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, February 13, 2020

Mirror of Justice Anniversary: Revised Past Post on Purpose of Blog on Catholic Legal Thought

Although posted many years ago, I came across this again recently and it no longer appears to be retrievable online. I’m redacting it into a more general discussion of the purpose of a blog on Catholic Legal Thought (rather than focused on the controversy of the moment that prompted the original post).  I hope it still resonates today.

In blogging on the Mirror of Justice, we should not just be talking to each other but mindful of our larger audience, who are not always privy to the richness and diversity of perspectives, projects, and internal dialogues that constitute the growing and exciting field of Catholic Legal Studies. In so doing, we often are responding to what we see as errors by other public commentators, including other Catholic thinkers. But whenever we poke at supposed flaws in another Catholic thinker’s message, we should acknowledge the flaws our own ability to get out our message and to more effectively penetrate the culture with our alternative approach toward thinking about issues of legal and public moment.

We should not make the mistake of treating the blogosphere as the universe. Most of us blogging on Catholic legal issues devote far more attention to these matters in the context of serious scholarship published in traditional venues and through carefully developed presentations and responses at conferences. Questions about Catholic teaching and social justice are the subject of regular and spirited debates among Catholic legal scholars of all political hue in symposia and at various conferences. While blogs, such as Mirror of Justice, are an important means by which Catholic Legal Studies is developed, a blog hardly substitutes for the other means either in terms of scholarly depth or community-building.

And in translating Catholic teaching into public-regarding proposals, we must remember the principle of prudential judgment in Catholic thought. That the laity are given the apostolate of working within the political realm means that the Church must respect and honor the different expertise of political leaders, economists, lawyers, and others regarding appropriate measures undertaken to promote social justice.  Most questions of public policy involve prudential judgments that should be guided by moral principles—and here is where Catholic Legal Studies is important in offering a framework for discussion and principles upon which to draw—but upon which persons of good will and common faith reasonably may differ.

For example, whether certain circumstances present the occasion for the use of military force in accord with principles of just war or whether a particular piece of legislation regarding provision of governmental benefits to the disadvantaged or disabled is the best means to advance the preferential option for the poor are questions that demand both morally sensitive and realistically pragmatic evaluations. In answering such policy questions, the decision-maker often must balance conflicting moral precepts or justifiable human interests, or at least may find that the underlying moral principles do not point unambiguously in one direction.

Church leaders contributing to a moral dialogue in public society appropriately may opine as to whether a particular measure or proposed course of action contributes to or undermines the common good. But policy suggestions by clerical or lay leaders in the Church must not be mistaken for the teaching of the Magisterium on matters of doctrine and morals to which all faithful Catholics must confess. In sum, most policy choices involve the exercise of prudential judgment, and the Church respects the expertise and special vocation of those holding public office in making those decisions.

In contrast with most public policy matters, which require prudential judgment and on which persons taking different views do not thereby fall out of communion with the Church, there are certain forms of societal behavior that implicate public policy that are so manifestly and grievously wrong as to be categorically prohibited.  In these instances of intrinsic evil—slavery, genocide, racist oppression, and abortion—moral principle and public policy effectively merge, sharply circumscribing prudential judgment.

Finally, we should avoid the common categorical error of too readily and simplistically labeling Catholic thinkers in secular political terms. I do not mean to resist the label conservative, which has its purpose, but neither is it fully descriptive of my thinking or my engagement with the Catholic intellectual tradition. Whether categorized as conservative or liberal, one point of consensus among those of us across the spectrum on the Mirror of Justice is that we intend to be a contradiction to this society, in seeking common ground or at least a common framework for discussion that transcends ideological lines.

February 13, 2020 in Sisk, Greg | Permalink

St. John's CLR & JCLS Conference on History of Catholic Legal Education by Breen & Strang

Conference image

This evening and tomorrow, the St. John's Center for Law and Religion and the Journal of Catholic Legal Studies (which I'm honored to advise) are delighted to be hosting a conference on a forthcoming book by Professors John Breen and Lee Strang, A Light Unseen: A History of Catholic Legal Education in the United States

The conference will convene a "deans panel" and a "professors panel" to comment on various features of the book and the project, with responses from John and Lee. Participants include Deans Kathleen Boozang, Marcus Cole, Vincent Rougeau, William Treanor, and Robert Vischer; and Professors Angela Carmella, Teresa Collett, Rick Garnett, Jeff Pojanowski, and Amy Uelman. Our own Dean Michael Simons will be the master of ceremonies and Judge Richard Sullivan and Professor Margaret Turano will moderate. Our students have worked very hard to put this terrific event together.

