Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, July 18, 2024

The Republicans and the Pro-Life Cause in the Age of Trump

I published the following reflection a couple of months ago as part of a First Things magazine symposium on politics after the Dobbs decision. Regrettably, what I said has been fully confirmed by the events unfolding as part of the Republican National Convention, especially the re-drafting of the Republican Party's platform.

Donald Trump, in announcing his support for the IVF industry and his rejection of any federal legislation to protect babies from the lethal violence of abortion, has made it clear that he is not pro-life. Nor is he exactly pro-choice. He is, quite simply, pro-Trump. As anyone who has followed Trump’s career knows, the most fundamental thing about him is that he is transactional. The art of living is the “art of the deal.”

Trump’s message to his pro-life supporters boiled down to (and here I’ll translate for you), “Hey look, gals and guys, I upheld my end of the deal I made with you in 2016. Roe v. Wade is gone.” But now, with the demise of Roe activating the Democratic Party’s extremely pro-abortion base, a politician’s being genuinely pro-life—working for actual legal protection for unborn babies—appears to be a heavy political liability. So, Trump’s message is this: “I’ve got to get elected to save the country, so I’m not going to do anything to protect unborn babies. Whatever the states want to do about abortion—permit it, forbid it, permit it up to fifteen weeks, permit it up to birth—is fine with me.”

Trump has, effectively, endorsed Stephen A. Douglas’s concept of “popular sovereignty.”

So, it is incumbent on pro-life Americans to acknowledge the tragic fact that we do not have a pro-life presidential candidate representing a major political party in 2024. Trump has made it clear that he won’t help the pro-life cause, even incrementally, and Biden is utterly beholden to the abortion lobby.

Where does that leave the pro-life movement?

Whether Trump wins or loses, the future of the pro-life cause depends on whether there is a prominent Republican leader who is prepared to do today what Abraham Lincoln did in the face of the barbarism so fiercely defended by the Democrats of his day: defend the dignity of all members of the human family. With the pro-abortion base of the Democratic party so energized, and with a compliant media doing their bidding at every turn, it would take genuine courage—and high statesmanship—for a politician to provide the leadership that our cause needs if it is to weather hard times and build a broader base of support.

Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

July 18, 2024 | Permalink

Monday, June 24, 2024

The Tiresome Claim that Pro-Life Legal Measures Violate the Establishment Clause

Recently Caroline Corbin published an article "Religion Clause Challenges to Early Abortion Bans."  Larry Solum posted a link to the piece on his blog  and on Twitter.  In response, Rick Garnett graciously linked to my article "Abortion, Religion, and the Accusation of Establishment" (here).  Below is my response on Twitter to Corbin's piece, specifically to her claim that laws recognizing conception as the beginning of the life of a human being violate the Establishment Clause.  In the post-Dobbs era one can expect to see abortion proponents more and more frequently claim both a free exercise right to abortion and an establsihment clause limit on abortion restrictions.

The Establishment Clause claim is tiresome. The claim that legislation outlawing abortion is inherently religious and so violates EC is a mere assertion – an oft-repeated assertion, but one that has not gained intellectual substance with repetition.

Corbin’s paper is full of assertion, but not argument. She merely asserts that the Harris v. McRae line of reasoning (i.e. laws which coincide with religious tenets are not unconstitutional) is “not persuasive” (p. 47). She asserts that, unlike laws against theft and murder, there is no “genuine and legitimate secular reason” to outlaw abortion based on the premise that the life of a human being begins at conception.  Hedging her bets, she asserts that “ostensible secular reasons usually collapse back into the religious assumption.”  Of course, if these reasons “usually collapse” into religion but not always, then laws outlawing abortion can be supported by secular reasons. But she leaves this unexplored.

Plainly, her assertions are merely that, not conclusions demonstrated by argument.  Nowhere does she consider the scientific foundation for the premise that the life of a human being begins at conception – a premise located in the basic texts of embryology.  That people may also find support for this in the Bible, well, that’s Harris.

