Mirror of Justice

Religious Freedom Annual Review

BYU’s International Center for Law and Religion Studies will start its 2019 Religious Freedom Annual Review today.  

You can view the list of speakers and watch the live stream here.

Podcast on the New Abortion Laws and Two Pieces

Two little notes from the Center for Law and Religion at St. John's. First, my colleague, Mark Movsesian, and I have a new Legal Spirits podcast concerning what we call the "new abortion laws"--laws in several states taking a comparatively strong position on abortion regulation, whether restrictive or permissive. Along the way, we discuss the Supreme Court's recent per curiam summary reversal in Box v. Planned Parenthood, as well as what these new laws might suggest sociologically and culturally.

Second, I'm pleased to note the St. John's Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark's articles and one of mine were published in the same issue.)

Mark's piece is Masterpiece Cakeshop and the Future of Religious Freedom.

Mine is The Sickness Unto Death of the First Amendment.

Law’s Abnegation — SCOTUS 2019 Edition

 

I’m moved, perhaps unwisely, to lay down a marker about the opinions SCOTUS will soon release on administrative law and executive power - to lay my bets before the wheel has stopped spinning. The main pending cases are Gundy v. U.S., the nondelegation case; Department of Commerce v. New York, the census case; and Kisor v. Wilkie, the case asking the Court to overturn Auer deference (aka Seminole Rock deference) to agency interpretations of their own regulations. My suggestion is that if the administration does well across the triptych, broadly speaking, it will mark a distinct failure for the recent wave of critiques of the administrative state, and a salient confirmation of the long-run unfolding of law’s abnegation to the administrative state.

It is entirely possible that the administration will prevail, in some sense, in all three cases, or at least prevail in some and fight to a draw in others. To be sure, the conditions of “victory” are not well-defined in all the cases. In Kisor v. Wilkie, for example, should the Court limit or curtail Auer deference without eliminating it altogether, whether the government will have “won” is a complicated question. The answer depends on what one thinks the administration’s real objectives were and what one’s baseline expectations were. Nonetheless, given the wild-eyed excitement in certain libertarian-legalist quarters about the prospect of overruling first Auer and then Chevron itself, anything less than a clean overruling in Kisor will certainly count as a defeat for the libertarian campaign against the administrative state. If Auer can’t be cleanly eliminated, it seems exceedingly unlikely that Chevron can be. Likewise, in the census case, it is possible, although not likely, that the Court will in effect deny victory to both sides for the time being, by sending the case back to the lower courts to examine recent claims of newly-discovered crucial evidence.

So suppose that the government wins in Gundy, over nondelegation dissents from Justice Thomas and one or two others; that Kisor does not squarely overrule Auer; and that the census case ends either in the government’s favor or in a procedural postponement. (In a variant, one could imagine a plurality opinion in Gundy upholding the delegation, joined on narrower grounds by, perhaps, the Chief Justice and Justice Kavanaugh, with dissents from their other conservatives). If anything like this scenario comes to pass — a scenario in which the decisions are, by and large and taken as a set, weighted in favor of administrative power — it will extend and confirm a trend going back to the end of the Obama administration and before: excited talk about reining in executive and administrative power usually turns out to be no more than talk.

What major victories have the forces of retrenchment won, exactly, in recent memory? King v. Burwell? Let us recall that the decision, in the end, rejected a serious challenge to the Affordable Care Act. Perhaps the best candidates are the decisions in Michigan v. EPA and Encino Motorcars v. Navarro. The former, however, is limited and ambiguous, while the latter is banal. Relative to the breathless expectations created (sometimes artfully) on social media and in law reviews about imminent decisions curtailing the administrative state, all this amounts to thin gruel. The great retrenchment, much discussed and anticipated, always seems to recede into a vividly imagined future.

