Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, June 30, 2015

Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment

In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?

This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.

June 30, 2015 in Perry, Michael | Permalink

Friday, June 5, 2015

On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers

This paper was my contribution to the conference on “The Scope of Religious Exemptions,” hosted by the Bowling Green State University Department of Philosophy, April 17-18, 2015.  I explain in the paper that both the constitutional law of the United States and the political morality of human rights converge on the conclusion that government may not grant conscience-protecting exemptions only to religious believers.

June 5, 2015 in Perry, Michael | Permalink

American Religious Freedom: Reflections on Koppelman and Smith

This review essay, Review of Politics 77 (2015), 287-299, may be of interest to MOJ readers.  The abstract:

Among contemporary scholars of American religious freedom, Andrew Koppelman and Steven Smith are two of the most esteemed.  In their respective books -- Koppelman's Defending American Religious Neutrality (Harvard 2013) and Smith's The Rise and Decline of American Religious Freedom (Harvard 2014) -- they address a broad range of important issues.  Space limitations constrain me to be selective in this review essay.  I comment here on what Koppelman and Smith say, and don’t say, about two of the most fundamental issues concerning American religious freedom:  the meaning of the nonestablishment norm and the constitutionality of granting conscience-protecting exemptions only to religious believers.

June 5, 2015 in Perry, Michael | Permalink

Sunday, May 11, 2014

Rawls, Political Liberalism, and the Family

In August 2012, Robby George recommended (here) an article by a former student of his, Matthew O'Brien--an article on political liberalism and same-sex marriage--that had just been published in the British Journal of American Legal Studies.  A response to O'Brien's article has now been published, also in the British Journal Of American Legal Studies, by Greg Walker of Cardiff University (Wales, U.K.).  The title:  Rawls, Political Liberalism, and the Family.  Walker writes, in an e-mail message to me, that his response "demonstrates deep flaws in O'Brien's reading of Rawls and of aspects of U.S. constitutional law."  Walker's article is available here.

May 11, 2014 in Perry, Michael | Permalink

Friday, May 2, 2014

Religion and Same-Sex Marriage

To quote Mr. Zimmerman:  The times, they are a-changin'.

Many MOJ readers will be interested, I think, in this report.  Note that the report links to a transcript of the proceedings.

May 2, 2014 in Perry, Michael | Permalink

Thursday, April 24, 2014

Civil Same-Sex Marriage: A Catholic Affirmation

That's the title of a new article by Lisa Fullam, D.V.M., Th.D., who teaches moral theology at the Jesuit School of Theology at Berkeley.  Fullam's research interests include virtue ethics, medical and sexual ethics, the intersection of ethics and spirituality, and Ignatian spirituality.

Here's the abstract of Fullam's article:

Many Catholic contributions to the debate over civil same-sex marriage are too broad or too narrow. Too broad:  civil same-sex marriage is sometimes described as parallel to same-sex marriage in the Church.  Too narrow:  some Catholic contributions to the discussion have centered on reproductive capacity, ignoring Catholicism’s rich tradition which values marriage beyond procreation.  Here, I consider Catholic moral tradition on civil law:  civil law is approached in light of the common good, expressed in contemporary societies in terms of equal civil rights.  Second, I examine magisterial contributions to the public debate, which are framed in terms of a reading of natural law based in the Scriptural interpretation of Pope John Paul II.  Such religious arguments may serve as normative for marriage within the Church, but do not reflect Catholic norms for civil law.  Finally, I offer reasons Catholics might advocate civil same-sex marriage.

April 24, 2014 in Perry, Michael | Permalink

Saturday, March 29, 2014

Griffiths on Rodriguez

Paul J. Griffiths is the Warren Chair of Catholic Theology at Duke University.  Richard Rodriguez is ... well, if you don't already know but follow the link below, you will know.

