Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Tuesday, August 4, 2015

All Things (Except Abortion) Considered

This evening, NPR's All Things Considered reported that a federal district judge in Idaho struck down a 2014 law that had criminalized undercover video and audio investigations of farming operations. The Dairymen's Association had lobbied for the law to protect their operations from animal rights activists who were disguising themselves--in plain sight--as employees, and then secretly video or audio taping while on the job.  The judge said such uncover investigations were protected by the First Amendment, as form of political speech.

NPR interviewed animal rights activist Matt Rice of Mercy for Animals who makes his case for the need for their investigations:  "These animals have been moved inside, behind closed doors, out of sight and out of mind of most Americans, but by doing these undercover investigations, we can act as the eyes and ears for the American public." The reporter notes that Mercy for Animals have released the videos, revealing some of the most "unappetizing" part of American agriculture: "filth, overcrowding, disease, suffering."

Now, I take no issue with the reporting of this story as such. But NPR's favorable treatment of animal rights' activist Matt Rice made me wonder how they would treat the undercover work of David Daleiden or Lila Rose, those who have engaged in similar work, but investigate instead the "unappetizing" part of what we euphemistically call the "right to choose." As it turns out, we don't have to guess. In an article published on July 22nd, NPR reports: 

[Daldeiden] has been helping to create similar sting videos for years and has ties to larger well-known groups that oppose abortion. [He] previously worked at Live Action, whose young founder, Lila Rose, has become a darling among abortion opponents with her own series of sting videos targeting Planned Parenthood....As with Daleiden's videos, closer examinations have found those posted by Live Action use deceptive editing to make false claims....Abortion rights groups have suggested that Daleiden needed a new company to issue his videos, since the work of Live Action has been discredited. 

I don't know Daldeiden. I have only watched the first of his videos. (And I have never weighed in on the morality of such "sting" operations, a question that arose after Lila Rose's 2011 videos became public: I see good arguments on both sides.) But much like Matt Rice, Daldeiden investigates heinous acts done "behind closed doors, out of sight and out of mind of most Americans, [acting] as the eyes and ears for the American public." Indeed, one would think investigating the dismemberment and sale of human beings might just provide a greater public service than investigating abuse of animals. Call me naive, but it still confounds me that NPR can't see that. 


August 4, 2015 | Permalink

Kasich Makes the Debate?

The NY Times "Upshot" blog reports that Ohio governor John Kasich is doing well enough in the GOP presidential race, despite his late entry, that he seems likely to squeeze into Thursday's debate. That is good news, I think, because for a couple of reasons Kasich is a candidate from whom people ought to hear more. (In contrast to the dude at the top of the GOP polls.) First, Kasich sounds many of the themes of "compassionate conservatism" that I think have  been very muted (unfortunately so) in recent Republican politics with the rise of Tea Party anger about government. Second, during this time of polarization, Kasich has, as governor, worked with both sides of the aisle.

I would still disagree with Kasich on a lot of issues (I'm a Democrat, albeit a conflicted one). Moreover, I am not saying there aren't other GOP candidates who have done the two things above.  But Kasich has done them more, and/or more recently, even when polarization was often the path of least resistance.

August 4, 2015 in Berg, Thomas | Permalink

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

A very interesting comment authored jointly by Rick, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act [UPDATE: I see Tom got there first below, so I've stricken the excerpted bit in this post.]

One thought that has occurred to me on the issue of "tax exemption" of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University's tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within "civil society" that should in general not be touched by the government's taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of "exemption" when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government's power to tax.

[Further update: I've amended some things in the post for clarity.]

August 4, 2015 in DeGirolami, Marc | Permalink

Garnett, Inazu, and McConnell on Protecting Faith-Based Service Organizations

The bill known as the First Amendment Defense Act (FADA), designed to protect adherents of traditional-marriage views from being penalized by the federal government in various contexts, has of course sparked a lot of controversy. There are likely to be amendments, or amended versions introduced. Rick Garnett, John Inazu, and Michael McConnell now have a powerful piece online at Christianity Today on (1) why some form of this legislation is needed now and (2) why its protections should focus (more so than the current version) on nonprofit religious organizations providing social services and education of great value to the common good. These organizations

give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.


Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court's recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Read the whole thing.