Indeed, one might go farther to argue that the main effect of the recent wave of libertarian litigation aiming to restrict executive and administrative power has actually been to further clarify, strengthen and entrench such power — a perverse result from the standpoint of the administrative state’s critics. In the case of presidential power, recent landmarks here are Trump v. Hawaii, the travel ban case, and Zivotofsky II, the Jerusalem passport case. Both are among the most expansive statements of presidential power in the Court’s recent history. Both were essentially own-goals on the part of forces who hoped to create a precedent going in the other direction, and whose second choice would certainly have been no precedent at all, rather than a clear precedent in the wrong direction. If the opinions soon to be delivered, taken overall, have even roughly the same character as to agency authority, then the perversity of forcing the Court to clarify and confirm the scope of executive and administrative power will be all the more obvious.

(Postscript: This post isn’t quite as rash as it seems. The betting here is, I believe, rigged in my favor. As an unscrupulous rhetorician, I would of course refuse to acknowledge that even clear losses for the administration in all the forthcoming cases would amount to a serious blow against law’s abnegation. Take Gundy, for example: should the Court dramatically invalidate (part of) a statute on nondelegation grounds, for the first time since 1935, I will immediately claim that the statutory provision at issue was of relatively little consequence, and that Gundy is best seen as a nondelegation version of Lopez, the case that invalidated the Gun-Free School Zones Act as beyond Congress’ commerce power — a relatively low-stakes case that proved to be largely symbolic, and that hardly lead to a sweeping retrenchment of the Commerce Clause. This unscrupulous argument will be all the easier in that I believe it to be true).

Notre Dame Program on Church, State & Society Newsletter

The Program on Church, State & Society just published our summer newsletter.  You can read it here:

https://mailchi.mp/44c57fefee98/fall-2018-news-from-the-program-on-church-state-society-2698321

To be added to our email list and receive future newsletters, one can subscribe here:

http://eepurl.com/gtZ841

 

Good News/Bad News on Legalization of Assisted Suicide

Bad news: 

Maine's Governor Janet Mills signed the bill that  had passed in both chambers by narrow margins that legalizes assisted suicide in that state,  joining California, Colorado, DC, Hawaii, Oregon, Vermont and Washington. This law was opposed by, among others, a coalition of disability advocacy groups  in an open letter to Governor Mills that ends with the argument:

There are ways to address the reasons people have for requesting assisted suicide, but it starts with a societal commitment to treat all suicides as a tragedy, to respond to anyone’s expression of suicidal feelings with an equal level of support, affirmation of the value of their life and effort to address their concerns. A two-tiered system where most people get suicide prevention but certain people get suicide assistance is a deadly form of discrimination that should not be accepted. Assisted suicide laws exacerbate the disability stigma that prevails in our culture and undermine people’s genuine autonomy by establishing a medically administered program of suicide approval and assistance in a health care environment already riddled with pressures to cut costs of care.

The letter was signed by the following groups:

• ADAPT
• American Association of People with Disabilities
• Assn of Programs for Rural Independent Living
• Autistic Self Advocacy Network
• Disability Rights Education and Defense Fund
• National Council on Disability
• National Council on Independent Living
• National Organization of Nurses with Disabilities
• National Spinal Cord Injury Association
• Not Dead Yet
• TASH
• The Arc of the United States
• United Spinal Association

Good news: The American Medical Association (AMA) upheld its long-standing opposition to assisted suicide by a vote of 392-162, holding that:

“Physician-assisted suicide and euthanasia are fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks.”

DoJ Files Statement of Interest in Maine First Amendment Case

The Department of Justice filed a Statement of Interest in the U.S. District Court for the District of Maine supporting students who claim that the State discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution when it barred them from a program paying the public or private school tuition of students who do not have public schools in their school districts, because the students wish to use the tuition to attend private religious schools that otherwise satisfy State education requirements. 

The full press release can be found here.

For background on the Blaine Amendments, Rick Garnett’s article The Theology of the Blaine Amendments can be found here.

To Fr. Jim Martin, a good and kind man--and my friend

Dear Fr. Jim: Twitter is probably not the best place for the discussion I’d like to have, but I would like to make a few points here in defense of Pope Francis and of the teachings of the Church that are strongly reinforced in the recent document about which you, in your laudable compassion, have expressed reservations and concern.

