Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, May 23, 2018

"Vocation, Expressive Conduct, and Religious Liberty"

Although I haven't read it carefully, this student note looks like a useful addition to the literature on free-exercise exemptions in the commercial sphere. Although it appears to settle on some of the same considerations as previous articles to delineate some such exemptions as proper while setting limits on their scope, it does so through the (worthwhile) introduction of the concept of religious "vocation" in one's business.

Recent scholarship on religious liberty claims, perhaps following the lead of litigants raising claims for religious exemptions in the wake of Obergefell, has largely focused on arguments that certain forms of business activity are “expressive conduct” that government cannot compel. This Note aims to shift the focus of the debate, by arguing that the expressive conduct line of argument distracts from the real collision these cases involve, between two kinds of identity that are both worthy of protection. This Note's argument is twofold. First, it invokes the concept of vocation, understood as a religious obligation or set of obligations regarding work-related conduct, to suggest that, for many, how one acts in one's work is a key part of one's religious identity. Second, it argues that the concept of vocation can, and does, impose meaningful limits on the availability of exemptions from anti-discrimination laws, mitigating the fear that allowing such exemptions will eviscerate the law's ability to protect against discrimination.

May 23, 2018 in Berg, Thomas, Current Affairs | Permalink

Monday, May 21, 2018

Upcoming events in DC - and Helen Alvare's new book

On Thursday, May 31st, the EPPC Catholic Women's Forum, together with the Notre Dame Center for Ethics and Culture will host an important symposium at the Mayflower Hotel. "The #MeToo Moment: Second Thoughts on the Sexual Revolution" will include speakers Helen Alvare and Mary Eberstadt, several distinguished medical experts, Jennifer Lahl, and CUA Law professor Mary Leary. Cardinal Wuerl will open the timely event, and Carter Snead and Mary Hasson will moderate it. Read more or register for the free event here.

One expects that Helen Alvare, who will conclude the event, will offer arguments from her important new book out of Cambridge University Press, Putting Children's Interests First in U.S. Family Law and Policy: With Power Comes Responsibility. Mark Regnerus has an excellent review of the book here, and Helen is interviewed about it here.  The legal history in the book will be familiar to MOJers, but Helen's conceptualization of the trend as one of "sexual expressionism" is unique and very helpful. She defines "sexual expressionism" as "valorizing adult sexual expression, while remaining silent or indifferent regarding the adult's marital status, and to the reality that children's family structure is usually established at conception." The slim book is expensive, but worth ordering for law libraries and recommending to law and grad students. Helen continues to be one of the most courageous, intelligent, and articulate voices out there today - her new book is no exception. 

On Wednesday, June 11th, Americans United for Life will host "Women Speak 2018: A Symposium on Life Without Roe." The event will take place at the Heritage Foundation and "explore the current cultural and political paradigm that argues abortion is necessary for women's advancement in society." Speakers include Mollie Hemmingway, Catherine Pakaluk, Catherine Glenn Foster, and myself, among others. More info and register here.

 

May 21, 2018 in Bachiochi, Erika | Permalink

Sunday, May 20, 2018

What's Missing in the New CDF Document: Critique of corrupting, inequality-increasing monopolies

The Congregation for the Doctrine of the Faith has issued a new document called "Considerations for an Ethical Discernment Regarding Some Aspects of the Present Economic-Financial System."  Although some pre-emptively criticize some "on the right" for imagining that the Church's social doctrines do not contain grounds for criticizing many aspects of contemporary economic and commercial practices, I doubt if anyone actually thinks they don't.  Of course they do.  As the document (quite correctly) points out, "economic" questions are (like all interesting questions) questions of "moral anthropology" -- a point that bloggers here at MOJ have been making for 14 years.  So, some Catholic commentators will mine the document for quotes that they regard as useful rhetorical arrows to shoot at (mostly imaginary) Randians but that frustrating fact doesn't take away from the document's welcome reminder about the centrality of the question, "what are human persons, really, and what are they for?" 