Corbin cites Sherry Colb for the idea that a proposition is “a religious not a scientific belief” if it is supported by religious people and not by “virtually every secular person” (p. 44).  She does not pause to consider the significance of the qualification “virtually.” Moreover, the identity of a person – or the label placed upon them -- does not demonstrate the nature of the idea itself (i.e. religious people hold scientific beliefs, and scientists hold religious beliefs).  This would require an argument based on epistemology that Corbin does not provide.

The 1964 Civil Rights Act would not have passed without the well-organized support of religious leaders including many Black Christian ministers.  Indeed, their very vocal support was explicitly Christian.  But that did not render the law or the idea of non-discrimination “religious” and so constitutionally out-of-bounds.

Corbin  refers to Lemon v. Kurtzman (p. 43) for the idea that to be constitutional a law must have a secular purpose, but then fails to distinguish between a legislator’s motive and the legislation’s purpose.  A legislator may be religiously motivated to vote in favor of a lower speed limit or more immigration or increased spending for public schools, but that does not make the purpose of these legislative acts “religious” in nature. Indeed, a lawmaker may be religiously motivated to vote in favor of laws that support the non-establishment of religion, but that does make the purpose of the legislation “religious.”  Laws against abortion may or may not be supported by a particular legislator’s religious motivation, but laws extending the prohibition against homicide to human beings in the womb are firmly supported by a sound, secular rationale.

 

June 24, 2024 | Permalink

Sunday, June 23, 2024

Fifteen years of the Annual Law and Religion Roundtable

Tempus fugit, and all that. I recently returned from Sabanville -- I mean, Tuscaloosa -- and the Annual Law and Religion Roundtable, which I've been organizing and hosting with Nelson Tebbe (Cornell) and our own Paul Horwitz for fifteen (!) years now.

We got the idea, if I recall correctly, from a workshop-style conference for younger property-law scholars that Ben Barros (now at Stetson) and Nestor Davidson (now at Fordham) put together out in Colorado. Each year -- well, we had to Zoom two of them, and miss one year altogether, because of COVID - we've held our version at a different school -- a "movable feast", as Paul likes to say! -- and exploited the on-site generosity of different colleagues.  Over the years, several hundred scholars -- from a variety of disciplines, at a range of career stages, with a variety of interests and perspectives -- have participated, and we've met from Stanford to Virginia to Toronto to Notre Dame (and a bunch of other places in between).

This tradition (!) has been -- for me, anyway! -- a highlight of the academic year. Notwithstanding disagreements about non-trivial questions, methodological differences, and a diversity of commitments and priors, the conversations have been productive and collegial, and the socializing and fellowship uplifting and encouraging. I've been particularly struck by (among other things) how strongly I've come to prefer the roudtable/workshop-type academic gathering to the panels-and-audience type (which is not to say I don't welcome your invitations to the latter!).

June 23, 2024 in Garnett, Rick | Permalink | Comments (0)

Friday, June 7, 2024

Kilpatrick on Institutional Neutrality and Institutional Fidelity at the University; Bray on the Common Law and the Catholic Intellectual Tradition

Kevin and I have two episodes on our Sub Deo et Lege podcast that might be of interest to readers here.

First, we interviewed Peter Kilpatrick, President of The Catholic University of America, concerning various questions about free speech, free inquiry, and university life and purpose. President Kilpatrick discussed two different models for the university (any university, secular or religious): institutional neutrality and institutional fidelity.

Second, we discussed with Professor Samuel Bray of Notre Dame Law School his recent piece on the role of the Catholic Intellectual Tradition on the common law (which came into full strength in a Protestant era). Among Sam's contributions in his piece, which he mentions in our chat, is that the influence is all the greater to the extent that the Catholic Intellectual Tradition is deemed something like the Christian Intellectual Tradition.

