Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Wednesday, August 20, 2014

Archdiocese of Oklahoma City files suit against organizers of black mass

Last month I wrote about a satanic black mass, which is scheduled to be held in Oklahoma City in September. Earlier this month, Archbishop Coakley called for prayer and penance to avert the planned sacrilege. In addition to Holy Hours, Eucharistic Processions, and Benediction, the Archbishop is asking all Catholics to say the Prayer to St. Michael the Archangel now though September 29 (the Feast of the Archangels). Please join us in this prayer

Today, the Archdiocese filed a Petition for Replevin against the organizers, contending that the consecrated host that the organizer claims to possess "must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation." Here is a link to the Petition.

Michael Caspino of Busch & Caspino (Irvine, Ca.) and Chris Scaperlanda of McAfee & Taft (OKC) represent the Archdiocese. Yes, I'm a proud dad.


August 20, 2014 in Scaperlanda, Mike | Permalink

Tuesday, August 19, 2014

Greg Sisk's Novel: Marital Privilege (Now Available on Kindle and Nook)

A couple of months ago, I posted up a brief message on the publication of my first novel, Marital Privilege, by North Star Press.  I promised to post something more about it a few days later, but the summer got away from me, with launch party, book signings, distributions to incoming St. Thomas law students, and of course multiple other scholarly and professional projects.  But now is a good time for me to follow up, as the novel is now available on Kindle at Amazon and on the Nook at Barnes&Noble.

Marital_Privilege_front_cover_1024x1024The lead character in Marital Privilege is a law professor, and, while I should warn sensitive readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy.  A distinctly Catholic sensibility will be found throughout the story.

Here is the back cover description:

Candace Klein is one of the lucky ones in her professional life, finding genuine meaning in her work as a law professor. But her personal life is troubled by a growing distance from her husband, Bill, who languishes in a dead-end job working for her father.

Suffering the horrific loss of her child in a car bombing, Candace grieves and seeks solace in her faith. Then a politically-climbing prosecutor, Robby Sherburne, takes control of the criminal investigation and promises the death penalty for a child-killer. Meanwhile, Ed Burton, a suburban cop, simply tries to follow the evidence where it leads.

When her husband becomes the target of the investigation, Candace asserts the “marital privilege” and refuses to cooperate. This ultimately provokes a crisis of identity between her professional commitment to the justice system and her resolute loyalty to her husband.

More information about the novel can be found here.

August 19, 2014 in Sisk, Greg | Permalink

Robert Miller on Hadley Arkes, RFRA, courts, and the law

Prof. Robert Miller (Iowa) has a nice essay up at Public Discourse in which he responds to the argument that Prof. Hadley Arkes (and some others) has made, that is, "that the plaintiffs in Burwell v. Hobby Lobby, most of their supporters in the public square, and Justice Alito in his majority opinion in the case have adopted a mistaken and dangerous understanding of religious freedom."  (I addressed this argument in this post, and Prof. Arkes responded here.) 

Here is a taste (but I recommend reading the whole thing):

. . .  In the law of religious freedom, the morality of the religious practices of the man who claims a right to religious freedom is relevant, but so too are many other considerations. Once again, it matters that the law is a system administered by imperfect human beings. In particular, long and sad experience has shown that legislatures and courts are not good at sorting out true religious beliefs from false ones, and majorities, whether religious or non-religious, tend to persecute religious minorities, which produces social strife and sometimes bloodshed. Even when a law is not aimed at restricting a minority’s religious practices, if the law in fact does so, such pernicious consequences often follow. This means that, sometimes, even though a certain religious practice is based on false beliefs and is morally wrong, nevertheless making a law to suppress that practice is wrong too. For just such reasons, our law includes provisions like the religion clauses in the First Amendment and the Religious Freedom Restoration Act (RFRA), which limit the government’s involvement and interference in religious matters. . . .

August 19, 2014 in Garnett, Rick | Permalink

The Declaratory Theory of Law, Today and Yesterday

Two items--one new and one old--on the declaratory theory of law, whose absurdity seems to be taken for granted in our own day.

First, a very rich and subtle paper by Alan Beever, The Declaratory Theory of Law, 33 Oxford Journal of Legal Studies 421 (2013). Here is the abstract:

This article examines the declaratory theory of law and defends it from the most prominent modern attack on it. It explains that the real declaratory theory is not the caricature of it criticized in modern writing and that, in fact, the theory properly understood is remarkably close to the position adopted by some of the theory’s most notable opponents. The article further examines the common law’s continuing commitment to the declaratory theory, a commitment that remains strong despite the considerable hostility of the academy. It explains that this commitment reflects the nature of the common law.

And from the paper:

[John Hamilton] Baker [in his volume, An Introduction to English Legal History] utilizes an example to illustrate his analysis of the declaratory theory as it relates to equity. This ′stock example′ is that of a debtor who gave a creditor a sealed bond, who later repaid the money, but did not make sure that the bond was cancelled. Imagine that A borrowed money from B and gave B formal written evidence of this debt, later repaid that money, but did not cancel the document that he had given B. In these circumstances, the common law courts treated the bond as irrefutable proof that the debt still existed. Hence, even if A could prove that he had repaid the debt, the common law courts held such evidence to be irrelevant. This is where the Court of Chancery stepped in, ensuring that the debtor did not have to pay twice, thus altering the outcome that the common law alone would have produced. How can this be understood as fulfilling the law?