For me, there are at least two things missing from the document:  First, the document fails to appreciate that regulatory complexity is, in fact, a subsidy to the rich and to those who are already "ahead."  The document calls, repeatedly, for "regulation" (as if the economies in North America or western Europe are unregulated -- they certainly are not, and no one believes they should be) but does not acknowledge that "regulations" can be good, or bad; they can reduce dangers or they can simply protect narrow interests.  Those who are best able to navigate complex regulatory environments will not be the poor.  In this sense, regulatory complexity is like corruption.  (Paragraph 31 comes close to recognizing this point, but in the context of tax avoidance.)

A second point:  The document does, to its credit, say that "it is good to point out how often the public debt is also created by an incautious, if not fraudulent, management of the public administrative system."  More was needed, though -- given the document's title -- on the urgent and moral dimensions of the saddling of the young and of coming generations with obligations simply to fund the social-welfare, pension, vacation, and retirement policies preferred by today's Baby Boomers.  This is at least as important as, say, the use of "offshore sites" (with which the document was strikingly concerned) for various purposes.

In some Catholic commentary on these matters, it's suggested that there are "laissez faire" "libertarians" out there who are plotting an end to all "regulation."  This is silly.  Again, western economies, including the American one, are pervasively regulated, and the argument is (or should be) about which regulations serve their goals well and which do not.  Some regulations do not protect the vulnerable but instead entrench monopolies and protect rent-seeking.  "Competition" should not be an idol, or the foundational principle, but it's hardly the sole cause of the various features of modern life that we as Christians regret.    

May 20, 2018 in Garnett, Rick | Permalink

Friday, May 18, 2018

Why would Philadelphia harm children by excluding Catholic foster-care services?

The story is here:  "At the end of June, the City of Philadelphia will be terminating its contract with Catholic Social Services because of its beliefs about same-sex marriage. They will be doing this despite the fact that no same-sex couple has filed a complaint against them. They will be doing this despite that fact that the City of Philadelphia has 5,000 children in foster care and has recently asked for more people to step up to the plate to be foster parents."

Thankfully, the happy warriors at the Becket Fund are on the case.

May 18, 2018 in Garnett, Rick | Permalink

Dulles Colloquium: "Can a Liberal Society Favor One Religion"

I had the privilege, a few days ago, of drafting a discussion paper for the Dulles Colloquium, hosted by Rusty Reno and the Institute on Religion and Public Life, addressing the question, "Can a Liberal Society Favor One Religion Over the Others."  The discussion was lively and definitely not monochronic or monotonal.  Here's just a bit from the paper, and I'd welcome reactions:

. . . And, what makes a political authority, regime, or state “liberal”?  I pass over here the fascinating “genealogical” work of Patrick Deneen, Brad S. Gregory, and others who have proposed accounts of how contemporary liberalism was made and the mechanisms, reactions, and dynamics that have given it its shape (or shapes).  For present purposes, I have in mind William Galston’s recent statement of “the core idea of liberalism,” namely, “recognizing and protecting a sphere beyond the rightful reach of government in which individuals” – I would add natural and other associations and societies – “can enjoy independence and privacy.”  Galston supplements this “core idea” with three others – the “republican principle” or popular sovereignty, i.e., the idea that “the people” are the source of (this-world) political legitimacy; “democracy,” which involves both formal political and civil equality and constrained majoritarianism; and “constitutionalism,” which “denotes a basic, enduring structure of formal institutional power,” a structure in which political power is granted, distributed, and constrained by entrenched and enforceable rights as well as other mechanisms.  All this, taken together, makes up, in Galston’s account, “liberal democracy,” which is – while, again, not the only possible moral regime – the regime I think we are asking about.

Such a regime need not be (indeed, it should not be) Jacobin, comprehensive, redemptive, sacramental, eschatological, crusading, thick, ambitious, or even particular optimistic.  It cannot be entirely neutral but it can be (indeed, I think it should be) cautious, historically aware, chastened, and humble.  It can and should be clear-eyed, Schumpeterian, and MacIntyrian about its vulnerability and contradictions, about its tendency to self-undermine, about its dependence on virtues, practices, and traditions that it cannot, by itself, create or maintain.  It is pluralistic – both in the sense that it tolerates different views about the good life and respects the exercise of the authority that rightfully belongs to non-state actors and societies.  It is not jealous of society’s little platoons and is comfortably resigned to the persistence of humanity’s crooked timber. . . .

