Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, November 17, 2017

New Empirical Study on Religious Freedom Cases Post-Hobby Lobby (by Luke Goodrich and Rachel Busick)

Two attorneys at the Becket Fund for Religious Liberty — Luke Goodrich and Rachel Busick — have just posted one of the first empirical studies of federal religious freedom cases since Hobby Lobby.

Some critics of Hobby Lobby predicted that the decision would open the floodgates to a host of novel claims, transforming religious freedom from a shield for protecting religious minorities into a sword for imposing majoritarian values. But this study finds those dire predictions to be unsupported. Instead, it finds that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. The study also highlights several interesting doctrinal developments in recent litigation over RFRA, Trump’s travel ban, and the Establishment Clause. 1st

The most intriguing empirical research tells us something new, such as that the conventional wisdom is mistaken or overstated.  That is true here, as Goodrich and Busick reach this conclusion:

[Hobby Lobby] has not prompted a flood of new litigation by Christians or for-profit corporations. If anything, its main effect has been to provide more protection for religious minorities like the Native Americans who won the right to use eagle feathers in McAllen, or the Muslim prisoner who won the right to grow a beard in Holt. These religious minorities were the main religious liberty claimants before Hobby Lobby, and they remain the main religious liberty claimants afterwards. Ironically, then, the main beneficiaries of the win for Christian claimants in Hobby Lobby may be non-Christian religious minorities.

You can find the full article here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067053. I highly recommend it!  I’m see that it has already drawn more than 150 downloads.  Add to the statistics by downloading it yourself today.

November 17, 2017 in Sisk, Greg | Permalink

Tuesday, November 14, 2017

David Brooks on the "Siege Mentality"

Siege_of_Lisbon_by_Roque_Gameiro

[The Siege of Lisbon, by Roque Gameiro (1917)]

David Brooks has published an insightful warning of the mutually repelling characteristics of the true believers on both extremes of the political spectrum today.  In today’s New York Times (here), Brooks calls this behavior the “Siege Mentality,” which “starts with a sense of collective victimhood” that feeds “a deep sense of pessimism” and “floats on apocalyptic fear.”

This approach is seductive, offering a kind of a false high that, like other misguided addictions, proves self-destruction:  “The odd thing is that the siege mentality feels kind of good to the people who grab on to it. It gives its proponents a straightforward way to interpret the world — the noble us versus the powerful them.” But, in the end, “[g]roups smitten with the siege mentality filter out discordant facts and become more extreme versions of themselves, leading to further marginalization.”

Worst of all, those who surrender to the Siege Mentality lose their own souls, becoming the opposite of what they sincerely believed themselves to be at the beginning.  “Evangelical Christians, for example, had a humane model for leadership — servant leadership — but, feeling besieged, they swapped it for Donald Trump, for gladiator pagan leadership.”

As Catholics, we need to remember that faithfully standing by what we think is right need not fall into a hateful disregard for those who disagree or a willingness to compromise our principles by temporary political alignments with those whose past conduct and present behavior display contempt for those very principles.

November 14, 2017 in Sisk, Greg | Permalink

Thursday, November 9, 2017

Bolshevism is Back!

In Iron Curtain: The Crushing of Eastern Europe, 1944-1956, Pulitzer Prize-winning historian Anne Applebaum tells the simultaneously captivating and tragic story of the degradation of Eastern Europe as it was absorbed into the Soviet empire after World War II. In little more than a decade, the vibrant and rich cultures of many Eastern European nations were stripped to the bone so that they could be reincarnated as totalitarian systems beholden to a communist ideology.

In a 2014 post here at Mirror of Justice about Applebaum’s award-winning book, I highlighted the antipathy of Soviet Lenin
occupiers to the Catholic Church in Poland and Hungary, precisely because “[r]eligious leaders were a source of alternative moral and spiritual authority.” Following the Leninist path taken earlier by the 1917 Bolsheviks, the Soviet occupiers of Eastern Europe were bent on “crushing” civil society, banishing tradition, suppressing diversity of thought, and burning down all institutions. Only then could they sow the new communist seed into the freshly scorched earth.

