Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Sunday, August 31, 2014

Cavadini and Smith, "Building Catholic Higher Education"

My friends and colleagues, John Cavadini and Christian Smith, have a new, important, and slim volume out called "Building Catholic Higher Education:  Unofficial Reflections from the University of Notre Dame."  Here's a blurb:

American Catholic universities and colleges are wrestling today with how to develop in ways that faithfully serve their mission in Catholic higher education without either secularizing or becoming sectarian. Major challenges are faced when trying to simultaneously build and sustain excellence in undergraduate teaching, strengthen faculty research and publishing, and deepen the authentically Catholic character of education. This book uses the particular case of the University of Notre Dame to raise larger issues, to make substantive proposals, and thus to contribute to a national conversation affecting all Catholic universities and colleges in the United States (and perhaps beyond) today. Its arguments focus particularly on challenging questions around the recruitment, hiring, and formation of faculty in Catholic universities and colleges.

You can (and should) learn more about and buy the book here.

August 31, 2014 in Garnett, Rick | Permalink

The "last acceptable prejudice", redux

Plaintiffs challenging Florida's longstanding school-choice program have filed a motion seeking the recusal of Judge Angelda Dempsey because . . . she is Catholic.  (Here's the affidavit.)  Seriously.  Because of "a continuing association between Judge Dempsey and the interests in my case through her relationship with the Catholic doctrine and position on vouchers for Catholic schools; Catholic Charities; Trinity Catholic School; and as a contributor to Catholic causes.", she is "biased."  Groan.

August 31, 2014 in Garnett, Rick | Permalink

Wednesday, August 27, 2014

Can we "measure what matters most"?

At a time when "metrics" and "assessment" are the watchwords in legal education (and elsewhere), this nice reflection (in the University of Notre Dame student newspaper) by my friend, Fr. Joe Corpora, might be helpful.  A bit:

We need to know our nothingness, our lowliness and our emptiness. The more we empty ourselves of pride and worldly worth, the more God can fill us with himself. The more we humble ourselves, the more God can exalt us. It’s a complete reversal of the world’s values as we experience them day-to-day. And since we are terrified to be “nothing,” we are always looking for ways to prove that we are something.

If we are nothing, what can make us feel like we are something? Data, metrics and graphs: things that calm our fears with numerical assertions of our importance. These can make us feel like we’re somebody big and we’re going somewhere important.  I lament that the Church and her institutions have become more and more addicted to data and metrics during the past 40 years. Is this addiction to data and metrics related to Mary’s fading into the background and our corresponding loss of knowing our dependence on God? . . .

August 27, 2014 in Garnett, Rick | Permalink

Tuesday, August 26, 2014

"Jews, Christians, and the Hobby Lobby Decision"

Rabbi Dr. Meir Y. Soloveichik is speaking at Touro's Jewish Law Institute on "Jews, Christians, and the Hobby Lobby Decision" on the evening of September 4 in New York City.  If you are nearby, I recommend attending.  More information is available here.

August 26, 2014 in Garnett, Rick | Permalink

Friday, August 22, 2014

More on RFRA and reason from Profs. Miller and Arkes

Prof. Arkes' response to Prof. Miller's recent Public Discourse essay ("Prof. Arkes and the Law") is up, as is Prof. Miller's rejoinder, "What Reason Can Know and What Government Should Legislate."  My own thoughts on the matters under discussion are very close to Prof. Miller's.  I continue to be puzzled by some of Prof. Arkes' (and others') criticisms of RFRA or of the arguments of the lawyers and judges whose have the jobs of interpreting and applying it.  If the point is simply that the RFRA regime reflects premises about "religion", "belief", etc. that connect imperfectly with the Truth, then I say, "sure, but so it goes." 

Here's a bit, from the rejoinder:

In my article, I argued that conferring on public officials a general power to inquire into moral or religious truths is dangerous because such people are no better than anyone else at sorting out true beliefs from false ones and they are just as likely as everyone else to think that ideas different from their own are unreasonable or perverse. Because of this, Arkes speculates that I may have “lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and retrains everyone else.” Now, I have often said that I am an Aristotelian-Thomist in morals, and so there can be no doubt that I believe that reason can determine what is moral and what is immoral. Arkes’s question is helpful, however, because it highlights what I think is the central confusion in his position.

That is, Arkes consistently runs together what reason, in some abstract philosophical sense, can know, with what we can expect from the efforts at reasoning of particular human beings. The first is a question of whether certain sound arguments exist; the second is a question of how likely particular human beings are to discover and embrace these arguments. These are very different things. . . 

Read the whole thing(s).

August 22, 2014 in Garnett, Rick | Permalink

Tuesday, August 19, 2014

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

Monday, August 18, 2014

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

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

Monday, August 11, 2014

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