 

May 18, 2018 in Garnett, Rick | Permalink

Manent & Brague, "Taking Religion Seriously"

This discussion, between Pierre Manent and Remi Brague, at the Law and Liberty site, is well worth a read.  Here's just a bit, from Brague:

I would not dare to speak about individualism in the presence of someone, precisely Pierre Manent, who has written a penetrating book on Tocqueville and thus has provided a conceptual formulation of individualism at a level to which I cannot attain. What I can say is that today it is the idea according to which history begins with us, with us as individuals, with each individual. Then one generalizes this false idea – it is false because the language by which we speak comes from well before us, not to mention our customs and manners – and applies it to the collective, and affirms that history begins today. From this idea comes educational curricula in which one has the impression that history began in May, 1968, and prehistory began with the Great Crash of 1929.

Therefore, it is the awareness of a long duration of time that one must try to restore, as, for that matter, the French historical school is doing and which we would do well to follow. This would entail, for example, that we grasp that the cathedrals are part of France and therefore we must not let them disappear (in the way that David Copperfield made the Eiffel Tower disappear!). However, certain speeches by high-placed officials tend in that direction. It would be good, therefore, to break with this voluntary amnesia concerning our roots

May 18, 2018 in Garnett, Rick | Permalink

Wednesday, May 16, 2018

Recent victories in battle against legalization of physician assisted suicide

This morning, Riverside Superior Court Judge Ottolia, overturned the California End of Life Option Act, a law allowing physician-assisted suicide.  Judge Otollia “ruled that the state legislature should not have approved the assisted-suicide law during that special session because the subject of the law fell outside the grounds of the special session.” Judge Ottolia also stated that the End of Life Option Act does not fall under the category of healthcare options.  The ruling will certainly be appealed and challenged, probably overruled, but it is heartening to see some recognition of the fallacy of considering assisted suicide "health care."

Even more heartening is the fact that proposals to legalize physician assisted suicide in both Massachusetts and Delaware failed this past spring, despite intense targeting by Compassion in Choices.  Hard-fought victories by the opponents in both cases, but victories none the less.

May 16, 2018 in Schiltz, Elizabeth | Permalink

Wednesday, May 9, 2018

"Why American Politics are a Nightmare for Catholic Universities," featuring Garnett et al.

Our own Rick Garnett is quoted in this pretty even-handed piece in The Atlantic about the challenges Catholic universities face in having political figures speak at major events like commencement: from Obama at Notre Dame to Betsy DeVos this year at Ave Maria University. Since Catholicism cuts across the political parties' platforms, any such invitation is likely to trigger strong criticism from some significant number of people: 

There are unclear areas in what Catholicism recommends—for example, the Church holds that members should care for the poor, but what that means in practice is debated—that make it hard to associate the religion with one party exclusively. [True, although I'd say it's more that each party has, in different ways, moved away from some important aspect(s) of Catholic social teaching.--TB] But the rigidity of polarized American politics isn’t accommodating of a cafeteria-line approach to political positions: There’s no taking a little from one party, a little from another, and a little from a third. It’s all or nothing. That often means that if someone picks a side in one policy, he or she will be criticized for aligning with the broader agenda of that side.

Richard Garnett, a professor at Notre Dame who writes about freedom of speech and religion, put it like this: “It’s going to be a rare politician [who is] going to line up with the catechism on all fronts.” So, predictably, when a political figure is invited to speak at a Catholic event, it is going to be divisive. “It’s almost always going to be true given American politics and the way our parties divide up,” he said.

The answer is probably, as others have suggested, to stay away from politicians for a while and invite people doing good things in other walks of life. After all, there's not a lot to hold up as exemplary in the national political parties right now.

May 9, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, May 8, 2018

Democrats for Life Student Scholarship Essay Contest

Information and further links here. Deadline is June 20. The winner will be invited to read the winning essay at DFLA's annual conference, July 20-22, in Denver.

+++++++

For Students age 16 to 26.

Prizes $2500, $1000, and $500.

Runs 15 March to 20 June 2018.

Welcomes Any [or No] Party Affiliation, Any [or No] Political Stance.

Here’s the prompt:
MANY PEOPLE ASSERT THAT THE TERM "PRO-LIFE DEMOCRAT" IS CONTRADICTORY. HOW WOULD YOU RESPOND TO SOMEONE WHO MAKES THIS ASSERTION?