June 7, 2024 in DeGirolami, Marc | Permalink

Cathy Kaveny on "Dignitats Infinita"

Over at Commonweal, there is a group of recent pieces about the new document, Dignitas Infinita.  The contribution by Boston College's Cathy Kaveny, "Understanding the Audience", might be of particular interest.  Here is a bit:

Vatican interventions in secular human-rights discourse have generally had two purposes. The first is to rebut those who critique the UN Declaration and the human-rights regime it generated as alien impositions of a Western colonial framework on non-Western cultures. This is a charge sometimes raised by Arab and Asian countries that have very different understandings of the role and rights of women or the nature of acceptable punishment. It is also mounted by African countries that have different understandings of the basic structure of the family, including polygamy.

The Vatican’s second purpose is to resist the interpretation or expansion of universal rights in a purely individualistic or constructivist way—which would, in its view, be an unjustified imposition of certain elements of a Western world-view. In the Vatican’s view, rights are not determined by individual desires, no matter how strong they are. Nor are they designed to protect an individual’s right to construct his or her own identity without reference to objective goods, like the norms of biology, the well-being of other people, or a well-functioning community.

June 7, 2024 in Garnett, Rick | Permalink | Comments (0)

Tuesday, May 7, 2024

Some responses to Anthony Annett on Social Democracy and Catholic Social Thought

A little while ago, Anthony Annett had an essay in Commonweal called "The Theology of Social Democracy," the thesis of which was that "Catholic social teaching guides us beyond neoliberalism."  Put aside doubts one might have about whether "neoliberalism" has agreed upon content or is, instead, a protean epithet used to dismiss all views that have some consonance with human nature and experience; it is certainly the case that Catholic social teaching (correctly understood) guides us beyond "-isms" generally.

By "social democracy" Annett means "an economic system predicated on the belief that an economy must be underpinned not only by property rights but also by economic rights. More concretely, in a social democracy, the government supplies public goods, uses the welfare state to protect people from adverse economic circumstances, and promotes unions to make sure that workers can bargain for their fair share of economic progress."  Fair enough.  It is not controversial, even in the most "neoliberal" crannies of the Catholic intellectual and scholarly space, to note that the Church's proposals regarding the policy implications of the truth about the human person resonate with at least some aspects of "social democracy" and challenge some aspects of its alternatives.  It is true, as Annett writes, that the "Catholic social teaching forged a middle path between free-market libertarianism and socialist collectivism" (and, to be clear, statism).  There is much in Annett's essay about the "common good", "subsidiarity" (which is often misunderstood), and "integral human development" that is both timely and sound.

But, Annett's piece is undermined by a lot of straw-manning and factual mistakes.  He writes, for example, "[Social democracy] can be contrasted with the approach of free-market economics or economic libertarianism. Under those two systems, the only rights recognized are property rights. A free-market system might allow for a minimal social safety net to prevent outright destitution, but nothing more than that." But, there are no "systems" in the world where "the only rights recognized are property rights."  And, there are no market economies that provide "nothing more than" the minimal social safety net he describes.  There are no economic systems -- certainly, despite Annett's suggestions to the contrary, the United States is not such a system -- where the "free market" is not pervasively regulated.  Indeed, the economic system in the United States is acknowledged by those who examine the matter to be, in many ways, more regulated than the systems in some countries that Annett would characterize, I suspect, as "social democracies."

Annett claims that, in the Catholic tradition, "economic rights [are] the central rights, even before civil and political rights", but this is not supportable (and the sources he cites do not support the claim). His statement that, since the rise of "neoliberalism", "productivity and economic growth have been slower" is false (so long as one does not blame "neoliberalism" for the fact that the second war, and the rebuilding that followed, eventually ended).  He contends that one of the "pillars" of operationalizing Catholic social teaching and social teaching is "complete decarbonization" but has nothing (realistic or fact-tethered) to say about how this might happen, globally, so long as the PRC is uninterested in the project and so long as billions of people living in developing nations are not likely to welcome outsiders' edicts that they accept non-growth.  He calls for more labor-union power (again, this is a call that resonates with much in 20th century Catholic social thought) but says nothing about the fact that, in the United States anyway, the unions largely represent high-earning public-sector workers whose demands and expectations are costly to lower-income people not employed by governments.  (He also neglects the fact that, in the United States today, public-employee unions stymie reforms that Catholic social teaching calls for clearly, such as school choice.)  And, he overlooks the fact that the economic "system" he praises, in mid-century America, depended crucially on a labor force that was limited by the relative absence of competition from women, from immigrants, and from workers in developing countries.  There can be no welfare state of the kind Annett calls for without meaningful enforcement of boundaries, both geographical and communal.  The challenge of such enforcement is not mentioned in Annett's essay.

