Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, February 19, 2018

Bishop Paprocki's response to USCCB's amicus brief in Janus

As Michael Perry noted a few days ago, the USCCB filed an amicus brief in the Janus case, which does not -- contrary to the suggestion in the USCCB's brief -- present the question whether right-to-work should be constitutionalized in the private sector, but instead asks the Court to decide whether the First Amendment permits governments to condition public employment (employment that is, collective bargaining aside, heavily regulated and protected) on affiliating with a political association (i.e., a public-sector-employee union) whose activities and expression one opposes.  

In my view -- and I've gone through my reasons here at MOJ many times (Ed.:  Talk about an understatement!) it is a mistake both to (a) think that strong support rightly expressed in Catholic Social Thought for the dignity and rights of workers means that Catholics should support the policy agenda of today's unions (e.g., opposing school choice) and (b) to fail to distinguish between the labor-capital dynamic, on the one hand, and the taxpayer/government/party/public-employee dynamic, on the other.  But, I understand, many intelligent Catholics disagree with me, though I cannot help being frustrated that some persist in the tired and inaccurate claim that my view is somehow "libertarian" or (shudder) "neo-liberal."  In any event, and notwithstanding my huge admiration for the General Counsel, I think the challengers' legal arguments are the stronger ones.  And, here (in City Journal) is a helpful and, in my view, compelling analysis of the case. 

All that said, here is a statement from Bishop Thomas Paprocki (Springfield), responding to the USCCB's brief. 

February 19, 2018 in Garnett, Rick | Permalink

Saturday, February 17, 2018

On the cancellation of Professor Rosen's course at Princeton

Princeton University, where I have had the privilege of teaching for more than thirty-two years, recently received a black eye in the media when Anthropology professor Lawrence Rosen cancelled his course "Cultural Freedoms: Hate Speech, Blasphemy, and Pornography" after several students were offended by his saying--purely and unmistakably for bona fide pedagogical purposes--a racially derogatory word. Here's an update from Reason magazine on the matter.

https://reason.com/blog/2018/02/14/princeton-professor-cancels-hate-speech

I stress that Professor Rosen's mentioning of the word, which he did several times (as he had done in previous classes on culture and free speech with no adverse reaction), was pedagogical. No one was in any doubt about that. No one could possibly have been in any doubt about it. The idea that Lawrence Rosen, whom I have known since I arrived at Princeton in 1985, is a racist is beyond risible. He is a person of decency and upright character in every way. There isn't the slightest trace of animus in the man. He treats all of his colleagues and students with respect. As it happens, he is also one of the Princeton's most brilliant and eminent social scientists. He is MacArthur genius award winner, among countless other distinctions. It is painful for me personally, as I know it must be in even greater degree for him, to see his name dragged through the mud for allegedly (as some media misleadingly put it) "using a racial slur."

It is important for people to know another thing about the incident. Princeton did not pressure or even ask or encourage Professor Rosen to cancel his class. No pressure was placed on him by colleagues or administrative officials of the Department or the University. Princeton's president, Christopher Eisgruber, strongly defended Professor Rosen against the smears to which he was subjected and expressly and forcefully supported his right to use the words he deemed necessary and suitable to accomplish his pedagogical mission in teaching about hate speech and related issues. The same is true of Professor Carolyn Rouse who chairs Princeton's Department of Anthropology. Neither President Eisgruber nor Professor Rouse deserves to be counted among those college and university administrators around the country who have brought shame on themselves and their institutions by caving in to demands for speech policing and the curtailment of academic freedom. Quite the contrary. Both deserve high praise for standing up for freedom of expression on campus and other core academic values.

Why did Professor Rosen elect to cancel his course? I do not know the whole story, but I do know that he made the decision in light of his judgment that cancellation was in the interests of the students who had enrolled in the course. I do not know how that could be, but I haven't the slightest doubt that this was in fact Professor Rosen's sincere judgment and motivation. He is not a coward and would never yield to intimidation tactics. I know that some students who privately told Professor Rosen they wanted the course to continue were too afraid to speak out publicly. Evidently they feared being defamed as "racists" or "bigots." That makes me sad. As Professor Rosen told his students, the surest way to lose freedom is to remain silent in the face of efforts to squash it.

February 17, 2018 | Permalink

Thursday, February 15, 2018

Announcing the Fourth Biennial Colloquium in Law and Religion

My colleague, Mark Movsesian, and I are pleased and honored to announce the fourth biennial (how many years is that?) Colloquium in Law and Religion, to be hosted at St. John's in fall 2018. This seminar invites leading law and religion scholars and judges to share their work in law and religion before a small audience of students and faculty. Here is the slate of speakers:

September 17: Professor Robert Louis Wilken (University of Virginia, Emeritus)

October 1: Professor Philip Hamburger (Columbia Law School)

October 15: Professor John Inazu (Washington U. St. Louis School of Law)

October 29: Professor Micah Schwartzman (University of Virginia School of Law)

November 12: The Honorable Diane S. Sykes (U.S. Court of Appeals for the Seventh Circuit)

November 26: Professor Vincent Phillip Muñoz (University of Notre Dame)

To read more about past colloquia, please see these links:

For more information about the 2018 colloquium, please contact me at degirolm@stjohns.edu or Mark at movsesim@stjohns.edu.

