Mirror of Justice

VIRTUAL EVENT: Shahbaz Bhatti 10th Anniversary Commemoration

Tuesday, March 2 marks the 10th anniversary of Shahbaz Bhatti's assassination for his courageous advocacy for Pakistan's religious minorities. RFI will remember his legacy with a virtual event on March 2, 2021, at 10 am EST, and hear from leading political and religious figures.

https://www.religiousfreedominstitute.org/rfievents/virtual-event-shahbaz-bhatti-10th-anniversary-commemoration

Prof. Seidman on Georgetown's "residual Catholicism"

An . . . interesting take on Georgetown University Law Center's Catholic character and mission, from Prof. Louis Michael Seidman:

"Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps."

Prof. Mark Tushnet's response should also be noted, though:

I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing.  Call it institutional pluralism or diversity. . . .

"Institutional pluralism."  I like that!

A Catholic approach to diversity, equity and inclusion at Notre Dame: 10 Theses

A Catholic approach to diversity, equity and inclusion at Notre Dame: 10 Theses

Letter to the Editor | Thursday, February 25, 2021

Daniel Philpott

Professor of political science

Like many other universities, Notre Dame is promoting diversity, equity and inclusion in the aftermath of the killing of George Floyd on May 25, and of Ahmaud Arbery, Breonna Taylor and many others. Unlike most universities, Notre Dame is a Catholic university whose mission statement holds that “our Catholic character informs all our endeavors.” How can Notre Dame manifest its mission in these efforts?

Full letter at the Notre Dame Observer: https://ndsmcobserver.com/2021/02/a-catholic-approach-to-diversity-equity-and-inclusion-at-notre-dame-10-theses/

Hankins on the Historical Past as a Source for Origins and Foundations Today

I thought this fragment from Professor James Hankins' Virtue Politics: Soulcraft and Statecraft in Renaissance Italy (2019), was very interesting and well put (64-65):

A conceptual framework motivated by present concerns may distort the past, but questions about origins and foundations are surely not "temptations" but the lifeblood of historical inquiry. A methodology that cripples the ability to ask such questions needs rethinking. Historical questions and metahistorical questions are indeed different and should be kept separate, but this fact need not be taken as a source of epistemological despair. Rather it is, or it should be, a call to exercise our imaginative understanding of human phenomena in relation to the entirety of past cultures, their Lebenswelt, the long-faded structures of practical constraints and inherited values that shaped those cultures and still renders them legible, with disciplined research, to the attentive mind. In practical terms this means exercising ceaseless vigilance against anachronism: something easier said than done. To see the past in its own terms goes against our naïve or interested desire to make use of the past for our own purposes. It also requires hard work, imagination, and (dare one say it) a certain kind of love. We want to root our own identities as individuals or groups in a glorious past, or (more often these days) we want to preen ourselves on our superiority to a benighted past, and this desire sometimes blinds us to difference, to anachronism, to moral universes other than our own. But sometimes we have to transcend our own needs in order to do justice to the reality of other persons and times. And sometimes it is the truth we cannot see that is precisely the one we need.

"Deeply rooted in white supremacy"

How should we argue about deeply contested issues? This morning our local newspaper published an op-ed repeating an argument I’ve seen several times in recent weeks: warning that the pro-life movement is “deeply rooted in white supremacy.” That would come as a surprise to Clement of Alexandria (who expressed Christian opposition to abortion more than 1500 years before the United States even existed), to Mother Teresa (who criticized political leaders for their permissive abortion policies and their treatment of the poor), to Cardinal Wilton Gregory (America’s first Black Cardinal who has long advocated against both white supremacy and abortion), to Planned Parenthood founder Margaret Sanger (acknowledged recently by the organization as contributing a “racist legacy” through her eugenics ideology), and to millions of Black Americans today who oppose legal abortion at about the same rate as other Americans. To dismiss today’s anti-abortion advocacy as “rooted in white supremacy” disregards history and inflames an already difficult issue.

 

The point I want to make is not about abortion, it’s about how we argue. The effort to label anti-abortion advocates as white supremacists follows efforts to label proponents of single-payer health care as communists. Are there white supremacists who oppose legal abortion? Sure. Are there communists who support single-payer health care? Sure. But there is nothing intrinsic to single-payer health care or anti-abortion advocacy that compels an embrace of communism or white supremacy, and to suggest so is to adopt an approach to political debate designed to shed considerably more heat than light.

 

These are not isolated examples. Increasingly, our political disagreements on particular issues are being absorbed into a broader war between two vast tribal identities. Those who disagree with us on abortion don’t just disagree with us on abortion (or health care or immigration or police reform); they are “the other” – enemies in a winner-take-all battle of good versus evil. If they’re not actually white supremacists (or communists), they might as well be. There is no point in searching for common ground because they are evil, all the way down. Whatever we fear or hate most in the world gets attached to whoever stands in the way of our political objectives.

 

I think this approach to argument is actually a cop-out, a lazy excuse to avoid the hard work of engagement. If I can dismiss those who disagree with me as white supremacists or communists, I don’t have to listen to their arguments, much less offer a substantive response. This is no way to conduct a democracy.

 

There are strong arguments on both sides of the abortion debate, and we should engage them. There are strong arguments on both sides of the health care debate, on the immigration debate, on the police reform debate, and on many other vexing public policy challenges. That’s why they are difficult issues. Simplistic narratives and name-calling don’t make these issues any less difficult, just more toxic. We can do better.

We're All In This Together

OK, let’s talk about Ted Cruz’s trip to Cancun, not because it’s an easy target for social media outrage, but because I think it offers helpful insight into why we have become so frustrated with our political leaders. I fully understand a father’s desire to give his daughters a vacation in the midst of a challenging year, and I agree that Senator Cruz could have worked from Mexico via phone and Zoom. The vacation wasn’t a failure of logistics, and it wasn’t just a case of bad optics – it was a disregard of a core element of leadership: affirming through word and deed that, no matter the challenge, we are all in this together. Living out this affirmation as a leader has several dimensions:

 

First, leaders must be willing to share in the risk. If you are leading an organization that requires some employees to be on site during COVID, and you are working remotely from the safety of your home office, that sends a strong message to your employees who are on site. If your state is suffering through widespread power outages during frigid weather, and you remove yourself from those risks for sunnier climes, you’re not leading effectively. Ted Cruz needed to tell his daughters that the vacation would have to wait until the crisis was over.

 

Second, leaders must be willing to share in the sacrifice. Knowing that sacrifice is shared is a remarkably powerful motivator and encouragement for a community in crisis. When a leader doesn’t share in the sacrifice, there is no faster path to cynicism. When California Governor Gavin Newsom was photographed at a fancy dinner party, and it appeared that his group was not following the COVID protocols imposed on everyone else, that was a crushing blow to his ability to lead his state through the pandemic.

 

Third, leaders must be subject to the same accountability. When members of the public screw up, they usually have to make amends. Especially when they have influence over the tools of accountability, leaders have to make sure that they are transparent about their mistakes. When New York Governor Andrew Cuomo made misjudgments about placing people suffering from COVID in long-term care facilities early in the pandemic, that was bad, but given what little we knew about the disease at the time, it was arguably an understandable mistake. Working to conceal that mistake in the months since – for a leader – is inexcusable.