As Baker argues, ′it was not that the common law held that a debt was due twice ... such [a] proposition ... would have been dismissed as absurd′. In other words, it was a principle of the common law that debts must be paid only once, or rather that a (once) paid debt no longer exists. However, the common law was unable to enforce its own principle, because it also insisted on a high degree of certainty that meant that written deeds trumped oral evidence no matter how probative the latter was. Hence, equity fulfilled the common law by producing the result that the common law would have produced were its rules of evidence less pedantic. It did so, not by maintaining that the debt had been paid and so no obligation existed. That would have involved too direct a confrontation with the common law. Instead, it insisted that, though the obligation existed, it would be unconscionable for the creditor to enforce it.

Here, then, we see equity being applied in order to produce the results called for by the principles of the common law, where the common law was unable to achieve those results because of some impediment. Though the creation of this equitable rule changed the positive law, it did so in accordance with the principles of that law and in that sense preserved and fulfilled the law. It was surely in this sense that the medieval councillors and chancellors believed that they were declaring what the law already was. Of course, they were aware that they were altering the positive law. They knew that but for their judgments B could enforce the debt and that it was their judgments that prevented that from happening. They knew that this amounted to a change in what is now called the law. In fact, they made their judgments quite self-consciously in order to produce that change. But they believed that they did so in accordance with the principles of the law. To repeat Baker′s words, ′They were reinforcing the law by making sure that justice was done in cases where shortcomings in the regular procedure, or human failings, were hindering its attainment by due process. They came not to destroy the law, but to fulfil it.′

Second, this review of an interesting looking volume on Lord Coke by Elio A. Gallego Garcia, Common Law: El Pensamiento Politico Y Juridico De Sir Edward Coke. From the review:

As Gallego puts it, every conception of the law is defined by three great questions: is the law the product of the will or of the reason? Do we recognize or not a natural law superior to any human law? And finally, what role has custom in relation to the positive law? Coke’s vision of the law is extremely relevant to our days. We have grown used to judges who reinterpret laws in the most curious ways, typically in accordance with their own views of the good rather than the language of the law before them.

This spectacle seems unstoppable, in the United States at least. But Coke, a person who devoted his whole life to the law, tells us something completely different. Law is not something we construct: it already exists. We receive it, we discover it, and we declare it. Judges cannot reshape it, doing violence on it to make it fit the latest sociological fashion. The attempt resembles more the old sophists who were good at distorting reality but unable to found a just society.

From this perspective, we can better understand a sentence of Coke’s that was important in igniting Gallego’s interest in him. It says: “Reason and authority are the two brightest lights of the world.”

August 19, 2014 | Permalink

Monday, August 18, 2014

Call For Proposals: Wisdom, Law and Lawyers

Here is the Call for Proposals for the annual Nootbaar Institute conference, confirmed speakers for which include several MOJ contributors.


Wisdom, Law, and Lawyers


FEBRUARY 27-28, 2015

 At a time when law is seen by many as purely a matter of power politics and the lawyer’s role as purely a matter of pursuing client economic interests, we want to consider how wisdom should influence deliberations in legislative chambers, courts, and lawyers’ offices.  Both theoretical wisdom and practical wisdom have much to say about law.  We hope to learn from many traditions, both religious and secular.  Please join us for the conversation. The following speakers are already confirmed:

William S. Brewbaker III, William Alfred Rose Professor of Law, University of Alabama School of Law

Jonathan Burnside, Professor of Biblical Law, University of Bristol, England

Alberto R. Coll, Professor of Law, Director, European and Latin American Legal Studies Program, Director, International Law LL.M. Program, DePaul University College of Law

Daisy Hurst Floyd, Dean and University Professor of Law and Ethical Formation, Mercer University School of Law

Samuel J. Levine, Professor of Law & Director, Jewish Law Institute, Touro Law Center

Tremper Longman III, Robert H. Gundry Professor of Biblical Studies, Westmont College 

Benjamin V. Madison III, Professor and Co-Director of Center for Ethical Formation and Legal Education Reform, Regent University School of Law

Rick Marrs, Provost, Pepperdine University

Russell G. Pearce, Edward & Marilyn Bellet Professor of Legal Ethics, Morality and Religion Fordham University School of Law

Ellen Pryor, Professor and Associate Dean for Academic Affairs, UNT Dallas College of Law

Michael Scaperlanda, Gene and Elaine Edwards Family Chair in Law and Professor of Law, University of Oklahoma College of Law

Brett Scharffs, Francis R. Kirkham Professor of Law and Associate Dean for Research and Academic Affairs, J Reuben Clark Law School, Brigham Young University

Steven D. Smith, Warren Distinguished Professor of Law and Co-Executive Director, Institutes for Law & Religion and Law & Philosophy, University of San Diego

Susan Stabile, Professor of Law and Faculty Fellow for Spiritual Life, University of St. Thomas School of Law

Deanell Reece Tacha, Duane and Kelly Roberts Dean, Pepperdine University School of Law

David VanDrunen, Robert B. Strimple Professor of Systematic Theology and Christian Ethics, Westminster Seminary, California

Cheryl Wattley, Professor of Law, UNT Dallas College of Law

R. George Wright, Lawrence A. Jegen III Professor of Law, Indiana University Robert H. McKinney School of Law

 The conference will be organized around three general themes: 

1. The Nature of Wisdom – What do our traditions teach about the nature of wisdom?  Speakers are likely to address the conference topics from Greek, Jewish, Christian, Islamic, Buddhist, and Confucian perspectives. 

2. Wisdom and Law - The Hebrew and Christian Bibles’ Wisdom Literature identify wisdom as both a source of law (by wisdom "lawgivers establish justice," Proverbs 8:15) and an end of law (God's ordinances "make wise the foolish, Psalms 19).  What is (and what should be) the relationship between wisdom and law? How might wisdom influence some of the issues that confront nations today? 