In First Things, Griffiths has a wonderful review, here, of Rodriguez's new book, Darling:  A Spiritual Autobiography.  An excerpt from Griffith's review:


Among the impurities the Church might want to cleanse herself of is people like Rodriguez, he thinks, because he prefers to share his love and his bed and his life with a man rather than a woman.  He takes the Church to be wrong doctrinally about homosexual acts, and often wrong, too, in what it teaches about women.  He would like the Church to take instruction on these matters, as Jesus also did, from Mary, another darling in these pages.  And he thinks that if it did, the Church’s self-shrouding fear might grow less and its loving embrace of pain might show itself more clearly.

I don’t agree with every position taken in Darling, or with every argument offered.  On Islam, I suspect that what’s needed at the moment isn’t emphasis on the similarities among the three so-called Abrahamic religions as desert faiths, real though these are, but rather on difference and complementarity.  The recent work of Rémi Brague on this, especially On the God of the Christians (and on one or two others), is especially instructive.  On homosexuality and homosexual acts, by contrast, I think Rodriguez much closer to being right than not.  Insofar as such acts are motivated by and evoke love, they are good and to be loved; insofar as they do not, not. In this, they are no ­different from ­heterosexual acts.

There are other interesting differences between the two kinds of act.  But if you think, as Rodriguez seems to, and I do, and all Catholics should, that we live in a devastated world in which no sexual acts are undamaged, free from the taint of sin and death and the concomitant need for lament, then the fact that ­homosexual acts have their own characteristic disorder is no ground for blindness to the goods they enshrine.  Gay men should, of course, darling one ­another; those of us whose darlings are of the opposite sex should be glad that they do, and glad of instruction in love by the ways in which they do.  Love is hard enough to come by in a devastated world without encouraging blindness to its presence.


Again, the entire review, in First Things, is here.

March 29, 2014 in Breen, John, Perry, Michael | Permalink

Saturday, March 22, 2014

The Abortion Cases, Revisited

I just posted a paper to SSRN that will be of interest, I think, to some MOJ readers.  The paper is available here.  The abstract:

In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.

Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs—Human Rights Watch—has answered in the affirmative.

Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?

Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court—five justices—refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The conclusion I reach in this paper—that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted—is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment—with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court. . . . Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States”—discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. A list of the papers is available here.

March 22, 2014 in Perry, Michael | Permalink

Friday, February 28, 2014

A New Stance on Homosexuality?

That question was in the subject line of an e-mail I received this afternoon from the Jesuit magazine America.  The reference, it turned out, was to an article, in the new issue, by John Langan, S.J., who is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University.  The article--which is titled See the Person:  Understanding Pope Francis' Statements on Homosexuality--will be of much interest to many MOJ readers (and bloggers).  As Larry Solum says:  Highly Recommended!  The article is available here.


A related piece in the same issue--an editorial, titled When the Law is the Crime--is here, arguing vigorously that "supporters of traditional marriage must denounce unjust discrimination against homosexuals."  An excerpt:

"It is especially disturbing that such legislation is immensely popular in predominately Christian countries like Uganda, where 40 percent of the population is Roman Catholic and the Catholic bishops have sent mixed signals about the legislation. When the bill was first considered in 2009, Archbishop Cyprian Lwanga of Kampala, speaking on behalf of the Catholic bishops’ conference, said it was 'at odds with the core values' of Christianity. When the bill was reintroduced in 2012, however, the Uganda Joint Christian Council, which includes Catholic, Anglican and Orthodox bishops, expressed support for the bill. Archbishop Ignatius Kaigama of Jos, Nigeria, meanwhile, has praised President Goodluck Jonathan for his 'courageous and wise decision' to sign the new law in that country."

February 28, 2014 in Perry, Michael | Permalink

Thursday, February 20, 2014

Journal of Law and Religion

 I am delighted to annlounce that Volume 29, Issue 1, of the Journal of Law and Religion is now available.  All of the articles are available online through the JLR's Cambridge Journals Online website, here.  All articles will be accessible without charge for the first two months.  Print copies should ship to subscribers in the coming week.



February 20, 2014 in Perry, Michael | Permalink