Mirror of Justice

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Friday, August 28, 2015

Stanley Carlson-Thies responds to American United on religious freedom

Not that it's surprising, but Stanley Carlson-Thies is exactly right about (among other things) why American United (et al.) is exactly wrong when it comes to the right of religious organizations to hire-for-mission, even when they are cooperating with the government to provide social-welfare and other services.  A bit:

. . . The basic American practice is to protect the religious identity and character of religious organizations by permitting them to consider religion when they hire and fire employees, just as the law does not prohibit Senate offices from assessing the political convictions of job applicants or PETA from rejecting cat-haters who apply for jobs.

Enabling religious organizations to continue to hire based on religion when they agree to partner with the government avoids making eligibility for the government funds conditional on abandonment by the organizations of a right (religious hiring) specifically protected in law.  And protecting that right when government funds are involved has a big benefit for government and society:  it keeps those many faith-based based organizations from having to reject government funds and partnerships with government in order to maintain their religious identity.  Because faith-based organizations play such critical roles in serving persons, families, and communities, protecting religious hiring is an essential way to promote the common good.

Protecting religious hiring is not simply a matter of respecting legal freedoms and constitutional principles but is thus a vital means to promoting social justice in our society. . . .

August 28, 2015 in Garnett, Rick | Permalink

Thursday, August 27, 2015

Amicus briefs in the Little Sisters of the Poor case

The good folks at the Becket Fund have helpfully collected all of the amicus briefs that were filed in support of the Little Sisters of the Poor's petition for certiorari.  Some (including this one) take time to develop arguments under the Free Exercise Clause and the Establishment Clause (that is, they add to the familiar RFRA arguments).  Happy reading!

August 27, 2015 in Garnett, Rick | Permalink

Tuesday, August 25, 2015

Americans United's (and others') misguided attack on religious institutions

There was a fair amount of hoopla occasioned by the release of this letter, from Americans United for the Separation of Church and State (formerly "Protestants and Other Americans United . . . .). and about 130 other advocacy and activist organizations.  In a nutshell, they are complaining about -- and want the Administration to abandon -- the practice of allowing religious social-welfare organizations that cooperate with the federal government (or, as they put it, "receive federal funding") to address important and entirely "secular" needs and problems to staff and hire for mission (or, as they put it, to "engage in religious discrimination").

The Administration's policy is the correct one.  No discrimination by these religious institutions *against beneficiaries* is permitted (nor should it be) but the government has wisely said (so far) that religious institutions that provide valuable services -- services that it is entirely appropriate for the government to fund -- are not tainted or otherwise rendered unworthy by virtue of the fact that they hire in accord with their religious mission.  If this hiring is "discrimination", it is not wrongful discrimination, and so the federal government is right not to be bothered by it.

What's really going on here, of course, is troubling:  These groups know full well that there is no pressing problem of religious social-welfare institutions denying employment opportunities to those who do not embrace  those institutions' mission and animating values. In the long tradition of groups like Americans United, the signatories to this letter oppose Catholic schools and other institutions -- they object to the content of what those schools and other institutions teach and do -- and so they are hoping to roll back the principle underlying the Supreme Court's acceptance of school-voucher programs.  

The letter exhibits what I will charitably call "confusion about discrimination."  For more on this problem, read this or this.

August 25, 2015 in Garnett, Rick | Permalink

God bless Fr. Araujo

Many people have emailed me to express their deep admiration and affection for our dear friend, Fr. Araujo, who shared details about his health the other day in this moving post.  It would, and will, take a lot more than one blog post to express all that I, and all of us at Mirror of Justice, are thinking, feeling, hoping, and praying for, and so I will not try here.  For now, I'll simply join my colleagues, and all MOJ readers, in looking forward to his manuscript on religious freedom, in praying for his well being, and in thanking God for his vocation and life.

August 25, 2015 in Garnett, Rick | Permalink

God bless Fr. Araujo

Many people have emailed me to express their deep admiration and affection for our dear friend, Fr. Araujo, who shared details about his health the other day in this moving post.  It would, and will, take a lot more than one blog post to express all that I, and all of us at Mirror of Justice, are thinking, feeling, hoping, and praying for, and so I will not try here.  For now, I'll simply join my colleagues, and all MOJ readers, in looking forward to his manuscript on religious freedom, in praying for his well being, and in thanking God for his vocation and life.