3. Wisdom and Lawyers – In recent decades, legal profession scholars have identified practical wisdom as the key lawyer virtue.  Have developments in the profession and the legal market made it more difficult for lawyers to exercise that virtue.  In today’s legal world, can lawyers or clients be, in Jesus’s phrase, both "wise as serpents and innocent as doves"?  How should wisdom influence a lawyer’s work?  Is it even possible for wisdom to influence a lawyer’s work in the current state of the legal profession? 

Feel free to propose any topic that would fit within this broad range of themes. 

If you would like to present a paper or organize a panel, please submit your proposal by Friday, September 19, 2014 via email to nootbaar.institute@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 Cochran at robert.cochran@pepperdine.edu. For questions about the details of the conference, contact the Nootbaar Institute office by email, nootbaar.institute@pepperdine.edu or by phone, (310) 506-6978. 

For more information on the conference as we have it 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 the Glazer Institute for Jewish Studies. 


August 18, 2014 in Stabile, Susan | Permalink

RFRA, the Pitchfork, and the Crozier

[MOJ reader Christian E. O'Connell wrote and sent in the following and -- with his permission -- I am posting it here]:

RFRA, the Pitchfork and the Crozier

Christian E. O’Connell [*]


Will no one rid Professor Marci Hamilton of these turbulent priests?

The Cardozo law professor’s resentment at the meddlesome shepherds of the Catholic Church is palpable in her new essay (“The Circle Starts to Close”) at Justia’s Verdict.  The U.S. bishops pressed, albeit unsuccessfully, for an abortion-related exception to the Religious Freedom Restoration Act (“RFRA”) at the time of its enactment; they’re currently “sinking who-knows-how-much-money” into RFRA litigation to avoid being compelled to provide what Hamilton terms “cost-free contraception coverage.”  Perhaps most insolent of all in Hamilton’s tally of grievances, the bishops “lobbied like crazy” alongside evangelical Protestants and others for informed consent laws requiring physicians to provide certain information to women seeking elective abortions.

Now that an ostensibly religious organization called the Satanic Temple has commenced a campaign to avail its women members of a RFRA exemption to state informed consent laws, Hamilton is gratified by the prospect of seeing the Catholic episcopate hoist with its own petard.  By Hamilton’s reckoning, the road to the Satanic Temple’s victory is paved with the intentions of those who, like the bishops, welcomed the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby.

Continue reading

August 18, 2014 in Garnett, Rick | Permalink

Sunday, August 17, 2014

Address to Ahmadiyya Muslim Community

Remarks by Robert P. George at the

Annual Ahmadiyya Muslim Convention

Friday, August 15, 2014

As-Salaam Aleikum.

It is a pleasure to join you at this Jalsa Salana (annual convention). Thank you for inviting me to share some reflections, and for the high honor of receiving the Ahmadiyya Muslim community’s 2014 Humanitarian Award.

I’d like to frame my remarks by noting two dates, one from just weeks ago, the other of which we will mark just weeks from today.   

On July 27 of this year, in Pakistan’s Punjab province, an Ahmadi woman and her two granddaughters, including a seven-year-old and her baby sister, were burned alive in a mob attack which left nine other Ahmadis badly burned.

And on September 7 we will mark the 40th anniversary of the passage of an amendment to Pakistan’s Constitution which declared that Ahmadis are non-Muslims in that country.    

Taken together, these injustices underscore the plight of the Ahmadiyya today, especially in Pakistan, where the forces of intolerance and hatred continue their assault on your community and religious freedom.    

This assault takes place in a world in which 75 percent of people, including millions of Ahmadiyya Muslims, live in countries which grossly violate this precious right.

Simply stated, the war against the Ahmadiyya is part of a global war on freedom and dignity.

So what is behind this global war?

More than any other factor, it is the continued operation of a truly unique and monstrous idea – first introduced in the last century -- that some have called totalitarianism.

It’s an idea that says that we can perfect the world if we grant fanatical leaders and political movements unlimited power and authority to remake humanity as they see fit – elevating these leaders and movements to godlike status, above every law and custom, every belief and institution, and every moral norm and precept in history.

In the 1930s and 1940s, this evil idea threatened the world through Nazism and other forms of fascism, which hijacked loyalty to nation as the vehicle for its unlimited aims.  

After World War II, with Nazism defeated, its greatest threat was from Communism, which hijacked economic class for the same purpose.

By the close of the 20th century, these two movements had committed every crime imaginable, from assaults on conscience to the perpetration of genocide.   When the dust had settled, nearly 150 million human beings had perished.

Today, while we still see that threat coming through Communism, particularly in China, which remains a world-class human rights and religious freedom violator, we see something else as well:

We see how the same extremist, totalitarian impulse which drove Nazism and Communism has now hijacked religion as its latest vehicle, resulting in the same horrifying outcomes for humanity.  

From ISIL and al Qaeda to the Taliban and the Iranian leadership, these new totalitarians have unleashed terror and tyranny on a global scale.    

Across the world, they have launched terror attacks on civilians, obliterating all traditional distinctions between combatants and non-combatants – exactly as the Nazis and Communists did.

In Iraq, they brutalize men, women, and children and threaten the lives and liberties of religious minorities and most of the Muslim majority. 

From Afghanistan, they launched the 9/11 attacks and seek again to destroy every human right, from religious freedom to the rights of women.

In Pakistan, they have assassinated leaders and target both Muslims and religious minorities who dare to dissent from their beliefs. 

In Iran, they control the government and regularly execute religious dissenters while supporting terrorist groups around the world. 

And let me add that wherever the Ahmadiyya are violently persecuted, it is these extremist, totalitarian forces that are leading the charge.

Now let’s be clear:  

These forces cannot possibly represent authentic Islam or any other religion. 

