Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, May 10, 2017

A short primer on the Blaine Amendments

The Federalist Society has put up a short animated primer on the Blaine Amendments, featuring a law professor who, clearly, has a face for radio.   For more on the Trinity Lutheran case, go here.

May 10, 2017 in Garnett, Rick | Permalink

Panel discussion in Chicago: "Natural Law in Court"

If you are in or near Chicago, don't miss this event on May 18:  Michael Moreland, Adrian Vermeule, and Jeff Pojanowski -- what a line-up! -- will be discussing Richard Helmholz's new book, Natural Law in Court:  A History of Legal Theory in Practice.  More info:

Join us for a reception and panel discussion of the recent book by R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press, 2015). Copies of the book will be available for purchase.

Until very recently, lawyers in the Western tradition studied natural law as a part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.


5:15PM   Registration and Reception

6:15PM   Program

7:30PM   Close

May 10, 2017 in Garnett, Rick | Permalink

Thursday, May 4, 2017

The Religious-Liberty Executive Order

The term "nothing burger" gets overused, I think, but it seems to apply pretty well to today's Executive Order.  While I confess to feeling snarky about all the hysterical pre-denunciations we were getting from the usual Salon/Vox/Slate scare-quotes crowd that turned out to be wasted outrage, it's difficult to avoid feeling frustrated by the fact that some serious questions and issues are ignored by the order out of, it appears, a fear of the (inaccurate) "license to discriminate" charge. 

Yes, Americans who embrace our constitutional tradition of respecting religious liberty and the role of religious believers in public life will welcome, naturally, the Executive Order's declaration that the Administration is committed to protecting religious liberty.  The guidance it calls for from the Attorney General could also have positive effects, assuming that this guidance includes reminding all federal agencies about the demands of the Religious Freedom Restoration Act and other statutory provisions.  And, this Order would appear to be entirely safe from legal challenge ... because it doesn't do anything. 
With respect to the enforcement of the Johnson Amendment, it is already the case that the relevant agencies and officials are highly deferential to churches and religious leaders, especially when it comes to what's said in the context of sermons and homilies.  And while it is a good thing -- and long overdue -- that the Administration apparently intends to craft a more reasonable and inclusive religious exemption from the contraception-coverage mandate, such regulatory relief was already probably on its way, eventually, as a result of the Supreme Court's decisions.
As I see it, it is unhealthy and even dangerous for the well being of the human right -- everyone's human right -- to religious freedom that it seems "baked into the narrative" that (a) "religious freedom" means "a license to discriminate" and so is bad and (b) that "religious freedom" is something that gets manipulated by politicians so as to appeal narrowly to a subset of political conservatives.  

May 4, 2017 in Garnett, Rick | Permalink

Happy English Martyrs Day!

Saints Margaret Clitherow and Thomas Garnet (inter alia), pray for us!

May 4, 2017 in Garnett, Rick | Permalink

Tuesday, May 2, 2017

"A Bipartisan Case for School Choice"

Prof. Melissa Moschella has this essay up over at Public Discourse.  Definitely worth a read, and definitely a helpful reminder that the case for school choice is as much about social justice, religious freedom, and fairness as it is about efficiency and competition.  A taste:

There is no such thing as a completely value-neutral education. In the absence of vouchers, low-income parents are effectively forced to send their children to a public school, even if they object to the values directly or indirectly promoted in that school. And given that public schools are constitutionally required to be non-religious, the fact that only public schools can receive public educational funding effectively means that the government is favoring non-religion over religion. This places a substantial burden on religious parents, many of whom believe that they have a serious religious responsibility for the religious education of their children, by making it financially difficult or even impossible to send their children to a religious school.

Therefore, turning [Justice] Stevens’s argument on its head, we could say that the public schools’ monopoly on public educational funds is actually in tension with bothof the First Amendment’s religion clauses. The absence of some sort of voucher program (at least for low-income students) is in tension with the Establishment Clause because it promotes secularism in children’s formal education. It is also in tension with the Free Exercise Clause because it places a substantial burden on the ability of parents to fulfill one of their most serious religious duties.

May 2, 2017 in Garnett, Rick | Permalink

Friday, April 28, 2017

My (video) conversation with John Allen, Jr. on "Drinks with John" about religious freedom

This was fun.  John Allen is even nicer in "person" than he is sharp in print.  Check it out!