August 25, 2015 in Garnett, Rick | Permalink

"Meeting God as an American"

I enjoyed this review , by David Paul Deavel, of Randy Boyagoda's new book on Fr. Richard John Neuhaus.   Although I appreciate the insights, and the force of some of the critiques -- especially in light of recent events, such as the firestorm surrounding Indiana's religious-freedom law -- of the so-called "radical traditionalists" like my friend and colleague Patrick Deneen, I continue to think that Fr. Neuhaus's basic stance and approach are attractive and compelling:

 Today, many young conservatives of a religious bent seem inclined to view as a mirage Neuhaus’ mediating position between theocracy and secular domination. Most of them are more than ready to damn an America that is simply and without remainder a product of an unadulterated Enlightenment liberalism. They’ve taken to heart Neuhaus’s more radical and despairing laments over Babylon while rejecting his optimism and balanced assessment of the strengths and weaknesses of American institutions and culture. We need more reflection on Neuhaus’s thought, but we also wait for another—doubtless different—Neuhaus, who loves his flawed country enough to fight for it and expects to meet God as an American.

The Neuhaus / First Things project is sometimes caricatured and (I think unfairly) criticized for being insufficiently critical of American actions, laws, culture, premises, etc.  And, to be sure, it's not hard to find Christian "conservatives" who engage in cringe-inducing cheerleading for various things that don't deserve it.  Still -- there are "strengths and weaknesses" and among the strengths is a (bruised and vulnerable) tradition of religious freedom, ordered liberty, and the common good under and through the rule of law.

August 25, 2015 in Garnett, Rick | Permalink

The New York Times on abortion and Down Syndrome

It is not news, even if it is unfortunate and damaging to the common good, that the New York Times takes a consistently extremist position on the issue of abortion.  Although it purports regularly to pronounce on the location and content of the "mainstream," the Times is reliably on the fringe both of public opinion and morality when it comes to questions regarding the extent to which unborn children may and should be protected in law.

In this editorial, "Abortion and Down Syndrome," the Times take a position that, notwithstanding the support it might (sadly) enjoy in public opinion, should be deeply chilling and troubling.  In criticizing an Ohio proposal that would restrict abortions based on a diagnosis that the unborn child has Down Syndrome, the Times takes the view that the fact "a majority" (actually, much more than that) of such diagnoses result in abortion, the proposal is for that reason objectionable.  Actually, it is because such diagnoses (and other diagnoses or predictions of disabilities) so often result in the decision that the disabled unborn child should not be permitted to live that the expressive and pedagogical function of the law is so needed on this matter.  The Times piece gives no indication that there is even something to be worried about here; it is completely silent regarding the connection between the attitude that results in extremely high abortion rates for disabled children and the treatment and welfare of those persons with disabilities who were not aborted.

August 25, 2015 in Garnett, Rick | Permalink

Sunday, August 16, 2015

An Orthodox Believer's Response to Catholics and Evangelicals Together on Law

Back in the Fall of 2013 -- after 8 years of conversation and work -- a group of Catholic and Evangelical law professors (including many MOJ-ers) published a statement called "The Lord of Heaven and Earth."  (More here, including a link to the statement.)

In the Winter 2014 issue of the Journal of Christian Legal Thought (which I just received), there is a response to the statement, written by Michael Avramovich, called "An Orthodox Believer's Response to Evangelicals and Catholics Together on Law."  I know I speak for the other authors of the statement in thanking Mr. Avramovich for his time and comment.  You can get a copy of the issue, including the response, here: Download JCLT Winter 14 web copy.

August 16, 2015 in Garnett, Rick | Permalink

Thursday, August 6, 2015

Robby George and Ryan Anderson respond to Inazu et al.

Here is a response from Robby and Ryan to the piece that I posted yesterday -- by Mike McConnell, John Inazu, and I -- on the First Amendment Defense Act.  I encourage readers to check it out.  I'll just say, for now, that my co-authors and I certainly agree that "religious freedom is a basic human right" and that "religious freedom is not just for groups we 'admire' and not just for groups that help 'the poor and oppressed.'"  Our piece did not argue or suggest otherwise.  (We had nothing to do with the title, which -- as Robby and Ryan point out -- unfortunately used the word "admire.")

August 6, 2015 in Garnett, Rick | Permalink

Prof. Robert A. Burt, R.I.P.

I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3.  Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):

"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."

Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."

Bo was a gentle, thoughtful, caring, generous, and deeply good man.  He was also my teacher, mentor, and friend.  I learned so much from him and he shaped profoundly what I think of as my academic vocation.  He set, and lived, a standard for teacher-scholars that I wish I could meet.  

I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook  , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted.  He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge.  My first law-review article, 19 years ago, was inspired by him.  Our last face-to-face conversation, during a visit by him to Notre Dame for a workshop, was about a chapter on Job in what became his fascinating political-theory workIn the Whirlwind:  God and Humanity in Conflict.

The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt.  May the memory of this righteous one be a blessing.

August 6, 2015 in Garnett, Rick | Permalink