 

Fourth, leaders must show that we possess the same dignity. Leaders will invariably disagree about ideas with those whom they are called to lead. Disagreement should be open, direct, and respectful. Disagreement never justifies leaders characterizing those they are called to lead in ways that are demeaning or characterize a person as “the other.” That is why Hilary Clinton’s “deplorables” comment was so inappropriate, and it’s why so many of President Trump’s comments were inappropriate.

 

Looking for a good counter-example? While she was far from the most memorable leader in Chicago's colorful history, something Mayor Jane Byrne did has stuck with me ever since I learned about it as a kid. She moved into the Cabrini Green housing project. Like other mayors before her, she pledged to improve public safety, but then she backed it up by actually living in a spot that was perceived as being among the most dangerous in the city. That’s a powerful example of how to say, “we’re all in this together,” and leave no uncertainty that you mean it.

 

The tendency to extend preferential treatment to ourselves over others is not a partisan problem - it's a human problem. It's one I struggle with as well, and when it's left unacknowledged and unaddressed, it's an obstacle to effective leadership.

Will Supreme Court Expand Religious Rights? (Podcast)

Rick Garnett, a professor at Notre Dame Law School, discusses a divided U.S. Supreme Court ordering California to let indoor church services resume. Jimmy Gurule, a professor at Notre Dame Law School, discusses the case for the second impeachment of former President Donald Trump. June Grasso hosts.

https://www.bloomberg.com/news/audio/2021-02-13/will-supreme-court-expand-religious-rights-podcast

The Common Good Project

The Common Good Project was launched yesterday by Professor Ryan Meade of Oxford Law. It begins with a series of conversations with legal theorists, law-makers, philosophers, economists, and others. Honored to be on the Advisory Board. 

Here's the description:

The Common Good Project seeks to foster a discussion of the relationship between law and the common good. The Project will begin its efforts by exploring the common good from an array of perspectives.

 

Many legal theorists assert that law must be directed to the common good, but few agree on what the common good is. Even those who might agree on the same formulation for the common good have nuanced differences in how the common good plays out in practical relationship with specific law.

 

Of course, not everyone holds to the notion that law must be directed to the common good, and some legal theorists find the term 'common good' dubious in itself. The Common Good Project will also explore theories of law and society that deny there is a discernible common good or dismiss the common good as impractical or an imperfect anchor for law.

 

In relating law to the common good, the Project takes as its framing point a key criterion in Thomas Aquinas' definition of law as 'an ordinance of reason for the common good, promulgated by the one who is in charge of the community.' For Aquinas, a 'law' must be directed to the common good to have the character of law.

 

The Project will address questions such as whether the common good is focused on material well-being of individuals or ideals of justice, whether material conditions and ideals are one in the same, to what extent imperfect but well-meaning laws might be considered sufficiently directed to the common good in the context of constraints in culture and politics, and how the classical and contemporary notions of equity interact with the common good. The Project will examine the common good in drafting legislation, crafting regulations, judicial decision-making, the growth of administrative law, and foundational constitutional questions, among many others.

The first conversation will be on February 22nd, 7:30pm Oxford time (2:30pm EST) with Adrian Vermeule. You can register here. 

Ash Wednesday

Today we observe Ash Wednesday, which marks the beginning of Lent, the time in the Christian calendar that commemorates the 40 days Jesus spent being tempted by Satan in the desert. The ashes sprinkled on our foreheads remind us that we are mortal: we are dust, and to dust we shall return. As Pope Francis explained last year, though, “we are dust loved by God,” and the ashes are:

 

a reminder of the direction of our existence: a passage from dust to life. We are dust, earth, clay, but if we allow ourselves to be shaped by the hands of God, we become something wondrous. More often than not, though, especially at times of difficulty and loneliness, we only see our dust! But the Lord encourages us: in his eyes, our littleness is of infinite value. So let us take heart: we were born to be loved; we were born to be children of God. [Lent is thus] a time of grace, a time for letting God gaze upon us with love and in this way change our lives. We were put in this world to go from ashes to life. So let us not turn our hopes and God’s dream for us into powder and ashes. . . . Ashes are sprinkled on our heads so that the fire of love can be kindled in our hearts. . . . Our earthly possessions will prove useless, dust that scatters, but the love we share – in our families, at work, in the Church and in the world – will save us, for it will endure forever.

This year, it may seem like the last thing we need is a reminder of our mortality. Life’s fragility has probably not been far from any of our thoughts since the pandemic upended our world one year ago. The temptation to feign blissful ignorance of our mortality may sound pretty refreshing right about now. And it’s a temptation that may be within sight as vaccines roll out and something closer to "normalcy" looms over the horizon.

 

But, as Ash Wednesday reminds us, disregard of our mortality is not so blissful, and it is not without cost. As vaccinations become more widespread, I hope I don’t trade anxiety about my at-risk loved ones for complacency about each day’s significance. Pre-pandemic, I was adept at distracting myself from big questions with a never-ending blur of activities. While Ash Wednesday is not intended as an impetus to wallow in the stark fact of life’s brevity, it is an invitation to reflect: in light of my mortality, how shall I then live?

 

We do not achieve significance through impressive accomplishments; we honor our significance by living as though we truly believe that the “littleness” of each person we encounter is “of infinite value.” As we enter Lent, what would it look like for “the fire of love” to “be kindled in our hearts?” And what is the “something wondrous” we were called – indeed created – to become?

An Open Letter About/To Senator Marco Rubio on the Eve of the Senate Trial Verdict

In 2016, I was a proud supporter of Senator Marco Rubio’s campaign for the Republican nomination for President. I put a Rubio sign in my front yard. I blogged about my support for Rubio. I encouraged people I knew to turn out for Rubio at the Minnesota caucuses. I attended the Minnesota caucuses, where my precinct voted overwhelmingly for Rubio. Although Donald Trump carried primaries nearly everywhere else that day, the good people of Minnesota stood for principle and character, giving the strong win to Marco Rubio.

In 1980, I was a delegate to the Republican National Convention, as part of the Montana delegation that put Ronald Reagan over the top for the nomination. In 2016, I thought I saw in Marco Rubio another powerful leader of principle and character. Rubio integrated conservative values with equal opportunity. Rubio spoke openly of his Christian faith and how it provided moral guidance to his political role. He saw faith and people of faith as playing a key role in promoting the common good for people of all faiths and beliefs. I saw him as offering us the best of a person of deep faith and positive spirit in seeking political office.

After the tragedy of Trump’s nomination and then the start of the long four-year downward spiral of the Trump presidency, Rubio’s moral standing appeared to falter, not by words or action but too often by silence. From time to time, Rubio would return to his first values and separate himself from this or that of the worst of Trump’s outrages. Indeed, I often defended Rubio to others who were dismayed by the Trump perversion of the conservative movement.

No more.

Barely a month ago, we watched a defeated president call for his extremist followers — the White Nationalists and conspiracy theory crazies that Trump had welcomed for four years — to join him at what he promised would be a “wild” rally on January 6 to overturn the election results. Once again drawing on his repertoire of violent imagery, Trump enraged the crowd and then sent his crazed mob down Pennsylvania Avenue to the Capitol. Repeating word-for-word what Trump had told them, the mob chanted Trump’s slogans and lies as they attacked the citadel of democracy. We watched the Trump mob beat police officers with Trump flags.

When Trump’s long-delayed response came hours later, he said of these domestic terrorists who were acting in his name, “We love you. You’re very special.”