Annett concludes by saying that, to accomplish the changes he envisions, "[t]he political Left would need to return to its working-class roots, moving away from the politics of culture and identity—the politics favored by educated elites. The political Right, meanwhile, would need to rediscover the successes of Christian democracy, and turn away from neoliberalism and climate-change denialism."  There's something to this, I think (again, "neoliberalism" isn't really a thing and doubts about the feasibility anytime soon of global decarbonization does not make one a climate-change denier).  The key thing, it seems to me, is to appreciate that Catholic social teaching (correctly understood) is not "separate" from "social issues", "life issues", etc.  The Church's proposals are, at bottom, about the nature and destiny of the person - they are not just about economic arrangements and systems, and the proposals that do bear on such arrangements and systems are inseparable from those that bear on (e.g.) religious freedom, educational pluralism, and constitutional arrangements that constrain governments. 

Anyway . . . check it out.

May 7, 2024 in Garnett, Rick | Permalink | Comments (0)

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fifteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2024.  The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2024.

May 7, 2024 in Garnett, Rick | Permalink

Friday, May 3, 2024

Should there be Jewish classical schools?

The classical school movement, especially the Christian classical school movement, is proving to be a great success. This has given rise to a debate in the Jewish community as to whether it should be emulated. Should there be Jewish classical schools? A Jewish friend did me the honor of asking for my opinion. I'll share it here.

The best in and of Western civilization is the achievement and gift of the Jews. The principles that animated the building of Western civilization and inform its constitutive understandings are Jewish. It is, of course, true that Christianity embraced these principles and built the institutions of Western civilization. But Christianity did not invent them, nor did it revise them. (Indeed, they are central to Christianity itself. In that sense—a very profound sense—Christianity is a Jewish religion. I sometimes refer to it as “the other Jewish religion.”) Writers such as Eric Cohen, Rabbi Mitchell Rocklin, and my former student Rabbi Meir Soloveichik are right to give credit to Judaism for these principles and all the insights and achievements made possible by those--Jews and Christians alike--acting on a sound understanding of them and a faithful commitment and adherence to them.

I yield to no one in my appreciation and esteem for the great pagan philosophers and jurists of antiquity, above all Aristotle, Plato, and Cicero. But the foundational truths—the great insights—that made our civilization (its institutions, its moral and spiritual breakthroughs) possible did not come from them. They came from the Jews. Obviously, there is ethical monotheism itself—the greatest of all the gifts of the Jews. And then it was the Jews—no one else—who came to understand (we believers would say, “to whom it was revealed”) that the human person, though fashioned from mere dust of the earth, is nevertheless made in the very image and likeness of God.

As much as I honor Plato and Aristotle, it is not their teaching, but rather the teaching of the Jewish religion that instructs us on the source, foundation, meaning, and full implications of human rationality and freedom—and thus of the profound, inherent, and equal dignity of every member of the human family. Much the same is true of the understanding of marriage and the family. Truly it’s impressive that Plato and Aristotle, without the benefit of the Jewish revelation, were able to attain critical perspectives on the immoral practices of their culture, and even articulate some important truths about marriage and the family. But they could only approximate the profound and beautiful teaching of Genesis 2.

In their essay “The Spirit of Jewish Classical Education,” Cohen and Rocklin did not, as some critics insist, make the Jews “the main actors in some other mighty civilization’s story.” They claimed credit where credit was in fact due, and they reminded their fellow Jews of their mission and calling to repair and rebuild what Jewish wisdom had made possible. Whatever else Western civilization is, it is a Jewish civilization, and the Gentiles who are part of it are among the Nations to which Israel has been a light. In proposing the building of Jewish classical schools, Cohen and Rocklin want to share with Jewish children not only the basic Jewish insights but all the learning that has been achieved by Christians as well as Jews that is ultimately rooted in those insights. This is scarcely, as one critic maintains, a “ploughing of someone else’s furrow,” or a “reaping of someone else’s harvest.”