Please Forward, SnapChat, Facebook, Instagram, Twitter, Pinterest, Tumblr, WhatsApp, etc. to those you think interested. Click here to learn more.

May 8, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, May 5, 2018

USCCB announces Religious Freedom Week

It kicks off, appropriately, on the feasts of Sts. Thomas More and John Fisher.  More here.

The chairman of the USCCB's Committee for Religious Liberty, Archbishop Joseph E. Kurtz of Louisville, states: "Religious freedom allows the space for people of faith to serve others in God's love in ministries like education, adoption and foster care, health care, and migration and refugee services. We encourage people of faith to reflect on the importance of religious freedom so that we might have the space to carry out our mission of service and mercy, and we invite everyone to pray for our brothers and sisters who face intense persecution in other parts of the world."

May 5, 2018 in Garnett, Rick | Permalink

Thursday, May 3, 2018

Henry Garnet, S.J., pray for us!

On this day, Henry Garnet, S.J., was hanged, drawn, and quartered.  He was, for many years, the head of the secret Jesuit mission in England.  Pray for us!

May 3, 2018 in Garnett, Rick | Permalink

Joel Harrison on "Sovereignty"

This paper looks really interesting:

This chapter is forthcoming in Nicholas Aroney and Ian Leigh (eds), Christianity and Constitutionalism (Cambridge University Press, 2018). It discusses the rise of a modern concept of sovereignty as prior to and grounding all law, and associated with an unlimited and indivisible power that prioritises the will of a recognised authority. It then explores how the Christian tradition contains a consistent thread of challenge. This is reflected in three parts: the parallel authority of priest and king, or church and civil authority; the cultivation of multiple sites of authority, at local, regional, and international levels; and the coordinating, encouraging, and cultivating place of ‘monarchical’ rule. Rather than sovereign rule, the Christian tradition has emphasised the inter-twining of duality, plurality, and the one. Importantly, each of these components are understood as pursuing a shared horizon, a tradition, or discerning of right. Indeed, as such, it could be suggested that what is ultimately sovereign is the good itself.

May 3, 2018 in Garnett, Rick | Permalink

Congratulations to Mary Ann Glendon on the Evangelium Vitae Medal

I'm pleased to pass on the news from the University of Notre Dame that this year's winner of the Center for Ethics & Culture's Evangelium Vitae medal is Prof. Mary Ann Glendon.  (Here's the news.)  I had the pleasure of attending the Mass and dinner celebrating the occasion.  Hundreds of people, including many Notre Dame students, came together to honor and thank Glendon for her work and witness.  

Contrary to an unfortunate and misleading report from Distinctly Catholic, which was not based on any actual knowledge about the event itself, there was nothing remotely partisan (and certainly nothing "Republican") about the gathering.  (In fact, the only politician I saw was pro-life Democrat Dan Lipinski.)  Glendon's own brief remarks focused on her community of pro-life women in Boston and on the crucial connection between the pro-life cause and solidarity with the poor.  And the many Notre Dame students whose pro-life commitments inspire them to volunteer to help women in the community appreciated that connection.  Congratulations to Glendon!   

May 3, 2018 in Garnett, Rick | Permalink

When Businesses Refuse to Serve for Religious Reasons

That's the title of MOJ-friend and Seton Hall law prof Angela Carmella's new paper. The subtitle:  "Drawing Lines between 'Participation' and 'Endorsement' in Claims of Moral Complicity".

The abstract:

The owners of small businesses and others involved in for-profit work occasionally refuse to provide a service to a patient, client, or customer on the grounds that to provide the service would render them complicit in immoral conduct in violation of their religious beliefs. Some of these conscientious refusals might be protected by legislation, regulation, or court decision, as in the case of a doctor refusing to perform an abortion, or an employer refusing to provide employees with contraception coverage. The new question raised—and soon to be answered by the U.S. Supreme Court—is whether wedding vendors (bakers, florists, and the like) who refuse to provide goods and services to same-sex couples will be similarly protected or whether they will be required to abide by the non-discrimination norms of public accommodations law. For those weary of religious claims in the culture wars, the very notion that the Court might extend legal protections to wedding vendors in such situations tends to cast doubt more generally on religion-based refusals in the for-profit context.