Details and registration at this link. A happy fortuity that the conference coincides with this blog's anniversary.

February 13, 2020 in DeGirolami, Marc | Permalink

Happy (16th!) Blog-iversary to Mirror of Justice

It's more than a little jarring, for me, to be reminded that blogs (or the Internet, or computers) have existed for 16 years, but there it is.  Anyway, back in February of 2004, our merry band -- several whom are still with us! -- launched this blog, "dedicated to Catholic legal theory."  My very first post was called "Law and Moral Anthropology" - theme I've returned to (probably too) many times over the years.  Here's a bit, and I am not sure my thinking has changed much:

One of our shared goals for this blog is to . . . "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).

In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?

February 13, 2020 in Garnett, Rick | Permalink

Saturday, February 8, 2020

Some misreporting of my views in a Breitbart article

This kind of incompetent reporting of things I've said drives me nuts. I guess that it "goes with the territory," though, for people who take the risk of commenting on public affairs.
I'm sure the reporter means well, but I did not offer any sort of defense of Edgewood College's health plan--which I've never read--nor did I say that the Catholic Church supports some abortions. An interviewer asked me about the Catholic Church's position, and my own, on certain types of situations that sometimes arise in the course of pregnancy. I accurately reported that sometimes fetal death occurs as a foreseen and accepted side-effect of an act whose object is not the death of the fetus. I provided as an example the case of an aggressive uterine cancer in a pregnant woman requiring immediate removal of the uterus before fetal viability. Unless the procedure is performed mother and child will both perish. The Catholic Church does not say that the procedure is impermissible. Nor do I think it is morally impermissible. I noted that sometimes people refer to this sort of case as "indirect abortion." I said that I believe referring to it as an "abortion" is misleading and should not be done.
I also noted that it is not an abortion, nor is it impermissible, to remove from a woman's body the remains of a fetus who has died, as, sadly, sometimes happens. I certainly did not characterize this as a case of a morally permissible abortion.

February 8, 2020 | Permalink

Friday, February 7, 2020

"Friendship in a Time of Cyberattack"

I enjoyed this piece, "Friendship in a Time of Cyberattack," by my theorist-and-theologian friend (and fellow Duke Blue Devils fan!), Mike Baxter.  Pope Francis, Guardini, Pieper, Berry, Simon, and MacIntyre all make appearances in Mike's discussion of friendship, time, technology, the university, and the polis. Here's just a little bit:

What the cyberattack did for us at Regis is open up the possibility of recognizing how our life and work together is so deeply dependent on digital technology and to consider the ways it could be enhanced by making ourselves less dependent on it. . . .

The cyberattack also created commonality between faculty and students, for we were in the same boat, with emails failing, assignments not posting, tests and exams running late. More importantly, there was a more personal touch to the interactions between students and faculty. Papers were graded by hand, in the penmanship of the grader. With no email, more students came by during office hours to ask about something. And there was a deeper sense that class was going to occur in the classroom, with everyone together, rather than dispersed through list-servers, online bulletin boards, and such. Finally, most importantly, it created common ground among faculty, for the simple fact that there was more time, what with fewer meetings, no department and college wide assessments to do, and so on; and with more time comes more conversations about what we are teaching and working on. An added factor here was that with on-line resources down, intellectual conversation is more likely to occur locally, which can be surprisingly fruitful. In other words, with our on-line capacities down, we were less able to have conversations with colleagues across the country and found ourselves drawn more into talking with colleagues down the hall or in the building across the quad.

In these (and other) ways we found ourselves gifted with the time and space for cultivating or renewing friendships in all the varieties and permutations discussed by Aristotle: utility, pleasure, among equals, among those older and younger, and, most importantly, true friendship, based on a common pursuit of the good. . . .

February 7, 2020 in Garnett, Rick | Permalink

Catholic colleges finally win independence from the federal Labor Board

From John Garvey in America,

On Jan. 28, the U.S. Court of Appeals for the D.C. Circuit held that the National Labor Relations Board could not order religious colleges and universities to recognize adjunct faculty unions. The decision (Duquesne University of the Holy Spirit v. N.L.R.B.) is a welcome one at schools like my own, because it makes clear that our religious mission naturally extends to those who carry out its core function—teaching college students.

