Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, March 27, 2017

Oral Arguments today in the church-plan case

The Court heard oral arguments today in a case that has very important religious-freedom and church-state dimensions and implications but has "flown under the radar" in the public conversation.  As SCOTUSblog describes, "Advocate Health Care Network v. Stapleton (consolidated with two other related cases), . . . asks whether the Employee Retirement Income Security Act’s exemption for church plans applies to pension plans maintained by church-affiliated organizations."  Here is the brief of the USCCB, which is well worth a read.

March 27, 2017 in Garnett, Rick | Permalink

Setting the record straight about Notre Dame's Center for Ethics and Culture

A few days ago, John Gehring, of "Faith in Public Life," wrote a kind of "what I saw behind the scenes" piece about a "conservative Catholic gathering in DC's Trump Tower."  Among other things, the piece offered what was characterized as an account of some remarks by my friend and colleague, Carter Snead, who directs the Notre Dame Center for Ethics & Culture.  Based on Gehring's account, Gary Caruso -- who works in the Department of Homeland Security and who has a regular column in The Observer (the student-run newspaper at the University of Notre Dame) -- wrote a critical, indeed more-than-a-little snarky attack on what he called the "near-sighted vision" of the Center. 

As regular MOJ readers might remember, I'm a huge fan of the Center's work on campus and beyond.  The annual Fall Conference the Center puts on is one of the highlights of the academic year.  And, it turns out -- as Snead carefully and charitably sets out here -- that Gehring's account, and Caruso's attack, were misleading and misguided.  Snead concludes with this:  "We welcome everyone of good will who shares our love of civil discourse, Notre Dame, the Church and its much-needed countercultural teachings on human dignity and the common good."

March 27, 2017 in Garnett, Rick | Permalink

Friday, March 24, 2017

"The Demon in Democracy"

I've just finished reading Ryszard Legutko's The Demon in Democracy: Totalitarian Temptations in Free Societies (2016).  "Hostility to Christianity in modern liberal democracies raises the question," according to Legutko, "of how religion should manifest itself in public life."  After considering two "strategies," one "conciliatory" and the other "capitulary," Legutko continues:  

No doubt the basic objectives of Christianity remain outside politics, and it is these objectives that the churches and the faithful should pursue.  But this otherwise obvious statement fails to address one crucial fact: the growing infiltration of liberal democracy into religion.  Liberal democracy, like socialism, has an overwhelming tendency to politicize and ideologize social life in all its aspects, including those that were once considered private; hence, it is difficult for a religion to find a place in a society where it would be free from the pressure of liberal-democratic orthodoxy and where it would not risk a conflict with its commissars.  Even the issues generally thought to be remote from politics become censured by the punctilious scrutiny of those who watch over ideological purity.  To give an example:  the Vatican declaration Dominus Iesus sparked anger in many groups -- more among secular and even atheist than Protestant and Orthodox -- and the direct cause was the following sentence:  "Therefore, there exists a single Church of Christ, which subsists in the Catholic Church, governed by the Successor of Peter and by the bishops in communion with him"  (Ch. IV, clause 17).  Those who protested claimed to defend the non-Catholics who presumably could not -- in light of the Declaration -- achieve salvation, and thereby had their eschatological status unfairly diminished in relation to the Catholics.  Why the atheists were so indignant  about the fact that they would not achieve salvation, in which they did not believe, through God, whose existence they denied, can be explained only by a case of total subjugation of the mind by politics and ideology:  they did not see salvation as a theological problem but as the Catholic Church's political instrument, cleverly camouflaged by theological rhetoric, to justify her domination over other religious and nonreligious groups.  In addition, the sentence in question offended their egalitarian sensibility: salvation, like anything people desire that is not recognized as a human right and distributed equally, must have appeared to them ideologically suspect.  (165-66)

The Church, of course, does not teach that only Catholics can be saved, and Dominus Iesus does not remotely suggest such a thing.  For that reason, among others, I'm not at all convinced that "the basic objectives of Christianity remain outside politics."  Politics, as I understand it, can help but also can hinder people's capacity to do what God asks of them to be saved, and if Christianity has "objectives" at all, its transcendent objective is that all be saved (1 Tim. 2:4).  Christianity offers -- indeed, has a right -- to correct and transform politics exactly for the sake of the salvation of as many as possible.    