The purpose of this article is to draw a bright line between the traditional category of complicity claims and this newer category of wedding vendor claims. Traditional claims typically involve health care personnel and others refusing to participate in activities they consider to be immoral—most often those that entail ethical issues surrounding the beginnings and endings of life, such as assisted reproduction and assisted suicide. In contrast, this newer set of claims involve wedding vendors refusing to endorse activities they consider to be immoral, like the marriage of a same-sex couple. Herein lies the critical distinction: participation in immoral activity is not the same thing as endorsement or approbation of someone else’s immoral activity. The wedding vendors concede the distinction, as they expressly claim the right not to endorse a message with which they disagree, but they seek to extend the protections of traditional complicity jurisprudence to their claims. The article contends that the traditional complicity jurisprudence, which allows businesses to refuse to participate in activity they consider immoral, has little, if anything, to say about refusals to approve the conduct of others. The Supreme Court should not extend this jurisprudence to the wedding vendor context.

You can download the paper here.

 

May 3, 2018 in Perry, Michael | Permalink

Tuesday, May 1, 2018

Berman Award for Law & Religion Scholarship: Call for Nominations

Call for Nominations:

Harold Berman Award for Excellence in Scholarship

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at nt277 at cornell-dot-edu by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

May 1, 2018 in Berg, Thomas | Permalink

The Costs of Invalidating the Housing-Allowance Exclusion

In Gaylor v. Mnuchin, the Seventh Circuit is reviewing a district judge's ruling that the Establishment Clause invalidates section 107(2) of the IRS Code, the provision that allows ministers/clergy (of all faiths) to exclude an employer-provided housing allowance from income for federal tax purposes. (Section 107(1), which allows exclusion of the value of an employer-provided parsonage, is not challenged.)  Becket, which represents clergy intervening in the case to defend the provision, has a case page on its website. A brief summary of the argument on the merits in Becket's opening brief (at 6):

Section 107(2) takes the longstanding convenience-of-the-employer doctrine, which [excludes employer-provided housing from income if the employee--religious or secular--uses it for the employer's convenience], and applies it to ministers in a way that reduces entanglement and discrimination. [From TB: It reduces entanglement in the sense that otherwise the IRS would have to make religiously sensitive inquiries inquire into what constitutes meaningful use of the minister's home for the church. And it reduces discrimination in the sense that limiting the exclusion only to church-provided parsonage favors those churches that are old, established, or wealthy enough to have an existing parsonage or be able to make a down payment on a new one.]

Several amicus briefs filed support the government and the clergy-intervenors. Our Religious Liberty Appellate Clinic at St. Thomas helped draft a brief laying out the serious consequences for ministers and churches if 107(2) is invalidated. Using a variety of national surveys, we document these conclusions (from our summary of argument, pp. 3-4):

      A. Housing allowances excludable under § 107(2) are deeply embedded in our national life—that is, widely used in ministerial compensation structures. [Citing the "deeply embedded" standard from the Court's approval of tax exemptions in the Walz case.] Figures in studies indicate that anywhere from 61 to 81 percent of congregations rely on housing allowances (as opposed to church-owned parsonages) to give their ministers housing benefits.

      B. Invalidating § 107(2) would significantly disrupt the activities of ministers and congregations that have relied on the provision. The effects are evident in simple hypothetical examples involving a congregation of around the median-size budget, which is a modest $85,000. Solo ministers in that range receiving the median base salary—a modest $35,000—and a median housing allowance could see their federal tax liability nearly triple. To keep their ministers or preserve their financial stability, congregations would have to offset the added tax liability, including increased state income taxes. And the added compensation to accomplish that offset must significantly exceed the added taxes, since the new compensation is itself subject to federal and state income tax and federal self-employment tax. Calculating these effects in a simple hypothetical for a median-sized congregation shows how disruptive the invalidation of § 107(2) would be for congregations that have little cushion to absorb the effects.

We also present evidence that invalidating 107(2) "would disproportionately harm smaller congregations and those that must rely on a housing allowance as a means of structuring clergy compensation," and that it "would especially retired ministers and those nearing retirement."

St. Thomas 3L student Kacie Phillips (about to graduate!) did outstanding work on the review of studies and on the initial drafting of the brief.