No religion on the face of the earth, including Islam, ever stood, as these forces do, and as their Nazi and Communist cousins did, for the idea that leaders and their followers may break any law, commit any crime, perpetrate any atrocity, without being accountable to anyone or anything.

And that leads us to a question:

These extremist forces call themselves Islamic, but how can they be when they view hundreds of millions of Muslims, as well as non-Muslims, as legitimate targets for abuse and death?

Make no mistake:   This is not a struggle of religion against humanity.   Rather it is a struggle of tyranny against freedom—the same struggle that Nazism and Communism waged against the world in their day.

Violent Islamist extremists who murder, rape, and pillage, violating every norm of morality, dishonor God by their crimes and doubly dishonor him by claiming to commit them in His name. They say that you are not true Muslims; I say that they are not true Muslims.

You, the Ahmadiyya, find yourselves in the midst of the struggle.   Let me highlight for the record what you know so well.

In Pakistan, under pressure by totalitarian extremists and their supporters, its government and constitution still label Ahmadis as “non- Muslims.” 

Pakistani law bars Ahmadis from calling their worship centers “mosques,” from publicly uttering the traditional Islamic greeting or quoting from the Qur’an, and from displaying the basic affirmation of Islam. 

It prohibits the Ahmadiyya from sharing or publishing their beliefs, restricts them from building houses of worship and holding public meetings, and prevents them from voting unless they register as non-Muslims.  

Worst of all, the same extremist forces which cheer on the government when it deprives Ahmadis of their religious freedom also unleash horrific violence and death, as we saw in the July 27 attack and countless other atrocities.   

For these and other reasons, our commission continues to call for the United States to designate Pakistan a country of particular concern, marking it as among the worst religious freedom violators in the world.

Unfortunately, these anti-Ahmadiyya forces are not limited to Pakistan.  In Indonesia, violent extremist forces since 2008 have vandalized at least 50 Ahmadiyya mosques, and continue to pressure officials to close places of worship or ban Ahmadiyya activity altogether.  In Saudi Arabia, Ahmadiyya members have been deported for their beliefs.  In Egypt, they have been charged under its blasphemy laws.  In 2010, USCIRF’s intervention helped a number of members leave Egypt for safety abroad.  

From these examples, one thing is clear.   Those behind the persecution of the Ahmadiyya Muslims are some of the worst enemies of human freedom and dignity.  

But what a refreshing difference there is between you and your persecutors. 

Unlike them, you believe that people have inherent dignity, worth, and God-given rights which no movement or government can ever take away.

You believe that human beings were created for fellowship and peace.

You believe in the right of every member of the human family to worship freely according to conscience.

And after 9/11, it was you, the Ahmadiyya Muslim community, who put your beliefs into action.  You literally gave your blood to our nation, donating more than 25,000 bags of blood in memory of those who perished that day.  

Unlike your persecutors’ message of tyranny and hate, yours is a voice for reason and freedom. You advocate not only for yourselves but for the rights and dignity of others.

At stake is nothing less than the future of humanity.  At stake is what kind of world we will one day hand over to our children and to our children’s children.   Will it be a world of light, love, and liberty, or will it be a world of darkness, despair, and despotism?   Will it be a world where dignity shines, or where dehumanization dominates?  

And so my Ahmadi friends, my brothers and sisters, let us continue to stand together, to work together, to persevere together.  Let us offer ourselves as God’s servants for freedom and dignity, life and liberty, humanity and decency.

Thank you, my dear friends.  God bless you.



August 17, 2014 | Permalink

Friday, August 15, 2014

A Second Court Victory in a Week for the Dignity of Prisoners (and for the University of St. Thomas and University of Arkansas Clinics)

For I was ill and you cared for me, in prison and you visited me.  Matthew 25:36

A couple of days ago (here), I was delighted to report a victory for a prisoner’s right to confidentiality in correspondence with his attorney in a published Ninth Circuit decision (here).  Scott Nordstrom, a death row inmate whose legal mail was read when he was challenging his conviction, was represented by the University of St. Thomas Appellate Clinic, which I supervise.

Just three days after that decision, the Ninth Circuit affirmed the human dignity of prisoners again in another case involving our UST Appellate Clinic, in which the lead was taken by our partners at the University of Arkansas Federal Litigation Project supervised by my colleague Professor Dustin Buehler and which was argued to the court by students (now graduates) Mason Boling and Lauren Murphy.

In Colwell v. Bannister (decision here), a prisoner who had suffered from blindness in one eye due to cataracts for a decade challenging the prison’s refusal to grant surgery despite the recommendations of his doctors.  Yesterday, the Court of Appeals reversed the District Court’s grant of summary judgment to the Nevada Department of Corrections.

In words that speak eloquently to the fundamental dignity of all persons, including our neighbors held in prison, the Ninth Circuit held “that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference.”

August 15, 2014 in Sisk, Greg | Permalink

Thursday, August 14, 2014

Donald Drakeman's response to Garnett on "The Freedom of the Church"

Dr. Donald Drakeman has posted a thoughtful response to my short essay, "Freedom of Religion and the Freedom of the Church" (about which I posted the other day), at the Law & Liberty blog.  Drakeman's response is called "Negotiating the Freedom of the Church."  He notes, among other things:

As the religious mission moves out of the church and toward more direct contact with the world, however, the rest of the world may push back. The polls say that there is some support, albeit more limited, for the concept of the church carrying its religious freedom rights into the world. Accordingly, as in Cardinal George’s message, churches may need to articulate not only the religious importance of their educational and healing missions, but also the practical importance to society of the churches’ continuing to maintain them. . . 

Read the whole thing, and also John Inazu's contribution, "Freedom of the Church Not Freedom of Religion."

