy in Krakow. The President of Poland and the Catholic Bishops officially crowned Jesus Christ the King of Poland. (Our Lady, Mary, is already Poland's crowned Queen). This is no mere piffling monarchy; this is Kyriarchy, the reign of the risen and enthroned Lord, more absolute than the most fevered dreams of the Sun King or the Caesars.

Among the many things that might be said about this, I will focus on one, of interest to constitutional lawyers and political scientists interested in the classification of political regimes and the typology of constitutional systems. Is Poland now to be classified as an authoritarian regime? What is Poland's small-c constitution, if it still has one? (I put aside the excellent question, raised by Nicole Stelle Garnett, whether the coronation of Mary should already have changed the pre-existing answers to these questions). How to code a sacramental and ecstatic surrender of self-rule by a demos and its representatives, who believe that "all authority in Heaven and on Earth" has been given to Christ (Matthew 28:18)?

From a strictly secular perspective, this must amount to symbolic politics within the extant regime. That bout of symbolic politics should not affect the regime's structural classification -- any more than if Poland were merely to adopt a new flag, or a new national bird. But the implicit assumption there is that the internal Catholic point of view on the matter is false. From a Catholic perspective, in other words, the classification of Poland's sacramental surrender as symbolic politics begs the question entirely, by assuming that the reign of Christ is indeed only symbolic. The Catechism of the Church, of course, affirms the physical reality and sovereignty of the risen Christ (CCC 643 et seq., 668 et seq.). Catholics might agree that the Polish regime is in fact unchanged, but they would agree to that for nearly the opposite reason -- that Christ was already Poland's true Lord (and Lord of everywhere else as well) before the declaration as well as after it, so that the ceremony actually did nothing more than recognize a pre-existing truth. Whatever the effect of the ceremony, however, the key point is that one cannot answer the coding question without taking a stance on questions of political theology. The putatively neutral technology of regime classification in political science, it seems, must necessarily break down when confronted with a radically incompatible substantive world-view.

I have spoken only of regime classification. It is of course a separate question whether Kyriarchy is good or bad. There is an odd and thoroughly tendentious Wikipedia page that defines it as intrinsically oppressive; needless to say, that begs the question against the Catholic perspective as well. The Church believes that the infinite and absolute power of Christ enthroned is conjoined with, and justified by, absolute Love. Whereas the princes of the earth lord it over their subjects, Christ serves His people, and is first only because He puts Himself last (Mark 10:42-45). Right or wrong though such beliefs may be, one cannot simply assume them away.

Adrian Vermeule

November 29, 2016 | Permalink

Monday, November 28, 2016

Welcome to new MOJ blogger, Prof. Adrian Vermeule

As MOJ readers probably already know, Prof. Adrian Vermeule (Harvard) recently came into full communion with the Catholic Church.  Now, I'm delighted to announce that Prof. Vermeule has agreed to join our merry band of Leonine bloggers here at Mirror of Justice.  Welcome aboard, Adrian!  

November 28, 2016 in Garnett, Rick | Permalink

Trump's relationship with truth is probably worse than you think

Last week, Quinta Jurecic suggested at LawFare that an essay/book by moral philosopher Harry G. Frankfurt would be "a good place to start" learning about Donald Trump's relationship to truth. If Jurecic is right, and in many respects she seems to be, then we are in rough shape already. But the Jurecic/Frankfurt take is just a good place to start.

Jacob Levy's tweet-say from this morning provides an even more unsettling, but essential for that reason, line of thought on this topic.

Levy's core claim is that Trump's promulgation of "easily fact-checked nonsense" is useful in providing "sheer shows of power and dominance" that occur when "subordinates" repeat and support Trump's obvious untruths:

The power to make someone who *knows [that] you speak untruths* repeat your untruths is profound, and big obvious lies ("2+2=5") are best for it. Trump repeatedly did this kind of thing to his subordinates over the course of his campaign, testing who was the most faithful kicked dog.

If Levy is right, and it's hard to disagree however unpleasant it is to have to acknowledge, Trump deliberately uses falsehood to compromise people within his orbit. This is a common "group initiation tactic," Levy writes, "from childhood bullies to gangs to the mafia: make the new member one of us, don't let them think they're any better." 