May 1, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink

Monday, April 30, 2018

"Law's Abnegation" at Villanova Law

I am pleased to announce that MOJ's own Adrian Vermeule, John H. Watson Professor of Law at Harvard Law School, will deliver the keynote address at the annual John F. Scarpa Conference on Law, Politics, and Culture to be held at Villanova University Charles Widger School of Law on Friday, September 21, 2018.  The conference will focus on the topics and themes of Prof. Vermeule's Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press, 2018). There is something for everyone in Vermeule's searching account of law and how it works under our Constitution today.   
 
Details about the conference will be published in due course.  In addition to Prof. Vermeule, other speakers at the conference will include:
 
-- Jeff Pojanowski, Professor of Law, University of Notre Dame
-- Edward Rubin, University Professor of Law and Political Science, Dean emeritus, Vanderbilt     Law School
-- Colleen Murphy, Professor of Law and Professor of Philosophy, University of Illinois
-- Emily Bremer, Assistant Professor of Law, University of Wyoming College of Law
-- Adam White, Director, Center for the Study of the Administrative State, George Mason     University, and Hoover Institution.
-- Brian McCall, Merrill Professor of Law and Associate Dean, University of Oklahoma College     of Law
-- Patrick Brennan, Professor of Law and Scarpa Chair, Villanova University Charles Widger     School of Law

April 30, 2018 in Brennan, Patrick | Permalink

Snead on the Alfie Evans case

Here is my friend and colleague, Carter Snead, on the Alfie Evans case:

This decision reflects a profound, indeed lethal intolerance of dependence and disability. But it is even worse than that. Just as in the Charlie Gard case, the courts here effectively terminated the rights of Alfie's parents, forbidding them to seek transfer to other facilities that wished to care for Alfie. Both Pope Francis and the Italian government pled for Alfie's life, going as far as to make him an honorary Italian citizen and offering air transport to a pediatric hospital in Rome. But the UK government refused.

It has been disheartening, for me, to read the comments of some Catholics who seem more concerned about either lecturing others that the Catholic position cannot be reduced to mere "vitalism" (who thinks that it can?) or about the possibility that some will invoke this case as a reason to hesitate about single-payer health-care regimes than about the "life that is unworthy of life" reasoning underlying the refusal to allow Evans's parents to treat him. 

April 30, 2018 in Garnett, Rick | Permalink

Friday, April 27, 2018

Sometimes, it "really is this simple": Ponnuru on the Alfie Evans case

"It really is this simple: The British state has decided that it is the baby’s best interest to die, and it is trying to ensure that he dies expeditiously. It is overriding parental rights in the process."  More here

Those who remind us that the Church's teaching on human dignity, equality, and end-of-life medical care is nuanced and fact-sensitive are, of course, correct.  However, those who think this reminder obviates the awfulness of what's happening in the Evans case are mistaken.  A policy commitment to, say, the all-things-considered wisdom of a single-payer system is no excuse for defending what's happening.

April 27, 2018 in Garnett, Rick | Permalink

Why a Legislative Chamber Should Not Have an Official Chaplain

Here. (Whether it ultimately turns out that Fr. Conroy's dismissal as House chaplain was for political/theological reasons or because of "pastoral care" shortcomings.)

Rotating prayers before legislative proceedings are a separate question (Town of Greece). We might or might not think those are an acceptable even-handed accommodation or acknowledgment of religion. But putting one person in this post, and then fighting over whether his/her performance or views are acceptable, is ridiculous.

April 27, 2018 in Berg, Thomas, Current Affairs | Permalink

Thursday, April 26, 2018

Charlie Camosy on "Alfie Evans and Our Moral Crossroads"

A powerful piece, at First Things, from Prof. Charles Camosy on the very disturbing case in the U.K.   Here's a bit:

. . . Let us not mince words. As with Charlie Gard before him, Alfie Evans’s death is being aimed by the very people whose vocation it is to help and protect him. The difference in Alfie’s case is that, because he has continued to breathe, the pretense of “removal of burdensome treatment” is patently absurd. In a situation that was no doubt distressing to those who hoped he would die, Alfie’s continuing to breathe has clarified the true object of the act of removing his ventilator.