Earlier this week in the Washington Post, Anne Applebaum drew upon her considerable historical wisdom to warn us about the resurgence of Bolshevism with its nihilistic attitude of destruction in today’s western society and in the United States. In a column titled 100 Years Later, Bolshevism is Back. And We Should Be Worried, Applebaum reminds us that the ascendance of Bolshevism in Russia in 1917 came suddenly and with little warning. The economic and cultural devastation that Lenin and the Bolsheviks brought to Russia came not through a popular movement but rather by the calculated extremism of a chaos-worshipping minority. The popular and moderate regime that initially succeeded the Czar was suddenly swept away by the intransigent Bolshevik leaders, who brooked no compromise, reveled in smashing everything before them, and boldly seized power for a fanatical minority.

The signature characteristic of Bolshevism was then (and remains today) not its socialist ideology as much as its uncompromising hatred of anything and everything that stands in the way of absolute power. The Bolshevik game-plan is a cynical play for power by fomenting chaos and disrupting civil society. Thus, as Applebaum explains, the neo-Bolsheviks of today can be identified not so much by liberal/left or conservative/right ideology but by their origins on “the extremist fringes of political life” and their desire “to overthrow existing institutions.”

To be sure, heirs to Bolshevism can be found on the far left of American political life, especially on campuses where the Marxist fringe, as described by Applebaum, “policies the speech of its members, fights to prevent students from hearing opposing viewpoints, and teaches a dark, negative version of American history, one calculated to create doubts about democracy and to cast shadows on all political debate.” But while we should be troubled by this development and worry about its foothold on the edges of the Democratic Party, it has not yet tasted power.

By contrast, the Bolshevism of the American right has grasped political power. The key strategy of these modern Bolsheviks of the right is what Applebaum calls their adoption of “Lenin’s refusal to compromise, his anti-democratic elevation of some social groups over others and his hateful attacks on his ‘illegitimate’ opponents.” As Applebaum notes, Stephen Bannon has Bannon
been rather candid by expressly comparing himself to Lenin, saying he has the same goal of “bring[ing] everything crashing down.” Consider the deliberate chaos promoted by the Trump White House team, the pattern of falsehoods in perpetuating political myths, and the constant attempts to delegitimize political opponents while provoking outrage by a small base of true believers. As a particular worry to people of faith and conscience, these neo-Bolsheviks are “often not real Christians, but rather cynics who use ‘Christianity’ as a tribal identifies, a way of distinguishing themselves from their enemies.”

The Russian Bolshevik revolution in 1917 shocked all observers with its sudden fury and unexpected success, while lacking anything approaching majority support in Russia. If we are not careful, so too the Trump insurgency might still succeed in its authoritarian agenda despite waning support from a tiny minority of the population. As Applebaum warns, we must not be complacent:

At the beginning of 1917, on the eve of the Russian revolution, most of the men who later became known to the world as the Bolsheviks were conspirators and fantasists on the margins of society. By the end of the year, they ran Russia. Fringe figures and eccentric movements cannot be counted out.

November 9, 2017 in Sisk, Greg | Permalink

Tuesday, February 21, 2017

The Beatitudes: The Trump Rewrite

Minnesota's very own Garrison Keillor (of Prairie Home Companion fame) offers a revision of the Beatitudes in Trumpian style.  Herewith a sample:

The Lord is my shepherd. Okay? Totally. Big league. He is a tremendous shepherd. The best. No comparison. I know more than most people about herding sheep. And that’s why I won the election in a landslide, and it’s why my company is doing very, very well. Because He said, “I’m with you, Donald. You will never want.”

Find the rest at the Washington Post site here.

February 21, 2017 in Sisk, Greg | Permalink

Monday, January 30, 2017

We've Been There

When it comes to religious discrimination, we Catholics have been there before in American history.  We’ve been reviled as ignorant and subservient subjects of a foreign monarchy.  We’ve been subjected to second-class status.  We’ve been accused of undermining American values.

People of good faith will have differences of policy on national security, immigration, educational policy, etc.  The need for exercise of prudential judgment in implementing such policies must be acknowledged. Liberty

But we as Catholics above all others have a moral duty to stand up against discrimination on the basis of faith, whether blatantly expressed or hidden with a thin veil.