My advice is to go for it: launch the Jewish classical education movement.

May 3, 2024 | Permalink

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Father Henry Garnett

May 3, 2024 in Garnett, Rick | Permalink

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Father Henry Garnett

May 3, 2024 in Garnett, Rick | Permalink

Monday, April 29, 2024

A critique of "free speech" in the university

I offer some thoughts over here. One matter that provoked this post concerns the question of constitutional law creep. The frameworks of law, especially constitutional law, seem to be spilling over as guides in areas of human life where they do not belong. Perhaps because they are the only ones that are taken to be authoritative any longer. That is certainly the case for free speech in the university context. It would also be true if we instead used a First Amendment associational model. Universities really are not, per my friend Paul Horwitz, "First Amendment institutions" (to take nothing away from Paul's superb book). They are institutions precedent to--and different in kind, purpose, and function than--the American Constitution.

April 29, 2024 in DeGirolami, Marc | Permalink

Friday, April 26, 2024

Cavadini on "Research and the Catholic Intellectual Tradition"

It's by John Cavadini (Notre Dame) so "self-recommending," etc., but I also highly recommend this piece at Church Life Journal.  In particular, it should be a must-read for all administrators and leaders and benefactors and faculty of Catholic universities that might be tempted to imagine that the path to flourishing, or "relevance", is to relegate "Catholic" stuff to residential life and campus ministry, or to water down Catholic universities' mission, character, and charism to vague and unobjectionable nice-words like "sustainability", "inclusion", and "justice".  As many of us have said, many times, on this blog over the last 20 (!) years, a Catholic university is only interesting if, and to the extent that, it is Catholic.  And, as every reasonable and informed observer knows, but as many still need to be reminded, there is no dissonance between the well-functioning (correctly understood) of a university and the (meaningfully) Catholic intellectual tradition.

April 26, 2024 in Garnett, Rick | Permalink

Monday, April 22, 2024

Cyril O'Regan on the Legacy of Benedict XVI

My colleague at the University of Notre Dame, Cyril O'Regan, has a great essay up at Church Life Journal on "The Legacy of Benedict XVI".  Here's a bit:

A fundamental element in speaking the truth is to expose the systemic inhospitality of the modern secular state towards Christianity that can at inopportune moments verge into open hostility. This is not to say that the secular world is always wrong in its criticisms of the behavior of the Church that has at times been both reprehensible and scandalous (e.g. the sex abuse crisis) and that the secular world has not been justified in pointing to the way in which the Church—similar to most worldly institutions—is too often guided by the instinct of self-preservation and self-reproduction. For Benedict, as for John Paul II, the world can provide moments for Christian self-inspection and ample opportunities for repentance. Still, overall, for Benedict, the “neutrality” of the modern secular world is as a matter of fundamental principle “armed”: it constructs the Catholic Church as irredeemably authoritarian both in its basic structure and in its public performance towards the world; as substituting an irrational faith for reason, which if objectionable in itself becomes more objectionable as it serves to sponsor violence. Further, it constructs the Church as recommending ways of thinking that straightjacket free inquiry (thereby making it incomprehensible how the university came into being under the tutelage of Catholicism) and engender unfree forms of living contrary to genuine human flourishing.

For Benedict, to respond critically to secular modernity is first to avoid being provoked by it; it is to exercise discernment and discriminate between what is hale and harmful in it; what can be sanctioned by reason understood against the backdrop of its full philosophical amplitude and what in it agrees with the Wisdom (reason as both substantive and holistic) that Christianity attempts both to honor and perpetuate. Demonization of secular modernity is reaction-formation, thus hostage to what it would deny as well as betraying a lack of confidence in the ultimate persuasiveness of truth it would proclaim. Benedict understands that the dominant narrative of secular modernity, to the effect that everything valuable concerning the ratification and protection of human rights depends upon reason’s critique of and separation from Christianity, is entirely self-serving, and deliberately ignores the insights bequeathed to it by the Christian tradition.