Of course, as with Charlie before him, we had more than enough evidence to make such a judgment, even before Alfie was extubated. The primary judge who refused to allow Alfie to travel to Italy was concerned with Alfie’s brain damage, not with the burden of treatment. Alfie’s disability is likely to be profound, and thus, according to the judge, it is in Alfie’s best interests to die. . . .

Pope Francis has admirably been on the side of both Charlie Gard and Alfie Evans. The broader Catholic hierarchy, the UK bishops, and the men around Francis, however, seem cold and complacent, deferring to a medical and legal establishment that refers to the application of Catholic moral theology to these cases as “ridiculous emotive nonsense.”

Perhaps those who are not infected with the ableism of the developed secular West are in a better position to respond to such a charge. The Brazilian bishops, interestingly, have put out a video insisting that the UK government has a duty to use its resources to support those who most need it, and that Alfie’s life must be protected.

Indeed. Enough with the deference to the medical and legal establishment and its judgements about which lives are worth living. Now is a time for choosing. The most vulnerable require our clear and uncompromising support.

It must be underscored:  It is not just that resources are scarce and that, in this case, it seems they are not being allocated justly.  It's that the authorities are refusing to allow the child's parents to care for him someplace else, via means that will cost the U.K. nothing.  It is not an exaggeration to call this a kidnapping.

April 26, 2018 in Garnett, Rick | Permalink

Charlie Camosy on "Alfie Evans and Our Moral Crossroads"

A powerful piece, at First Things, from Prof. Charles Camosy on the very disturbing case in the U.K.   Here's a bit:

. . . Let us not mince words. As with Charlie Gard before him, Alfie Evans’s death is being aimed by the very people whose vocation it is to help and protect him. The difference in Alfie’s case is that, because he has continued to breathe, the pretense of “removal of burdensome treatment” is patently absurd. In a situation that was no doubt distressing to those who hoped he would die, Alfie’s continuing to breathe has clarified the true object of the act of removing his ventilator.

Of course, as with Charlie before him, we had more than enough evidence to make such a judgment, even before Alfie was extubated. The primary judge who refused to allow Alfie to travel to Italy was concerned with Alfie’s brain damage, not with the burden of treatment. Alfie’s disability is likely to be profound, and thus, according to the judge, it is in Alfie’s best interests to die. . . .

Pope Francis has admirably been on the side of both Charlie Gard and Alfie Evans. The broader Catholic hierarchy, the UK bishops, and the men around Francis, however, seem cold and complacent, deferring to a medical and legal establishment that refers to the application of Catholic moral theology to these cases as “ridiculous emotive nonsense.”

Perhaps those who are not infected with the ableism of the developed secular West are in a better position to respond to such a charge. The Brazilian bishops, interestingly, have put out a video insisting that the UK government has a duty to use its resources to support those who most need it, and that Alfie’s life must be protected.

Indeed. Enough with the deference to the medical and legal establishment and its judgements about which lives are worth living. Now is a time for choosing. The most vulnerable require our clear and uncompromising support.

It must be underscored:  It is not just that resources are scarce and that, in this case, it seems they are not being allocated justly.  It's that the authorities are refusing to allow the child's parents to care for him someplace else, via means that will cost the U.K. nothing.  It is not an exaggeration to call this a kidnapping.

April 26, 2018 in Garnett, Rick | Permalink

Tuesday, April 24, 2018

Will this Term see the unmistakable end of Chief Justice Roberts's decade-plus streak of outcome agreement with the U.S. Conference of Catholic Bishops?

This Term, we are likely to see the umistakable end of Chief Justice Roberts's decade-plus streak of outcome agreement with the U.S. Conference of Catholic Bishops in Supreme Court cases in which the USCCB has filed or joined an amicus brief and the Court has issued signed opinions. The outcome-agreement streak almost certainly ended two years ago in United States v. Texas, in which the USCCB joined an amicus curiae brief with several other religious organizations supporting reversal but the Supreme Court affirmed by an equally divided vote. The names of the Justices on each side of the four-four split were not published, but Chief Justice Roberts was almost certainly one of the four votes for respondent Texas.  (No reason to think Ginsburg, Breyer, Sotomayor, or Kagan voted for Texas.) 