August 14, 2014 in Garnett, Rick | Permalink

"What Would Jeremiah Do?"

I thought this essay, by Samuel Goldman, was interesting and thoughtful.  The basic idea:  One possible response to the MacIntyre-ian conclusion that "we live amidst the ruins of Western civilization" is -- as readers of After Virtue remember -- the so-called "Benedict Option."  Goldman discusses another possibility, the "Jeremiah Option" --  a strategy that "[t]he Hebrew Bible and Jewish history suggest . . . according to which exiles plant roots within and work for the improvement of the society in which they live, even if they never fully join it."

This strategy lacks the historical drama attached to the Benedict Option. It promises no triumphant restoration of virtue, in which values preserved like treasures can be restored to their original public role. But the Jews know a lot about balancing alienation from the mainstream with participation in the broader society. Perhaps they can offer inspiration not only to Christians in the ruins of Christendom but also to a secular society that draws strength from the participation of religiously committed people and communities. 

Check it out.  Thoughts welcome.

UPDATE:  Bryan Kern suggests some additional "options":

Augustine option (Political Writings; Dodaro; p. 96-98; Letter 155): “If you recognise the source of the virtues you have been given and give him thanks; if you use them even in your secular position of honour to contribute to his worship; if you inspire and lead those people under your power to worship him both by living an exemplary religious life and through the devotion you show to their interests, whether by support or deterrence; if the only reason that you want them, with your help, to live more securely is so that they might win God, in whose presence they will live blessedly; then, all your virtues will be real ones. . . . Let us do everything we can, then, to bring to him also those whom we love as ourselves; if, that is, we now realise that loving ourselves means loving him. For Christ himself (that is, the truth) said on these two commandments hang all the law and the prophets: to love God with all our heart, and all our soul, and all our mind; and to love our neighbours as ourselves. . . . We ought therefore to love both God and our neighbour as ourselves, so that we will lead anyone we can to worship God by comforting them with kindness, or educating them through teaching, or restraining them through discipline, in the knowledge that all of the law and the prophets hang on these two commandments.”
Francis option (Evangelii Gaudium, 89): "Today, our challenge is not so much
atheism as the need to respond adequately to many people’s thirst for God, lest they try to satisfy it with alienating solutions or with a disembodied Jesus who demands nothing of us with regard to others. Unless these people find in the Church a spirituality which can offer healing and liberation, and fill them with life and peace, while at the same time summoning them to fraternal communion and missionary fruitfulness, they will end up by being taken in by solutions which neither make life truly human nor give glory to God."
Ratzinger option (from A Turning Point For Europe, apologies for no page numbers, coming from e-reader) :“What the Church has to remember is that, though the sources of law have been entrusted to her safekeeping, she does not have any specific answers to concrete political questions. She must not make herself out to be the sole possessor of political reason. She points out paths for reason to follow, and yet reason’s own responsibilities remain. . . . All this comes together in the Church’s most interior and yet also most human task: the task of making, not just talking about, peace, in deeds of love. . . . The Church’s fidelity to her true nature is shown in her ability to support human beings in the vocation to love, to bring the vocation of love to maturity and to give it concrete form in the life of the community. Through the power of love, the Church must serve the poor, the sick, the lost, the oppressed. She must go into prison, into the suffering of mind and body, as far as the dark way of death. In areas torn by the strife the human race always has experienced and always will experience, the Church must give men the strength to survive and, with the power of forgiveness, awaken the capacity to make a new start. Only the man who can forgive can build and preserve peace.
Von Balthasar option (from Test Everything, again on e-reader): “We cannot simply entrust politics to non-Christians. The Church is confronted with political systems in the world—and by no means merely peripherally. They are to be taken seriously, even though they may present a heavy burden for the Christian. This presupposes, of course, professional competence, just as a physician or lawyer must exhibit competence in his field. This idea is basic to all secular institutes. What applies to secular professions applies equally to politics: although we cannot force specifically Christian ethics on non-Christians, we nevertheless have to demonstrate that life according to such terms is humanly believable.”

August 14, 2014 in Garnett, Rick | Permalink

Tuesday, August 12, 2014

A Victory for Confidentiality in Prisoner Legal Correspondence With Lawyers: University of St. Thomas Appellate Clinic

For I was in prison and you visited me.  (Matthew 25:36)


As lawyers, we have the opportunity and means not only to follow Christ’s call to visit those in prison but to use our privileged access to the legal system to directly assist those in prison, by seeking to overturn wrongful convictions, by challenging unjust and excessive sentences, and by working to uphold the dignity of the “neighbor” who is subject to incarceration.

As lawyers who work regularly with prisoners are painfully aware, it is always an uphill battle to present a prisoner’s plea to a court.  But as a testament to the ever-present (if sometimes seemingly dormant) potential for genuine justice in our court system, a deserving prisoner does win one, at least once in a while.

So I am delighted to report a victory in the Ninth Circuit yesterday for the basic right of prisoners to correspond with their lawyers without such legal mail being read by prison officials — a success attributable to the persistence of a death row inmate, Scott Nordstrom, and to the legal representation we were able to provide him through the University of St. Thomas Appellate Clinic.