Documenting history is a moral obligation if we are ever to learn from mistakes and aspire to something better. Over the past few days, the impeachment managers have done exactly that. As graphic and disturbing as was the video and documentary evidence, we as citizens were rightly called to bear witness along with the Senate to Trump’s inflammatory words and to the Trump mob attack on the Capitol.

Then we learn what Marco Rubio thinks about this. He branded the whole thing as “stupid.” To be sure, he said that Trump bore responsibility for what happened. But he nonetheless said that he wanted to end it as soon as possible and, indeed, even before any evidence was presented. And Rubio promised to join most of his fellow Republicans in the Senate in giving Trump a pass for the most dangerous attack on American democracy in more than a century. In fairness, however, Rubio said this before we saw the full story in living color.

I pray that Marco Rubio will think carefully about what he now has seen. I hope that he did not turn his eyes away, but watched carefully and thoughtfully. I urge him to draw on the conscience that he spoke of during his 2016 presidential run. Please consider, Senator Rubio, that you may be on the wrong side in dismissing the infamous events of 1/6 as something to rush past “at the first chance” to “end” this. Do not allow others behind the scenes to sweep away the broken glass, while you fail to demand that justice be rendered against the president who shattered the windows of American democracy.

Now is the time. Later recognition that this opportunity was lost is simply too late. It’ll be too late for history, which will not look kindly on those who hastened to move past this outrageous episode. It’ll be too late for our country which needs a new beginning. It’ll be too late for the Republican Party which has tolerated a faction that accepts political violence and desperately needs to move on to a different and more uplifting path.

Please surprise me, Senator Rubio. Please let us see the same man of principle, character, and conscience that inspired me in 2016. Prayerfully and regretfully, but firmly, vote to convict Trump. Let the truth set you free.

Notre Dame Law School Religious Liberty Initiative files amicus brief in support of Apache Stronghold in Oak Flat litigation

The Notre Dame Law School Religious Liberty Initiative has filed an amicus brief in the United States District Court in the case Apache Stronghold vs. United States of America. The brief argues in favor of religious liberty protections for Oak Flat, an Indigenous sacred site in Arizona being threatened with destruction.

The brief was filed by Notre Dame Law Professor Stephanie Barclay, a First Amendment scholar who directs the Law School’s Religious Liberty Initiative, along with the Religious Liberty Initiative’s student cohort. “Our brief highlights a history of callousness and coercion against Indigenous sacred sites like Oak Flat. Our religious freedom laws wouldn’t allow the government to demolish churches with impunity, and the same should be true of a site that has been sacred to the Apache people for generations,” Barclay said. The brief represents Ramon Riley, the White Mountain Apache Tribe Cultural Resource Director, the Morning Star Institute, and the MICA Group (Multicultural Initiative for Community Advancement).

“Notre Dame’s campus is blessed with many sacred places: from the Grotto of Our Lady of Lourdes to the Basilica of the Sacred Heart. But for the Apache people, there is only one Oak Flat,” said Dan Loesing, a 2L student who took a lead role on this brief. “It's an honor to work to protect this historic sacred site and the free exercise rights of those who gather there for prayer and religious ceremonies.”

In Apache Stronghold vs. United States of America, the District Court of Arizona may decide whether the ramifications of the Resolution Copper project meet the “substantial burden” requirements of the 1993 Religious Freedom Restoration Act. The anticipated physical destruction of Oak Flat will leave an empty crater where religious gatherings and ceremonies once took place. The amicus brief filed by the Notre Dame Law School Religious Liberty Initiative pushes back against arguments by the government that would provide basically no religious freedom protections for Indigenous sacred sites, and that would result in disparate treatment between those sites and other similar types of non-Indigenous religious exercise.

About the Notre Dame Law School Religious Liberty Initiative:

Notre Dame Law School recently launched its Religious Liberty Initiative under the leadership of Stephanie Barclay. The Initiative will involve promoting more religious liberty scholarship, coordinating events for thought leaders in this space, and starting a new Religious Liberty Clinic aimed at promoting religious liberty for people of all faiths. In just the past six months, students in the Religious Liberty Initiative cohort have already helped write briefs filed in the Northern District of New York, the Second Circuit Court of Appeals, and the U.S. Supreme Court, defending the rights of Muslims, Evangelicals, and Orthodox Jews.

Additional Quotes on the Amicus Brief:

The amicus brief was supported by Mona Polacca, President of the International Council of the Thirteen Indigenous Grandmothers. She stated, “The Oak Flat Stronghold is not just a place, but a home to spiritual powers. ... For centuries, Oak Flat has remained an active place where Indigenous people come to pray, harvest, and gather where holy beings reside and holy springs flow. The San Carlos Apache cannot have this spiritual connection with the land anywhere else on Earth.”

Alexandra Howell is a third-year law student at Notre Dame who also helped with the brief, and she explained, “While what is sacred to majority culture and religion is generally safe from government interference, minority religious groups do not have this same guarantee. Our amicus brief made me think about how the Apache burial site located at Oak Flat is akin to Arlington National Cemetery in Washington, D.C. This section of the brief is a crucial reminder of how easy it is to disregard the need for others’ beliefs to receive protection when they look different from our own.”

Ramon Riley, a respected Apache elder, has spent the last two decades working to defend Oak Flat. He opposes the proposed mining project for Oak Flat, because he believes it is wrong to “destroy sacred land that made us who we are.”

The troubling pattern of lack of protection for Indigenous sacred sites is something of particular interest to Professor Barclay. Together with co-author Professor Michalyn Steele, Barclay just yesterday published a Harvard Law Review article that argued Indigenous people should be able to more easily make a claim of a substantial burden under RFRA in order to correct certain inequalities in the law. “Allowing Indigenous peoples to demonstrate a substantial burden on their religion on the same basis as other religious groups does in any way guarantee that they will always win their case. Rather, it simply requires government to actually justify its burdens, and it incentivizes government to be more protective of sacred sites if it can be,” the article argues.

“We are so grateful and honored that Notre Dame is helping the Apache in our time of greatest need," said Apache Stronghold leader and former San Carlos Apache Tribal Chairman Dr. Wendsler Nosie, Sr. "The government is saying that destruction of Chi'chil Bildagoteel will not be a serious problem for us when its destruction will force us to stop practicing our religion.”

https://law.nd.edu/news-events/news/notre-dame-law-school-religious-liberty-initiative-files-amicus-brief-in-support-of-apache-stronghold-in-oak-flat-litigation/

Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom

Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021.

Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!

Tournament takes place: Friday, April 9, 2021 through Sunday, April 11, 2021 Formal registration opens: January 21, 2021

Tournament Fee: $300 per team

Briefs due: March 27, 2021

If you have any questions or would like to reserve space for your team(s) before formal registration opens, please contact Natalie Piazza, Tournament Director, at [email protected]

Congratulations to Dean Vince Rougeau

MOJ-veteran Vince Rougeau -- the longtime dean of Boston College Law School, and also my former colleague at Notre Dame -- has been named the new president of the College of Holy Cross.  Congrats to both Vince and the College!  More here.  

My message to students in my course on Civil Liberties at Princeton

Dear Enrollees in Politics 316: Civil Liberties --

Welcome to our course. The precepting team and I look forward to exploring with you the broad range of principles, issues, and arguments that are its substance.