August 4, 2015 in Berg, Thomas | Permalink

Monday, August 3, 2015

"Seward's Folly," Dagger John, and school choice

I've been reading, and enjoying a lot, Terry Golway's book "Machine Made:  Tammany Hall and the Creation of American Politics."  The early chapters are all about trans-Atlantic anti-Catholicism and the efforts of folks like Dagger John Hughes and Daniel O'Connell to fight it.  My more politically left-leaning Catholic friends would love all the broadsides against individualism and "laissez faire" capitalism and those who are more conservative might chuckle over all the clear-eyed presentations of public-employee cronyism and moralistic progressivism.    Either way, it's a really good read (and helps explain why Irish Catholics in America vote the (politically) think the way they do).  

But, for me, the real nugget -- I cannot believe I didn't know this -- was learning that William Seward (who would later, so wisely and presciently, secure for the United States my home state, the Great Land, of Alaska) was a very early supporter of public funding for poor children to attend parochial schools and of respecting their parents' wishes to have options besides standardizing, ideologically aggressive "public" education.   And so it goes . . .

August 3, 2015 in Garnett, Rick | Permalink

"Planned Parenthood and the Barbarity of America"

George Will is not always right, but he sure is here:

. . . Cecile Richards, Planned Parenthood’s president, apologizes for the “tone” of her operatives’ chatter about crushing babies. But the tone flows from Planned Parenthood’s premise: Why be solemn about meat?

Even partial-birth abortion is — must be — a sacrament in the Church of “Choice.” This sect knows that its entire edifice depends on not yielding an inch on its insistence that what an abortion kills never possesses a scintilla of moral significance. . . .

August 3, 2015 in Garnett, Rick | Permalink

"Our Potemkin Life" (and The Brothers Karamazov)

Brandon McGinley has a sobering, convicting piece up at First Things called "Our Potemkin Life."  Here's a bit:

We have built a society whose balance depends on the institutionalized killing of the unborn. We have built a society whose progress, as that concept is popularly understood, requires the corpses of these unborn victims.

Could we achieve a new balance that would accommodate the nearly one million children who are aborted every year, that would support all mothers financially and socially? Could we advance medicine without murder? Could we redefine “progress” so that it disallows advances that capitalize on the spoils of abortion?

And it’s not about themthose selfish women, those evil abortionists, those unscrupulous researchers. In the same way that Pennsylvanians and Vermonters shared, even in an attenuated way, the sin of slavery, we all participate in a society that sanctions and benefits from abortion. To deny this is to embrace the atomized morality that opens up the conceptual space for Anthony Kennedy-style “meaning of life” libertarianism.

August 3, 2015 in Garnett, Rick | Permalink

Planned Parenthood, Women's Health Services, and Alternatives

As the debate over defunding Planned Parenthood continues, the Democrats for Life of America (on whose board I serve) are among the leaders in presenting the evidence that such defunding does not have to mean withdrawing from women vital health services such as pap smears, mammograms, etc. We can (as the current bill provides) switch funding to community health centers, which provide such services on a far larger scale. The statistics are quite striking. (See here and here for further discussion.)

UPDATE: And here, DFLA's Kristen Day emphasizes how central the theme that "there are good alternatives" must be.

FACT CHECK: The Largest Women’s Health Care Provider In America Is NOT Planned Parenthood

August 3, 2015 in Berg, Thomas | Permalink

The Dark “Culture of Death” Brought into the Light

Twenty years ago, in Evangelium Vitae, St. John Paul II warned of the emergence of a “Culture of Death” in western society, which warred against the principles of human dignity upheld in a “Culture of Life.” At that time and ever since, critics have argued that St. John Paul II was imprudent in painting the distinction so starkly, was mistakenly leading the Church into the so-called in the “Culture Wars,” and had wrongly denigrated those who support access to abortion as participating in the “Culture of Death.”

The undercover videos of Planned Parenthood leaders released over the past couple of weeks have confirmed how perceptively and poignantly St. John Paul II understood the corrupting influence of the “Culture of Death.” Among other shocking statements, we hear high-ranking Planned Parenthood officials saying such things as:

“[W]e’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part, I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”

[Digging through fetal remains and laughing]: “It’s another boy!”

It is too easy to dismiss these statements as those of particular individuals who were insensitive or indecorous in expression on a single occasion. Even Planned Parenthood has apologized for the “tone” of the remarks. But more and more of Planned Parenthood’s prominent leaders have been uncovered in their habitual callousness about the unborn babies they dismember, cold dispassion about the instruments and methods of such slaughter, and even shocking amusement at the sight of the dissected remains of unborn babies.