The N.L.R.B. (i.e., the government) imagines that it can carve the universe of higher education neatly into secular and religious parts. If it had its way, it would claim authority to oversee course loads, the manner of teaching, the teachers’ obligation to counsel students, and other terms and conditions of employment for all faculty, excepting only those specifically charged with “propagating religious tenets, or engaging in religious indoctrination or religious training.”

Full article.

February 7, 2020 | Permalink

Thursday, February 6, 2020

Overheard Today at the National Prayer Breakfast

Democratic co-sponsor (Rep. Thomas Suozzi (D-N.Y.):  “If we’re to heal our division, we need to spend time together; we need to stop judging one another.”

Arthur Brooks of the American Enterprise Institute and a convert to Catholicism:  “How do you do it in a country and world roiled by hatreds we can’t seem to bridge? Contempt kills. Ask God to take political contempt from your heart. And sometimes when it’s too hard, ask God to help you fake it. Ask God to give you the strength to do this hard thing. To go against your human nature. To follow Jesus’ teaching. You believe in Jesus! Follow his teachings.”

President Donald Trump:  “I don’t like people who use their faith as justification for doing what they know is wrong. Nor do I like people who say, ‘I pray for you,’ when they know that that’s not so.”

Jesus:  “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, love your enemies, and pray for those who persecute you.”

February 6, 2020 in Sisk, Greg | Permalink

Thursday, January 30, 2020

D.C. Circuit Decision in Duquesne v. NLRB

As noted by Jon Hannah, the D.C. Circuit has issued its decision in Duquesne v. NLRB regarding jurisdiction over adjunct faculty unionization efforts at religiously-affiliated universities. As I argued some years ago in testimony (here) before a House subcommittee, the D.C. Circuit precedents on this issue are  straightforward, and the NLRB's 2014 decision in the Pacific Lutheran case (discussed here) was at odds with those precedents. A bit from Judge Griffith's decision:

This case begins and ends with our decisions  in Great Falls and Carroll  College. In Great  Falls,  we established a “bright-line” test for determining whether the NLRA authorizes the Board to exercise jurisdiction in cases involving religious schools and their teachers or faculty. 278 F.3d at 1347. Under this test, the Board lacks jurisdiction if the school (1) holds itself out to the public as a religious institution (i.e., as providing a “religious educational environment”); (2) is non-profit; and (3) is religiously affiliated. Id. at  1343-44. Seven years after Great Falls, we reiterated in Carroll College that this test governs the Board’s jurisdiction, 558 F.3d at 572, 574, and we do so again today. This case involves faculty members and Duquesne satisfies the  Great Falls test. The NLRA therefore does not empower the Board to exercise jurisdiction. 


Apparently unpersuaded by Great Falls and Carroll College, the Board used its new Pacific Lutheran test to assert jurisdiction over Duquesne. Pacific Lutheran runs afoul of our precedent by claiming jurisdiction in cases that we have placed beyond the Board’s reach. That is, Pacific Lutheran extends the Board’s jurisdiction to cases involving faculty at schools that satisfy the Great Falls test, specifically those schools that (according to the Board) do not hold out the faculty members as playing a specific role in the school’s religious educational environment. Pac. Lutheran, 361  N.L.R.B. at 1410. But our precedent is clear: Great Falls is a bright-line test.  If it is satisfied, the school  is  “altogether  exempt  from  the  NLRA,”  and  “the  Board  must  decline  to  exercise  jurisdiction.”  Great Falls, 278 F.3d at 1347; accord Carroll Coll., 558 F.3d at 572, 574-75. The Board may not “dig  deeper” by examining whether faculty members play religious or non-religious roles, for “[d]oing so would only risk infringing upon the guarantees of  the First Amendment’s Religion Clauses.” Carroll  Coll., 558  F.3d at  572. We have no power to revisit this precedent. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc); Am. Hosp. Ass’n v. Price, 867 F.3d 160, 165 (D.C. Cir. 2017).