I could be wrong about Levy being right. Judge for yourself. Regardless, we can still have some hope that separation of powers and federalism can bear the load placed on them by a Trump presidency. And perhaps reflection on the awfulness of moral and political manipulation through deliberate falsehood can help us all appreciate anew the splendor of truth.

November 28, 2016 in Walsh, Kevin | Permalink

Sunday, November 27, 2016

A Golden Celebration--the Catholic Chaplaincy at Yale

Check it out, here.

November 27, 2016 in Perry, Michael | Permalink

Friday, November 25, 2016

"The Dandy and His Turkey," featuring Chief Justice John Marshall as the "polite old man" gently schooling the young fop

For an uplifting, Thanksgiving-themed counterpoint to Marc's post ("Out With the Old, In With the New!"), check out "John Marshall, 'The Dandy and His Turkey,' and true greatness" at Law-RVA. It provides two nineteenth-century schoolbook-reader renditions of a story about John Marshall. In it, a "polite old man" carries home a turkey from market in Richmond for a fashionable young man who couldn't be bothered to do it himself. Only after the old man departs does the young dandy learn that the old man was the Chief Justice of the United States. Enjoy!

November 25, 2016 in Walsh, Kevin | Permalink

Wednesday, November 23, 2016

Out With the Old, In With the New!

I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can't think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, "Trollope's novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of."

Trollope's Barsetshire Novels in particular are concerned with political and cultural change, or "evolution," within the Anglican Church in English nineteenth century life. Here is a wonderful passage from "Barchester Towers" in which a "new man" representative of the progressively liberalizing episcopacy (Mr. Slope) informs an "old man" (Mr. Harding) about the changes coming to the Church and to English life more broadly:

"You must be aware, Mr. Harding, that things are a good deal changed in Barchester," said Mr. Slope.

Mr. Harding said that he was aware of it. "And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions."

All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example....

Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated....But the venom of [Mr. Slope's] harangue had worked into his blood.

"New men are carrying out new measures, and are carting away the useless rubbish of past centuries!" What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh--or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.

November 23, 2016 in DeGirolami, Marc | Permalink

Tuesday, November 22, 2016

You Are Still Crying Wolf (re: Trump's racism) & The Wages of Crying Wolf (re: Supreme Court's aconstitutionalism)

This blog post and this law review article, written over forty years apart, have made for a bracing forty minutes or so of reading this evening. I don't recommend reading them together. In any event, both raise the question not only of how to know when a wolf comes as a wolf, so to speak, but also what to do when a wolf comes to a community that celebrates what wolves do to sheep. 

November 22, 2016 in Walsh, Kevin | Permalink

John Courtney Murray and "The Primacy of the Spiritual": Lessons for the Law

That's the title of a book chapter I contributed to the recently published collection Public Theology and the Global Common Good (a Festschrift for my doctoral dissertation advisor, David Hollenbach, SJ). Based on Murray's writings in the 1940s and 1950s about the Supreme Court's early Establishment Clause cases, I argue that Murray was more pessimistic about the future of American public philosophy and constitutional law than he is usually regarded, and I draw out some lessons for the mission of legal education today. Critics of Murray (both traditionalist and radical) and readers only of We Hold These Truths (1960) are apt to miss this aspect of Murray. Here is a bit from my chapter (citations and footnotes omitted):

In Murray’s engagement with American constitutional law, an overlooked aspect of his thought was his focus on the particularities of the church-state question as it had played out historically in the United States. He did not so much develop a theory of church and state as use sources in the Catholic tradition to discern historical possibilities for how church and state could relate in ways that the tradition (shaped as it was primarily by continental, not Anglo-American, source) had neglected. This is evident both in Murray’s treatment of church and state in the teaching of Pope Leo XIII and in his discussions of the First Amendment.

A prominent example of this aspect of Murray’s thought is his engagement throughout the 1940s and early 1950s in a wide-ranging critique of the Supreme Court’s Establishment Clause jurisprudence as it emerged in early cases applying the First Amendment to state and local governments. Two cases from that period especially interested Murray. In Everson v. Board of Education, the Supreme Court took up the question of whether a New Jersey program of reimbursing the parents of schoolchildren traveling to and from school (including parochial schools) for transportation expenses was constitutionally permissible. While the Court concluded that the transportation reimbursement program did not violate the First Amendment, Justice Black’s majority opinion famously invoked the “wall of separation” metaphor that has bewitched Establishment Clause jurisprudence ever since. Justice Black’s opinion purported to rest on the original understanding of the First Amendment, but—in both Murray’s articles on Everson and in subsequent legal scholarship—that account has been called into serious question.