This is not a single episode of indelicacy. Rather, this constitutes a pattern that arises from a deep-seated underlying attitude. This is the dark culture of the abortion industry, brought into the light. St. John Paul II well understood how this would happen:

Those who allow themselves to be influenced by this climate easily fall into a sad vicious circle: when the sense of God is lost, there is also a tendency to lose the sense of man, of his dignity and his life; in turn, the systematic violation of the moral law, especially in the serious matter of respect for human life and its dignity, produces a kind of progressive darkening of the capacity to discern God's living and saving presence. (Evangelium Vitae, Para. 21)

The abortion industry has always preferred to keep these behaviors and expressions hidden. They did not want the public to learn about the gruesome reality of abortion and the degrading attitudes that are inculcated as people become inured to the slaughter of unborn babies when the dealing of death to the unborn becomes routine.  The “Culture of Death” has taken a sad toll on our society as a whole, but no more so than on those who have been deeply immersed in the “pro-choice” campaign.

Moral indignation is justified, but it should not metastasize into rage. Being repulsed by these words of abortion providers is natural, but should not lead us into the temptation of despising those who speak such words. Being horrified by the callous destruction of life is right, but should never betray our commitment to life by being tempted by violence.

As the recent videos have shown, those enmeshed in that abortion system are also victims of the “Culture of Death.” And we in the legal profession bear our own heavy responsibility for this situation, as it was our work in the courts that set the stage for this horror.

Let us never cease praying for those who lives were too soon torn away by abortion. But let us also pray, with genuine love and unceasing hope, for those trapped in the machinery and industry of abortion, whether by their own misguided design or by difficult circumstances that led them into such employment. Let us pray for the restoration of informed conscience leading to the “Culture of Life.”

August 3, 2015 | Permalink

Friday, July 31, 2015

The (Big) Money behind the anti-religious-exemptions effort

Story here.  In particular, toward the end of the piece, there's a discussion of the funding, and activities, of the "Public Rights, Private Conscience" project at Columbia's Law School, which is actively involved in coordinating scholarly efforts to criticize and, in some instances, delegitimize, religious accommodations and the ministerial exception.

July 31, 2015 in Garnett, Rick | Permalink

Sugarman on religious charter schools

Steve Sugarman has posted a new article, "Is It Unconstitutional To Prohibit Faith Based Schools from Becoming Charter Schools?", on SSRN:

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, 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. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. 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.

It does seem to me that what most people presume to be the rule that, in order to be a "charter school," a school must not be a religious (or even "pervasively sectarian") school, is anomalous.  After all, charter schools aren't really government schools; they are just a new kind of delivery mechanism of a particular good -- i.e., education -- that the public authority wants to fund and bring about.  If a Catholic school can deliver that good (and, of course, Catholic schools can and do), then why not allow Catholic schools to employ that mechanism?

July 31, 2015 in Garnett, Rick | Permalink

Kathleen Brady on the "distinctiveness of religion" in American law

Congrats to my good friend Kathleen Brady, whose work is familiar to many MOJ readers, I'm sure, on the publication of her book, "The Distinctiveness of Religion in American Law."   She's been carefully refining this argument and it couldn't be more timely.  Check it out:

In recent decades, religion's traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion's uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.

July 31, 2015 in Garnett, Rick | Permalink

Thursday, July 30, 2015

A World Without Planned Parenthood

Some short reflections on NRO from myself and many others on a world without Planned Parenthood. Loved this from Frank Beckwith:  

For any culture that abandons the cold, calculating, and contractual premises of modern eugenics — that we are to measure our happiness by how unencumbered we are from the burden of our natural limitations and the dependence of those for whom we did not explicitly choose to care — means that it is a culture moving in the direction of faith, hope, and charity. 


July 30, 2015 | Permalink

Wednesday, July 29, 2015

Implementing Plea Bargaining in Uganda

Pepperdine's Jim Gash has been working closely with the Ugandan Judiciary to develop and implement a system of plea bargaining in Uganda with the hopes of improving their criminal justice system and reducing the number of prisoners sitting in prison awaiting trial (sometimes as long as five years). The idea grew out of a paper two Pepperdine Law students had written for a Ugandan judge while the students were clerking for him several years ago.

I recently had the privilege of accompanying Jim on his 17th trip to Uganda in the last five years. Other participants included current and former prosecutors, public defenders, other lawyers, a current state and a current federal judge, and Pepperdine students who were spending the summer in externships in Uganda and Rwanda. The first week of the trip, I felt like a first year associate as we put in 70 hours or so, including trips to four prisons and one juvenile remand home. At the prisons, we worked in teams of an American attorney, a Ugandan defense attorney (much of the time), Pepperdine students, and Ugandan Christian University students meeting with clients in an attempt to work plea deals. You can read more about the trip and Pepperdine's work in Uganda on Jim blog, Throwing Starfish.