April 28, 2017 in Garnett, Rick | Permalink

Witte on History and "God's Joust"

A nice thought, from Prof. John Witte (Emory):

“History is more than simply an accidental chronology of first one thing happening, then another. For me, history is also a source of revelation, a collection of wisdom. The archive is a treasure trove. Old books are windows on truth. The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust.”

April 28, 2017 in Garnett, Rick | Permalink

Friday, April 14, 2017

Esbeck on discretionary religious accommodations and "third-party harms"

Prof. Carl Esbeck has posted a succinct, and very helpful, response to the currently popular theory that discretionary religious exemptions violate the Establishment Clause whenever they result in "third-party harms."  Here is the abstract: 

The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these new burdens, an accommodation for those holding conflicting religious beliefs or practices. Such religious exemptions are enacted at the discretion of the legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. In an unbroken line of cases now spanning a century, the Supreme Court has seven times rejected the argument that a religious exemption contravenes the Establishment Clause. In some instances, no doubt, lawmakers should exercise their discretion and deny an exemption for religious observance. What is not the law is that the presence of adverse effects on those who do not benefit from an exemption causes an otherwise lawful accommodation to violate the Establishment Clause.

Cases involving a religious preference are being confused with exemptions. An exemption occurs when a dissenter’s religious practice is simply left alone even as others are made to labor under a new burden of the legislature’s creation, be it a tax or regulatory duty. Government does not establish religion by leaving it alone. An exemption, rather, ensures that a new regulatory burden on others is not also thrust in the path of individuals who are already inclined to follow the dictates of their faith. Because the government’s exemption is not the causal agent behind the religious observance, any harm to third parties is the result of private conduct. Harm redressable under the Establishment Clause must be injury that was caused by the government, not private actors.

A preference, on the other hand, arises when the government takes note of a disagreement in the private sector that involves religion. If a law is adopted that takes the side of the religious disputant, the government is intentionally preferring religion. The favoritism occurs in a situation not of the state’s creation, but in circumstances arising out of private social or market forces. Should the form of the government’s intervention go on to “unyieldingly” side with religion such that any costs to others are not weighed in the balance, then the Court will strike down the preference. The operative Establishment Clause rule is that persons in the private sector should not be forced to readjust their lives just so that a neighbor can better conform to his or her religion.

Along with the foregoing preferences, progressives want religious exemptions to be balanced against any incidental harms that befall third parties. They want this not as a matter of legislative discretion, but as a constitutional imperative. This not only misconceives the nature of the Establishment Clause, but the argument assumes that “third-party harm” as a juridical category can be both defined and bounded. It cannot. Additionally, the logic behind this category is in danger of expanding and could end up overwhelming most every religious exemption.

The founding generation did not regard a religious exemption as an establishment. Moreover, there are presently thousands of religious exemptions in local, state, and federal law. To abolish them all because they are thought to be unconstitutional under a novel theory would work primarily to the injury of religious minorities. That would bring a sea change in the venerable American practice of extending a welcoming hand to diverse religions.

April 14, 2017 in Garnett, Rick | Permalink


Regular MOJ readers (and those burdened by social-media connections with me) will know that, for quite a while, I'd been looking forward to the release of Martin Scorcese's production of "Silence", by Shusaku Endo.  I saw it -- in a theater, even! -- last week and was moved, impressed, provoked, and unsettled.

There are a lot of reviews and interpretations out there already (some of which seem to be more about the author's theological or political hobby-horses than about the book, the film, the author, or Scorcese), and I won't try to referee the arguments here.  The film is, like the book, ambiguous -- deliberately so, I've always assumed.  I do not pretend to know what Scorcese "intended" to communicate, but -- as I saw it -- the production paints statist anti-Christian persecution as the evil that it was, and is; depicts sympathetically the pain (physical and spiritual) that such persecution causes; and admiringly portrays the courage of martyrs, even as it evokes sympathy for those who stumble (as we all do).  The sound, the imagery, the color, the scenes and settings - all great. Highly recommended.

A blessed Easter to all! 

April 14, 2017 in Garnett, Rick | Permalink

Friday, April 7, 2017

More evidence -- in this case, tragic evidence -- about the importance of school choice

St. Anthony's high school in Newark is, after years of struggling, going to close.  This shouldn't have to happen. 

April 7, 2017 in Garnett, Rick | Permalink