March 24, 2017 in Brennan, Patrick | Permalink

Wednesday, March 22, 2017

Princeton Theological Seminary pulls honor for Tim Keller

This is, I think, a very troubling (and revealing) development:

Faced with mounting criticism for its decision to give a major award to the Rev. Tim Keller, founding pastor of Redeemer Presbyterian Church in Manhattan and one of the country’s best-known conservative Christian thinkers, Princeton Theological Seminary has reversed course and said Keller will not receive the honor.

In an email to faculty and students on Wednesday morning (March 22), the president of the venerable mainline Protestant seminary, the Rev. Craig Barnes, said he remains committed to academic freedom and “the critical inquiry and theological diversity of our community.”

But he said that giving Keller the annual Kuyper Prize for Excellence in Reformed Theology and Public Witness – named after a famous Dutch neo-Calvinist theologian – might “imply an endorsement” of Keller’s views against the ordination of women and LGBTQ people.

Now, I happen to agree that institutions of higher education should carefully about whom they honor and about the meanings of the awards they confer. But, Tim Keller is eminently worthy of being honored. Yes, my understanding is that he has traditional Christian views regarding marriage and sexual morality. He also is admirably charitable and civil in addressing these and all other matters.  So, I agree with the principle that this statement reflects:

“Yes to academic freedom. Yes to listening to others whose opinions are different from our own (no matter how distasteful they may be),” Smith wrote on her blog, where she had initially blasted the award to Keller as “offensive.”

“No to giving large fancy prizes that can be confused with endorsement. Some may not be satisfied with this response. I think it’s a great compromise.”

I am not convinced, though, that it was appropriately applied in this case. 

March 22, 2017 in Garnett, Rick | Permalink

A short op-ed on Judge Gorsuch, the Court, and religious freedom

Here's a quick take, from me, at the Religion and Politics site.  A bit, from the end:

Religious freedom is, still, our “first freedom.” If our most sacred things are not free, then nothing else that matters is, either. A government that imagines itself competent to re-arrange or supervise our beliefs about the transcendent is certainly not to be trusted when it comes to respecting our privacy or property. Religious liberty is not special pleading, and it is not a luxury good. It is foundational to our constitutional order and democratic aspirations. The Supreme Court can safeguard religious freedom, for everyone, but it matters at least as much that a commitment to human dignity is deeply rooted in politics, legislatures, and neighborhoods. Judge Neil Gorsuch’s record suggests that he understands this.

March 22, 2017 in Garnett, Rick | Permalink

Saturday, March 18, 2017

Is polite debate ever a luxury we cannot afford?

Middlebury prof Laurie Essig has published an essay in The Chronicle that attempts to complicate the portrayal of the Charles Murray debacle as a regrettable blow to free speech.  This strikes me as the paragraph that does the heavy lifting of her analysis:

The Murray event’s organizers encouraged us to debate his ideas and to counter his eugenicist arguments with evidence and pointed questions. To be fair, many at Middlebury, including the president and the political-science faculty, were worried about censorship and committed to the idea that we must be able to hear ideas we find disagreeable. For people who feel threatened in the current political climate, however, polite debate about disagreeable ideas is a luxury they can no longer afford. We live in dangerous times, when immigrants fear expulsion and hate crimes are on the rise. Personal vulnerability drowns out the fear of censorship.