I greatly appreciated Jim's invitation. It was just my third trip to Uganda, and his experience and contacts will greatly enhance the experience of University of Oklahoma law students and alums as we continue our work in northern Uganda with Sr. Rosemary Nyirumbe, St. Monica's Vocational School, and Gulu University.

July 29, 2015 in Scaperlanda, Mike | Permalink

Tuesday, July 28, 2015

Fr. Barron on the Planned Parenthood videos, human dignity, and God

We've talked often, over the years, here at MOJ about the basis or ground for "human dignity."  (And, several of us -- including Michael Perry, Robby George, Tom Berg, and others -- have written important works about this question.)   In this reflection, Fr. Robert Barron (the new Auxiliary for the Archdiocese of Los Angeles!) takes on the "Death of God and the Loss of Human Dignity."  He captures really well, I think, the importance of "moral anthropology," which has been on the front burner for us at MOJ from the very first week.

Here's Fr. Barron:

. . .  In the classical Western perspective, the dignity of the human person is a consequence and function of his or her status as a creature of God. Precisely because the human being is made in the image and likeness of the Creator and destined, finally, for eternal life on high with God, he is a subject of inalienable rights. I use Jefferson’s language from the Declaration of Independence on purpose here, for the great founding father knew that the absolute nature of the rights he was describing follows from their derivation from God: “they are endowed by their Creator with certain unalienable rights…” When God is removed from the picture, human rights rather rapidly evanesce, which can be seen with clarity in both ancient times and modern. For Cicero, Aristotle, and Plato, a cultural elite enjoyed rights, privileges, and dignity, while the vast majority of people were legitimately relegated to inferior status, some even to the condition of slavery. In the totalitarianisms of the last century—marked in every case by an aggressive dismissal of God—untold millions of human beings were treated as little more than vermin.

I realize that many philosophers and social theorists have tried to ground a sense of human dignity in something other than God, but these attempts have all proven fruitless. . . . 

July 28, 2015 in Garnett, Rick | Permalink

Kudos to Sen. Joe Donnelly (D-IN).

Today, at a rally in downtown South Bend, the office of Sen. Joe Donnelly (a graduate of Notre Dame Law School) distributed a letter in which the Democratic Senator (like his Republican colleague, Sen. Coates) called for a full investigation into the recent (and ongoing) revelations regarding Planned Parenthood's practices and funding.  Thank you, Senator.   

July 28, 2015 in Garnett, Rick | Permalink

Ryan Anderson on the challenges to religious freedom

At First Things, Ryan Anderson has posted a short piece summarizing the argument he advances in his new book, Truth Overruled:  The Future of Marriage and Religious Freedom (available here).   Among other things, Anderson identifies succinctly three reasons why religious freedom (correctly understood) is vulnerable at present:  First, "government has changed"; second, "sexual values have changed"; and third, "religious liberty has changed."  

As Michael McConnell, Tom Berg, and John Garvey note in their excellent Law and Religion casebookReligion and the Constitution, it is (paraphrasing) relatively easy to protect and respect religious liberty when everyone agrees about the big questions and when governments don't do very much.  But, as governments do more, and as disagreement with respect to non-trivial matters (including, as Anderson points out, sexual morality) deepen, the occasions for conflict between religious believers and government actions and aims increase.  Add to this mix a diminishing commitment to religious freedom as a fundamental human right -- or, an increasing view that "religious freedom" is a special-interest concern only to people whose views are increasingly out of sync with academic and other elites -- and, well, we've got trouble.  

Anderson's First Things piece concludes with this:

So the three steps that have undone core elements of the American Founding—progressive government and the administrative state, the sexual revolution’s elevation of desire, and the whittling of religious free exercise down to the freedom to worship—all need to be countered. Political organizations, religious and civic organizations, and legal organizations will have to play their roles in empowering the citizenry to reclaim their government and culture. I offer a roadmap for these groups to follow in Truth Overruled.

Without a return to the principles of the American Founding— ordered liberty based on faith and reason, natural rights and morality, limited government and civil society—Americans will continue to face serious and perplexing challenges. The dilemmas faced by bakers and florists and charities and schools are only the beginning.