Among the greatest achievements of Christianity is its thoroughgoing rejection of the separation of self and body that one finds in, for example, Platonism, Cartesianism, and (most pertinently) various forms of gnosticism—ancient and modern. The temptation to embrace such separation is perennial, but the Church has always resisted it and borne faithful witness to the unity of the human person—body and spirit. We human beings are not “ghosts in machines.” We are our bodies (whatever else we are) and do not merely “inhabit” them and use them as extrinsic instruments of the supposed “real self,” considered as the psyche, spirit, or soul. The body, male or female, far from being a subpersonal object to be used and even manipulated by the “self” or “person,” is part of—an irreducible aspect of—the personal reality of the human being.

This understanding of the human person—this philosophical anthropology—undergirds the moral truths proclaimed by the Church, including (among many others) those pertaining to marriage and sexual morality, and to the sanctity of human life. To reject it is to cut the rug out from under those truths. It is this anthropology that is at stake in the debate over sexual or gender identity. To affirm that the human person is his or her (male or female) body is by no means to suggest that persons who experience gender dysphorias “do not exist.” Nor is it to suggest that such persons are anything less than bearers of profound, inherent, and equal dignity, precious brothers and sisters who deserve to be not only respected, but loved and cherished.

To respect, love, and cherish a person, however, does not require us—and sometimes does not permit us—to endorse their philosophical or ideological beliefs or, a fortiori, to affirm choices they may make in light of those beliefs. A standard rhetorical move one encounters when one makes this point is the claim that a person’s “truth” (especially the truth about his or her “identity”) is established by his or her “lived experience.” But experience (including “lived experience”) is not self-validating. To suppose otherwise is to fall into a form of subjectivism that Christianity, Judaism, Islam, and, indeed, all sound philosophy firmly rejects. Our feelings are real, but they do not determine reality—even the reality of one’s identity as a human being. A dysphoria, whether it is a gender dysphoria or a dysphoria of another type, may cause a person sincerely—and intensely—to feel that he or she is something other than what he or she is, but it cannot make him or her into what he or she feels he or she is. Feelings are indeed subjective; but fundamental anthropological truths are objective.

Of course, to disrespect someone who experiences a dysphoria of any type, including a gender dysphoria, is wrong. To ridicule, mock, or taunt someone who is trying to deal with a dysphoria, is cruel and grotesque. It is, indeed, unChristian and, to be bluntly judgmental, sinful. And this is true irrespective of whether an individual who experiences a dysphoria deals with it in a way that we believe (or the Church teaches) does justice to our obligations to the truth about the human person and his or her identity. I have always praised and commended you for defending the humanity and dignity of all people--including those who self-identify as “sexual minorities,” including those who identify as transgender. But I hope that you will also, particularly in your one-on-one pastoral ministry and in your public commentary, found your work on the truths proclaimed by the Church about our embodied nature as male and female.

We would have compelling reasons to affirm these truths—and to join Pope Francis in rejecting gender ideologies that reject or compromise them—even if we were not Catholics. Sound philosophy is sound philosophy. But as Catholics we have additional reasons to attend to these truths and to join in their proclamation—even when bearing witness to them is difficult and risky, as it has become in our day when basic anthropological and moral truths proclaimed by the Church are unpopular among the powerful and influential. And if I may say so, these truths must be at the foundation of a priest’s or a deacon’s pastoral care of Catholics who experience, and so often struggle deeply with, gender dysphorias. It is critical for those providing pastoral care to speak truth—the whole truth—in love, even when truth, or aspects of the truth, are unwelcome and perhaps off-putting. To withhold the truth, even out of a sense of compassion, is not truly to love the person to whom one is ministering. The truth, we as Catholics believe, is liberating and life-giving, even when it is hard to hear and hard to live up to. The pastoral and the truthful are in the same “hylomorphic” unity as body and spirit. They are inseparable—and any attempt to separate them will, in the end, prove to be something far worse than a mere failure. And the highest price will be paid by those who most badly needed to hear the whole truth proclaimed. -- Yours faithfully, Robby

Freedom of Religious Institutions in Society

The Freedom of Religious Institutions in Society (FORIS) Project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world.