January 30, 2020 in Moreland, Michael | Permalink

Attempts, Complicity, Virtue, and the Limits of Law

Here is a short chapter I wrote -- a bit outside of my usual writing-area -- for a forthcoming volume called Christianity and the Criminal Law, on "Attempts, Complicity, Virtue, and the Limits of Law."  The abstract:

The law and doctrines of criminal attempts and complicity illustrate the longstanding and fundamental tenet of Anglo-American criminal law that the blame and condemnation of the political community, which gives criminal punishment its distinctive character, attaches primarily to actors’ states of mind rather than to the harms they cause or results they bring about. This focus on blameworthy states of mind both reflects and has been shaped by the similar emphasis in Christian scripture, tradition, and moral teaching. And so, an examination of criminal attempts and complicity is an opportunity to explore Christianity’s influence on the theory, content, and operation of the criminal law. It also reminds us of a central Christian concern that is and has been located, for the most, outside the scope of the criminal law: Christian moral teaching not only enjoins the avoidance of wrongful acts, but also the cultivation and practice of virtue. A Christian life of discipleship, it has been said, “is not simply about performing certain types of actions. It is a vocation, a transformation of one’s very self.” However, this aretaic dimension of Christian morality and moral theology, unlike the nexus between culpability and choice, is difficult to find in the criminal law, which is inclined more toward proscribing acts than prescribing character, more toward forbidding bad conduct than facilitating good character, more toward deterring decisions than transforming selves. It is worth asking why.

January 30, 2020 in Garnett, Rick | Permalink

Wednesday, January 29, 2020

Appeals Court Blocks Adjunct Union at Duquesne

A federal appeals court ruled Tuesday that Duquesne University’s status as a Roman Catholic institution exempts it from National Labor Relations Board's rules on forming an adjunct union. If upheld, the ruling would effectively kill a union drive at the Pittsburgh university.

Full story at Inside Higher Ed.

January 29, 2020 | Permalink

Saturday, January 25, 2020

A Catholic Debate over Liberalism

This article by Park MacDougald in City Journal explores the Ahmari v. French debate within current conservative circles, and how Catholic intellectuals have viewed liberalism over the years. 

January 25, 2020 | Permalink

Wednesday, January 22, 2020

Charitable Giving and Taxes

I’ve spent a lot of time lately thinking about our tax code in the United States and how it influences charitable giving. The main reason I’ve been paying more attention to this area of policy is because I was given the incredible opportunity to teach an experiential learning course here at Notre Dame this past fall. The students are given the responsibility of awarding actual grant dollars to local nonprofits. Suffice it to say, their dedication and hard work is beyond inspiring. These students are future leaders. I know they will be model citizens by working and volunteering at nonprofit organizations, and by giving financially throughout their lives.

Yet, I fear that our tax code in its current state is not encouraging charitable giving and that it promotes certain types of giving over others. I especially fear that it dissuades young people from giving, which means giving is not part of their personal finance plans and is not truly considered until much later in life.

The signature aspect of the Tax Cuts and Jobs Act of 2017 was that it nearly doubled the standard deduction. The consequence has been a drastic decline in the number of tax filers that itemize from about 30% to 13%. On its face, I think that is a positive outcome. The less burdensome tax filing is for more Americans, the better. However, the charitable gift deduction was and still is a below the line tax deduction. That’s problematic because tax filers taking the standard deduction and not itemizing receive zero tax benefit by making charitable gifts to 501(c)3 organizations. My tax law professor in law school once said that the tax code, at the end of the day, is social engineering. I think he’s right. The code incents me to withhold pretax dollars and contribute to a 401(k) or 403(b). It’s a signal from the government that retirement savings is important. Rightfully, retirement saving is an above the line deduction. The problem with doubling the standard deduction and keeping the charitable gift deduction below the line is that it signals to taxpayers that charitable giving is important, but only important for taxpayers who itemize.  And which taxpayers generally itemize? Often times, wealthier Americans and/or filers with mortgage interest payments large enough to make itemizing the best decision. That’s an awful way to encourage and promote charitable giving.

Senator Mike Lee (R-UT) released a report in November that suggested we change our charitable gift deduction and make it more universal. The easiest solution is probably to move the charitable gift deduction above the line. The other consequence of this current policy is that it tends to favor charitable giving to secular causes over religious ones. Households with incomes below $200,000 are more likely to direct their charitable dollars to organizations that are religious in nature, or to organizations that directly help those in need. More affluent households are more likely to direct charitable dollars to organizations such as museums and universities. That’s not to say that the charitable giving done by the former group is more commendable. And it’s not to say that the differences in giving among the two groups is as clear cut as the studies might suggest. However, a tax code that offers a tax benefit to some taxpayers, oftentimes wealthier ones, and offers no such benefit to almost 9 in 10 Americans is structurally flawed. I hope that Lee’s report receives more attention and that this policy can change.