February 15, 2018 in DeGirolami, Marc | Permalink

Wednesday, February 14, 2018

"How to keep 'em content in Lent"?

We can't serve dishes made with quick-melting Ched-O-Bit any more, so I'll be running out later today to pick up some tomato soup instead. No need to wait, though to enjoy Amy Welborn's "Gallery of Regrettable Lenten Food."

A taste of the advertising copy: "Is Lent a Problem? 'No!' ... says Chef Ernest Cuony of New York's Fashionable Hotel Barclay. 'You've shown me, Mrs. America, that it's not necessary to sacrifice deliciousness and flavor in order to 'toe the mark' during Lent. As a matter of fact, your pure, wholesome, delicate-flavored WESSON OIL gives--how you say it?--'oomph' to even every-day dishes.'"

February 14, 2018 in Walsh, Kevin | Permalink

Monday, February 12, 2018

Fr. Christiansen's unconvincing defense of "Vatican's potential deal with China is a good thing."

Fr. Drew Christiansen, S.J., has this piece in America, defending "the Holy See’s possible rapprochement with the China’s Communist government on the appointment of bishops."  I'm among those who has expressed grave reservations about such a move and I continue to regard the attitudes expressed by its defenders as quite naive.  To be clear:  to harbor and express such reservations is not to throw in with those who criticize in various ways the papacy of Pope Francis.  This is a particular decision, I think, and I'm addressing it in particular -- though it is consonant with some recent and strikingly foolish statements made by a particular bishop to the effect that China is a world leader in implementing Catholic Social Teaching.  It most certainly is not.  

Fr. Christiansen's piece is worth reading, but one of his several suggested defenses strikes me as quite weak:

Anti-communist Catholicism: Time for aggiornamentoIt has been 55 years since St. John XXIII’s encyclical “Pacem in Terris”(“Peace on Earth”). At the time of its publication, the letter’s most controversial affirmation was its opening to dialogue with political parties of the left, including the Italian Communists. Pope John himself penned the line that distinguished between adherents of an errant ideology and the ideology (Marxism) itself. “Pacem in Terris” cleared the way for a new relationship with the Communist governments of Eastern Europe and the re-establishment of the Catholic Church in the East. But even with shifts in the policies of the People’s Republic, that opening to Communists has not been accepted by intransigent elements of the underground church. Might it not be time to apply John’s teaching to relations with the Chinese government? Why should China be an exception to world Catholicism’s aggiornamento in church-state and political relations?

This is a fuzzy misuse of Pacem in Terris and relies excessively on "communism" as an abstract.  Now, I would insist that any "rethinking" of Catholic opposition to communism, both as an ideology and as a lived regime, would be a mistake.  "Communism," as it has been instantiated in regimes around the world, is antithetical to Christianity.  Put that aside for now.  Here, the "shifts in the policies of the People's Republic" that might be relevant are not identified here.  Any "shifts" that might warrant a warming on the Church's part are dramatically outweighed by the continuation (and, in some instances, the worsening) of censorship, confiscation, disenfranchisement, and persecution.

The issue is not whether or not "aggiornamento" with something called "communism", or with some people called "communists", is warranted in the abstract.  The issue is the reality that the PRC is not, in fact, a "People's Republic" -- no one should use that term without scare-quotes -- but is instead a repressive, secular dictatorship -- skyscrapers and billionaires notwithstanding.

February 12, 2018 in Garnett, Rick | Permalink

Sunday, February 11, 2018

Ross Douthat on banning pornography

In the New York Times, Ross Douthat has a column that argues straightforwardly that we should "ban" hard-core pornography.  Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material (see, e.g., Miller v. California), it seems to be the view that, practically speaking -- because of the ubiquity of and ease of accessing online pornography -- pornography is both unregulated and unregulatable (by the government).

My view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school ACLU-type libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses.  I hold this view not because I think it is compelled by the First (or the Fourteenth) Amendment's original public meaning but because, all things considered, I think it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that is permitted and speech that is not.

I admit, though, that I'm not entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech").  Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me."  Obviously, this is not true.  Speech does cause "harms," to others, to the community, and to the moral ecosystem.  What's more, there is no reason to think that these harms are distributed in an equitable way or, say, borne by those who benefit the most from a libertarian speech regime.  Still, my well-grounded confidence that the power to regulate speech would be abused -- e.g., that rules against "hate speech" or "unsafe speech" or "harassment" will be used to suppress "conservative", "traditional", or otherwise insufficiently right-side-of-history views on various matters -- makes me reluctant to depart from the near-absolutist position.

And yet:  Pornography is harmful -- and Douthat identifies some of these harms -- and it is immoral (despite what some woke and liberated sophisticates want to tell us) to produce or to consume it.  The scathing piece that Douthat wrote after Hugh Hefner's death, responding to some of the ridiculous posthumous accolades, was spot on.  (He was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.")  It's increasingly difficult for me not to agree that it should be regulated more than it is -- certainly, it should be marginalized, shamed, and disapproved more than it is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion would not be as elusive as my fellow near-absolutists warn. 