The first public event was held on May 29th in Washington, D.C.

You can watch the archived footage at this link: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society

Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties

This Law & Liberty article by Michael Wagner is an interesting read about the increasing adversity that Christian healthcare providers face in Canada. 

Hittinger's essay on the Four Basic Principles of Catholic Social Doctrine

Rick and Kevin have both recently blogged about Russell Hittinger's essay, which you can read here: http://www.pass.va/content/dam/scienzesociali/pdf/acta14/acta14-hittinger.pdf

Hittinger invites us to think about the Four Principles by writing the following:

Why did the term ‘social’ come to the fore in Catholic teaching and thought? In order to answer this question, it is necessary to consider the four basic principles which orient the proceedings of this Academy: dignity of the person, solidarity, subsidiarity, and common good. Notice that, while all four principles presuppose the human person, the last three are specifically and irreducibly social. The dignity of the human person cannot be interpreted on the premise of methodological individualism – namely, that social unities and relations among members can be reduced to nonsocial properties of members or composites thereof. Indeed, whether there are real social entities instantiating real social relations amongst their members is the first and most abiding question.

The times in which we live

I've recently been re-reading parts of Martha Nussbaum's The Therapy of Desire: Theory and Practice in Hellenistic Ethics.  Its treatment of many of the topics and themes within the book's scope is outstanding, on a par with the quality I associate with her magisterial book, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy.  Turning the page in the former book yesterday, I was jolted when I reached footnote thirty-one on page 372, specifically this sentence: 

The substantial literature on the possible differences between Zeno and Chrysippus is summarized in Inwood (1985).  Substantial contributions are Pohlenz (1938, 1970), Voelke (1965), Rist (1969), Llloyd (1978). 

The jolt came from recalling that I had read the other day that Rist, John, favorably cited by Nussbaum (in that footnote and elsewhere), had recently been banned from entering pontifical universities worldwide. There, then, was John Rist, now the ecclesiastical "criminal," still lurking in Nussbaum's footnote as an example of first-rate, "substantial," contemporary work on Greek philosophy.   

According to Rist himself, as I proceeded to discover on the Internet, he went to fetch his car at the Augustinianum, across the street from the Bernini colonnade where he had been conducting research and supervising a graduate student, and was denied access.  Rist had received no advance notice, let alone a hearing.  As far as Rist and others have been able to make out, the offense for which he was banned was his being a signatory of the "Open Letter" accusing Pope Francis of the delict of heresy.  

I don't know Professor Rist personally, although years ago I had the pleasure of interacting with him at a couple of academic conferences, where he was much appreciated by everyone for his vast learning and generosity of mind.  Some years earlier, Rist had been teaching at the University of Toronto when I was a student there and in the Pontifical Institute of Mediaeval Studies, and I heard him lecture many times great erudition, insight, and care.  During the years I was in Toronto, in addition, Rist and I also attended the same parish served by the Toronto Oratory, where I saw him at prayer Sunday after Sunday.  Now Rist has been uncivilly banned from pontifical faculties.  Will Rist's status as "emeritus" at The Catholic University of America, where he taught after retiring from the University of Toronto, soon be removed?  

The Open Letter has many shortcomings, in my estimation, but the fact of Rist's having been banned from pontifical faculties, and without so much as notice or a hearing -- let alone something that would satisfy Mathews v. Eldridge! -- constitutes part of the puzzle of how things are going for some faithful Catholics in the Catholic Church today.   Perhaps the Open Letter was imprudent, perhaps it was even very imprudent, though I doubt that.  But what are the good and sufficient reasons, both of fact and of ecclesiastical law, that John Rist, a scholar of impeccable academic achievement and a faithful Catholic, is no longer permitted to go about his scholarly work the way he was until the week before last?  No reasons have been publicly adduced.  The Open Letter obviously struck a nerve somewhere, yet we can hope that the tolerance and desire for "encounter" promoted by the Holy Father will be extended to Professor Rist.