Precepts [discussion sections] are a bit longer than is typical in Princeton courses: 1 hour and 20 minutes. This will enable us to dig deeply into the complex and difficult issues we will be addressing. Precept participation is important. Please be an active participant in the discussions. The virtual format presents challenges, to be sure, but don't let it deter you from contributing to the conversations.

Please don't be reluctant to speak your mind! Even if you hold an unpopular view, please be willing to share and defend it. Also, please be willing to be "devil's advocate" on behalf of views that you do not hold, or aren't sure whether you should hold. By robustly defending a controversial position to see whether, in the end, it can be successfully defended, or how far it can be defended, you will be doing all of us in the course a service.

On freedom of speech in our discussions, please see the statement on the syllabus referencing Princeton University's free speech policies set forth in Rights, Rules, Responsibilities. Princeton students and faculty enjoy the broadest possible free speech protections in all courses and other university activities, but surely free speech should be especially sacrosanct in a course on civil liberties! At the same time, we value civility--but that does not mean or require that anyone hold or decline to hold any particular view, or that one submit to anyone else's ideas about the language in which issues are to be framed, or the terms in which they are to be discussed, or the assumptions on which the dicussion will proceed. What it does mean and require is that we all do business in the proper currency of intellectual discourse--a currency consisting of evidence, reasons, and arguments.

Some of the issues we will be discussing are not only controversial, but also sensitive and, to some people, personal. We nevertheless need to discuss them frankly. As Dean Jill Dolan says, we need to be "resilient and brave" in discussing matters that engage our emotions. One thing I can guarantee is this:  Whatever your political, moral, religious, and other opinions happen to be, you will encounter in our readings and discussions challenges to them. You may even be offended or scandalized by what some authors or some participants in the course believe and say. Please bear in mind that, as Cornel West has stated, "the very point of a liberal arts education is to disturb and unsettle us." I have deliberately chosen readings representing radically opposed positions on the issues we explore. There is not an official position in the course about who is right and who is wrong about anything. All positions and points of view, no matter how radical or even unjust or immoral they may seem to people who oppose them, are on the table for discussion, scrutiny, and assessment on equal terms. There is no orthodoxy in the course; there are no dogmas. There is no censorship or policing of thought. I hope there will be no self-censorship.

My philosophy of teaching is straightforward and rather simple: My job is not to tell students what to think, or induce or encourage them to think as I do; it is, rather, to help students to think more deeply, more critically, and for themselves. What I ask of students is open-mindedness, tolerance of those whose opinions differ from yours, a willingness not only to challenge others but to be challenged in turn, and a genuine and deep desire to learn--and to learn by seriously engaging authors and fellow students whose ideas differ, even radically differ, from your own.

There is never a bad time to study and think hard about civil liberties; but this is an especially good time--indeed, an exciting time. We are in the midst of massive national disagreements about issues having to do with freedom of speech, the free exercise of religion, due process of law, the equal protection of the laws, and more. In my opinion, though it need not be yours, some of these disagreements do not admit of obvious or straightforward answers, no matter how certain partisans on the competing sides are of the righteousness of their causes. In any case, I hope that our deliberations together will enable us all to be better, more constructive participants in the debates, no matter where we come down in them.

Best wishes,

Professor George

VIRTUAL EVENT: "Jews, Christians, and Muslims: Allies in Pursuit of Truth, Virtue, and the Common Good?" Featuring John Finnis, David Novak, and Hamza Yusuf

To what extent do Christianity, Judaism, and Islam have a shared way of determining truth, and a shared vision of virtue and the common good? Does that shared vision have the potential to help heal society's deep divisions and restore faith in the American social and political order?

Explore these questions with three world renowned scholars, Professor John Finnis, Rabbi David Novak, and Shaykh Hamza Yusuf. RFI Senior Fellow, Kent Hill, and Director of RFI's Islam and Religious Freedom Action Team, Ismail Royer, will host the event.

https://www.religiousfreedominstitute.org/rfievents/jews-christians-and-muslims-allies-in-pursuit-of-truth-virtue-and-the-common-good

Christian Political Thought at Notre Dame

MOJ readers might be interested in viewing Daniel Philpott's annotated bibliography for his grad course in Christian political thought:

https://drive.google.com/file/d/1VsbyiRRY8mev44gjZSjjHX8Y2TI9JKVN/view

Professor Philpott welcomes suggestions, as it is still a work in progress. 

Judicial freedom, binding precedents, and en banc review — a comparison and question

"Binding" precedent may be thought to conflict with judicial freedom. But does it?

Suppose a judge on a a three-judge panel must decide an appeal in a federal circuit court of appeals in which one panel cannot overrule another. On such a court, only the court sitting en banc can overrule a prior panel decision.

Now suppose that the appeal to be decided is an "easy case" because the correct resolution follows straightforwardly from a prior panel decision. A judge in this later case thinks that the binding precedent was wrongly decided. But she recognizes the precedent is controlling. Because she wishes to rule lawfully, she applies the wrong but binding precedent to resolve the case before her. The full court then takes the case en banc.

Is this judge now sitting en banc more or less free than she was while sitting on the three-judge panel? It depends on what judicial freedom amounts to.

If judicial freedom is the ability to choose between contrary outcomes, then the lawful judge is more free en banc than on the panel. There was only one lawful outcome on the panel. En banc she has a choice. She can overrule the previously binding precedent or she can leave it standing. On this understanding, judicial freedom and binding law stand in opposition. 

But what if judicial freedom is the ability to render judgment according to law? On this understanding, the lawful judge is less free sitting en banc than on the panel. The judge may fail to render judgment according to law when sitting en banc. She might make a mistake about what the law requires. No such mistake was possible while the "binding" precedent controlled her choice on the panel. On this understanding, judicial freedom and law are mutually reinforcing. It is easier to render judgment according to law the more and more clearly the law binds.

Given the dominance of the conception of freedom as the ability to choose between contrary outcomes, one might be suspicious that there's something funny going on with the second conception of judicial freedom. But isn't the ability to render judgment according to law the kind of judicial freedom we have in mind when we think about "judicial independence"? When we say that judges should rule without fear or favor? When we laud judicial impartiality?

What is Christian nationalism, and what is it not?

(This is an op-ed published by Religion News Service.)

One unfortunate aspect of the American culture war is the tendency to weaponize words in ways that stretch them beyond any semblance of their original meanings. Terms such as “woke,” “PC” and “cancel culture” are now deployed to signal that something is bad without shedding meaningful light on the reasons why it’s bad. 

The latest term to meet this fate may be “Christian nationalism.” Since the attack on the U.S. Capitol, it’s showing signs of becoming an all-purpose condemnation of any effort to integrate Christian beliefs with civic engagement, even perfectly peaceful ones.

So what is Christian nationalism, and what is it not?

Paul Miller, a Georgetown University professor and author of a forthcoming book on Christian nationalism, explains that Christian nationalism is a political ideology that holds that “the American nation is defined by Christianity and that the government should take steps to keep it that way to sustain and maintain our Christian heritage.”

If America was founded for a unique purpose by God, then the Constitution was divinely inspired, and displaying the American flag in church sanctuaries is not a blurring of American and Christian identity but a natural marker of faith. In the rhetoric of Christian nationalism,  power is emphasized over principle.

Why is Christian nationalism so dangerous?