Under what circumstances should polite debate be deemed a luxury we can no longer afford?  If Essig had written that relying solely on polite debate and eschewing other forms of action may be a luxury we cannot afford at certain times, I'd agree wholeheartedly.  But unless we're in an emergency situation when polite debate is not a wise investment of time, I struggle to think of a context in which polite debate must be rejected as an unaffordable luxury.  Contrary to Essig's assertion that "[t]he right became its own precious snowflake when [Milo] Yiannopoulos talked about teenaged boys as sexual subjects who could consent to sex with adult men," I don't think that CPAC's withdrawal of an invitation to Yiannopoulos shows that conservatives also believe that certain beliefs are inappropriate for polite debate.  There are legitimate questions surrounding the wisdom of an organization's decision to provide a platform to a particular speaker, but that does not mean that it's categorically wrong to engage in a polite debate about having sex with boys.  There was nothing wrong with members of the Middlebury community condemning the decision to invite Charles Murray to campus; the problem is what happened after the invitation was extended and accepted.

Essig is right to point out that we have to be attentive to ensuring that those impacted by the views being expressed are equipped to participate meaningfully in the debate.  The proper response to such concerns is to remove barriers to participation and empower traditionally marginalized members of the community; the proper response is not to dismiss polite debate as an unaffordable luxury.

March 18, 2017 in Vischer, Rob | Permalink

Thursday, March 16, 2017

Deans of Catholic law schools object to elimination of LSC

Last week, the deans of 25 Catholic law schools delivered a letter to Mick Mulvaney, Director of the Office of Management and Budget, objecting to the elimination of the Legal Services Corporation.  With today's news, we have decided to release that letter publicly.

March 10, 2017

Mick Mulvaney

Director, Office of Management and Budget

725 17th Street, NW Washington, DC 20503

 

Dear Mr. Mulvaney:

We write as deans of Catholic law schools in the United States to urge you to maintain funding for the Legal Services Corporation (LSC), the largest funder of civil legal aid in our nation.

The LSC’s 43-year history reflects a bipartisan commitment to address our nation’s glaring access to justice problem. LSC-funded providers have provided a voice to millions of low-income Americans who could not otherwise have afforded legal representation in the midst of some of life’s most harrowing circumstances.  The most frequent cases involve family law (e.g., protecting victims of domestic violence, guardianship proceedings), housing (e.g., landlord-tenant disputes, renegotiating loans to prevent foreclosure), helping military families with a variety of legal needs, and consumer issues (e.g., protecting the elderly and vulnerable from being victimized by unscrupulous lenders).  These providers help people who live in households with annual incomes at or below 125% of the federal poverty guidelines, a category that includes almost one in five Americans. 

We recognize the need for difficult fiscal decisions, and the LSC has already worked creatively and diligently to do more with less. From 2007 to 2016, funding per eligible person decreased from $7.54 to $5.85. In 2016, Americans spent millions more on Halloween costumes for pets than on LSC grants. 

Further cuts to the LSC would exacerbate a justice gap that remains deeply problematic for a nation committed to the rule of law. According to the World Justice Project’s survey data, the United States ranks dead last (36th out of 36) among high-income countries on the question of whether people can access and afford civil justice.  Though LSC-funded programs helped 1.8 million people in 2015, recent studies indicate that 80 percent of the civil legal needs of the eligible population are not being met. 

The justice gap should concern all Americans, but we take a special interest in the problem as leaders of our nation’s Catholic law schools. Though we represent law schools of various sizes, with unique histories, serving distinct communities in different regions of the country, we share a commitment to make the justice system more accessible to the poor.  This is not just a matter of good citizenship or professional duty, but Catholic identity. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58)  Our legal aid clinics, pro bono programs, and many other school-specific initiatives bear witness to this commitment.  Closing the justice gap also relies on support from state and local governments, law firms, foundations, and a broad spectrum of private philanthropy.  

The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s core commitments. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168)  By helping ensure access to our justice system for citizens who could otherwise not afford legal representation, the LSC empowers individuals and families to contribute to the common good by giving them more control over their own lives.  The LSC promotes justice by leveling the playing field for all Americans. 