April 22, 2024 in Garnett, Rick | Permalink

Thursday, April 18, 2024

The Anniversary of Smith

(Posted one day late)

Employment Division v. Smith was decided 34 years ago today: April 17, 1990. Someone born after Smith still couldn't assume the presidency in January 2025 after winning election this cycle--but it's getting close. And Smith set off a long chain of events: The passage of the Religious Freedom Restoration Act and its state equivalents. The switching of sides by many people on the question of religious exemptions--many conservatives becoming proponents, many progressives becoming opponents--when issues involving the sexual revolution came to dominate public debate over religious freedom. The current Court's reading of Smith in ways that are relatively protective of religious freedom. What a long strange trip it's been.

April 18, 2024 in Berg, Thomas , Current Affairs , Religion | Permalink

Thursday, April 4, 2024

John Inazu at Notre Dame on "Learning to Disagree"

 

John Inazu Poster 11x17 (1)

April 4, 2024 in Garnett, Rick | Permalink

Wednesday, April 3, 2024

"Freedom and Truth": Tomorrow at The Catholic University of America, Columbus School of Law

Please join us, if you are able, for the Center for Law and the Human Person's second annual spring symposium tomorrow. The conference is Freedom & Truth, with lectures by Professors Gerard Bradley ("Freedom of the Church"), Catherine Pakaluk ("Freedom of the Family"), and Carl Trueman ("Freedom of the Human Person"). The schedule is below and attendance is free. And please say hello if you come.

Freedom and Truth Schedule

April 3, 2024 in DeGirolami, Marc | Permalink

Tuesday, April 2, 2024

On Traditionalism, in the NYT

I have a piece from last Friday's New York Times reflecting on what I've called traditionalism in constitutional law, including various thoughts about some of its challenges and strengths.

One additional thought here, and that perhaps is not as clear as it might be: this piece, like some of my other work, concerns traditionalism as something distinctive. But it does make claims about traditionalism as a monistic or total theory of constitutional law, either as a descriptive matter or as a prescriptive one. On that question, I tend toward a pluralistic view. As a matter of description, that seems to me the most accurate way of understanding things. On the prescriptive side of things, while I believe traditionalism has many attractions, I do not argue that any court should be traditionalist and only or exclusively so.

The piece is behind a paywall, but here is a bit:

This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call “traditionalist”: In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.

The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court’s traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.

Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country...

Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.

Not all traditions are worthy of preservation. Some are rightly jettisoned as the illegitimate vestiges of days gone by. But many, and perhaps most, deserve our solicitude and need a concerted defense.

Traditions can be fragile things. To the extent that a revitalized practice of constitutional interpretation is possible, it will depend on determining the content of the Constitution with an eye to their sustenance and restoration.

 

April 2, 2024 in DeGirolami, Marc | Permalink

Saturday, March 30, 2024

Religious Freedom, Copyright Royalties, and Court Review of Agency Determinations

The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief supporting the petition for certiorari in a case involving copyright royalties and religious freedom--which also turns out to be important concerning meaningful judicial review of agency determinations that affect First Amendment and religious-freedom rights. The Copyright Royalty Board, the federal agency that sets statutory royalties for digital transmissions of copyrighted sound recordings, has charged noncommercial webcasters (mostly religious in nature) an 18-times higher rate than public-radio-affiliated (also noncommercial) webcasters. That severe disparity raises significant issues under the First Amendment and the Religious Freedom Restoration Act (RFRA). But the D.C. Circuit, in reviewing the Board, treated the case as essentially about mere review of an agency under the Administrative Procedure Act (APA) and gave significant administrative-law deference to the agency's key determination on whether the activities of religious webcasters were comparable to those of NPR webcasters and therefore should not face such a grossly disparate rate.