Put simply, when we merge our religious identity with our political identity, we will do anything to ensure that our political tribe prevails. We are no longer debating ideas about which reasonable people can disagree; we are defending Christianity against its enemies.

It’s why Eric Metaxas said, in reference to his claims of a stolen election, that it’s “God’s will” for America to keep spreading liberty around the world, and so, “Who cares what I can prove in the court?” Regardless of what the courts say about election fraud, “we need to fight to the death, to the last drop of blood because it’s worth it.”

When a particular political outcome becomes a tenet of my Christian faith, there’s nothing left to argue about. And when there’s nothing left to argue about, that’s a very dangerous place for democracy to find itself.

So there you have the broad outlines of what Christian nationalism is. What is it not?

Christian nationalism is not Christian patriotism. Love of country is a healthy aspect of being human, a reflection that the particularity of place matters to our identity and values. Patriotism becomes unhealthy when we reimagine our national identity as an expression of divine will, elevating our nation above others on some sort of God-ordained hierarchy.

Christian nationalism is not Christian political engagement. We are not a “Christian nation” in the sense that Christian nationalists mean. We are a nation in which our political discourse has long been shaped by Christian values, on both the left and the right. The civil rights movement was infused with Christian images and principles. The progressive push for immigration reform prominently features Christ’s admonition about welcoming the stranger.

Christian ideas should only be an entry point to a broader conversation with Americans of any (or no) faith tradition, not as a sledgehammer to stop their contribution to the debate. On the issue that’s been the most contentious over the past half-century, abortion, the most effective pro-life voices have been steeped in Christian principles. But the core of their arguments has been grounded in observations about fetal development and articulations of life’s value in terms that are accessible beyond Christianity.

On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to rational disagreement.

The dangers of Christian nationalism are real, but let’s not let tribal posturing confuse those dangers in ways that marginalize the values-based arguments that have been — and hopefully will continue to be — central to American democracy. 

Book Announcement: Christianity and Private Law

I am pleased to announce that a book I have co-edited with Bob Cochran, Christianity and Private Law, has been published by Routledge in its Law and Religion series and commissioned by the Center for the Study of Law and Religion at Emory. The book leads off with a Foreword from John Witte, an Introduction from Bob Cochran and me, and survey chapters by James Gordley and Brent Strawn. The rest of the book engages property, contracts, and torts from a range of theologically-informed views. In the torts section, Jeff Pojanowski and I have a chapter on "The Moral of Torts" on what a natural law perspective might bring to some debates in contemporary tort theory. Below are an excerpt from John Witte's Foreword and the Table of Contents.

“Private law” is a common phrase for Europeans who readily divide the legal world into public, private, penal, and procedural law categories, building in part on ancient Roman law, medieval canon law, and modern civil law.  “Private law” is a less common term for Anglo-American common lawyers. They are more familiar with several discrete legal subjects that Europeans gather under the canopy of private law – contracts, property, and torts at the center of the canopy, associational law, family law, testamentary law, civil procedure, remedies, and other topics nearer the periphery.  In both civil law and common law lands, private law focuses on the voluntary and involuntary legal relationships between private parties, whether individuals or private groups. The laws of the state – sometimes the laws of other non-state associations, too – facilitate and support those private relationships, articulate and vindicate interests and expectations that emerge from them, and offer remedies for harms that result from misfeasance, non-feasance, or breach of duty by another.  The editors and several chapter authors do a fine job defining and defending “private law” as a category, and drawing interesting relationships between contracts, torts, and property which are the main subjects treated in these pages.

“Christianity” comprises all manner of Christian ideas and institutions, norms and habits that are shaped by the familiar quadrilateral of Scripture, tradition, reason, and experience.  Distinct Catholic, Calvinist, Lutheran, Anglican, Anabaptist, and Evangelical voices, both historical and contemporary, come through in these pages, as does the powerful new Jewish voice of Michael Helfand.  The authors variously trace, describe, interpret, and critique the discrete contracts, property, and torts topics assigned to them.  Opening chapters in each of the four sections are devoted to biblical and traditional Christian teachings.  They underscore the depth, nuance, and complexity of Christian engagement with these fundamental private legal relationships.  Constructive and critical chapters later in each section highlight and illustrate the enduring value of these traditional Christian teachings for addressing discrete modern private law questions.  At the heart of many of these Christian reflections on torts, property, and contracts is the fundamental biblical question about how to love all of our neighbors – even our enemies and others who hurt us. Do we “turn the other check” to the tortfeasor?  Do we give aid and comfort to the stranger in imitation of the Good Samaritan?  Do we give our “second coat” to the thief who has stolen our first?  How do we responsibly acquire and use, have and hold, share and steward our property?  How do we balance freedom and fairness in contract?  It is just price or just market price that sets the bargain? Do we sue, arbitrate, or mediate our private conflicts, given the biblical injunction to “Go tell it to the church”?  And how do we judge and reason through the private law conflicts in a way that balances justice and mercy, rule and equity, principle and prudence?  These and many other questions have inspired centuries of deep thought by Christian jurists and judges who have variously drawn on biblical, theological, jurisprudential, historical, and natural law arguments to work out their legal systems. That rich world of Christian perspectives on private law is nicely illustrated in these authoritative but accessible chapters that will edify novices and experts alike.

Table of Contents

1. Introduction
   1. John Witte, Jr. (Emory) – Foreword
   2. The Editors – Introduction
   3. James R. Gordley (Tulane) - Christian Origins of Private Law
   4. Brent A. Strawn (Duke) - Biblical Understandings of Private Law
2. Property
   1. David W. Opderbeck (Seton Hall) - Christian Thought and Property Law
   2. William S. Brewbaker III (Alabama) - Augustinian Property
   3. Richard H. Helmholz (Chicago) - Religion and English Property Law: 1500-1700
   4. Adam J. MacLeod (Faulkner) – Property and Practical Reason
   5. Paula A. Franzese and Angela C. Carmella (Seton Hall) – Housing and hope: private property and Catholic social teaching
3. Contracts
   1. Wim Decock (KU Leuven, Belgium) - Contract Law in Early Modern Scholasticism
   2. David S. Caudill (Villanova) - Private Law in Christian Perspective: The Example of Dooyeweerd on Contracts
   3. Scott Pryor (Campbell) - Destabilizing Contract: A Christian Argument For Revitalizing Unconscionability
   4. Val D. Ricks (South Texas) – Christianity, Freedom, and the Doctrine of Consideration
   5. Michael A. Helfand (Pepperdine) - Privatization and Pluralism in Dispute Resolution: Promoting Religious Values through Contract
4. Torts
   1. Michael P. Moreland (Villanova) and Jeffrey A. Pojanowski (Notre Dame) – The Moral of Torts
   2. David F. Partlett (Emory) – Christianity and Tort Duties
   3. Nathan B. Oman (William & Mary) – Christianity’s Quarrel with Civil Recourse Theory
   4. Robert F. Cochran, Jr. (Pepperdine) - Tort Law and Intermediate Communities: Catholic and Calvinist Theories

What does CST have to say about America's collapsing social trust?

What does Catholic social teaching have to say about America’s collapsing levels of social trust, which underlie the rise of conspiracy theories, the rejection of expertise, and the hollowing out of the political center? Put differently, if we read David Brooks’ recent essay on our nation’s moral convulsion through the lens of CST, what insights might we gain?  (Last year, [non-Catholic] Brooks called CST “the most coherent philosophy that opposes a philosophy of rampant individualism,” but I don’t think he’s addressed this topic at any length.)  We often invoke elements of CST in debates about particular policy issues, but what light might CST shed on a prudent path forward through this cultural moment?

