Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, January 28, 2017

The Executive Order regarding immigration and refugees

The text of the recent Executive Order regarding immigration and refugees is available here. One provision of that Order states:

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

I tend to think that a relatively stable and prosperous country like the United States should be generous -- prudent and deliberate, but generous -- when it comes to accepting refugees, and so I am -- without, I admit, having studied the matter closely -- inclined to think the Order is, at least in some respects, misguided and bad policy. I am not sure, however, that I agree with those who are characterizing the particular provision quoted above as unfair or immoral. If we assume, as it seems to me we must, that our ability to admit refugees -- and, again, I think we can and should admit a lot of them -- is not infinite, then we are going to have to employ some criteria to identify who will be admitted and who will not. It seems, to me, reasonable and defensible to prioritize -- assuming that "prioritize" doesn't mean "categorically or reflexively reject all others" -- "refugee claims made by individuals on the basis of religious-based persecution." (I am putting aside, for now, questions about that the language regarding "minority religion in the individual's country of nationality," which, given the current givens, would probably in practice favor Christian applicants.)

I'd welcome other MOJers' views, especially President Scaperlanda's!


January 28, 2017 in Garnett, Rick | Permalink | Comments (0)

Friday, January 27, 2017

Religious liberty, immigration, and "sanctuary"

A few days ago, Notre Dame's Center on Civil and Human Rights convened a panel discussion on immigration and sanctuary.  I participated, and talked about the religious-freedom dimension of the issue.  The video is here, if you are interested.  (My remarks start at about 40:00.)

Among other things, I talked about an Alabama case in which the state's Catholic bishops (and others) filed a lawsuit challenging, on religious-freedom grounds, a law that purported to forbid anyone to assist or harbor unlawful immigrants.  (More here on the bishops' criticisms.)

In some quarters, the Catholic bishops' religious-freedom advocacy has been (unfairly and inaccurately, in my view) criticized as partisan or as excessively focused on a few "culture wars" issues.  (The same criticisms, increasingly, are directed at religious-freedom laws generally).  In fact, the USCCB's Ad Hoc Committee on Religious Freedom, like the Alabama bishops, criticized Alabama's law just as it did the contraception-coverage mandate.  

I'm wondering, relatedly, whether this particular provision of the President's recent executive order on immigration similarly imposes, or could impose, an unlawful burden on religious exercise:

Sec. 6.  Civil Fines and Penalties.  As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.

It depends, I suppose, on how "facilitate" is interpreted.  Still, something for those of us who care about religious freedom (as we all should) to keep an eye on.

January 27, 2017 in Garnett, Rick | Permalink | Comments (0)

Notre Dame Fighting Irish for Life

ND at March

January 27, 2017 in Garnett, Rick | Permalink

Mark Roche on "Realizing the Distinctive University"

My Notre Dame colleague, Prof. Mark Roche, has written and thought a lot about the liberal arts and Catholic higher education.  He has a new book outRealizing the Distinctive University:  Visions and Values, Strategy and Culture.  It is noted, here, in the Chronicle of Higher Education.  Here's a bit:

But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"

I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS:  "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time).  I think Garvey was right then, and Roche is right now, that we need more of this in higher education.  I worry, though, that we are moving towards less.  Check out Roche's book.   

January 27, 2017 in Garnett, Rick | Permalink

Sunday, January 22, 2017

Roe v. Wade, 44 years later: "We Shall Not Weary, We Shall Not Rest"

It's always a good move to re-read Fr. Richard John Neuhaus's great talk, "We Shall Not Weary, We Shall Not Rest":

Nobody is a nobody; nobody is unwanted. All are wanted by God, and therefore to be respected, protected, and cherished by us.

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person¯of every human person.

January 22, 2017 in Garnett, Rick | Permalink

"Don't Give Up on Our Catholic Schools"

I'm coming to this exchange a little bit late, but I highly recommend this response, which appeared in America, to this in-places-misguided and, on some points, wrong-on-the-law piece, which also appeared in America.   Nutshell version:  Catholic schools face loads of challenges, but it is too early to embrace so-called "wrap-around charter schools" as the answer to these challenges.