In McCollum v. Board of Education, decided shortly after Everson, Murray’s concerns were vindicated. In another majority opinion from Justice Black, the Court used the Establishment Clause doctrine adopted in Everson to hold that a release-time program for pubic school students to attend religious instruction was unconstitutional. In a talk delivered in Wilmington, Delaware shortly after McCollum was decided (discovered in the Murray archives by Joseph Komonchak and published in First Things in 1992), Murray excoriates the reasoning of McCollum: “Our original constitutional doctrine simply affirmed the equality of all religious faiths before the law of the land; our new constitutional doctrine affirms something much more radical and sweeping—it affirms the so-called principle of the ‘absolute separation of church and state.’”

Recently, Andrew Koppelman has invoked Murray’s view as an example of concerns about corruption of religion in First Amendment cases. “A rule against establishment of religion ought not itself to establish a religion,” Koppelman writes, “The point is a powerful one, and it is remarkable that so little has been made of it since Murray wrote.” For Murray, the Supreme Court’s Establishment Clause decisions in Everson and McCollum are “an irredeemable piece of sectarian dogmatism. And if there is one thing that the First Amendment forbids with resounding force it is the intrusion of a sectarian philosophy of religion into the fundamental law of the land.” As an alternative to this misguided interpretation of the Establishment Clause, Murray argued in his essay “Law or Prepossessions?” for “first, a return to the original political philosophy of the First Amendment” and “second, its realistic application in a situation wherein the alignment of forces and the conflict of values is substantially different from what it was in 1791.” Absent these developments, Murray warned that the consequences would be severe:

Join a rigidly negative concept of religious freedom, as sheer immunity from coercion by governmental power, to a rigidly absolute, end-in-itself concept of separation of church and state, as meaning absolutely no aid to religion by government, and you have opened the way to the subtle tyrannies of irreligion, secularist ideologies, false political and education philosophies, and the dangerous myth of “democracy as a religion.” Such a development is utterly foreign to the letter, spirit, and intent of the First Amendment, and will be consequently disastrous to American society.

November 22, 2016 in Moreland, Michael | Permalink

Horrifying news from France

They ought to know where this kind of thing leads:

Last week another big step was taken towards the mass persecution of children with Down syndrome. On November 10th, the French ‘State Counsel’ rejected an appeal made by people with Down syndrome, their families and allies to lift the ban on broadcasting the award winning “Dear Future Mom” video on French television. The ban was previously imposed by the French Broadcasting Counsel. Kids who are unjustly described as a ‘risk’ before they are born, are now wrongfully portrayed as a ‘risk’ after birth too.

The video features a number of young people from around the globe telling about their lives. Their stories reflect today’s reality of living with Down syndrome and aims to reassure women who have received a prenatal diagnosis. Their message of hope takes away the fears and questions these women may have, often based on outdated stereotypes. The video was produced in 2014 to celebrate World Down Syndrome Day. A day created by Down Syndrome International and officially recognized by the United Nations for the promotion of the human rights of people with Down syndrome. 

Happy children with Down “disturb the conscience” of post-abortion women

The State Counsel said that allowing people with Down syndrome to smile was “inappropriate” because people’s expression of happiness was “likely to disturb the conscience of women who had lawfully made different personal life choices”.

November 22, 2016 in Garnett, Rick | Permalink

Same Sex Unions and the Catholic Church: How Law and Doctrine Evolve

That's the title of a paper that Charles Reid, Professor of Law at the University of St. Thomas, has just posted to SSRN.  Given the subject matter of the paper, some information about Professor Reid's academic background is relevant.  Professor Reid attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees.   Reid later attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney.  His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights.  Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question.  In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law.