The process-less exclusion of Professor Rist from Catholic institutions of higher learning sadly provides arms to those who wish to find fault with the Church, something Professor Nussbaum herself has occasionally done.  Sadly, Rist's lawless exclusion finds some support in the remarkable ultramontanism, recently remarked upon by Philip Lawler, of Pope Francis's Veritatis Gaudium No. 26.2 (2018).  

Hittinger on "Reading the Tradition" the "Roman way"

Rick blogged last month about Russell Hittinger's essay, The Coherence of the Four Basic Principles of Catholic Social Doctrine: An Interpretation. In an introductory section "On Reading the Tradition," Hittinger distinguishes three contributing strands of theology, philosophy, and social science. He identifies the varying emphasis given to these different strands over time as a source of complexity. The whole concluding paragraph of this section is worth quoting in full:

Finally, the project is complex because all three factors – the theological, philosophical, and social scientific – are given different emphasis over the course of decades since 1878. The tradition is not only multi-disciplinary, but internally multi-faceted as one pope introduces new themes even while circling back upon the work of his predecessors. It is the Roman way to introduce new considerations while at the same time tightening their connection to the preceding tradition. Old things are made to look new, and new things look old. John Paul II referred to the scribe trained for the kingdom, who is compared to ‘a householder who brings out of his treasure what is new and what is old’ (Mt. 13:52). This is not mere pious sentimentality. The Pope meant it as a hermeneutical principle suitable for reading the tradition of social doctrine. Someone who reads the magisterial documents as bits of ‘news’ or as ad hoc pieces of Church policy on a particular social issues will understanding something, but not very much.

Five Insights Christianity Brings to Politics

This article by Michael Matheson Miller at Law & Liberty is a great introduction to the Christian tradition and how it intersects with politics. As the author notes, Christianity is not a political program yet it gives us a certain way of thinking about the state and the role of politics.

The summation of the Common Good is especially worth reading, as "Common Good" is becoming more difficult to define with more people using the phrase, often from a secular point of view:

The Common Good

The third major element of a Christian vision of government is the commitment to the common good. The common good consists of the political and the social conditions that enable individuals, families, and communities to “reach their fulfillment.”

It is important to note that the common good does not equal the good of the state. Individuals are not simply cogs in the machine of the state. Further, the community cannot be reduced to the political community. This is a common error. Nor does common good equal the greatest good for the greatest number. It is not simply more efficiency or more pleasure. It is rooted in a rich concept of the good life, always keeping in mind the eternal destiny of the person.

The state plays an important role in promoting the common good but cannot do everything. Its main role is in helping to create the conditions where people can flourish and to assist when necessary. As Thomas Aquinas explains, “It is contrary to the proper character of the state to impede people from acting according to their responsibilities—except in emergencies.”

The Medieval Church and Modern Liberty

This great article by Paul Rahe at Hillsdale College explores some of the Christian roots of modern liberty.  

The History of Religious Freedom

Robert Louis Wilken recently posted this web exclusive on First Things about the history of religious freedom. Wilken notes the landmark decisions in the United States that have shaped the issue and then points out how Christianity has wrongly been branded intolerant and an enemy of religious freedom:

More recently, in a March op-ed in the Washington Post, historian and political commentator Robert Kagan wrote: “Only with the advent of Enlightenment liberalism did people begin to believe that the individual conscience, as well as the individual’s body, should be inviolate and protected from the intrusions of state and church.” Kagan reflects the conventional view that religious freedom was the accomplishment of the Enlightenment. Like others, he assumes that by the end of the seventeenth century the fanaticism of religious believers gave way to the cool reason and skepticism of philosophers, and this in turn led to ideas about toleration and religious freedom.

 

What is missing in these accounts is the contribution of Christianity. Many believe that Christianity is inescapably intolerant, and that only with the decline of religious faith in western society did liberty of conscience take root. But a more careful examination of the historical record shows that Christian thinkers provided the intellectual framework that made possible the rise of religious freedom.