A growing body of research demonstrates that investment in civil legal aid yields significant economic benefits for state and local governments. To cite just three of the conclusions supported by recent research:

  • Civil legal aid reduces repeat incidences of domestic violence, thus reducing public spending on medical care, special education and counseling for affected children, and police resources.
  • Through representation in child welfare proceedings, civil legal aid saves public money by helping children leave foster care more quickly.
  • Housing court representation by civil legal aid attorneys saves public money by reducing evictions, unjust foreclosures, and homelessness.

It also bears noting that our support for the LSC does not emanate from our agreement about politics. Over its history, the LSC has been the subject of debates that have led Congress to restrict the permissible scope and aim of funded programs.  Included among the activities that the LSC may not fund are lobbying, criminal cases, habeas corpus actions, labor organizing activities, abortion-related litigation, the representation of non-citizens (subject to limited exceptions), class actions, prisoner litigation, welfare reform, and redistricting.  While we may not agree with each other on the prudence of these limitations, LSC’s remaining statutory charge lies largely beyond partisan reproach. 

Each one of us could share stories of how LSC-funded organizations in our communities have changed lives for the better, not by government handout, but by equipping a trained advocate to come alongside those whose interests are too frequently disregarded and act as their voice, their counselor, and their champion. The LSC’s work provides a daily reminder of government’s capacity to affirm the dignity and worth of every American.  

As the late Justice Antonin Scalia stated in his remarks celebrating the organization’s 40th anniversary, the LSC “pursues the most fundamental of American ideals,” for “without access to quality representation there is no justice.” 

We appreciate your consideration of our request.

Sincerely,

 

Mark C. Alexander

Villanova University Charles Widger School of Law

 

Daniel F. Attridge

The Catholic University of America Columbus School of Law

 

Kathleen M. Boozang

Seton Hall University Law School

 

Kevin Cieply

Ave Maria School of Law

 

Annette E. Clark

Seattle University School of Law

 

Phyllis L. Crocker

University of Detroit Mercy School of Law

 

Matthew Diller

Fordham University School of Law

 

Stephen C. Ferruolo

University of San Diego School of Law

 

Jose Frontera

Pontifical Catholic University of Puerto Rico Law School

 

Alfredo Garcia

St. Thomas University School of Law (FL)

 

William P. Johnson

Saint Louis University School of Law

 

Michael J. Kaufman

Loyola University Chicago School of Law

 

Lisa A. Kloppenberg

Santa Clara University School of Law

 

Jane Korn

Gonzaga University School of Law

 

Maureen Lally-Green

Duquesne University School of Law

 

Paul McGreal

Creighton University School of Law

 

Rev. Lawrence W. Moore, S.J.

Loyola University New Orleans College of Law

 

Nell Jessup Newton

Notre Dame Law School

 

Vincent D. Rougeau

Boston College Law School

 

Stephen M. Sheppard

St. Mary’s University School of Law

 

Andrew L. Strauss

University of Dayton School of Law

 

John Trasviña

University of San Francisco Law School

 

William Treanor

Georgetown University Law Center

 

Robert K. Vischer

University of St. Thomas School of Law (MN)

 

Michael Waterstone

Loyola Law School, Los Angeles

 

Institutional affiliations are listed for identification purposes only.

March 16, 2017 in Vischer, Rob | Permalink

#remembermiddlebury: Sign the George/West Statement

Robbie George and Cornell West have written an elegant yet powerful statement in response to the debacle at Middlebury, inviting folks from political left, right and center to join on. Middlebury professor Allison Stanger was among the first to sign. I've just signed on. Here's hoping you will too. 

Sign the Statement: Truth Seeking, Democracy, and Freedom of Thought and Expression - A Statement by Robert P. George and Cornel West

March 14, 2017

The pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of the virtues of intellectual humility, openness of mind, and, above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs and who represent causes one disagrees with and points of view one does not share.