Reid's article on same-sex unions and the Catholic Church is downloadable for free here.  This is the abstract:

This Article makes the case for reforming the Catholic Church’s law and teaching on the topic of same-sex unions. It is divided into two large parts. Part I surveys the present state of the Church’s rules governing same-sex relations. It is further subdivided into three subsections: the first examining the formation and reinforcement of the anti-sodomy norm in the nineteenth and twentieth centuries; the second reviewing the jurisprudence of the Roman Rota (one of the Vatican’s two supreme appellate tribunals) on homosexuality; the third glancing briefly at more affirming recent statements of Pope Francis and leading Cardinals and bishops. The second part then states the case for reform. It begins by recapitulating the natural-law case against same-sex unions, especially as articulated by Pope John Paul II; it then focuses on personalist philosophy to build a case grounded in human dignity and human rights; it looks to see how arguments grounded on dignity, respect, and human rights were used in legislative and constitutional reform in the United States and in three Catholic countries; and it returns again to natural law. Building on the premise that natural law requires an understanding of nature, the Article reviews the state of the science on same-sex attraction. It closes with a reflection on the many ways the Church has dynamically reinterpreted its normative structure and proposes that reform of the law on same-sex unions would be in keeping with other large historical shifts in the Church’s law and doctrine.

November 22, 2016 in Perry, Michael | Permalink

Monday, November 21, 2016

Fred C. Zacharias Prize to Leslie Levin and Kate Levine

Thanks to Prof. Sam Levine (Touro), I'm passing on some nice news:

The winners have  been selected for the seventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Leslie C. Levin, for Lawyers Going Bare and Clients Going Blind, 68 Fla. L. Rev. (forthcoming 2016), and Kate Levine, for Who Shouldn't Prosecute the Police, 101 Iowa L. Rev. 1447 (2016).  The Prize will be awarded at the AALS Annual Meeting in San Francisco in January.


November 21, 2016 in Garnett, Rick | Permalink

Sunday, November 20, 2016

Christ the King and religious freedom

Here are some very helpful insights from the USCCB on the significance and meaning of the Feast of Christ the King.  And here -- because it never hurts to read it again! -- is Quas Primas.

November 20, 2016 in Garnett, Rick | Permalink

Friday, November 18, 2016

Human Agency and the Working Class

Today I had the pleasure of participating in a conference convened by Columbia University’s Center on Capitalism and Society. The conference explored the (expansive) topic, “Agency, Prospering, Progress and the Working Class.”  Highlights from the day included Richard Sennett (London School of Economics) offering a tour de force argument that the experience of class in the U.S. is intensely personalized; compared to Europe, Americans who struggle economically are more likely to believe that something is wrong with them, rather than with the system.  In this regard, Trump's victory cannot be explained as globalization's losers overcoming globalization's winners. It goes much deeper than that.

My panel included Philip Howard (author of The Death of Common Sense), Richard Robb (Columbia), and JD Vance (author of Hillbilly Elegy), all of whom reflected on paths by which human agency can be supported and enhanced among the working class.

Here are the questions I asked at the outset of my remarks: should caution about top-down, one-size-fits-all legal solutions to practical problems also apply to our assessment of top-down, one-size-fits-all legal resolutions of moral disputes? If we care about human agency, how do we discern the moral norms that should govern our public lives, and at what point should we invest them with legal authority?

I then explained how the disputes over transgender bathrooms, florists required to serve same-sex weddings, and demands made by Black Lives Matter protesters can all be understood as reflections of the desire for moral agency. Maintaining legal space for dissenting moral claims is a necessary but insufficient condition for moral agency; agency also requires empathy, which is essential to – some would say constitutive of – moral deliberation. We face a significant empathy deficit, as the 2016 campaign season displayed powerfully and painfully.  Strengthened commitments to civil friendship and local political engagement offer a promising path forward.

Human agency was almost completely ignored in the rhetoric and policy proposals of both presidential candidates, as JD Vance pointed out in his remarks. If we care about the insights of Catholic social teaching (e.g., subsidiarity, economic justice understood as participation in the economy), we can’t lose sight of its importance.

November 18, 2016 in Vischer, Rob | Permalink

Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention

I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention.  After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."  

The big-picture idea (such as it is) was this:  In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise.  What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is.  RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are part of the "future of religious liberty."

The two "reasons for cautious optimism":  First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but rather imposes real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions.  Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known, hot-button-issue topics, religious-liberty claimants are very often winning.  For now.

Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election:  (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.