 

Already in the ancient world, Christian writers argued (against their Roman persecutors) that religion could not be coerced. Religious belief by its very nature must be free. They also adapted and modified the understanding of conscience received from ancient philosophers, who understood conscience as a moral knowledge of one’s past actions. Christian thinkers, influenced by the use of the term “conscience” in the writings of the apostle Paul, began to see conscience not simply as knowledge of one’s past actions, but as a pedagogue of future action. To take one example: In the sixteenth century, when Protestant magistrates forced monks and sisters to abandon monastic life to embrace the teachings of the reformers, the abbess of a Franciscan community of sisters in Nuremberg told the city council: We hope that you will not apply pressure “in matters that concern conscience” and “force us to act against our wills to confess what the authorities want us to say.”

 

Of equal importance in the development of liberty of conscience were the writings of Christians who developed the view that civil authority and religious belief must be kept separate. They appealed to the medieval distinction of two powers—one religious, the other political (pope and emperor)—what is sometimes called the two swords. Ultimately, the distinction of realms goes back to the words of Jesus: “Render unto Caesar the things that are of Caesar and to God the things that are of God.”

Justice Thomas's important reminder re: abortion and eugenics

In his opinion concurring in the Supreme Court's summary reversal of the Seventh Circuit's (clearly incorrect) ruling invalidating an Indiana law requiring appropriate disposal of fetal remains, Justice Clarence Thomas provided an important and timely, even if (for some) uncomfortable and unwelcome reminder about the inescapable connections between Planned Parenthood and the rise of the abortion-rights movement, on the one hand, and eugenics and discrimination, on the other.  Scroll down to p. 13 of the Court's order list to read his powerful opinion.  He ends with this: 

The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. . .

Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.

Freedom, Autonomy and Responsibility in Catholic Education

On Freedom, Autonomy and Responsibility in Catholic Education at Our Lady Seat of Wisdom Chapel, ACU North Sydney

The Homily linked above should be of interest to anyone working in Catholic education, especially these closing three paragraphs  . . .

We don’t just learn for learning’s sake, worthy as that is. We don’t just learn for our own uses, necessary as that is also. No, we learn that we might teach, accumulate so as to share, study in order to transmit, add to what humanity knows and put it to service. Through Eastertide we read of early Church heroes passing on the faith like sparks spreading through the dry Australian scrub. Today Paul and Barnabas argue for a bigger enrolment, as it were (Acts 15:1-6). And their way of resolving matters was to become fundamental for a Catholic college: we gather together to contemplate and converse, that together we might discover what is true and good and beautiful. We share our little wisdom, and listen to others. We beg the assistance of divine wisdom also. We sharpen our opinions on each other’s. We maintain an atmosphere of curiosity and docility, civil debate and scholastic endeavour. And then we hit the road again, sharing what we’ve gained with the world.

Our conference focuses on the freedom and responsibility in Catholic education. The flowering cross reminds us what our students, academics and institutions should be free for and responsible to: free for Veritas, for discovering truth, not just preference or opinion; responsible to Veritas, for reverencing truth, for building up and passing truth on, not just storing greedily or sifting ideologically. And we discover that Truth with a capital-T is a Man who also God, who came as witness to the truth and called on the Father to consecrate us to the truth (Jn 18:37; 17:17).

If you go to Rome, after visiting St Peter’s and, of course, the Rome campus of the Australian Catholic University, a third highlight worthy of your attention is the Dominican church of St. Clemente, one of the true wonders of ancient, patristic, mediaeval and renaissance Rome. In the dome above the altar is an incredibly rich 12^th-century mosaic of the Tree of the Cross become the Tree of Life, with luxurious shoots sprung from the tree in all directions, supporting abundant growth in Church and society, with branches for every kind of animal and vegetable life, and for all human activity, active and contemplative. There are several scholars amongst the foliage, each at his writing desk. A cruel and deadly cross that once stood on a hill in a backwater of the Roman Empire, now stands gloriously in the middle of Rome for all to see, a tree of new life for every young mind – and every older heart also.