At the very least:  Shouldn't every Catholic university employ (in ways consistent with researchers' academic freedom) filters and the like to at least complicate their undergraduates' dorm-room access to material that, the Church has always known and the world is increasingly appreciated, undermines their development, relationships, and flourishing?       

February 11, 2018 in Garnett, Rick | Permalink

BRIEF OF AMICUS CURIAE UNITED STATES CONFERENCE OF CATHOLIC BISHOPS SUPPORTING RESPONDENTS

SUMMARY OF ARGUMENT

The Catholic bishops of the United States have long and consistently supported the right of workers to organize for purposes of collective bargaining. Because this right is substantially weakened by so-called “right-to-work” laws, many bishops—in their dioceses, through their state conferences, and through their national conference—have opposed or cast doubt on such laws, and no U.S. bishop has expressed support for them.

Petitioner invites this Court to constitutionalize the “right-to-work” position—instantly, without exception, for all fifty states, almost irreversibly—in the public sector. Petitioner’s proposed rationale for this dramatic move appears designed to lay the foundation for a still more dramatic one: constitutionalizing, in a subsequent case, the “right-to-work” rule in the private sector as well. The Court should decline this invitation. It should leave constitutional space for the public policy position supported for so long by so many bishops and bishopled institutions, rather than declare still another such position outside the bounds of what policymakers are permitted to implement by law. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (definition of marriage); Roe v. Wade, 410 U.S. 113 (1973) (prohibition of abortion). By its decision in this case, the Court should not only preserve that room for debate as to the public-sector context now, but avoid any threats to it in the private-sector context in the future.

[You can download the USCCB's amicus brief at this link:

Download 20180119105844172_16.1466 bsac usccb amicus

February 11, 2018 in Perry, Michael | Permalink

Saturday, February 10, 2018

Support for abortion rights (etc.) a condition of publicly funded summer jobs in Canada

Story here.  As a result, Bishop Ronald Fabbro

said he has decided that the Diocese of London will not apply for or accept any money from the Canada Summer Job Grants program.  The program has funded an estimated 70,000 summer jobs for secondary school or college students, granting organizations the money for positions like camp counselors or landscapers. London-area organizations alone received nearly $4 million through the program last year.

This heavy-handed move by the Trudeau government seems to go beyond the kind of "compliance with nondiscrimination rules" conditions that are increasingly being tied to public funds, contracts, grants, and licenses in the United States.  I'm reminded of the "law of merited impossibility" . . . .  

February 10, 2018 in Garnett, Rick | Permalink

Friday, February 9, 2018

Congressional Race to Watch: Jay Webber in NJ-11

Jay Webber is smart, talented, and conservative - and he's just announced he's in the race to capture the US House seat vacated Republican Rodney Frelinghuysen. Jay, a Harvard Law grad and devoted husband and father of seven, has served his district in the State House for the last ten years. He's a wonderful man and a dear friend.

Pay attention to this race - pray for him, and send monetary support if you can: webberforcongress@gmail.com. 

February 9, 2018 in Bachiochi, Erika | Permalink

Summer Seminars at the Abigail Adams Institute

The Abigail Adams Institute, founded in 2014 to serve the Harvard intellectual community, is hosting two intensive seminars for advanced undergraduates, graduate students, and select professionals again this summer. Application deadline is March 15, 2018. 

The first seminar, July 22-August 4, is The American Proposition. 

The idea of American exceptionalism continues to be seen as somehow linked with the advent of American statehood. How are we to account for this connection? What are the roots of American political identity? Of American national identity? Have subsequent American developments fundamentally transformed the nature of the country, or is our destiny as a people working itself out in accord with our beginning? The writings of Alexis de Tocqueville, Orestes Brownson and Fr. John Courtney Murray offer the starting points in our exploration of the continuities and changes of these and other charged terms through American and global history.

Faculty: Thomas D'Andrea, University of Cambridge; James Nolan, Williams College; and Danilo Petranovich, Director of AAI.

The second seminar, August 5-11, is Capital and the Good Life.

Capital: what is it, how is it created, and what kind of purpose does, can, or should capital serve? What is capital's relationship to work and to the notion of productivity? How does it influence our ideas of progress? In what ways does it order our society and government? The seminar looks at a variety of perspectives on capital creation, acquisition, and use. Our approach to capital and capitalism will be less from a strictly economic and more from a philosophical perspective. Featuring the thought of Adam Smith, Anne Robert Jacques Turgot, Karl Marx, Friedrich Hayek, Karl Polanyi, Ludwig Lachmann, Thomas Piketty, and Robert Skidelsky.

Faculty: James Bernard Murphy, Dartmouth College; Plamen Nedeltchev, Cisco Systems; Leonidas Zelmanovitz, Liberty Fund. 

Full Disclosure: I'm a Research Fellow at the Institute while at Harvard Law.

February 9, 2018 in Bachiochi, Erika | Permalink