Then followed a lively discussion!     

November 18, 2016 in Garnett, Rick | Permalink

Thursday, November 17, 2016

National Constitution Center Event on "Is the Constitution Judeo-Christian?"

I am looking forward to being on a panel at the National Constitution Center in Philadelphia this Monday (Nov. 21) at noon on the question, "Is the Constitution Judeo-Christian?" (details and registration here) moderated by Michael Gerhardt (UNC-Chapel Hill) and joined by Menachem Lorberbaum (Penn and Tel Aviv) and Suzanne Last Stone (Cardozo). My answers to the question will be "yes, of course," "perhaps, but in a complicated way," and "no."

November 17, 2016 in Moreland, Michael | Permalink

Catholic Scholars commend the witness of the Church of God in Christ (COGIC)

November 17, 2016

We, the undersigned Catholic scholars, express our gratitude to, and our solidarity with, the Church of God in Christ and Presiding Bishop Charles E. Blake. We deeply admire your profound commitment and bold witness to the sanctity of human life in all stages and conditions and to the protection of the poor, the weak, and the vulnerable from womb to tomb. We applaud your work to uphold marriage as the conjugal union of husband and wife and to rebuild the marriage-based family as the fundamental unit of society and the original and best department of health, education, and welfare. We acknowledge with gratitude your devotion to the cause of religious freedom at home as well as abroad and your labors to protect the conscience rights of the Little Sisters of the Poor and people of all faiths and shades of belief.

We pledge to stand with you, our Christian brothers and sisters of the historic Black church, and to work arm in arm with you in Christ-like self-sacrificial love to build in America a true culture of life and of family life. To the cultured despisers of religion and Biblical morality, we say we love you, but we will oppose you—and with our COGIC friends we will strive not so much to defeat you in a cultural and political struggle as to open your hearts and minds to the life-preserving and love-affirming truths of the Gospel that reason knows and faith confirms.

The historic Black church and the Catholic Church in America, though allies in many struggles, have been too much like strangers to each other for too long. It should not have taken the unprecedented moral challenges we now face, or the abject failures of our political elites, to bring us closer together. For this we apologize to God. But with His help and by His truly amazing grace, we pledge to be strangers no longer. Let us unite as "soldiers of the cross" to bring revival, healing, and righteousness to our people.


Robert P. George, J.D., D.Phil., D.C.L.

McCormick Professor of Jurisprudence

Princeton University

Mary Ann Glendon, J.D., LL.M.

Learned Hand Professor of Law

Harvard Law School

Michael Novak

Catholic University of America

Gerard V. Bradley, J.D.

Professor of Law

University of Notre Dame

Hadley Arkes, Ph.D.

Edward N. Ney Professor of Jurisprudence and American Institutions emeritus

Amherst College

George Weigel

Distinguished Senior Fellow and William E. Simon Chair in Catholic Studies

Ethics and Public Policy Center

Adrian Vermeule, J.D.

Ralph S. Tyler Professor of Constitutional Law

Harvard Law School.

John C. Cavadini, Ph.D.

Professor, Department of Theology

University of Notre Dame

Dermot A. Quinn, D.Phil.

Professor of History and Director of Graduate Studies

Seton Hall University

Matthew Franck, Ph.D.

Director, Simon Center on Religion and the Constitution

Witherspoon Institute

Michael Reynolds, Ph.D.

Associate Professor of Near Eastern Studies

Princeton University

Edward Whelan, J.D.


Ethics and Public Policy Center

R.R. Reno, Ph.D.


First Things

Teresa Collett, J.D.

Professor of Law

University of St. Thomas

Robert Koons, Ph.D.

Professor of Philosophy

University of Texas at Austin

Mark Bauerlein, Ph.D.

Professor of English

Emory University

Senior Editor, First Things

Rev. Nicanor Pier Giorgio Austriaco, O.P., Ph.D., S.T.D.
Professor of Biology and of Theology
Providence College

Francis J. Beckwith, Ph.D.

Professor of Philosophy & Church-State Studies

Co-Director, Program in Philosophical Studies of Religion (Institute for   
        Studies of Religion)

Baylor University

Melissa Moschella, Ph.D.