Consistent with our Catholic social justice mission at the University of St. Thomas, we’ve established an Appellate Clinic in which I work with a team of students to provide pro bono representation to pro se parties in federal appellate litigation.  Over the past year, Michelle King and Joy Nissen Beitzel, now recent graduates of the law school, have been working with me on a case involving an Arizona death row inmate, Scott Nordstrom, who challenged the prison’s policy and practice of reading inmate correspondence with attorneys.  We were supported in this effort by our partners at the University of Arkansas Federal Appellate Litigation Project:  Professor Dustin Buehler and students Mason Boling and Lauren Murphy

Continue reading

August 12, 2014 in Sisk, Greg | Permalink

Monday, August 11, 2014

A Plea on behalf of Victims of ISIS/ISIL Barbarism in Iraq

I have created a website, www.iraqrescue.org, at which I have posted "A Plea on Behalf of the Victims of ISIS/ISIL Barbarism in Iraq." I will paste in the text of the statement below this note. I would be grateful if friends would read the plea and, if you agree, go to the website and add your name as a signer. This is a serious matter, and I recognize that not everyone will, in conscience, see the issues just as I do. Of course, I want everyone to follow his or her conscience in deciding whether to join the signers.

A Plea on Behalf of Victims of ISIS/ISIL Barbarism in Iraq
The so-called Islamic State of Iraq (ISIS/ISIL) is conducting a campaign of genocide against Christians, Yazidis, and others in Iraq.  In its fanatical effort to establish a caliphate, ISIS/ISIL has engaged in crimes against humanity by deliberately causing mass starvation and dehydration, and by committing unconscionable acts of barbarism against noncombatants, including defenseless women, children, and elderly persons.

It is imperative that the United States and the international community act immediately and decisively to stop the ISIS/ISIL genocide and prevent the further victimization of religious minorities. This goal cannot be achieved apart from the use of military force to degrade and disable ISIS/ISIL forces. President Obama was right to order airstrikes against ISIS/ISIL to stop its advance on key cities, as well as to provide humanitarian assistance to people fleeing their assaults. Much more needs to be done, however, and there is no time to waste.

We, the undersigned, are Democrats, Republicans, and Independents.  We are conservatives, liberals, and moderates.  We represent various religious traditions and shades of belief.  None of us glorifies war or underestimates the risks entailed by the use of military force. Where non-military means of resolving disputes and protecting human rights are available, we always and strongly favor those means. However, the evidence is overwhelming that such means will not be capable of protecting the victims of the genocide already unfolding at the hands of ISIS/ISIL.  That is why Iraq’s Chaldean Patriarch Sako has requested military intervention.

Therefore we call upon the United States and the international community to do everything necessary to empower local forces fighting ISIS/ISIL in Iraq to protect their people. No options that are consistent with the principles of just war doctrine should be off the table.  We further believe that the United States’ goal must be more comprehensive than simply clamping a short-term lid on the boiling violence that is threatening so many innocents in ISIS/ISIL’s path.  Nothing short of the destruction of ISIS/ISIL as a fighting force will provide long-term protection of victims.

We call upon President Obama and the Congress of the United States to expand airstrikes against ISIS/ISIL with a view to eroding its military power, and to provide full air support for Kurdish and other forces fighting against ISIS/ISIL.  Further, we endorse the Washington Post’s call for the United States to provide arms, ammunition, and equipment to Kurdish forces, Sunni tribesmen, and others who are currently hampered in their ability to fight ISIS/ISIL by a lack of sophisticated weapons and other resources.  The U.S. should also assist with intelligence. We are hopeful that local forces, with adequate support and assistance from the U.S. and the international community, can defeat ISIS/ISIL.

The expansion of humanitarian aid to the displaced and fleeing is also urgent. Local churches and aid agencies are overwhelmed, and we have grave concerns about how these victims of violent religious persecution will be cared for this winter. The U.S. can and should take the lead in providing food, water, medicine, and other essential supplies.

We must be mindful that in addition to stopping the genocide, the U.S. and Europe have very concrete interests in disabling ISIS/ISIL.  As the Washington Post has warned:

“The Islamic State forces, which have captured large numbers of U.S.-supplied heavy weapons, threaten not only the Iraqi and Kurdish governments, but also Lebanon, Turkey and Jordan. With hundreds of Western recruits, they have the ambition and capability to launch attacks against targets in Europe and the United States.”
It is also worth bearing in mind that our own nation is not without responsibility for the plight of victims of ISIS/ISIL genocide.  What is happening to these people now, and the further threats they face, would not be happening but for errors and failures of our nation’s own in Iraq.  This can and should be acknowledged by all, despite disagreements we may have among ourselves as to precisely what these errors and failures were, and which political and military leaders are mainly responsible for them. The point is not to point fingers or apportion blame, but to recognize that justice as well as compassion demands that we take the steps necessary to end the ISIL/ISIS campaign of genocide and protect those who are its victims.

                                                                        # # #

August 11, 2014 | Permalink

Movsesian on American Humanitarianism and Christian Victims

My colleague Mark Movsesian has a good post on the subject. A bit:

But Mideast Christians are often an afterthought for the United States, and it seems they are in this situation again. A Wall Street Journal report, which quotes unnamed members of the Obama administration, indicates the threat of genocide against Yazidis was the primary factor in the American decision to intervene. “This was qualitatively different from even the awful things that we’ve confronted in different parts of the region because of the targeted nature of it, the scale of it, the fact that this is a whole people,” the official said.

That is a rather myopic view of the situation. We’re offering assistance to 40,000 Yazidi refugees whom ISIS has driven from their homes and threatened to slaughter. Great—we should. But in the weeks before ISIS turned on the Yazidis, it had displaced more than 100,000 Christians from their homes and driven them into the desert. ISIS eliminated major Christian communities in Mosul and Qaraqosh, and the US responded only with a concerned statement from its UN ambassador. And this is to say nothing of the hundreds of thousands of Christians who have become refugees since the invasion of Iraq in 2003. If genocide correctly describes what threatens the Yazidis, it also describes what’s happening to Iraqi Christians. Indeed, many of these Christians are the descendents of people who suffered genocide at the beginning of the 20th century.