I am less confident than, it appears, Anderson is that government and culture are likely to be "reclaimed" in a way that will undo the developments that he (correctly, I think) identifies as having made religious freedom vulnerable.  (That said, if everyone were as civil, even-keeled, and charitable in public argument about controversial matters as Anderson is, I might have more confidence.)  Like Anderson, however, I think that the work of organizations like the Becket Fund is and will continue to be crucial, in order to protect space for believers and institutions alike not only to worship and pray privately but also to teach, serve, bear witness, and inspire by example.  

Anderson writes (and I agree) that "[t]rue religious liberty entails the freedom to live consistently with one’s beliefs seven days a week—in the chapel, in the marketplace, and in the public square."  At the same time, I do not think it is likely that, "in the marketplace" (and in public employment) employers, employees, and business organizations whose owners hold traditional beliefs about sexual morality will be accommodated through exemptions from nondiscrimination laws.  As I see it, the live and pressing issue on which religious-freedom advocates should focus, now and going forward, is on the importance of making sure that the government's (and others') many carrots and sticks -- accreditation requirements, licensing standards, public-forum access, public-funds eligibility, television contracts, merchandising agreements, tax exemptions, student-loan-participation rules -- are not used to force religious educational, healthcare, and social-welfare institutions to assimilate, homogenize, or give up their distinct religious character and mission.

July 28, 2015 in Garnett, Rick | Permalink

Monday, July 27, 2015

"Push Within Religions for Gay Marriage Gets Little Attention"

That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times.  The article, by Samuel G. Freedman, will be of great interest to MOJ readers.  Here.

July 27, 2015 in Perry, Michael | Permalink

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016


We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 


Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia


Their topics and bios are at the end of this message.   


Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content.  As Alasdair McIntyre has asked, “Whose Justice?”  During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment.  (We seem now to be experiencing the latter.) 


Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates).  The first theme is a call to do justice and to serve a hurting world.  What do our traditions say about justice to the 21st century?  What are the great injustices and causes of suffering in our world?  How might they be addressed by individuals, religious congregations, NGOs, and governments? 


A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good.  Attempts to help can generate dependence or harm bystanders.  The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems.  Laws can have unintended consequences that do greater harm than good.  We need to make a difference, but to do so wisely.


Please join us for the conversation.  Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work. 


Questions to be addressed might include: 

-           What do our secular and religious traditions teach about justice and its place in the 21st century? 

-           What is the relationship between justice and love?

-           How can the law best be used to promote the ideals of justice.

-           What is social justice and what is its relationship with other forms of justice? 

-           What are the greatest injustices in our world and what can we do about them? 

-           What are the greatest injustices in our neighborhoods and what can we do about them?

-           What are examples of attempts to help the poor which have harmed them?

-           How can attempts to do justice lead to injustice?

-           How might we help those in the greatest need without harming them? 


If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email tojenna.anderson@pepperdine.edu. Proposals should be two pages maximum and should include a short abstract and a bio.  

If you have questions about the substance of the conference, contact Bob Cochranrobert.cochran@pepperdine.edu or Michael Helfandmichael.helfand@pepperdine.edu  For questions about the details of the conference, contact Jenna Anderson jenna.anderson@pepperdine.edu or (310) 506-6978

For information on the conference as it becomes available and to view details of past conferences, see:


The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies. 


All our best,

Bob Cochran & Michael Helfand

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law and

Director, Herbert and Elinor Nootbaar

      Institute on Law, Religion, and Ethics


Michael A. Helfand

Associate Professor of Law and

Associate Director, Glazer Institute for Jewish Studies


Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, California 90263-4611

July 27, 2015 in Garnett, Rick | Permalink

As the Church Discovered the Virtues of Religious Liberty, Eventually the Church will Appreciate the Charisma of Democratic Capitalism

It took long centuries for the Catholic Church, which frequently had aligned itself with State power, to come to a better understanding of the moral and prudential virtues of religious liberty. Developing as an institution during a time of authoritarian and rather primitive societies, the Church understandably accommodated to traditions by which the instruments of the State were used by those in power both to govern and to inculcate the vision of the elites.

In his famous book, We Hold These Truths: Catholic Reflections on the American Proposition, published in 1960 on the eve of the Second Vatican Council, American Jesuit John Courtney Murray offered the success of the unique American experiment in religious liberty as evidence of a new moral truth consistent with the natural law tradition of the Catholic Church.