 

That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree—especially on college and university campuses. As John Stuart Mill taught, a recognition of the possibility that we may be in error is a good reason to listen to and honestly consider—and not merely to tolerate grudgingly—points of view that we do not share, and even perspectives that we find shocking or scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it.

 

None of us is infallible. Whether you are a person of the left, the right, or the center, there are reasonable people of goodwill who do not share your fundamental convictions. This does not mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there is no truth to be discovered. Nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who has not fallen into the idolatry of worshiping his or her own opinions and loving them above truth itself will want to listen to people who see things differently in order to learn what considerations—evidence, reasons, arguments—led them to a place different from where one happens, at least for now, to find oneself.

 

All of us should be willing—even eager—to engage with anyone who is prepared to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen and engage—especially if the person with whom we are in conversation will challenge our deeply held—even our most cherished and identity-forming—beliefs.

 

It is all-too-common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular communities. Sometimes this is done by questioning the motives and thus stigmatizing those who dissent from prevailing opinions; or by disrupting their presentations; or by demanding that they be excluded from campus or, if they have already been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like or simply walk out and refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. But before exercising that right, each of us should ask: Might it not be better to listen respectfully and try to learn from a speaker with whom I disagree? Might it better serve the cause of truth-seeking to engage the speaker in frank civil discussion?

 

Our willingness to listen to and respectfully engage those with whom we disagree (especially about matters of profound importance) contributes vitally to the maintenance of a milieu in which people feel free to speak their minds, consider unpopular positions, and explore lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and groupthink, both of which are toxic to the health of academic communities and to the functioning of democracies.

 

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University.

Cornel West is Professor of the Practice of Public Philosophy in the Divinity School and the Department of African and African- American Studies at Harvard University.

 

If you would like to join Professors George and West as a public signatory to this statement, please submit your name and title and affiliation (for identification purposes only) via email to jmadison@Princeton.edu. Open to all to sign.

If you signed on to the statement but do not yet see your name listed here, please check back later. We're working diligently to manage the large volume of signatories to this statement.

March 16, 2017 in Bachiochi, Erika | Permalink

Hemingway on Judge Watson's TRO

It's a sad comment on the state of the federal judiciary when a non-lawyer journalist can give a more doctrinally persuasive analysis of the constitutionality of an executive order than can a federal judge.  See Mollie Hemingway's analysis (here) of Judge Derrick Watson's opinion granting a TRO against the enforcement of the Trump administration's revised travel ban.  Watson purports to apply the Supreme Court's test for Establishment Clause violations set forth in Lemon v. Kurtzman.  As Hemingway observes, "[Judge] Watson says [the executive order] fails the first part of the [Lemon] test. Yet the idea that the executive order has no secular purpose is laughably wrong. One can disagree with the executive order or its goals without denying that those goals are secular."  Having the self-awareness and the discipline to separate political disagreement with a law from legal critique of the law has, of course, been something that judges have struggled with, especially since the latter half of the twentieth century.  Sadly, Watson's opinion does little to restore the public's confidence in the judiciary's comprehension of its vital but limited role in our constitutional order.

March 16, 2017 | Permalink

Wednesday, March 15, 2017

Villanova's Eleanor H. McCullen Center for Law, Religion and Public Policy

Nice news out of Villanova (press release here), where the Widger School of Law has named its Center for Law, Religion and Public Policy after Eleanor H. McCullen in recognition of $5 million in gifts from her husband, Joseph T. McCullen, Jr. Among her many remarkable achievements, Mrs. McCullen was the plaintiff in McCullen v. Coakley, the 2014 case in which the Supreme Court unanimously struck down a Massachusetts abortion clinic buffer zone statute. The naming of the Center in her honor is a wonderful tribute to a pro-life and free speech champion.

March 15, 2017 in Moreland, Michael | Permalink