There are reasons why America tends to treat Mideast Christians as an afterthought. Mideast Christians lack a natural constituency in American public life. They are, as one commentator observed, too foreign for the Right and too Christian for the Left. Most of our foreign policy elites have a blind spot about them. And I don’t mean to single out the Obama administration. Nina Shea of the Hudson Institute has recounted her attempts to get the Bush administration to focus on the plight of Iraq’s Christians, only to be told by Condoleezza Rice that assistance for Christians would make the United States appear sectarian.

To draw attention to the plight of Iraq’s Christians is not special pleading. The US should not concern itself only with Christians; other religious minorities deserve our attention, too. But, in the Middle East and around the world, Christians are often targeted for persecution in particularly severe ways, and the human rights community often seems not to notice.

August 11, 2014 in DeGirolami, Marc | Permalink

James Mumford on Paul Ryan and a "New Approach to Poverty"

James Mumford has a very thoughtful piece up at The Hedgehog Review, called "A New Approach to Poverty."  It's a reflection on Rep. Ryan's new set of reform proposals relating to relieving poverty (and enhancing opportunities).  Worth a read.

August 11, 2014 in Garnett, Rick | Permalink

Sunday, August 10, 2014

Fall 2014 Constitutional Theory Seminar

Perhaps not right down the Catholic Legal Theory fairway (but maybe somewhere in the rough), but I'm teaching a seminar in constitutional theory this fall here at St. John's for the first time, and I thought to ask the good readership and writership at MOJ about suggestions. I'm using the terrific reader by Gehardt, Griffin, Rowe, and Solum as my basic text, though I am supplementing it with a number of other materials. I've organized the course to be a little bit interpretation-heavy, and doutbless there are points of emphasis that are slightly particular to my interests (constitutional theory skepticism and the role of history and tradition may figure somewhat more prominently than they otherwise might). But please write to me with recommendations for changes, additions, deletions, etc. The tentative syllabus is after the break.

Continue reading

August 10, 2014 in DeGirolami, Marc | Permalink

Friday, August 8, 2014

Russell Nieli on what the Santa Barbara killer needed and didn't get (hint: it's not "therapy")

In the "Age of Feeling" in which we live, the reality of evil is obscured, and what were once correctly understood as vices are regarded as emotional problems---if they are regarded as problems at all. When the concepts of evil and vice disappear, people lose awareness of the need for repentance and reform; when evil and vice are redescribed as emotional problems, people are deceived into supposing that they can and should be managed by way of therapy. The culture of narcissism and the therapeutic culture are the two sides of one coin. The therapist usurps the role and authority of the priest, and the priest reimagines himself as a therapist.

Today at Public Discourse, my colleague and dear friend Russell Nieli, a Lecturer at Princeton and the author of (among other valuable writings) a superb book on Wittgenstein, offers a deeply thoughtful reflection on the tragic case of Elliot Rodger, the Santa Barbara killer:

"What [Elliot Rodger] needed was not a psychiatrist—he had been seeing therapists and psychiatrists for much of his life—but a preacher or a priest who could explain to him the self-destructive vice lurking within his soul, the importance of gratitude, the necessity of repentance, the evil of covetous envy, and most crucial of all, the importance of charity, humility, loving kindness, and trust in a higher power."

Read the entire essay here:


August 8, 2014 | Permalink

Thursday, August 7, 2014

"Religious Identity in a Time of Challenge for Law Schools"

This is the theme of the upcoming annual Religiously Affiliated Law Schools conference, which is being held this year at St. Thomas.  Don't miss it!  

August 7, 2014 in Garnett, Rick | Permalink

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church."  (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.)  Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously).  Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

 UPDATE:  John Inazu's (excellent) response is available here.

August 7, 2014 in Garnett, Rick | Permalink

Wednesday, August 6, 2014

Protecting your civil right to shut down the other guy's free speech

Back in the 90s, when I was serving on the U.S. Commission on Civil Rights, I heard witnesses before the Commission and even members say some pretty ridiculous things.  But matters seem to have gone from bad to worse. A current Commissioner---former Nancy Pelosi aide Michael Yaki---is pushing the cause of campus "speech codes." This, mind you, from a guy whose job is to defend people's civil rights.  Here's the story from Yahoo News:


August 6, 2014 | Permalink

Monday, August 4, 2014

Catholic Social Teaching and public-employee unions

Prof. Meghan Clark argued recently, in this piece ("Power to the Public Workers"), that the deeply rooted Catholic principles and teachings having to do with the dignity of work and workers mean, in practice, that public-employee unions should not be distinguished from private-sector-employee unions when it comes to collective bargaining and other labor-related policies.

I have contended often here at MOJ and elsewhere  that "it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions."  To quote an earlier post:

(The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minionand Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It isnotgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

Prof. Clark writes:

Our teachers, librarians, police, firefighters, sanitation workers, and all civil servants actively contribute to the common good. They and their jobs are not lesser because their wages are funded by your taxes. They have equal dignity with private employees. In this current wave of hostility toward public workers, Catholic social teaching reminds us that the dignity of all workers—public and private—grounds their basic right to association, including the right to unionize and bargain collectively. 

I agree entirely with the first three of these sentences, but have to respectfully disagree with the suggestion that public employees' "equal dignity" means that the content and limits of their "right to unionize" are or should be the same as that of private-sector employees.  That the employer is not "capital" but is, instead, the political community is, it seems to me, very relevant to questions about the employer-employee relationship.  The employer -- again, the political community -- has obligations not only to its employees, but also to citizens, taxpayers, and -- as the looming crisis in underfunded public-employee pensions reminds us -- future generations.

August 4, 2014 in Garnett, Rick | Permalink

School vouchers, intolerance, and justice: A response to Michael S.