The Second Vatican Council was greatly influenced by Murray and his observations about religious liberty in the American context. At the close of the Council in 1965, Pope Paul VI promulgated Dignitatis Humanae (The Declaration on Religious Freedom) formally declaring as Catholic teaching that “the right to religious freedom has its foundation in the very dignity of the human person.”

Writing about Murray and the Second Vatican Council, Judge John Noonan observed that “the Declaration on Religious Freedom would not have come into existence without the American contribution and the experiment that began with Madison.” John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom 353 (1998).

The Catholic Church eventually came to appreciate that authoritarian government, especially as to religious freedom rights, created the environment for abuses and ultimately weakened faithfulness.

Likewise, the Church eventually will come to understand that authoritarian government approaches to economics also are rife with opportunities for abuse (crony capitalism, structuring the system to benefit political and economic oligarchies, rent-seeking by favored economic and political actors, etc.) and ultimately undermine prosperity.

But, just as was true with the slow evolution of the Church’s views on religious liberty, the Church will take some time to appreciate in its teaching that democratic capitalism has been the greatest engine for prosperity in the history of the world and creates the free space for moral structures and intermediary institutions, such as the Church.

As Catholic philosopher Michael Novak observed some 35 years ago in his classic work Toward a Theology of the Corporation at 1 (AEI 1981), “[m]ost theologians of the last two hundred years have approached democratic capitalism in a premodern, precapitalist, predemocratic way; or else they have been socialists, usually romantic and utopian rather than empirical.”  Novak was one of the first to deprecate “the anticapitalist bias of the Roman Catholic Church," which has been plagued with “systemic misperceptions about the nature of democratic capitalism.”  Id. at 9-10.

A Church that is rightly and genuinely concerned with the plight of the poor cannot afford to ignore the realities of economics.  In contrast with the static societies of the Middle Ages, during which the Church began to consider the economic moral order, the modern world has seen hundreds of millions lifted out of poverty by the innovation of free market economies during the past century and more.  We would do well to remember the harsh realities of human existence in the precapitalist period, as Novak explains:

Until the rise of democratic capitalism a permanent condition of poverty was seen as a given.  Indeed, in the 1780s four-fifths of all French families spent 90 percent of their income simply buying bread — only bread — to stay alive.  In 1800 fewer than 1,000 people in the whole of Germany had incomes as high as $1,000.  Yet in Great Britain from 1800 to 18509, after the sudden capitalist take-off that had begun in 1780, real wages quadrupled, then quadrupled again between 1850 and 1900.  The world had never seen anything like it.  After World War II dozens of other nations — but not all nations — used the ideas of democratic capitalism to experience even more rapid growth.  (Id. at 23-24.)

By contrast, nations with excessive government intervention into markets during that same post-World War II period discouraged innovation, investment, and growth, leading to economic stagnation. Point to a nation with a history of heavy-handed government interventions into markets, and you will be pointing to a nation that has suffered a (comparative) decline in economic growth.  A prosperous nation can afford to consider how best to allocate wealth, while a poor nation needs to focus on economic growth, which in turn demands relatively free markets.

Consider two contrasting examples:  South Korea as representative of the “economic miracle" in much of Asia.  And Argentina as illustrative of the cronyist interventionst approach by governments in much of Latin America.

South_Korea_on_the_globe_(Japan_centered).svgA half-century ago, South Korea experienced a level of poverty like that in the poorest nations of Asia and Africa.

A century ago, Argentina was “one of the world’s wealthiest countries, with a standard of living on part with that of the US.”  Michael Boskin, Why does Chile prosper while neighbouring Agentina flounders?, The Guardian, Nov. 22, 2013.  

Let’s compare the trajectories of these countries, with different economic policies.  In 1950, Argentina was a wealthy country, with per capita GDP of $6164 — far above South Korea’s of only $1185.  By 2010, Argentina had grown only to $13,468, while South Korea’s had jumped to $30,079.  The annual growth rate in Argentina over those 60 years barely broke 1 percent, while South Korea enjoyed a growth rate above 5.5 percent.  Christopher D. Piros & Jerald E. Pinto, Economics for Investment Decision Makers 629 (Wiley 2013).

Despite beginning this period as a poor and war-torn nation, South Korea by adopting largely (but not completely unregulated) free markets has become an advanced society with a leading economy. Argentina_on_the_globe_(all_claims_hatched)_(Chile_centered).svg

Despite beginning the period as a wealthy country, Argentina through political instability, excessive spending and debt, and repeated government intervention in markets has fallen steadily downward.  At its worst point a little more than a decade ago, 60 percent of the population of Argentina was below the poverty line.  On the Heritage Foundation “Economic Freedom Index,” Argentina ranks 169 out of 178 nations. 