We argue that courts can't abdicate their responsibilities to protect religious freedom and other First Amendment rights in this way. We use foundational cases. issued over several decades, requiring independent appellate review in First Amendment and other constitutional cases: Bose Corp v. Consumers' Union. (1984), New York Times v. Sullivan (1964), and Crowell v. Benson (1932). And we argue, for example in this summary bit, that

The question in this case is recurring and important. Many claims under RFRA arise from decisions by federal agencies; many claims under the Free Exercise Clause arise from decisions by federal or state agencies. If courts apply administrative-law deference to agencies in deciding RFRA and First Amendment questions, the result will be to eviscerate those protections.

The brief is on behalf of the Christian Legal Society (CLS) and the National Association of Evangelicals. Thanks to the students who worked on the brief--Arianna Wiinamaki and Kris Thompson--and to Steve McFarland and Laura Nammo at CLS.

March 30, 2024 in Berg, Thomas , Current Affairs , Religion | Permalink

Wednesday, March 13, 2024

Mark Rienzi on the Transgender Cases at SCOTUS

Mark Rienzi (CUA and Becket) has shared with Mirror of Justice the following report and analysis:

Transgender cases hit SCOTUS

This week, the Supreme Court is set to consider several cases dealing with the hot-button topic of gender transitions for minors.  Although this has been a major political firestorm for the last couple of years, SCOTUS has largely stayed out of the fray.  The Bostock decision established the right for transgender employees to be free from certain types of discrimination on the job. The Court has so far avoided ruling on Title IX’s application to transgender students, dismissing one case as moot and waiting to weigh in on state laws requiring students to play on sports teams aligned to their natal sex, not current gender identity.

But sooner or later, the Court will have to weigh in on the limits of Bostock, as well as the national controversies over how far parents, schools, and doctors should go in supporting gender transitions for minors.

A trio of cases at Friday’s conference presents a surprising contrast in how state officials handle these issues.

First, the Solicitor General and a group of parents, represented by the ACLU, have asked the Court to consider challenges to laws banning medical transition procedures for minors. Tennessee and Kentucky (along with numerous other states) have banned such procedures, and the challenges to their laws have now reached the court. The A­­CLU has asked the Court to consider its parental rights argument. The SG has taken a different tack, asking the Court to focus on whether the bans violate the Equal Protection Clause as an impermissible sex-based classification.  The states have argued there is not yet a circuit split, citing the Eight Circuit’s pending en banc decision on a similar law in Arkansas. Whether the Court takes this set of cases or waits for a later opportunity, it seems inevitable that the nationwide controversy will eventually end up at SCOTUS.

A third petition raises a troubling question of parental rights in Indiana. Indiana is among the states that have banned such medical procedures for minors, but state officials nonetheless removed a teenager from his parents’ custody because they refused to use his preferred pronouns and agree to treat him as a girl. In M.C. and J.C. v. Indiana Dep’t of Child Services, Mary and Jeremy Cox have appealed the state’s decision to remove their teenage son from their home and place him in a home where “she is [ac]cepted for who she is.” The state refused to return the teen to his parents, even after an investigation showed that all allegations of abuse and neglect were unsubstantiated. The court pointed to an eating disorder and reasoned that, if the child were returned to his legally fit parents, he would experience distress due to the disagreement over gender. That was grounds to keep him out of his parents’ home until he turned 18.

The Coxes kept appealing, hoping their son might come home, but Indiana and its courts refused to return the child.  Now they have asked the Supreme Court to review their case, hoping to overturn a decision that could continue to have dire consequences for their family and put them at risk of further state intervention for their younger children. Our team at Becket is proud to represent them. But Indiana, confoundingly, continues to defend the decision. The state reasons that because it succeeded in keeping A.C. from his parents until he turned 18, his case is now moot. It’s a dangerous argument that would set a dangerous precedent nationwide: parents lose their legal recourse against state officials who take a teen away, since teens will soon reach the age of majority and their cases will be moot, too.