January 22, 2020 | Permalink

Tuesday, January 21, 2020

The Church would not exist without women

I would like to draw attention to a Letter to the Editor published in today's student newspaper at Notre Dame, The Observer. The letter is authored by David Spicer, a summer fellow in 2019 here at the Notre Dame Law School Program on Church, State & Society.

It's well worth reading, and it is partly a response to an Observer article published last week by another Notre Dame law student. I feel that both students make great points, and I am thankful that we can have these important conversations here at Notre Dame freely and in good spirits.

January 21, 2020 | Permalink

Tuesday, January 14, 2020

Fixing Law Schools

University of Tennessee professor of law Benjamin H. Barton has published a new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond, that is gaining a lot of attention.

Barton's findings were also recently featured in The Chronicle Review. Of interest is the decline in law school applications after the Great Recession and the consequences for law schools themselves, specifically cuts in faculty lines and less funding available for experiential learning courses. The other piece of the puzzle is an increase in tuition prices but more financial aid awards to top applicants at top schools.

Barton was asked in an Inside Higher Ed interview last month just what exactly law schools need to do to change.  His answer:

Q: How should law schools change?

A: I have three basic suggestions. The first is the simplest to state, but the hardest to accomplish: law schools must become cheaper, or at least stop continuously outrunning inflation. The current cost and debt levels make law school a much worse investment than it was a generation ago, when placement was stronger and tuition was radically less. In 1985, it cost an average of $2,006 for in-state tuition and $7,526 in tuition for a private law school. In 2018 dollars that tuition is only $4,713 in-state and $17,681 for a private school. The actual 2018 averages are $27,591 for in state and $49,095 for private law schools! Law schools must recognize the changing market and adjust. If they do not, state and federal laws, especially those that subsidize law schools through state support or fully subsidized federal loans, are likely to change, and not to the benefit of law schools.

The second is for law schools to be much more aggressive and forward looking in teaching how to use technology to practice law. This does not mean that law schools should teach every student coding (although having an elective coding class is a good idea). But the lawyers who make it in the future will be the ones who leverage technology to their benefit, allowing them to practice “at the top of their license,” to use Richard Granat’s famous phrase. Technology can replace more rote tasks and allow lawyers to do more highly sophisticated work for more clients for less money. Rather than fearing technology as a competitor, law schools much embrace technology as a key assistant. We need to start teaching students these skills.

Last, the ABA has moved to regulation that focuses more on law school outputs (bar passage, job placement, attrition, etc.) rather than input measures (the size of the faculty, the number of books in the law library, etc.). This is a good trend, and law schools should take advantage of it by trying different models. That said, there has been too much predatory behavior by some law schools in the last decade, so I’d also encourage the ABA to be ever vigilant. So, law schools should let a thousand flowers bloom, but make sure not to be evil!


January 14, 2020 | Permalink

"Saving Democracy from the Managerial Elite"

This Wall Street Journal piece -- which is, I gather, a condensed version of a forthcoming book -- "Saving Democracy from the Managerial Elite", by Michael Lind, is worth a read and might well be of interest to MOJ readers and people interested in Catholic approaches to "the social question."  A lot of it echoes things that (many) others have been saying lately -- Chris Arnade, Rusty Reno, Tim Carney, J.D. Vance, Robert Putnam, etc., etc.  Two things that struck me (in a good way) were (1) Lind's recognition that, even in the context of this debate, it makes sense to distinguish between public-employee unions and private labor unions, given that the former tend increasingly to reflect and advance the interests of those Lind calls "the managerial elite" at the expense of less mobile and credentialed people and (2) his implicit (I wish it were explicit!) acknowledgement that getting past some of our current polarization and pathologies will require policies that make it possible for traditional religious believers to have meaningful access to alternatives to "public school monopolies" for the education of their children.  

January 14, 2020 in Garnett, Rick | Permalink

Monday, January 13, 2020

Review of Greg Weiner's "The Political Constitution"

I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. I've reposted a bit below. I enjoyed the book very much, especially because it got me to think critically about a general orientation to judicial review that I happen to favor. And I should add that I could and should have raised racial fragmentation as another reason for skepticism about a return to the localist republicanism of earlier days (thanks to Professor Ekow Yankah for some useful correspondence on this point).