Barclay on "First Amendment Harms"

Prof. Stephanie Barclay (BYU) has posted a new article called First Amendment Categories of Harms.  I recommend it highly (and not just because the author cites me in a few places!); it's an important contribution to, inter alia, the religious-accommodations debate.  Here is the abstract:

What role should harm to third parties play in the Government’s ability to protect religious rights? The intuitively appealing harm principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop and Hobby Lobby. While focusing on harm appears at first to provide an appealing simple and neutral principle for avoiding other difficult moral questions, the definition of harm itself operates on top of a deep moral theory about what counts as harm and why. Consequently, multiple scholars advancing iterations of these theories use “harm” as a term of art to mean very different things. This in turn results in scholars talking past each other and trading on a superficially simple idea that turns out to be incredibly complex. For this reason, the harm principle has proven unworkable in other contexts, including criminal and environmental law. This Article highlights the flaws of this approach in the religious context by measuring the theory against its own ends, including the theory’s failure to account for harms this approach would cause for religious minorities and other vulnerable groups.

Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies four categories: (1) prohibited harm (meaning a type of harm that is categorically impermissible); (2) presumptive harm (meaning a type of harm that is presumptively, though not dispositively prohibited); (3) relevant harm (meaning harm that courts will assess alongside other important factors, but whose weight is context-specific), and (4) inadmissible harm (meaning harm that is given no weight regardless of how severely or disproportionately it is experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions, but are in fact common to all First Amendment rights. Further, this descriptive framework sheds light on which sorts of harms matter, and when, and it highlights the competing harms that always arise when any rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more fruitful normative questions, including whether there is a justifiable tradeoff between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.

Pro-life community debate prudence of new anti-abortion laws

Following a wave of new state laws significantly restricting abortion, Catholic pro-life advocates and legal experts are divided over whether such bills offer a winning strategy for the eventual overturn of Roe v. Wade or if they threaten decades-long strategies to gradually prohibit abortion.

An Alabama bill, which was signed into law last week and is now the most restrictive abortion law in the nation, has become a flashpoint - provoking widespread rage among abortion rights activists and dividing pro-lifers, some of whom prefer an incrementalist approach that chips away at abortion access, while others seek a head on challenge to the Supreme Court’s 1973 decision that established a constitutional right to abortion at any point during a pregnancy.

Read the full article by Christopher White at Crux here: https://cruxnow.com/church-in-the-usa/2019/05/21/pro-life-community-debate-prudence-of-new-anti-abortion-laws/

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

Submissions and nominations of articles are being accepted for the tenth 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 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2019.

Freedom of Religious Institutions in Society (FORIS) Project Launch

The Religious Freedom Institute will officially launch its Freedom of Religious Institutions in Society (FORIS) Project with a conference on May 29^th at the Washington Hebrew Congregation. The project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world. The event is open to the public and one can RSVP here: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society

John Copeland Nagle, R.I.P.

My dear friend and colleague, John Nagle, passed from this life over the weekend. He was a great teacher and legal scholar, and also -- and more importantly -- a deeply good, generous person.  (I recommend this wonderful reflection, by his former student, Derek Muller.  Here is something I did at Prawfsblawg.  And, here is the announcement on Notre Dame Law School's page.)

MOJ readers might remember the project, "Catholics and Evangelicals Together on Law."  John was one of the signatories.  

John wrote and taught about so many things, it's not possible to do justice to his academic work (let alone his personal gifts) here. If you haven't read his stuff before, take a look.

Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace. 
Amen. 

19th century Blaine Amendments impede school choice today

George Will's latest article at National Review does a great job summarizing the history of the Blaine Amendments, which were inherently anti-Catholic and written to prevent public funding of Catholic schools during the wave of Catholic immigration in the 19th century. The state of Montana adopted its own Blaine Amendment in 1889 and readopted in its 1972 constitution. It reads: There shall be no “direct or indirect appropriation or payment” of public monies “for any sectarian purpose” or to aid any institution “controlled in whole or in part by any church, sect, or denomination.”

In 2015, Montana's legislature enacted legislation providing a small tax credit of up to $150 for individuals or businesses donating to private, nonprofit scholarship organizations that award scholarships for children to attend private schools. Montana’s Department of Revenue issued a rule forbidding recipients from using their scholarships at religious schools per its Blaine Amendment, and the Montana Supreme Court has upheld the rule.