In a law review symposium article a few years ago, I examined the votes of Supreme Court Justices for outcome agreement in cases from the beginning of the Rehnquist Court in October Term 1986 through October Term 2013 in which the United States Conference of Catholic Bishops had filed an amicus brief.

From the beginning of the Roberts Court in OT 2005 until the end of that study (June 2014), Chief Justice Roberts was the only Justice with a perfect record of outcome agreement with the USCCB (eleven cases out of eleven). In those same eleven cases, Justices Scalia and Thomas were at ten of eleven. Some of those cases pre-dated Justice Alito's time on the bench, but he was six out of seven in USCCB cases. (The table and parts of the discussion in the article if you click through to it are outdated because of a lag time between acceptance and final publication in which I failed to update for Hobby Lobby and Holt v. Hobbs; my bad.)

The difference-maker was Arizona v. United States. Chief Justice Roberts joined a six-Justice majority holding three provisions of an Arizona law dealing with immigration enforcement to be preempted by federal law. The USSCB filed an amicus brief in support of respondent United States. Roberts sided with the respondent while Scalia, Thomas, and Alito sided with petitioner Arizona. 

By my count, the USCCB has filed or joined an amicus curiae brief in nine more cases since the end of OT 2013:

Obergefell v. Hodges (OT 2014)
Whole Women's Health v. Hellerstedt (OT 2015)
Zubik v. Burwell (OT 2015)
Trinity Lutheran Church of Columbia v. Pauley (OT 2015)
United States v. Texas (OT 2015)
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (OT 2017)
National Institute of Family and Life Advocates v. Becerra (OT 2017)
Janus v. American Federation of State, County, and Municipal Employees (OT 2017)
Trump v. Hawaii (OT 2017)

As previously noted, the Court affirmed by an equally divided vote in one of those cases (United States v. Texas). Four remain pending for decision this Term. In the other four, though, Chief Justice Roberts voted for the outcome favoring the same side that the USCCB argued in favor of. (Those cases were Obergefell, Whole Women's Health, Zubik, and Trinity Lutheran.)

The most likely candidate for a case in which Chief Justice Roberts votes against the party supported by the USCCB as amicus is Janus v. American Federation of State, County, and Municipal Employees. The USCCB's brief supports the respondent public-sector union, while Chief Justice Roberts is likely to vote in favor of the petitioner. This is a First Amendment challenge to "agency fees" for public-sector unions. Chief Justice Roberts has signaled willingness to support such a challenge (by joining an opinion suggesting as much in Harris v. Quinn and likely voting for the petitioner in Friedrichs v. California Teacher Association, a 4-4 split).

Another possibility is Trump v. Hawaii, which is being argued tomorrow, but for which I don't have a good predictive sense of how the Chief Justice is likely to vote. 

April 24, 2018 | Permalink

Book Review Roundtable on Kathleen Brady's "The Distinctiveness of Religion"

Last Spring, the Program on Church, State & Society at Notre Dame Law School (more here) hosted a small roundtable conference dedicated to Kathleen Brady's then-new book, The Distinctiveness of Religion in American Law:  Rethinking Religion Clause Jurisprudence.  Each participant (including MOJers Michael Moreland, Michael Perry, Marc DeGirolami, and Tom Berg, and several others) wrote a short reflection on the book -- a kind of "admission ticket" -- and these reflections formed the basis for the day's conversations.  I'm pleased to report that the "tickets" have been collected in the November 2017 issue of the Journal of Law and Religion.  They are, if I say so myself, really good.  Take a look!

April 24, 2018 in Garnett, Rick | Permalink

Monday, April 23, 2018

Bainbridge's "Thoughts on the Passing of a Friend and Colleague"

Last week, Professor Stephen Bainbridge wrote a post reflecting on mortality and reconciliation, "Thoughts on the Passing of a Friend and Colleague." Do yourself a favor; read and reflect: 

[A]s a Catholic, a passing is a wake up call. First, to honor and remember the friend by praying for the repose of their soul. Second, to evaluate my own inner spiritual life and then seek Reconciliation. Third, to commit some act of charity in remembrance of the friend. Fourth, to bear up the living in love and prayer. To reach out to those we have wronged or who have wronged us and be reconciled. 

April 23, 2018 in Walsh, Kevin | Permalink