It’s not just Indiana. California and Minnesota have passed laws which allow state courts to take jurisdiction over minors for the purpose of allowing them to receive medical interventions for their transitions. Maine is considering a similar law. Washington state has passed a law that allows teens to effectively emancipate themselves by going to shelters which will help facilitate social and medical transitions—it’s then up to the state, not the parents, how long the teens can stay. The state doesn’t even have to notify the parents of the child’s whereabouts.

The Supreme Court will soon have to decide the rights of loving parents who don’t support a child’s desire to engage in a social or medical transition.  It should do so now, not years from now, when more families have been torn apart. And the Coxes’ case presents an unusually strong scenario: the state admits the parents are fit, so there are no overlapping issues about state law on abuse. The fact that A.C. has turned 18 makes the case an especially clean vehicle—there is no danger of changed circumstances once the Court grants cert. 

These disturbing cases will only continue to multiply until, and unless, parental rights are established. Loving families should not have their children removed because the parents disagree with state officials about gender.

March 13, 2024 in Garnett, Rick | Permalink

Friday, March 8, 2024

Notre Dame Religious Liberty essay contest

The Program on Church, State & Society at Notre Dame Law School is pleased to announce its annual writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersections of church, state & society and, in particular, how the law structures and governs them.

More info here.

March 8, 2024 | Permalink

Tuesday, March 5, 2024

Sub Deo Ep. 2: In Which We Discuss the Alabama Supreme Court IVF Ruling With a Colleague

That colleague is Prof. Elizabeth Kirk, a family law expert. Kevin, Elizabeth, and I tackle statutory interpretation, tort law, family law, and law and religion (this was recorded before the Alabama state legislature took action in proposing new legislation, but don't miss Kevin's smart prognostication on this front). Have a listen!

March 5, 2024 in DeGirolami, Marc | Permalink

"The Death and New Life of Law and Religion"

I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.

The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.

These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.

This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.

March 5, 2024 in DeGirolami, Marc | Permalink

Friday, March 1, 2024

"Sub Deo et Lege": A New Podcast About Law and Learning Under God

Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.

For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!

March 1, 2024 in DeGirolami, Marc | Permalink

Friday, February 16, 2024

Duncan on School Choice and Religious Freedom

Prof. Rick Duncan (Nebraska) has a new paper up called "Why School Choice Is Necessary for Religious Liberty and Freedom of Belief."  Amen!  Here's a bit:

Education is not value-free; indeed, it is value-laden. And in a country as divided as ours, we no longer share common values and common truths. We have competing versions of what is good, what is true, what is fair, what is just, what is morally good, and what is beautiful. Moreover, we are at odds over the most important question in life—whether God exists and whether His Word is relevant to a quality education.  And a one-size-fits-all K–12 curriculum cannot possibly serve all these competing versions of the good life. Although I think competition is always good for the quality and efficiency of any product or service, my argument in this Article is not about higher standardized test scores or better mastery of subjects and skills. My perspective is based on First Amendment values of freedom of religion, thought, and belief formation. In other words, I believe that school choice is necessary for religious liberty and for freedom of thought and belief. If religious and intellectual autonomy are to survive and thrive in a deeply divided, pluralistic nation such as ours, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools.

I tried to make a similar argument, a (long!) while back, in this paper, "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good."  Time flies!

February 16, 2024 in Garnett, Rick | Permalink

Thursday, February 15, 2024

Mirror of Justice -- Twenty Years Ago

As Rick Garnett said in his post, we've reached the age of 20 for the Mirror of Justice. The anniversary provoked me to look back on some of the early messages from that period and reminded me that the hottest topic and source of strongest rhetoric of disagreement on posts in the initial months involved the forthcoming 2004 presidential election. Catholics troubled by the strong pro-abortion advocacy of Democratic Senator John Kerry argued he was disqualified from Catholic support. Others were troubled about the ongoing war in Iraq and contended that Catholics should withdraw support from President Bush based on the debacle about never-found weapons of mass destruction while thousands of innocent lives were lost.

In sum, as one writer put it to Mirror of Justice posters at the time, people were feeling rather "anguished" about the upcoming presidential election. Oh, how things change!

Electoral_map

February 15, 2024 in Sisk, Greg | Permalink