The Supreme Court will soon decide whether to hear an appeal from Montana's high court. 

Evaluating how conscientious pro-life legislators change law and public discourse

Recently enacted abortion prohibitions that apply early in pregnancy raise the question of how to evaluate legislative action more generally. It is often a mistake to focus on just the content of the legislation itself when figuring out what law is made. For that legislation is not itself the law even after enactment. Instead, the law brought into being by any act of legislation is the set of new propositions about the law that are true as a result of the interaction of that newly enacted legislation with the rest of the law.  

Suppose, for instance, that a ban on abortions after 6 weeks' gestational age is unconstitutional. If the legislation is unconstitutional, then enacting it into the law does not change the law. It could have other effects, such as enabling lawsuits that enrich lawyers for abortion proponents. Those other non-legal effects are a mixed bag and it would be very challenging to analyze them comprehensively. I'm guessing that if one were able to do so, though, a conscientious pro-life legislator in one of the United States would be acting reasonably either in voting for or voting against such legislation. 

If I had to guess, conscientious pro-life legislators voting for these earlier abortion prohibitions intend primarily to move the window in terms of what counts as "mainstream" anti-abortion legislation. If so, they very well might succeed in accomplishing their goal. Assume, as is most likely, that these laws are held unconstitutional by federal district courts, such rulings are affirmed by federal courts of appeals, and the Supreme Court denies certiorari. The law has not changed much, except perhaps around the edges insofar as new judicial glosses in the caselaw might have some exploitable nuggets one way or the other for future fights.

What about the discourse in the meantime? Some of the arguments drawn out by "heartbeat" prohibitions do not apply to later prohibitions, such as at twelve weeks' gestational age, that could more easily be upheld against constitutional attack. 

Special Issue of Journal of Disability and Religion, "Navigating Impasses in Bioethics: End of Life, Disability, and Mental Illness"

The Journal of Disability and Religion has published a special issue with contributions from an interdisciplinary workshop on "Navigating Impasses in Bioethics: End of Life, Disability, and Mental Illness" that was jointly organized by the Von Hugel Institute of Critical Catholic Inquiry at Cambridge University, and the Murphy Institute of the University of St. Thomas in December 2017.  As an apology for the delay in the publication, they are making the issue available on-line for free until the end of May -- a real deal, since the publication typically secured behind a fairly prohibitive pay-wall. 

You can access the entire issue here.

My contribution explores "The Contradictory Expressive Functions of the Americans with Disabilities Act and Physician-assisted Suicide Laws."  Here's the abstract:

Certain laws, such as civil rights laws and criminal laws, are considered to have powerful expressive functions. The expressive functions may be directed at shifting social norms, or at articulating a social consensus about a particularly important norm. The Americans with Disabilities Act (ADA) is such a law, expressing the norm that “society’s accumulated myths and fears about persons with disabilities” are as debilitating as actual disabilities. This article will analyze the arguments of disability rights advocates that the expressive effect of laws legalizing physician-assisted suicide directly contradicts the norm of the ADA.

Here are links to the other excellent articles in the issue, written by scholars from many different disciplines, offering perspectives from the US, Europe, and Canada. 

MAiD in Canada and the Homo Economicus View of Dignity: Inclusive Enough?, Thana C. de Campos

The Weight of Living: Autonomy, Care, and Responsibility for the Self, Patrick McKearney

“This Condition isn't Going to get any Better so I can't see why we're Prolonging it”: Risks and Benefits of using Empirical Research to Inform Normative Decisions Concerning End-of-Life Care, Elizabeth Fistein, Gemma Clarke, Anthony Holland & Stephen Barclay

Assisted Dying and Suicide Prevention,  David Albert Jones

Lives Not Worth Living: Rethinking Autonomy and Assisted Dying in the Light of Profound Disability, Lidia Ripamonti

Living and Dying with a Disability in Debtor Society: Why Context Matters in Assisted Suicide Debates, Brian Brock

Anthropologies of Hope and Despair: Disability and the Assisted-Suicide Debate, David Elliot