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul…. 

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.

January 13, 2020 in DeGirolami, Marc | Permalink

Friday, January 10, 2020

"Learning from Integralism"

My friend and colleague Gerard Bradley has a Public Discourse essay up, which is worth a read, called "Learning from Integralism."  A bit:

[T]he First Amendment stipulates that the truth or falsity of putatively revealed propositions is beyond the scope of authoritative resolution by those with care of our political society. The First Amendment does not say, or suppose, or even suggest that all such propositions are in reality somehow equally true (or false), or that they have at most the “truth” of poetry, or that all such alleged revelations are fantastical or mere human projections. Not at all: the First Amendment was ratified by a population that took the tenets of natural and revealed religion most seriously. It has been supported by countless Americans—notably including America’s Catholics—since. By recognizing and affirming the truths of natural religion—including the truth that a divine entity created what there is and sustains it in being out of providential care for humanity—America’s political leaders implicitly endorsed the entailment that such a divine entity would communicate somehow with humankind. They endorsed, in other words, the proposition that genuine revelation is not only possible, but likely.

January 10, 2020 in Garnett, Rick | Permalink

Monday, January 6, 2020

"Is Our Approach to Poverty All Wrong?": a piece about Notre Dame's Lab for Economic Opportunities

Here is an interesting opinion piece, by Thomas Hibbs, which discusses (among other things) the work of my Notre Dame colleagues at the Lab for Economic Opportunities.  A bit:

We all understand poverty is a problem, one that can seem intractable and inevitable. But what if the way we have approached poverty has been wrong for years, for generations even?

There’s evidence it might be.

The traditional model of the American social service industry has long been a one-size-fits-all approach that treats the symptoms of poverty — transportation, child care, food insecurity — but does nothing to address the cause. The result traps the poor in a never-ending cycle of dependency and stigma, creating repeat customers.

That scathing indictment comes not from a critic of the war on poverty but from one of its most passionate advocates.

January 6, 2020 in Garnett, Rick | Permalink

Thursday, January 2, 2020

Ministerial Exception Article, and Other Work from St. Thomas Religious Liberty Clinic

Originalist article and brief on ministerial exception.  My students Nathaniel Fouch and Erik Money and I have just published a piece in the Federalist Society Review. It's Fouch, Money, and Berg, "Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception." (PDF version here.) It arises from the two cases the Supreme Court just agreed to hear, St. James School v. Biel and Our Lady of Guadalupe School v. Morrisey-Berru., and an amicus brief that the St. Thomas Religious Liberty Appellate Clinic filed--with Nathaniel and Erik as student drafters--supporting certiorari (successfully) in the Morrisey-Berru case.  The article expands on the brief but also reflects our personal views rather than the views of the amici we represented (although the views of course are very similar).

The article and brief criticize the Ninth Circuit's reasoning in these cases that religious-school teachers teaching religion classes, who had other significant religious functions, were nevertheless not "ministers," and thus not within First Amendment protections for the schools, because they did not have ministerial training, ordination, or other "credential[s]." We argue that this reasoning violates basic Religion Clauses principles that prohibit discrimination among religious groups/polities and judicial second-guessing of religious organizations' self-understanding. Most centrally, we have an originalist argument, pointing  to 18th-century colonial laws in New England and Virginia that set educational and other credentials for ministers (and to which Baptists and other minority sects dissented). We argue:
In short, narrow definitions of minister—notably, laws setting educational and other credentials for ministers—were prominent among the evils to which the Religion Clauses were a response. Today, some courts are repeating this evil by effectively requiring that a minister possess “credential[s], training, or ministerial background” in order for an organization to invoke the ministerial exception. Such requirements impose civil authorities’ assumptions—almost inevitably majoritarian assumptions—that certain training or formalities are inherent in the concept of a minister.

Other 2019 work by the St. Thomas RL Clinic.  Our clinic (info here) had a productive 2019. We filed or started work on amicus briefs in 4 cases in the Supreme Court (including the minister cases above), representing Christian, Jewish, and Muslim groups. Throughout the students did great work, and through the goal was to promote (in the way kids would put it on social media) #ReligiousFreedomForAll.