As Professor Robert George has said, “Let us, Muslims and Christians alike, forget past quarrels and stand together for righteousness, justice, and the dignity of all.”  When too many would like to divide, and when others act through ignorance or incompetence in a manner that divides us, we should choose the path of unity and solidarity.

January 30, 2017 in Sisk, Greg | Permalink

Monday, October 17, 2016

Christianity Today: Speaking Truth to Trump

From Christianity Today (full article here):

What Trump is, everyone has known and has been able to see for decades, let alone the last few months. The revelations of the past week of his vile and crude boasting about sexual conquest—indeed, sexual assault—might have been shocking, but they should have surprised no one.

Indeed, there is hardly any public person in America today who has more exemplified the “earthly nature” (“flesh” in the King James and the literal Greek) that Paul urges the Colossians to shed: “sexual immorality, impurity, lust, evil desires, and greed, which is idolatry” (3:5). This is an incredibly apt summary of Trump’s life to date. Idolatry, greed, and sexual immorality are intertwined in individual lives and whole societies. Sexuality is designed to be properly ordered within marriage, a relationship marked by covenant faithfulness and profound self-giving and sacrifice. To indulge in sexual immorality is to make oneself and one’s desires an idol. That Trump has been, his whole adult life, an idolater of this sort, and a singularly unrepentant one, should have been clear to everyone.

And therefore it is completely consistent that Trump is an idolater in many other ways. He has given no evidence of humility or dependence on others, let alone on God his Maker and Judge. He wantonly celebrates strongmen and takes every opportunity to humiliate and demean the vulnerable. He shows no curiosity or capacity to learn. He is, in short, the very embodiment of what the Bible calls a fool.

Some have compared Trump to King David, who himself committed adultery and murder. But David’s story began with a profound reliance on God who called him from the sheepfold to the kingship, and by the grace of God it did not end with his exploitation of Bathsheba and Uriah. There is no parallel in Trump’s much more protracted career of exploitation. The Lord sent his word by the prophet Nathan to denounce David’s actions—alas, many Christian leaders who could have spoken such prophetic confrontation to him personally have failed to do so. David quickly and deeply repented, leaving behind the astonishing and universally applicable lament of his own sin in Psalm 51—we have no sign that Trump ever in his life has expressed such humility. And the biblical narrative leaves no doubt that David’s sin had vast and terrible consequences for his own family dynasty and for his nation. The equivalent legacy of a Trump presidency is grievous to imagine.

October 17, 2016 in Sisk, Greg | Permalink

Wednesday, July 6, 2016

Social Justice Defies Simple Political Categorization

As a needed reminder that Christian values and social justice cannot comfortably be forced into neat partisan packages, two recent newspaper editorials may appear to point in opposite directions but actually illustrate that neither end of the political spectrum today may capture Gospel values or reflect genuine social justice.

One editorial suggests that the reliance of the political left on government-centric solutions fails to advance social justice on prudential grounds, while the other pointedly reveals that the presumptive nominee of the party that has been the bastion of the political right is now professing a "theology" bearing no resemblance to the Gospel of Jesus Christ.  Herewith a sample of each:

Jay Miller in the Milwaukee Journal-Sentinel writes:

The idea of slapping the wealthy around and righting all perceived injustices sounds terrific. Putting it into action through the heavy-handedness of government intervention often tells a different story: Economic stagnation that punishes the least well-off first, exactly the ones who are supposed to benefit from populist policies.

One need look no further than Venezuela, Brazil and Argentina to see what current or former populist leaders of those countries have wrought with their so-called egalitarian policies.

For all the faults one can find with capitalism and free trade, they work better than any other system and that's something we should never forget.