Many factors — culture, political arrangements, monetary policy, natural resources, educational investment — play a role in a nation’s economic progress (or lack thereof).  But economic freedom remains indispenable.  Of course, no nation permits entirely free markets.  A stable legal system governed by the rule of law which holds people to account for agreements and punishes abuse is also essential.  Antitrust laws to prevent monopolies are standard.  Labor rights should be added to the mix.  And reasonable rate of taxation is necessary to build infrastructure and ensure educational opportunity.  In fact, contrary to the conventional wisdom in many Church circles, the number, extent, comprehensiveness, and intrusiveness of current governmental regulations and market controls imposed on economic entities in the developed world, national and international, is striking.  In sum, a thoroughly free market does not exist in this country.

The question is the right balance between free markets to allow creativity, innovation, and growth, and legal security to keep order in markets and prevent abuses.  The same is true in balancing the virtue of religious liberty against the imperative needs of a society.  And we cannot begin to find that balance without first appreciating the charisma of democratic capitalism.

Fortunately, Saint John Paul II already has jump-started the movement of Church moral teaching on economics beyond pre-modern assumptions:

If by “capitalism” is meant an economic system which recognizes the fundamental and positive role of business, the market, private property and the resulting responsibility for the means of production, as well as free human creativity in the economic sector, then the answer is certainly in the affirmative, even though it would perhaps be more appropriate to speak of a “business economy,” “market economy” or simply “free economy.” But if by “capitalism” is meant a system in which freedom in the economic sector is not circumscribed within a strong juridical framework which places it at the service of human freedom in its totality, and which sees it as a particular aspect of that freedom, the core of which is ethical and religious, then the reply is certainly negative. (Centesimus Annus, para. 42.)

Progress seldom proceeds in a straight-line.  As that progress moves haltingly forward in the future, Saint John Paul II’s vision will ascend again.

July 27, 2015 in Sisk, Greg | Permalink

"De Descriptione Temporum"

As I think I've mentioned before here at MOJ, I loved and was really shaped in my thinking by C.S. Lewis's The Discarded Image.   And, some of my favorite parts of the new (excellent) biography of "The Inklings" -- The Fellowshipby Philip and Carol Zaleski -- were about that book's theses.  Along the way, I encountered for the first time the inaugural lecture that Lewis gave when he was appointed to his chair at Cambridge University.  It's called "De Descriptione Temporum" (sometimes also called "The Great Divide"), and it's well worth a read.  Among other things, Lewis takes on the labels we use, and the premises those labels reflect, for describing historical periods, ages, and epochs ("The Dark Ages," for example).  And, he suggests provocatively that there has been a modern "un-Christianing" that has separated us, sharply, from the literary and other traditions of "the west."  Here's the conclusion:

And now for the claim: which sounds arrogant but, I hope, is not really so. I have said that the vast 
change which separates you from Old Western has been gradual and is not even now complete. Wide 
as the chasm is, those who are native to different sides of it can still meet; are meeting in this room. 
This is quite normal at times of great change. The correspondence of Henry More 13 and Descartes is 
an amusing example; one would think the two men were writing in different centuries. And here 
comes the rub. I myself belong far more to that Old Western order than to yours. I am going to claim 
that this, which in one way is a disqualification for my task, is yet in another a qualification. The 
disqualification is obvious. You don't want to be lectured on Neanderthal Man by a Neanderthaler, still 
less on dinosaurs by a dinosaur. And yet, is that the whole story? If a live dinosaur dragged its slow 
length into the laboratory, would we not all look back as we fled? What a chance to know at last how 
it really moved and looked and smelled and what noises it made! And if the Neanderthaler could talk, 
then, though his lecturing technique might leave much to be desired, should we not almost certainly 
learn from him some things about him which the best modem anthropologist could never have told us? 
He would tell us without knowing he was telling. One thing I know: I would give a great deal to hear 
any ancient Athenian, even a stupid one, talking about Greek tragedy. He would know in his bones so 
much that we seek in vain. At any moment some chance phrase might, unknown to him, show us 
where modem scholarship had been on the wrong track for years. Ladies and gentlemen, I stand 
before you somewhat as that Athenian might stand. I read as a native texts that you must read as 
foreigners. You see why I said that the claim was not really arrogant; who can be proud of speaking 
fluently his mother tongue or knowing his way about his father's house? It is my settled conviction 
that in order to read Old Western literature aright you must suspend most of the responses and unlearn 
most of the habits you have acquired in reading modem literature. And because this is the judgement 
of a native, I claim that, even if the defence of my conviction is weak, the fact of my conviction is a 
historical datum to which you should give full weight. That way, where I fail as a critic, I may yet be 
useful as a specimen. I would even dare to go further. Speaking not only for myself but for all other 
Old Western men whom you may meet, I would say, use your specimens while you can. There are not 
going to be many more dinosaurs.