              1) The Seventh Circuit upheld the validity of the federal tax provision allowing clergy to exclude housing allowances from taxable income (which equalizes religious groups that don’t own parsonages with those that do). The court cited our clinic's brief, filed on behalf of Christian and Jewish groups, which had presented various statistics and tax calculations to show how invalidating the provision would seriously harm tens of thousands of congregations, and especially harm small urban ones.

              2) In April we filed a brief (successfully) supporting certiorari in Espinoza v. Montana Dept. of Revenue, the case on whether a state court can invalidate a school-choice law (tax credits for people indirectly supporting private schools) solely on the (discriminatory) basis that the program includes religious schools.  Oral argument on the merits is Jan 22. 

              3) We’re happy that the Solicitor General urged the Court to grant review in Patterson v. Walgreen Co. and finally give teeth to Title VII's requirement that employers accommodate employee religious practice except in case of "undue hardship." Our brief, filed for Christian and Muslim organizations, documented that accommodation disproportionately protects minorities--Muslims, Jews, other Saturday sabbath observers, and others--and that the current weakness of the test disproportionately harms them.

               4) We contributed to research to help the coalition proposing the new "Fairness for All" legislation, which offers a thoughtful solution to the knotty problem of giving meaningful antidiscrimination protection for gay, lesbian, and transgender  rights and meaningful protection to the religious liberty of those conscientiously opposed to facilitating same-sex or transgender conduct. 

              5) We’re currently working on FNU Tanzin v. Tanvir, the new Supreme Court merits case where the FBI put Muslim Americans on the no-fly list for refusing to inform on fellow worshipers in what they regard as an overbroad security investigation. We'll be co-counsel on a brief of religious-liberty scholars supporting the plaintiffs' claim that they can sue individual agents for damages under the Religious Freedom Restoration Act.

January 2, 2020 in Berg, Thomas , Current Affairs | Permalink

Religious freedom moot court tournaments

I would like to thank the Notre Dame Law Moot Court Board students for again hosting an excellent religious freedom moot court tournament during the fall semester. The tournament was established in 2016 to bring together competitors, scholars, and practitioners from across the country to encourage legal dialogue on a religious freedom topic. The 2019 tournament, our fourth consecutive tournament at our Notre Dame campus, was made even better thanks to a generous grant from the Bradley Foundation. I feel very confident in our ability to host a first rate tournament for years to come, and I encourage all interested Law students to consider joining us in November of 2020. You can read more about the 2019 tournament here.

Speaking of religious freedom moot court tournaments, Notre Dame Law School will be involved with the 2020 International Moot Court Competition in Law and Religion. The tournament is hosted by the European Academy of Religion and is in its third year. We are thrilled that the tournament this coming March will take place at the Notre Dame Rome Global Gateway.

January 2, 2020 | Permalink

Sunday, December 29, 2019

Feast of St. Thomas Becket and Becket2020


For today's Feast of St. Thomas Becket, below is a passage from the conclusion of historian Anne Duggan's very fine 2004 biography (previous posts on Becket's legacy drawing upon Tudor historian John Guy and GK Chesterton are here and here). 2020 will mark 850 years since Becket's martyrdom on December 29, 1170 and 800 years since the translation of his remains from the crypt of Canterbury Cathedral to a shrine on July 7, 1220. See here for information about a series of Becket2020 events and here for an exhibition on Becket at the British Museum opening October 15.

If one picture is worth a thousand words, the depiction of Becket’s murder—with the armour-clad knights brandishing their swords above the unprotected head of the priest—created an unforgettable image, which expressed the tension between religious and secular forces. No commentary was required to interpret the dramatic scene transmitted across Europe in manuscripts or on the reliquaries manufactured in Limoges. Detached from the specifics of the dispute with Henry II, that image became a powerful symbol of ecclesiastical steadfastness in the face of secular excess. In a sense, the image was the message; and the meaning of the message was not lost on Henry VIII, who destroyed the shrine and caused the hated name to be erased from the service books of the English Church; nor was it lost on the controversialists of the post-Reformation era, Catholic, Anglican and Protestant, who responded to the message with praise or censure according to its application to their own outlook.