Peter Werner writes in the New York Times on “The Theology of Donald Trump”:

Time and again Mr. Trump has shown contempt for those he perceives as weak and vulnerable — “losers,” in his vernacular. They include P.O.W.s, people with disabilities, those he deems physically unattractive and those he considers politically powerless. He bullies and threatens people he believes are obstacles to his ambitions. He disdains compassion and empathy, to the point where his instinctive response to the largest mass shooting in American history was to congratulate himself: “Appreciate the congrats for being right.” ***

Mr. Trump’s entire approach to politics rests on dehumanization. If you disagree with him or oppose him, you are not merely wrong. You are worthless, stripped of dignity, the object of derision. ***

The calling of Christians is to be “salt and light” to the world, to model a philosophy that defends human dignity, and to welcome the stranger in our midst. It is to stand for justice, dispense grace and be agents of reconciliation in a broken world. And it is to take seriously the words of the prophet Micah, “And what does the Lord require of you but to do justly, and to love kindness and mercy, and to humble yourself and walk humbly with your God?”

July 6, 2016 in Sisk, Greg | Permalink

Monday, February 29, 2016

With Donald Trump, The Wolf Comes as a Wolf

European_grey_wolf_in_Prague_zoo

 

“For some of us, principle and country still matter.”

These words are from Hewlett-Packard chief executive Meg Whitman (Chair of the Finance Committee for Chris Christie for President), when she denounced New Jersey Governor Chris Christie’s “astonishing display of political opportunism” in endorsing Donald Trump, a “dishonest demagogue” who “would take America on a dangerous journey.”

The Trump steamroller moves on to Super Tuesday tomorrow. The increasingly desperate campaign to deny Donald Trump the Republican nomination for President has belatedly targeted his scandalous habit of taking unfair advantage of people in his questionable business dealings.

The list of transgressions runs long. Trump tried to use eminent domain and employed construction crews who smashed her windows and set fire to the roof, all in an attempt to bully an elderly woman who refused to surrender her house. Trump wanted to pave the land over for a limousine parking lot alongside his casino. Trump charged students tens of thousands of dollars in “tuition” to a Trump University, while promising students they would have the best professors “handpicked by me” and would learn his secrets to getting rich with real estate. Instead, they got little more than a photo opportunity with a cardboard cutout of Donald Trump.

Moreover, Trump has built much of his financial empire taking advantage of human fallibility, reaping hundreds of millions from lower- and middle-income people who have lost money and sometimes their livelihoods gambling at his network of casinos. Trump commented on his casinos in one of his books: “I’ve never gambled in my life. To me, a gambler is someone who plays slot machines. I prefer to own slot machines. It’s a very good business being the house.” As he later said on his television show: “How much have I made off the casinos? Off the record, a lot.”

And, of course, there is the Trump sleaze. Consider the women exploited at Trump casino strip clubs.

But there are still bigger reasons to fear the prospect of a Trump Presidency:

  • Praising and Quoting Dictators: When asked about Russian Dictator Vladimir Putin jailing of his opponents and reporters, Trump says: “He’s running his country and at least he’s a leader, unlike what we have in this country.” Quoting World War II Fascist Dictator Mussolini, Trump tweeted just yesterday “It is better to live one day as a lion than 100 years as a sheep.” When asked about it, Trump insists: “It’s a very good quote. I didn’t know who said it, but what difference does it make if it was Mussolini or somebody else — it’s a very good quote.”
  • Creating an Enemies List: Of the Washington Post and New York Times for publishing unfavorable news about him, Trump says only a few days ago: “And believe me, if I become president, oh, do they have problems, they’re gonna have such problems!” Saying of the owner of the Chicago Cubs: “I hear the Rickets family, who own the Chicago Cubs, are secretly spending $’s against me. They better be careful, they have a lot to hide!”
  • Promising War Crimes and Torture: During his campaign Trump says: “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.” And to interrogate persons suspected of terrorist acts, Trump says he would “bring back a hell of a lot worse than waterboarding.”
  • Advocating a Philosophy of Vengeance: Trump writes in one of his books: “For many years I’ve said that if someone screws you, screw them back. When somebody hurts you, just go after them as viciously and as violently as you can.”
  • Repealing Free Speech Protections for the Press: Trump says: “I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
  • Denying Religious Freedom to Minority Religions: While he claims to support religious liberty, Trump does not include everyone. Most notable was his “calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” He flirted with requiring Muslim Americans to register with the government.
  • Hesitating to Disavow White Supremacists: When asked about the endorsement of him by David Duke, former leader of the KKK just yesterday, Trump responded: “I don’t know anything about what you’re even talking about with white supremacy or white supremacists. If you would send me a list of the groups, I will do research on them and certainly I would disavow if I thought there was something wrong.”