January 22, 2017 in Garnett, Rick | Permalink

Friday, January 20, 2017

Tough (but, I think, fair) criticism of anti-school-choice efforts

David Harsanyi's piece, here, pulls no punches ("The Democrats' Fight Against School Choice is Immoral"), but I think it is fair. Many of us are, quite reasonably and understandably, concerned about and preparing to oppose policy initiatives in the coming years that do not cohere with morality or the Church's social teachings. I think we should, in addition, welcome and work to support efforts to expand meaningful school choice -- again, not merely for competitive, or market, or libertarian, or utilitarian reasons, but -- as I've written -- so that as many parents as possible will have the opportunity to exercise their fundamental right to direct the education and formation of their children.    

January 20, 2017 in Garnett, Rick | Permalink

Thursday, January 12, 2017

Catholics, DeVos, and teachers unions: A short reply to Michael Sean Winters

In this recent post, over at Distinctly Catholic, Michael Sean Winters -- who, like me, supports school vouchers and, like me, thinks the case for school choice is not merely a libertarian one -- contends that Donald Trump's nominee to serve as Secretary of Education, Betsy DeVos, should worry Catholics:

The worry about DeVos is twofold. First, surely with Pope Francis' frequent, and powerful, reiterations of the Catholic church's support for organized labor, it would be better if bishops reached out to unions and tried to lower the temperature around the issue of vouchers for Catholic schools, maybe look for ways for Catholic and public schools to collaborate on summer arts programs and the like, and enter into debate about vouchers with an acknowledgement of the good faith concerns of both sides. I do not anticipate anything DeVos does will make a more workable long-term solution likely. I suspect she will poison that well thoroughly.

Secondly, there are few things as immoral as the right thing done for the wrong reason. Most Catholic children attend public schools, a fact that is not likely to change anytime soon. Bishops and other Catholic leaders should be concerned about making public schools a success too. It is a tall order and I will grant that the teachers' unions are not always helpful. But, an argument based on "choice" should alert Catholics who are worried about the consumer mentality of the culture, and how that mentality leads to other pernicious results, before embracing DeVos' advocacy for "school choice."

A few quick thoughts in response (I'll refrain from re-hashing here my view that it is a mistake to conflate or equate, for Catholic Social Teaching purposes, workers' right to associate, coordinate, strike, etc. with public-sector unionism, especially in the K-12 context, as it is practiced in the United States today).  First, I think it is as clear as anything that Catholics who embrace and apply the Church's social teachings should support school choice (by which I mean "public support, on an equal basis to that provided to children who attend state-operated public schools or charter schools, for children who attend qualified religious schools), and not for reasons having to do with a "consumer mentality" but instead because a decent and just political community ought not to, in effect, financially penalize parents for exercising what the Church teaches is their human right.  Next, it would indeed be a good thing if bishops were able to get teacher unions to dial back their (self-interested, common-good-undermining) hostility to vouchers, but -- as someone who has been in and around this fight for almost 25 years - the high temperature around the issue is certainly not the fault of school-choice supporters or the bishops and I don't see collaboration on summer arts programs as very likely to provide the meaningful support that Catholic schools and the parents who choose them are in justice entitled to.  (It's 25 years old, but still spot on:  John Coons's essay, "School Choice as Simple Justice.")

As Albert Shanker, a longtime teacher-union leader, once candidly put it, "When school children start paying union dues, that’s when I’ll start representing the interests of school children.”  Too often, the financial and other interests of public-school teachers and administrators align very poorly with the needs of children, families, communities, and taxpayers.  My hope is that DeVos will do what she can to put the Department of Education's emphasis on the latter.

January 12, 2017 in Garnett, Rick | Permalink

Saturday, January 7, 2017

"Sobering Thoughts" and Catholic universities: A short reply to Mary Leary, Rob Vischer, and Timothy Snyder

In her recent post ("Sobering Thoughts for 2017"), Mary writes that "America appears to be facing such a test starting in 2017. The scene is set for the masses to excuse the normalization of the objectification of other human beings by those in power."  And, she links to a piece by Timothy Snyder called "What You Can Do to Save America from Tyranny," which lists a number of "lessons from across the fearful 20th century, adapted to the circumstances of today," that the author hopes will help Americans "learn from [Europeans'] experience" and so not "yield to fascism, Nazism or communism."  Building on some of Mary's thoughts, Rob Vischer posted here about the role and responsibilities of "Catholic universities in the Trump Era."