Assistant Professor of Philosophy

The Catholic University of America

J. Budziszewski, Ph.D.

Professor of Government and Philosophy

University of Texas at Austin

Christopher Kaczor, Ph.D.

Professor of Philosophy

Loyola Marymount University

Rev. Thomas Petri, O.P., S.T.D.

Vice President and Academic Dean

Assistant Professor of Moral Theology

Pontifical Faculty of the Immaculate Conception

Dominican House of Studie

R. J. Snell, Ph.D.

Director, Center on the University and Intellectual Life

Witherspoon Institute

Senior Fellow, Agora Institute for Civic Virtue and Common Good

O. Carter Snead, J.D.

William P. and Hazel B. White Director, Center for Ethics and Culture

Professor of Law

University of Notre Dame

Alexander Pruss, Ph.D.

Professor of Philosophy

Baylor University

Mark Regnerus, Ph.D.

Associate Professor of Sociology

University of Texas at Austin

Senior Fellow, Austin Institute for the Study of Family and Culture

Rev. Prof. Stephen L. Brock, Ph.D.
Pontifical University of the Holy Cross

Aaron Kheriaty, M.D.

Associate Professor of Psychiatry

University of California, Irvine

Rev. Joseph Koterski S.J., Ph.D.

Fordham University

Robert A. Destro, J.D.

Professor of Law and Director of the Interdisciplinary Program in Law & Religion
Columbus School of Law

The Catholic University of America

Carson Holloway, Ph.D.

Political Scientist

Patrick Lee, Ph.D.
John N. and Jamie D. McAleer Professor of Bioethics
Director, Institute of Bioethics
Franciscan University of Steubenville

Christopher Tollefsen, Ph.D.

Professor of Philosophy

University of South Carolina

John M. Haas, Ph.D., S.T.L., M.Div.


The National Catholic Bioethics Center

Christopher Wolfe, Ph.D.

Professor of Politics

University of Dallas

Ralph Martin, S.T.D.

Sacred Heart Major Seminary

Archdiocese of Detroit

Monica Migliorino Miller, Ph.D.

Associate Professor of Religious Studies

Madonna University

Eduardo Echeverria, Ph.D., S.T.L.

Professor of Philosophy and Systematic Theology

Sacred Heart Major Seminary

Archdiocese of Detroit

Matthew Levering, Ph.D.

James N. and Mary D. Perry, Jr. Chair of Theology

University of St. Mary of the Lake

Rev. Thomas Berg, Ph.D.

Professor of Moral Theology

St. Joseph’s Seminary (Dunwoodie)

Maggie Gallagher

Senior Fellow

American Principles Project

John Grabowski, Ph.D.

Associate Professor and Director of Moral Theology/Ethics

School of Theology and Religious Studies

The Catholic University of America

Ryan T. Anderson, Ph.D.

William E. Simon Senior Research Fellow

The Heritage Foundation

Mark Latkovic, S.T.D.

Professor of Moral Theology

Sacred Heart Major Seminary

Archdiocese of Detroit

Christian Brugger, D.Phil.
J. Francis Cardinal Stafford Professor of Moral Theology
Saint John Vianney Theological Seminary

C.C. Pecknold, Ph.D.
Associate Professor of Systematic Theology

School of Theology and Religious Studies
The Catholic University of America

Rev. Kevin L. Flannery, S.J., Ph.D.

Professor of Philosophy

Pontificia Universitas Gregoriana


Lee J. Strang, J.D.

John W. Stoepler Professor of Law & Values

University of Toledo College of Law

Michael A. Scaperlanda. Ph.D.


St. Gregory’s University

Stephen M. Krason, J.D., Ph.D.
Professor of Political Science and Legal Studies

Franciscan University of Steubenville

President, Society of Catholic Social Scientists

Prof. Ronald J. Rychlak, J.D.

Jamie L. Whitten Chair of Law and Government 

The University of Mississippi School of Law

Kevin Govern, J.D., LL.M.

Professor of Law

Ave Maria School of Law

John M. Breen, J.D.

Professor of Law

Loyola University Chicago

Mary Rice Hasson

Director, Catholic Women's Forum

Fellow, Ethics and Public Policy Center

Bill Piatt

Professor of Law

Former Dean (1998-2007)

St. Mary's University School of Law

[Affiliations for identification purposes]

November 17, 2016 | Permalink