In one of the late Justice Scalia’s most famous passages from his decades on the Supreme Court, he drew upon Christ’s warning in Matthew 7:15 about false prophets who “come to you in sheep’s clothing, but inwardly they are ravening wolves.” In this dissenting opinion, Justice Scalia observed that threats to the constitutional separation of powers frequently appear before the Court “clad, so to speak, in sheep’s clothing.” In other words, the potential “to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis.”

Justice Scalia closed with these haunting words: “But this wolf comes as a wolf.” 

 

[Note: I’d prepared this post over the weekend, before Rick Garnett’s response to inquiries from a longtime MoJ reader. For an earlier MoJ post on Trump, see here.  Also, in the initial post, I confused the “Whitmans”; Meg Whitman is the one quoted above, while former New Jersey Governor Christine Todd Whiteman has also said she is “ashamed” of Governor Christie’s endorsement of Trump.]

February 29, 2016 in Sisk, Greg | Permalink

Friday, February 26, 2016

Bernie Sanders’s Proposal to Suffocate Religious Higher Education

When the leftward end of the American political spectrum proposes yet another government program or entitlement, the budgetary costs and the dangers of ever bigger government tend to be immediately apparent.

That's not to say, of course, that those in elite circles or the mainstream media are quick to ask those impertinent questions about saddling future generations with ever-more debt and unsustainable entitlements or about how much liberty should be sacrificed to accommodate the demands of larger government. In each election cycle, the left offers to add still more entrees to the buffet of government benefits, promising an ever-bigger “free lunch.” And the generally sympathetic media tends to hype yet another government benefit, focusing primarily on those who would directly benefit, while downplaying the costs and how to pay for it.

Nonetheless, for those who are paying attention and especially for those who are sensitive to the cumulative harm imposed on a healthy society that comes from ever-increasing dependence on government, the downsides are usually easy to identify.   When senator and socialist candidate Bernie Sanders proposes free tuition for all public universities and colleges, for example, what criticism follows is likely to focus first on the enormous costs and next on the creep of federal control over higher education.St.Thomas.1024px-St_Thomas_campus

But, sometimes, an even-greater threat lurks below the surface, not so easily detected. By definition, unanticipated consequences tend to be, well, not anticipated. The sad fact remains that most Americans — definitely including those who populate the opinion-leading sectors of government, academia, and the media — have but a passing familiarity with economic side-effects or any appreciation for collateral social consequences that follow new social experiments. 

For this reason, most are unlikely to perceive the grave danger that the Sanders proposal poses to intellectual and cultural diversity in American higher education and particularly to faith-based colleges and universities.

Continue reading

February 26, 2016 in Sisk, Greg | Permalink

Tuesday, December 8, 2015

Trump? No.

On the Republican presidential campaign, some are saying that “Silly Season” should be over. But then the “Trump Spectacle” stopped being funny quite some time ago.

Since I became of age to vote, I have cast my ballot for the Republican nominee for President on every occasion (a total of nine times). I am proud to say that I was one of the first to join what became the Reagan Revolution, working as a teenager in the unsuccessful Reagan campaign of 1976 and then being chosen as the second-youngest delegate to the Republican National Convention which nominated Ronald Reagan for President in 1980. Trump5440993294_2206507033_o

The Republican Party is blessed with one of the strongest set of candidates ever presented for the highest elected office in our country.  We have successful and innovative governors, active and effective Senators, demographic diversity, youthful vigor and wise seniority, and a host of interesting proposals to restore growth and leadership to the United States.  Then there is Donald Trump, who displays none of this.

Those who know me, know that I am hardly a liberal-leaning critic or left-wing fellow traveler. Nor would I be characterized as someone who easily takes offense at typical political rhetoric.