A few weeks ago, Michael Scaperlanda shared this post, "School Vouchers in a Time of Increasing Intolerance," in which (among other things) he invited my thoughts about and reactions to his suggestion that the Blaine Amendments, "as ugly as they were[, could] be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy[.]"

It is, I am afraid, true (as Michael's post suggests) that we can expect public funds and support -- including not just vouchers, but also tax-exempt status, access to public forums and programs, even accreditation -- to come with heavy-handed regulatory "strings" that will often be in tension with the mission and character of authentically Catholic schools.  But, the anti-Catholic Blaine Amendments (which have, in some states, had the effect of limiting public funds for Catholic schools and the families who support them) will not really be any help, I'm afraid.

Now, in my view (and in Michael's, I know) -- see here and here for more -- it is unjust for communities to limit public funding of education to education that takes place in state-run institutions.  It is unjust -- and Catholic social teaching is clear on this point -- to deny parents the support or assistance necessary for them to send their children -- if they want to send their children -- to Catholic schools.  That said, and as Michael reminds us, the danger has always been real -- and school-choice opponents have often emphasized it -- that public funding would come with mission-compromising regulations.  I do not think this danger is a sufficient reason to stop trying to bring about more just school-funding policies.  It should be kept clearly in view, though, as policies are designed and debated.

I do not believe that Catholics and the Church can -- in this country, given all the on-the-ground givens -- just "walk away" from our institutions and this means -- again, given all the givens, that we cannot just "walk away" altogether from public funding and potentially entangling regulations.  It's not just that we need our institutions, or that they do a lot of good work, or that we have become overly dependant on public support.  It is, in addition, that the political authority is not going to allow us to walk away.  The argument that non-state institutions may and should be not only incentivized, but compelled, to come into ideological congruence with the practices and commitments of state organizations used to be marginal and radical, but it now seems entrenched comfortably in the mainstream.   Blaine Amendments or no, vouchers or no . . . it will be an increasingly difficult political and legal fight to preserve Catholic institutions' ability and freedom to be -- assuming they want to be -- Catholic institutions.

August 4, 2014 in Garnett, Rick | Permalink

"New Urbs" at The American Conservative

Readers of MOJ are probably very(!) familiar with my love-hate interest in "New Urbanism", about which I've often blogged here.  That interest prompted me to read this, at The American Conservative, about a new project of their called "New Urbs":

. . . Over the course of the next year, The American Conservative will be opening a discussion on how to rebuild America’s communities and sense of place by fostering humane, sustainable, and walkable built environments, made possible by a grant from the Richard H. Driehaus Foundation. For while the breakdown of community and the family is a consistent theme in conservative circles, the conversation very rarely gets beyond some mix of exhortation towards traditional values and demands for rollback or reform of the welfare state. That’s where a school of urban design called “New Urbanism” comes into play.

Just as an individual is embedded in a family, and a family is embedded in a community, so too a community is embedded in its neighborhood. The patterns we live in can bring us into the sort of constant, casual, incidental contact that builds bonds between neighbors, or they can silo each of our families away, leaving civil society to wither as the “place between” is filled with asphalt and strip malls. As Paul Weyrich, William S. Lind, and Andres Duany wrote in “Conservatives and the New Urbanism” in 2006, “Edmund Burke told us more than two hundred years ago that traditional societies are organic wholes. If you (literally) disintegrate a society’s physical setting, as sprawl has done, you tend to disintegrate its culture as well.” New Urbanists aim to reinvigorate those traditional structures, like the classic Main Street with living space above the storefronts, and other homes right around the corner. . . .

Stay tuned . . .

August 4, 2014 in Garnett, Rick | Permalink

Sunday, August 3, 2014

His saltem accumulem donis, et fungar inani munere. (Story, J., quoting Virgil re: Marshall)

The 1837 Term of the Supreme Court was a hard one for Justice Joseph Story. His mentor and friend, the great Chief Justice, had died, and the Taney Court was tacking away from John Marshall's course. Story's dissents in some of the cases that marked the clearest departures from Marshall's jurisprudence are personal and powerful. Perhaps the most poignant is his dissent in Briscoe v. Bank of Kentucky, 36 U.S. 257 (1837). The concluding paragraph:

I am conscious, that I have occupied a great deal of time in the discussion of this grave question; a question, in my humble judgment, second to none which was ever presented to this court, in its intrinsic importance. I have done so, because I am of opinion (as I have already intimated), that upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent. I have another and strong motive-my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional; I have felt an earnest desire to vindicate his memory from the imputation of rashness, or want of deep reflection. Had he been living, he would have spoken in the joint names of both of us. I am sensible, that I have not done that justice to his opinion, which his own great mind and exalted talents would have done. But with all the imperfections of my own efforts, I hope that I have shown, that there were solid grounds on which to rest his exposition of the constitution. His saltem accumulem donis, et fungar inani munere.

The concluding lines are from Virgil's Aeneid. They express an intent to honor the revered deceased with one's perhaps futile labors. Some translations: 

  • "let me at least bestow upon him those last offerings, and discharge a vain and unavailing duty" (Routledge Guide to Latin Quotations)
  • "these offerings at least let me heap upon my descendant's shade, and discharge this unavailing duty" (Rivington et al. 1821)
  • "this unavailing gift at least I may bestow" (Dryden)

August 3, 2014 in Walsh, Kevin | Permalink

Query this

When a monarch formally -- but not functionally -- vacates his palace only to occupy -- perhaps along with his considerable staff -- the rooms formerly reserved for guests in, say, the guesthouse, who benefits?  And why?  

August 3, 2014 in Brennan, Patrick | Permalink

"The lavish homes of American archbishops"

CNN has the story.

August 3, 2014 in Walsh, Kevin | Permalink