Two questions might be helpful conversation-starters. First, while solidarity compels us to care about and for others, what does it tell us about the primacy of trusting -- and of being trustworthy -- as a necessary condition of such care? As we know, solidarity “is not a feeling of vague compassion or shallow distress” at others’ misfortunes, but rather “a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all.” (Sollicitudo rei socialis ¶ 38) What is needed is “a commitment to the good of one’s neighbor with the readiness, in the gospel sense, to ‘lose oneself’ for the sake of the other instead of exploiting him, and to ‘serve him’ instead of oppressing him for one’s advantage.” (Id.) The freedom made possible by solidarity is not “achieved in total self-sufficiency and an absence of relationships,” but only “where reciprocal bonds, governed by truth and justice, link people to one another.” (CDF, Instruction on Christian Freedom and Liberation ¶ 26)  The freedom made possible by solidarity “can be articulated only as a claim of truth.” (Id.)  Do we need to talk more about solidarity and social trust?

Second, does subsidiarity require us to pay attention to expertise as part of identifying the appropriate level of society at which problems should be addressed?  The importance of the free, meaningful, and efficacious operation of mediating institutions presents the “most weighty principle” of subsidiarity:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.  For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy or absorb them.

(Quadragesimo anno ¶ 79)  What does this mean, if anything, for a rising tide of anti-expert populism?

I'm just starting to think about the answers, and I welcome suggestions of helpful resources (rkvischer [at] stthomas.edu).  These and related questions will be a significant component of CST's relevance to American life for the foreseeable future.  As Brooks observes,

The cultural shifts we are witnessing offer more safety to the individual at the cost of clannishness within society. People are embedded more in communities and groups, but in an age of distrust, groups look at each other warily, angrily, viciously. The shift toward a more communal viewpoint is potentially a wonderful thing, but it leads to cold civil war unless there is a renaissance of trust. There’s no avoiding the core problem. Unless we can find a way to rebuild trust, the nation does not function.

I believe that Catholic social teaching will provide important insights as we navigate these painful cultural shifts.  We need to discern and articulate those insights, and convene conversations that give the insights broad visibility and optimal opportunities to gain traction in the debates to come.  This could and should be a years-long project.

How should we think about the renaming debates?

On Tuesday night, the San Francisco Board of Education voted to remove the names of Abraham Lincoln, George Washington, and other prominent figures from 44 public schools over concerns that the figures had “direct or broad ties to slavery, oppression, racism or the ‘subjugation’ of human beings.” It’s tempting simply to roll our eyes and dismiss this as San Francisco playing up to its caricature, but these renaming debates will continue to swirl in cities across the country. Is there an intellectually coherent and morally prudent path to follow?

 

Yes. In the simplest terms, the renaming debate should explore whether a school's name causes reasonable observers to question the school’s commitment to the core values of its educational mission, not whether the historical figure’s behavior aligned with those values in every single respect. We need to avoid the extreme positions on both sides.

 

At one extreme, it is a mistake to dismiss these debates categorically as examples of political correctness run amok. Our decisions to honor particular individuals – and to ask families to entrust their children to schools that reflect those decisions – have real impact on well-being. For example, a Native American friend of mine explained that the abuse children of her community experienced in the assimilationist white boarding schools they were forced to attend created a distrust of schools that has extended across generations. As a result, academic success was not celebrated or encouraged when she was growing up.

 

So imagine being a Native American student asked to attend Ramsey Middle School in Minneapolis, named after the Minnesota governor who called for the extermination of the Dakota and persecuted the tribe in various ways. What message would you absorb every day walking into a building emblazoned with Ramsey’s name?

 

While my daughter was a student at Ramsey, the students successfully advocated to change the school’s name to honor Alan Page, the first African-American justice on the Minnesota Supreme Court. The students delved into history, evaluated the pros and cons, and persuaded the school board. I fully supported that decision.

 

At the other extreme, moral purity cannot be the standard for honoring historical figures. One of my personal heroes is Martin Luther King Jr., and he had some pretty significant moral failings; nevertheless, we honor him because the legacy of his public witness was transformational for our nation. Or consider Abraham Lincoln. We are ignoring history if we insist that his primary legacy was his failure to change the U.S. government’s relationship with Indian tribes, rather than courageous action to end slavery and preserve the Union.

 

Historical analysis requires us to evaluate the entire arc of a person’s life and work. We need to demonstrate empathy – the Ramsey name didn’t bother me until I took time to listen to the experiences of Native Americans in Minnesota – but we also need to exercise reason. If we’re incapable of recognizing that Abraham Lincoln is worthy of honor because of his positive contributions to the American story, we are on a very troubling path. If your feelings about Lincoln are just as valid as the historical facts about Lincoln, we’re not far from the post-truth world of QAnon.

 

If every interpretation of a contested social symbol is equally valid, there’s really nothing to talk about. History becomes another battlefield in our never-ending culture war. We still have to settle the contest, of course, and we’ll do it through raw power. That’s not a recipe for social cohesion, robust pluralism, or a historically literate citizenry. It’s a recipe for chaos.

Mixed Feelings from a Department of Justice Alum About the Belated Ethical Stand by DOJ Leaders at the Close of the Last Administration

My affectionate professional relationship with the U.S. Department of Justice (DOJ) has persevered in one form or another for more than three decades.

After working as a legislative assistant to a U.S. Senator on Capitol Hill and clerking for a U.S. Court of Appeals judge, I was fortunate to be chosen through the Honors Program to become an appellate attorney at Main Justice in Washington, D.C. For three years, I represented a wide variety of government officials (from the President and Cabinet secretaries to line government employees) and federal agencies (from the Central Intelligence Agency and Department of Defense to the U.S. Postal Service). I was the attorney on appellate cases in the U.S. Courts of Appeals and the Supreme Court. The subjects ran across the civil litigation spectrum, from constitutional challenges to government programs to simple tort claims against the government.

That wonderful opportunity for a young lawyer proved to be the beginning of my life's work.

As a law professor, I have devoted much of my academic attention to civil litigation involving the federal government. I have authored the hornbook on "Litigation With the Federal Government," published by West Academic Press in 2016 and now on contract for a new edition in 2022. I have also published the only law school casebook on the subject, having now taught the course more than a dozen times. I have written many, many scholarly articles on jurisdiction over government cases, contract and takings disputes with the federal government, attorney's fee recoveries against the federal government, the Federal Tort Claims Act, etc. Most recently, I have been working on federal government accountability for official wrongdoing, with a focus on redressing sexual violence perpetrated by federal employees.

My pro bono appellate practice over the past decade has put me more than once on the other side of the Department of Justice, when I have been court-appointed counsel for those bringing claims against the federal government and when I have written or joined amicus briefs in the Supreme Court. When appearing opposite DOJ attorneys in court, I have continued to appreciate the professionalism and high standards of ethics of federal government attorneys. As any good lawyer will tell you, it is much easier and more satisfying to litigate against good and responsible attorneys, while it is hard and unpleasant to litigate against poor attorneys. And with the DOJ, you interact with the best of the best. Thus, even as a litigation opponent, my affection for the DOJ remains strong.