Many secular heroes are made by single events: Richard I at Acre, Henry V at Agincourt, Nelson at Trafalgar, Wellington at Waterloo, Montgomery at El Alamein. For martyrs, it is the fact of their death in defence of their beliefs that justifies their claim. In Becket’s case, the cause for which he died was ultimately bypassed by history; but it had numerous analogues that could be recognized in very different historical settings. Even in this generation, the murder of Archbishop Oscar Romero of San Salvador in [1980], or of Father Jerzy Popiełuszko in Poland, called up the image of St Thomas of Canterbury, murdered for opposition to a powerful king. Becket’s example, of resistance to an aggressive “public power” and courage in the face of extreme violence, could be appreciated by men and women across the ages.

Anne Duggan, Thomas Becket (2004), 268-69.

December 29, 2019 in Moreland, Michael | Permalink

Thursday, December 19, 2019

Amicus brief in the new ministerial-exception cases

Jon Hannah already noted the good news that the Supreme Court has agreed to review the Ninth Circuit's (misguided) rulings in St. James School and Our Lady of Guadalupe school.  In each of these cases, the Ninth Circuit adopted a very narrow version of the "ministerial exception," which was unanimously confirmed to be constitutionally required by the Supreme Court in the Hosanna-Tabor case.  Here is an amicus brief, filed on behalf of a number of church-state scholars (including MOJers Michael Moreland and me), urging the Court to grant cert. (and reverse).  From the "summary of the argument":

In Hosanna-Tabor, this Court affirmed that the
ministerial exception protects the autonomy of
religious organizations to select those who perform
significant religious functions, including religion
teachers and others who help transmit the faith. Both
history and precedent show that the First
Amendment forbids the government from
“interfer[ing] with the internal governance of the
church.” Hosanna-Tabor, 565 U.S. at 188. And to
protect the right of religious autonomy, religious
organizations must have the freedom to “control . . .
the selection of those who will personify [their] beliefs”
or “teach their faith.” Id. at 188, 196. The ministerial
exception embodies this principle by prohibiting the
government from imposing sanctions on religious
organizations for the hiring and firing of key religious
personnel, including religion teachers.
In the decision below, the Ninth Circuit
misconstrued the ministerial exception in two ways.

First, it misread Hosanna-Tabor as adopting a set of
mechanical requirements that must be satisfied in
every case for the ministerial exception to apply.
Second, it failed to recognize that the core purpose of
protecting religious autonomy requires applying the
exception to all employees who have significant
religious responsibilities.

The Ninth Circuit’s decision not only departs from
this Court’s precedent and the history underpinning
the ministerial exception, but also conflicts with every
other Circuit to address this issue.

December 19, 2019 in Garnett, Rick | Permalink

Wednesday, December 18, 2019

Supreme Court to decide if government can pick religion teachers

The Supreme Court agreed today to weigh in on whether the government can control who a church school chooses to teach its religion classes. In Our Lady of Guadalupe School v. Morrissey-Berru and in St. James Catholic School v. Biel, the Becket Fund for Religious Liberty is defending two California Catholic elementary schools’ right to choose ministers that embody their faith without government interference. After the U.S. Court of Appeals for the Ninth Circuit ruled against both schools and rejected the prevailing common-sense standard for allowing religious schools to choose their teachers, Becket appealed to the Supreme Court, which has now agreed to hear both cases.

Read more from Becket here.

December 18, 2019 | Permalink

Monday, December 16, 2019

Expert reveals ‘secret sauce’ of Catholic schools: Equality of every child before God

A new report claims that values-based education offered by Catholic schools can serve as a model for all schools seeking to reform and to improve the long-term success of their students.

The report, Catholic On the Inside: Putting Values Back at the Center of Education Reform,” released last week by the Manhattan Institute, states that while debates over school reform have intensified in the last two decades, “values, culture, and beliefs - the inside of a school - have largely taken a backseat to these external, structural changes.”

Read the entire article at Crux here.

December 16, 2019 | Permalink

Thursday, December 12, 2019

Monks at St. Anselm sue, worried about college's Catholic identity

St. Anselm College monks have sued their own school, claiming that trustees’ efforts to reduce the power of the on-campus Benedictine monks threaten the 130-year-old institution’s Catholic identity.

The lawsuit, filed late last month in Hillsborough County Superior Court in Manchester, asks a judge to prohibit college trustees from changing bylaws without the consent of the monks, whose order founded the university.

The suit exposes rifts that have developed since 2009, when monks handed over many of the responsibilities for the Catholic liberal arts college to a board of trustees.
Read the full story from the New Hampshire Union Leader here.

December 12, 2019 | Permalink