It's not news that that I did not support the candidacy of Donald Trump and I think I've been clear-eyed about what I take to be the facts that he is unsuited for, unprepared for, and unworthy of the Presidency.  Many of the proposals he endorsed, proposed, or flirted with are immoral and/or foolish; they should be opposed and I hope they will be rejected. 

As I see it, the "normalization of the objectification of other human beings by those in power" -- which Mary strongly and correctly reminds us must be resisted -- and also what Mary rightly calls "harmful efforts to silence debate on important issues" were underway before the election and during the Obama administration, and were supported by Mrs. Clinton and many of her supporters.  There's a case to be made, in fact, that support for this "normalization" and "objectification", and a commitment to silencing debate on certain questions, have become non-negotiable, bedrock positions -- positions more important than, say, constraining the use of military force through law, responding to material and social poverty, or protecting the human rights of vulnerable populations in other lands -- for the base and funders of her party.  The demonization and "othering" by Trump and some of his supporters of, say, immigrants or Muslims is wrong and inexcusable, but so was and is the no-small-amount of "othering" in the smug dismissals by activists and comedian-commentators of religious conservatives and Rust Belt-dwelling so-called "downscale voters."  This is not a "tu quoque" or equivalence point; it is intended only as a suggestion that 2017 might not so much be bringing new challenges for Catholic citizens as re-presenting ongoing challenges in different forms.    

In addition, in my view, much of the advice shared by Snyder (e.g., "Be Kind to Our Language", "Defend an Institution", etc.) has been appropriate for the last eight years -- a time in which celebrity culture, the academy, and the press were strikingly complacent regarding undemocratic and overreaching exercises of executive and administrative power -- and would have been valuable and important had Mrs. Clinton been elected.  (His identification of the Southern Poverty Law Center -- which regularly identifies mainstream religious beliefs and traditional moral positions as "hateful" and "bigoted" -- as a "good cause" to which we should donate seems like bad advice, regardless of the election's outcome.)  I tend to think that -- notwithstanding the enthusiasm for Trump among the repulsive "alt-right" -- it is unhelpful and inaccurate to equate the election of Trump with (quoting Snyder) 20th century Europeans' "yield[ing] to fascism, Nazism or communism," but, in any event, "making eye contact" and "believing in truth" seem like valuable suggestions at any time. 

Rob asked about the role of Catholic universities in "the Trump era."  I think it remains to be seen whether we have entered an "era" of Trump or have instead been confronted, temporarily, with the result of some deeply flawed campaign tactics, in a few counties in a few states, by a deeply flawed candidate.  In any event, my sense, like Rob's is that "the potential good of collaboration outweighs the danger of normalization unless and until President Trump acts to implement some of the more noxious policy proposals that he floated on the campaign trail."  Not having supported Trump, I intend to have no reservations about criticizing him and his proposals when it is called for (and I'm sure it will be).  However, I expect that (for example) his appointees to the federal bench and to important positions in the Departments of Education, HHS, and Justice will be (by my lights and for issues like education reform, religious freedom, and abortion) better than Mrs. Clinton's would have been and I don't think his (to put it mildly) many flaws and failings require me (or anyone else) to reject whatever benefits can be had from his having won.      

Finally:  I think that Mary is exactly right that, too often, those who "raise questions about those in power . . . have been met with ridicule and attacks" and that "[s]uch attacks are designed to silence."  St. Stephen the Martyr, pray for us.

January 7, 2017 in Garnett, Rick | Permalink

Friday, January 6, 2017

"A Gentleman of the Law": Congratulations and thanks to Judge Diarmuid O'Scannlain

Here is a very nice tribute to an outstanding federal judge, Hon. Diarmuid O'Scannlain, who is taking senior status this week on the U.S. Court of Appeals for the Ninth Circuit.  For three decades, Judge O'Scannlain has been a clear, strong voice for a principled judicial conservatism.   For an example of his writing, see his lecture from a few years ago on "The Natural Law in the American Tradition."  Thanks, and congratulations, to Judge O'Scannlain!

January 6, 2017 in Garnett, Rick | Permalink