Because of those sentiments and my hard-earned knowledge of the vital importance of this legal institution, I have been heartbroken to watch the politicization of the Department of Justice over the past four years by the Trump White House. Especially under Attorney General Barr, DOJ has too often been degraded to the personal law firm of Donald Trump. DOJ’s true mission is to serve as the legal counsel for the federal government as a whole, bearing allegiance not to an individual but to the United States. The devolution of DOJ during the Trump Administration has undermined its role as an independent source of legal advice for the government and executive officials, tarnished its reputation before the courts and public, and caused many of its best and brightest to leave Main Justice.

It was with mixed feelings that I learned of former President Trump’s final disgraceful attempt to recruit the DOJ as a legal foot soldier in his misguided army of insurrection against democratic governance.

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"Giving Our Better Angels a Chance"

Alan Brownstein (UC-Davis) and I have published the above-titled article, subtitled "A Dialogue on Religious Liberty and Equality." You can download it here. I've respected Alan's work--its carefulness, clarity, and honesty--for a long time and am very happy we've been able to do this together. From the abstract:

This essay is a collaborative effort to engage in a dialogue on church-state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we plan to discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church-state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground and provide opportunities for compromise.

It's forthcoming in The Journal of Appellate Practice and Process, a publication provided to every federal and state appellate judge in the nation. The dialogue format--each of us writing specific sections with responses from the other, rather than trying to homogenize our views in a singe text--allows us, we hope, to present disagreements clearly while also suggesting places of common ground and potential solutions.

Teaching in Person at a Catholic Law School During the Pandemic (Part Three: Fostering Community)

This is the third and final in a series of posts about my experiences teaching in person last semester during the pandemic at a Catholic law school. The first post was about health and safety for teaching in person despite the contagion. The second post was about educational quality given the accommodations necessary to teach in person during a pandemic. This post is about fostering community in challenging times with social distancing.

Community as a Hallmark Value at the University of St. Thomas School of Law

Fostering community among students, faculty, and staff is a hallmark at the University of St. Thomas School of Law. It is one of the visible attributes that draws prospective students and that is frequently emphasized by our current students and alumni. As more than one person has said, community is simply baked into our DNA at St. Thomas. If you ask a typical St. Thomas law student what stands out about the law school experience, he or she is quite likely to speak to a positive atmosphere that nurtures students and draws people together.

Now many law schools tell prospective students that they have a strong community and portray images of community in publicity brochures and alumni magazines. Assertions of a supportive community are easily uttered. For the University of St. Thomas, we fortunately have considerable concrete evidence that our community is genuine and distinctive.

First, in national surveys of law student engagement, law students at the University of St. Thomas consistently report they are happier and feel more supported.  UST law students are much more positive about their law school experience than is generally reported at other law schools.

Second, I take an anonymous survey of students in my Professional Responsibility class each spring when they are more than half-way through their legal education. Substantial majorities of our students report  each year that they are more committed to and even happier about their choice to become lawyers than when they began their legal education. By contrast, across the country, many law students become disenchanted by the end of their first year, and upper-level students often express regret about their decision to go to law school.

Third, in yet another survey, which is publicly available, our students vote regularly in the Princeton Review to include us among the top ten law schools for “Best Quality of Life.”

Now some law deans and professors would openly or quietly disclaim that community should be a signature characteristic of legal education. The purpose of law school, they would say, is to effectively prepare students to pass the bar and competently engage in the practice of law. Others might say that a law school as part of a university should be first and foremost about demanding critical thinking and challenging students with new ideas, rather than seeking to flatten out student experience into an anodyne good feeling. And in public law schools, there are constitutional free expression expectations that restrict efforts to vigorously press a particular theme, which in the legal academy can become ideologically rigid.

I believe that the University of St. Thomas has generated a sense of community that is neither heavy-handed in approach nor indifferent to differences in viewpoints. To be sure, as a private and faith-based law school, we would have the freedom to choose a motivating theme, even if it trespassed on freedom of thought or excluded contrary points of view. But that is not our path. We do not assume that any human institution, including the Catholic Church, has a monopoly on truth. Especially when it comes to law and public policy, the Church encourages prudential judgment and respects the expertise of others in translating values into policy. Moreover, we embrace ideals of academic freedom in our encouragement of intellectual exploration. As I say when describing our Catholic identity to students, we are always Catholic, but we are not only Catholic. We welcome the expression of values and the sharing of insights from all traditions, while not neglecting the Catholic Intellectual Tradition.

Rather, at the University of St. Thomas, we seek to foster a community that is diverse in every way, that consists of people who disagree passionately about matters of values and who draw their most deeply-cherished beliefs from a variety of backgrounds and traditions. What is distinctive for us is to celebrate this diversity and see it as an entry point to draw everyone together. As our Vision Statement defines community, “[w]e foster a diverse environment in which each student feels supported in his or her unique journey from law student to lawyer and called to share his or her gifts to enrich the collective learning community.”

The crucial link that brings us together is a very intentional attempt to talk across the political, cultural, and religious divisions that plague our country. Our sense of community is a bridge, a search for common ground. In so doing, we discourage the demonization of different viewpoints or the presumption that those who disagree with us are acting in bad faith. At the same time, we encourage speaking truth to power and shedding light on uncomfortable realities and damaging attitudes that others might wish to avoid. Far more than is true at most other law schools, UST law students who espouse quite conflicting positions on legal and political issues are in conversation with each, attend programs sponsored by groups with a different perspective, and collaborate on ventures to to better understand alternative viewpoints and find a common ground if possible.

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Setting the Record Straight: Fulton v. City of Philadelphia

This guest post was written by Professor David Smolin from Samford University’s Cumberland School of Law. Smolin is the Harwell G. Davis Professor of Constitutional Law and Director, Center for Children, Law and Ethics.

Setting the Record Straight: Fulton v. City of Philadelphia

By David Smolin

As an academic who studies adoption, foster care, and children’s rights—and an adoptive parent myself—I am a bit surprised by some of the rhetoric surrounding Fulton v. City of Philadelphia. Understandably, lawyers have to make legal arguments—but often what gets lost are important facts that provide the context necessary to understand and evaluate these legal arguments. This is an important Supreme Court case, but not for the reason that some seem to think. This case will not affect the ability of same-sex couples to foster or adopt anywhere in the Country(same-sex foster care is legal in all 50 states). But it will have an important impact on the number of agencies and foster families available to care for foster children nationwide. Here are the three biggest misconceptions I have seen in how this case is discussed.

#1: Foster care is primarily about the recruitment and certification of foster parents.

Philadelphia has tried to keep the focus on certification, but that’s only one part of a more complex puzzle. Lost in today’s  discussion is the fact that foster agencies provide ongoing support for the families that choose to partner with them—and that many families choose a particular agency because its services and support system are different from that of other agencies. Some agencies hire staff with language and cultural competences to better serve Latino communities. Some agencies participate in training programs and certifications to better serve LGBTQ couples, youth, and families. Some agencies recruit through churches and can provide emotional and spiritual support to foster families who want an agency that understands and affirms their deep religious commitments. Fostering in partnership with a private agencies is not “one and done”—it is an ongoing process. Burnout is high for foster parents; it’s an arduous and emotionally-draining undertaking. But families will stick with it longer if they have the training, support, options for respite care, and help they need. Agencies matter. They are not simply identical widgets churning out foster parents. They each play a unique role in a diverse, healthy child welfare system.