Within the liberal echo chamber that is the American legal academy, I frequently sound a dissenting note. I often rebel against political correctness, especially when used as a trump card to suffocate dissenting viewpoints that make the academic elite uncomfortable. I share the frustration (and even occasional resentment) of a majority of Americans toward a political class that presumes it has all the answers (always more law and government) and insists that it holds the moral high ground (again always with more law and government), while it arrogates more power and revenues to itself.

I too am worried by this feckless President’s unstable foreign policy which has continually weakened our nation’s position in the world, lost so many opportunities to strengthen security, and failed to take sustained and meaningful action against international dangers.

It can be lonely in higher education to be an orthodox Catholic; defender of the unborn; supporter of free markets; believer in America as a force for good in the world; questioner about do-gooder campaigns that rely on imposing rules and building distant bureaucracies; and resister to judicial overreaching. It is often tiring and sometimes discouraging.

But no level of frustration, no justifiable venting, no disappointment in false promises by politicians, no discouragement about the hegemony of the cultural and media elite – none of this – can justify casting a vote for a person who repeatedly and flagrantly offends standards of decency and who exhibits no moral seriousness and uplifting principle.

Donald Trump speaks with contempt for women, making comments on appearance (and even beyond) that no gentleman would ever think, much less utter.

Trump regularly paints those in the minority or on the margins into his picture of scapegoats, an ignorant and cowardly posture that fails to genuinely engage with the problems facing our country.

When a prominent figure slurs Muslim Americans by repeatedly broadcasting the lie that thousands of them in New Jersey celebrated the terrorist attacks of 9/11, every decent person is morally obliged to speak up as a witness for the truth. When a presidential candidate speaks approving of an outrageously unconstitutional proposal to force persons of a particular faith to register with and be monitored by the government, anyone who cares about religious liberty should be alarmed.

Our Muslim brothers and sisters in this country have demonstrated repeatedly by their actions and their words that they believe in the American Dream. For those who are interested in the truth about American Muslims, including their own views as shown in polls, I refer you to one of my works on religious liberty, which includes considerable data on the vibrant and encouraging role of Muslims in our American tapestry (here).

And after I wrote a draft of this post and circulated it to some colleagues for comments, Trump went a step further and called for banning any Muslim from even visiting the United States. Beyond how outrageous this is as a matter of principle, it displays disqualifying foolishness as a matter of foreign policy. Turkey, for example, is a member of NATO and an ally in the fight against ISIS. Trump would ban anyone from Turkey from entering the United States. Indonesia is one of the fastest rising nations in the world, with soaring educational achievements and an exciting new democratically-elected leader. It is becoming an icon of Muslim democracy. And, of course, Trump would blacklist all of them.

Nor can casual contempt for Latino immigrants and falsely portraying nearly all of them as criminals be left unanswered. Our nation has always been strengthened by immigrants, who today willingly take jobs that others turn down, show an entrepreneurial spirit, and reflect powerful family values. While some entered the country without proper documentation (a matter of justifiable concern), they did so for reasons that every American can respect, that is, to build a better life for themselves and their families.

And now Trump undermines our national stand against terrorism by calling for America to engage in blatant violations of human rights and openly commit war crimes.

He boasts that he would restore water-boarding of terrorist suspects, not as an interrogation technique but for the very purpose of imposing torture on those who supposedly deserve it.

Without any prompting, Trumps volunteers on national television that we should respond to terrorist attacks by killing (“take out”) the families of any terrorist.  If the United States were to initiate atrocities by executing parents, brothers and sisters, and children because a member of the family committed a violent act against innocents, we would have crossed the moral line to the same side as the terrorists.

Now and again, someone will ask me, who is voting for Donald Trump?  The answer, of course, is that no one is.  The voting hasn’t begun.  Especially in this chaotic pre-primary season with an unusually long list of candidates, the polls are an unreliable predictor of what will happen once caucusing begins and primaries are held.

The Republican Party is the genuine party of hope and change, with candidates who offer not merely a celebrity image but actually have a track record of meaningful and positive change.  Once the Republican nomination process actually begins, this is the message that will win; this is the face of the Republican Party.

December 8, 2015 in Sisk, Greg | Permalink