July 27, 2015 in Garnett, Rick | Permalink

Great news from North Carolina

The state's Supreme Court has upheld North Carolina's school-choice program.  It is just too bad that the Court split on party lines, 4-3, and that the 3 dissenting justices embraced (as a matter of state constitutional law) the unsound no-aid separationism that so distorted Establishment Clause caselaw between Everson and Mueller / Witters / Zobrest / Agostini / Zelman.   

July 27, 2015 in Garnett, Rick | Permalink

"Is Ecology Haunted"?

This reflection, by Doug Sikkema, on the new encyclical was, for me, helpful and illuminating.   It draws on C.S. Lewis, Dante, Charles Taylor, Wendell Berry . . .  .  Check it out.  A bit:

So today we live within what Taylor calls the “immanent frame,” a world reduced to naturalist explanations, increasingly closed off to the transcendent. And whether we're aware of it or not (and whether we're religious or not), this frame has shaped much ecological thought in our secular age. This means environmentalists,especially Christian environmentalists, don't get to hop on to the subtraction-narrative bandwagon, lamenting everything we've lost since the fifteenth century—as if dysentery were something to get nostalgic over. We have to admit that disenchanting the world allowed for the possibility of major breakthroughs in applied science (particularly modern medicine) that have improved life. We also have to recognize that the flattening of the world allowed for a really robust look at life on the x-axis.

Yet while we might be grateful for the growing body of scientific knowledge accumulated within the scope of the immanent frame, there are still troubling consequences when we lose sight of the y-axis. As we become increasingly buffered from even the possibility that “something” might transcend our sensible world, we have a much more difficult time really believing that humans are not justanother type of animal and the world is not just a place of inert, material resources for us to use up in any way we can.

Laudato Si': Recovering Ecology's Y-Axis

In Laudato Si', Pope Francis attempts something Wendell Berry in his fiction, Annie Dillard in her essays, and even Christian Wiman in his poetry have all attempted in the past decades: to recover the y-axis within ecological thought.

July 27, 2015 in Garnett, Rick | Permalink

The NYT on the current abortion controversy

This piece might be as close at the NYT can come to covering an abortion-related controversy in a way that does not merely repeat the talking points and agenda items of the abortion-rights lobby.  A bit:

But anti-abortion activists say their new efforts are forcing their opponents to defend their own words and beliefs on the issue in a way they had not had to before.

“It’s very difficult to deliver a message that people don’t basically believe,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, a group that funds anti-abortion candidates. “We’re the source of the information, so they think we’re biased.” But in this case, she added, “it’s coming from them, not us.”

Abortion opponents hope the videos will provoke people to consider the humanity of the unborn, much like discussing ultrasounds can — albeit in a much more jarring and graphic way. Ms. Conway, the Republican pollster, calls this a “shock the conscience, warm the heart” approach.

On the other hand, the piece also employs, chillingly, an abortion-related euphemism that was new, even to me:  "The group also says it knows that Mr. Daleiden or his colleagues were admitted into a clinic area that processes tissue after abortions, and it believes they may have obtained footage of that as well."  "[A] clinic area that processes tissue . . . ".  God help us.

July 27, 2015 in Garnett, Rick | Permalink

On "Sectarian Schools" Clauses and Religious Neutrality

Congratulations to Tom and St. Thomas's religious liberty clinic on the decision from North Carolina. Tom writes below that "the plaintiffs' problem on the religion question was that there was no North Carolina anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them)."

I have a short essay discussing, in part, a recent case from a state with just such a clause--Colorado--whose supreme court rejected a voucher program on the ground that any aid--direct or indirect--would violate the clause. Just a small quibble: I do not think that such clauses are rightly characterized as "anti-establishment provisions." They are something quite different. I use the essay to reflect more broadly about what they are, what purpose they serve and were intended to serve historically, and broader questions that they raise about claims of "religious neutrality" by the state toward matters educational--public or private. 

July 27, 2015 in DeGirolami, Marc | Permalink