#2: Home studies require mere pro forma box-checking.

At oral argument in Fulton, the Supreme Court asked a few questions suggesting a misunderstanding of a foster care home study (the process by which families become certified to care for a foster child in partnership with a specific agency). For example, one Justice asked whether Catholic Social Services could certify foster parents without evaluating their marriage, while another asked whether Catholic Social Services could perform a same-sex home study but include a disclaimer expressing their disapproval of the relationship. I see several problems with this line of thinking.

First, home studies are far more personal, intimate, and invasive than most imagine. Social workers conducting home studies go far beyond inspecting the physical residence. Home studies focus on the relational aspects of a prospective foster or adoptive family, including the marriage or intimate partnership, relationships with children, extended family, community, friends—potentially even aspects of a couple’s sex life. “Sexual orientation cannot be ignored in the assessment process, because an individual’s sexuality is an aspect of who they are as a total person and will impact on their life as a parent.” (https://www.researchgate.net/publication/6301781_Assessing_lesbian_and_gay_prospective_foster_and_adoptive_families_A_focus_on_the_home_study_process)

Because foster children typically come from a background of trauma, a foster or adoptive home must be relationally solid enough to absorb the difficult behaviors common with traumatized children An in-depth evaluation is necessary to ensure that agencies are entrusting vulnerable children only to stable, safe, and emotionally healthy foster families. Anything less than a thorough evaluation could endanger foster children, and could put an agency’s license at risk—when a private agency approves a foster parent, it is “vouching” for that parent’s home, and adverse outcomes call the agency’s abilities and judgment into doubt.

For this same reason, the belief that if the government shuts down a faith-affirming foster agency, all its foster families would simply “transfer” agencies is misguided. There is potential loss and disruption to foster families in losing a trusted partner in their foster care journey and adjusting to a new social worker who doesn’t understand their case or their foster care history. The recognition that their agency has lost its role precisely because it adheres to a faith shared by the foster parents would create a disincentive to continue as a foster parent.

The process of recertification (by which a foster family may, in some cases, partner with a new agency) may also serve as an additional disincentive to continuing, even more so if foster parents fear that the same criteria applied to excluding their former agency will eventually be applied to them as foster parents. Hence, one cannot assume that all existing foster parents would go through this process of transferring and being recertified by a different agency. Losing any qualified foster parents would lead to placement disruptions and would harm the foster children in their care.

Second, asking objecting faith-based agencies to perform home studies for same-sex couples with a “disclaimer” stating that the agency doesn’t endorse the couple’s relationship is a non-starter.As explained in #1 above, when foster parents partner with a foster agency, this results in an ongoing relationship between the agency and the foster parents. Many agencies will regularly check in with their foster parents. It is crucial that this is a relationship of trust and support. Foster parents must feel comfortable talking frankly with their agency, flagging any potential problems, and asking for help when it is (inevitably) needed.

The idea that a couple would want to engage in a partnership with an agency that cannot affirm their marriage defies logic.Philadelphia even seems to understand this, telling prospective foster parents to find an agency that is the “best fit” for them.

#3: Alleged dignitary harms to adults are more important than the best interests of children.

Let me say this first: regardless of the outcome in Fulton, same-sex couples will still be allowed to—and encouraged to—foster and adopt in all 50 states. With that said, an undue focus on dignitary harms for foster parent applicants obscures what is in the best interest of foster children.

Philadelphia and the ACLU argue that the hypothetical referral of a same-sex couple from Catholic Social Services to another nearby foster agency (there are close to 30 private agencies in the City) justifies completely excluding this agency from the foster care system. This means that all foster families whopartner with Catholic Social Services will have to be recertified (see #2) and that Catholic Social Services’ decades of experience and unique ability to recruit foster families from Philadelphia’s Catholic community will be lost.

I see at least two problems with this argument. First, there are adult dignitary harm on both sides. The dignitary harm a same-sex couple might face from potentially being referred to another agency (remember, no same-sex couple had actually approached Catholic Social Services seeking to foster), or which occurs simply from knowing that Catholic Social Services is allowed to continue its historical role, is countered by the dignitary harm women like plaintiff Sharonell Fulton experienced when the city government told her that it was closing down the foster agency with which she has partnered for over 25 years. Knowing your agency was shut down because it shares your faith is also a dignitary harm.

Second, the government is placing these dignitary harms to adults above what is in the best interest of children—namely, to maximize the number of foster parents available to serve children in need. This misses the point of who a foster care program is meant to serve: children in need, not potential foster parents.

On this last point, I have not seen any convincing evidence that excluding faith-based foster care agencies increases the number of homes available for foster children in need. In fact, some evidence indicates that faith-based agencies can recruit families that others can’t and provide wrap-around support services which help foster parents serve longer. Much of this evidence is outlined in several Supreme Court amicus briefs, including my own.

What is more, result-orientated attempts to argue otherwise miss the mark. For example, two professors purport to find, based on “preliminary” analysis of data, and interviews with professionals perhaps selected or self-selected for sympathetic viewpoints,that excluding a faith-based agency in Boston did not have any negative effect on the child welfare system. Their eagerness to come to conclusions based on their admittedly “preliminary” analysis suggests that they began with a preferred conclusion and then went looking for data in support.

For example, as evidence they claim that the number of “days in care” (i.e. the total number of days a foster children spends in a foster home) “slightly decreases” after the agency was shutdown. Even assuming the numbers are accurate, a decrease in the number of “days in care” may be either a positive or a negative child welfare outcome. The number of “days in care”could drop because of a shortage of foster care parents to provide such care, because children are being returned inappropriately to abusive and neglectful homes, or because children “aged out” of foster care. It could also result from unrelated changes in the community, particularly because the result is one of “slightly” decreasing. Simply put, a decrease in “days in care” without more doesn’t tell us much of anything about the health of a child welfare system. No wonder this analysis was presented as “preliminary” by the authors. It is incomplete.

Even if one credited the authors’ conclusions, it is telling that they admit: “None of this is to say that things could not turn out differently in another context where a transition is managed less well.” This is quite an admission in a context where child welfare systems notoriously are not managed well, with the majority of states having experienced a federal court consent decree due to chronic mismanagement. One cannot count on a seamless and well-organized transition in child welfare systems which have been known to literally lose track of the location of children in care, with one study finding more than 60,000 children listed as missing in America’s child welfare system since 2000.

*  *  *

Looking at Fulton from the perspective of what is best for current and prospective future foster children, it is easy to see why excluding faith-based agencies from the foster care systemsolely because of their religious objections to same-sex marriage is a bad idea. The child welfare systems in the United States arechronically overwhelmed and frequently mismanaged and need all the help available from diverse elements of society, including the religious agencies and persons who have throughout the history of the system provided critically important services and homes for children. In this context of constant crisis for America’s foster care children, valuing the dignitary interests of some (but not all) impacted adults, above the needs of traumatized, abused, abandoned, and vulnerable children, would be a tragically unjust choice.

​I would add, as I stated in the Statement of Interest in a Fulton amicus brief, that I support “both the inclusion of LGBTQ persons as foster and adoptive parents, and also … the inclusion of religious agencies and religious adoptive and foster parents, including those whose religious beliefs do not accept same-gender marriage.” America’s children really do need all of us, and the adults have to figure out a way to work together toward that end.