Friday, April 9, 2021
Religious Liberty: Where We Are and Where We're Going, the inaugural event in a series entitled Courtrooms to Classrooms, will be a panel discussion featuring the Honorable Matthew J. Kacsmaryk, U.S. District Judge, U.S. District Court for the Northern District of Texas; and James A. Sonne, Law Professor, Stanford Law School, Founding Director, Religious Liberty Clinic at Stanford Law School. Andrew Graham, Senior Fellow at the Religious Freedom Institute, will moderate the discussion, which will focus on the state of religious liberty in the United States, current trends affecting this fundamental right, and how potential legislation and case law may affect America’s First Freedom in the future.
April 9, 2021 | Permalink
Thursday, April 8, 2021
Insert here [ ] all of the usual (and correct) criticisms of the USNWR law-school rankings. And, insert here [ ] the necessary caveats relating to the fact that the rankings' new incorporation of student-loan-debt matters did not help my own institution. All that aside, it's far from clear to me why this incorporation makes much sense. Just two, not-at-all-original concerns, for now: First, as others have noted, it could create incentives to (all things considered) prefer admitting wealthier students. And (a more abstract point, I guess), it seems to neglect the likelihood that higher student-debt loads at graduation are related to students' calculations/predictions regarding the value of education, networks, credentials, etc., in which they are investing. We should care more, it seems to me, about whether those predictions are well-grounded than about the fact of student loans.
On the other hand: I kind of like the possibilitythat the new metric could disincentivize the practice of using transfer-admissions (and strategically-small first-year classes) as a revenue-enhancing mechanism. We'll see, I guess . . .
Tuesday, April 6, 2021
A federal court just ruled against Wayne State University, finding that it discriminated against InterVarsity Christian Fellowship, a religious student club, when it kicked the group off campus for requiring its leaders to be Christians. As the court stated, at Wayne State, “[s]tudent groups were permitted to restrict leadership based on sex, gender identity, political partisanship, ideology, creed, ethnicity, and even GPA and physical attractiveness.” However, religious groups were not allowed to require that leaders share any of a group’s religious beliefs and at Wayne State, it was a “small group of Christians, who were denied [student organization] benefits because they require their Christian leaders to be . . . Christian.”
Full press release at Becket Law.
April 6, 2021 | Permalink
Monday, March 29, 2021
The humanitarian proposal is hard to refuse, because it postulates that we can achieve justice if everyone simply becomes aware of their essential human likeness. The Christian proposal is hard to accept, because it affirms that all human beings are prisoners of an injustice from which they cannot escape by their own efforts.
Excellent article in Public Discourse. Our Reading Group at ND Law School’s Program on Church, State & Society read Manent last semester and it led to some great conversations.
March 29, 2021 | Permalink
Thursday, March 25, 2021
This chapter examines John Paul II’s contribution to law as a statesman, world leader, and universal pastor of the Roman Catholic Church. John Paul II’s approach to the law was shaped by the stark realities of having suffered firsthand the injustice of two totalitarian regimes and the cruelties of the Second World War. An ardent defender of human rights, especially the rights to life and religious liberty, John Paul II saw in human dignity and human solidarity the two great levers for advancing the development of legal systems. Lastly, this chapter explores John Paul II’s invaluable role in updating and reforming the canon law of the Catholic Church. He had a singular role in promulgating the Code of Canon Law of 1983, the Code of Canons of the Eastern Churches of 1990, and the Apostolic Constitution Pastor Bonus of 1988 on reforming the Roman Curia. For these and other relevant legal contributions, John Paul II well deserves the title of jurist.
March 25, 2021 | Permalink
For this great feast of the Annunciation, two versions of Justice Scalia's oft-told story about the best lesson he learned as an undergraduate at Georgetown:
Perhaps the best lesson I ever learned here at Georgetown occurred during my oral comprehensive examination in my major (history) at the end of my senior year. My history professor was Dr. Wilkinson, a prince of a man. He was the chairman of the three-professor panel that examined me. And I did, if I may say so myself, a smashingly good job. As the time for the examination was almost at hand, Dr. Wilkinson asked me one last question, which seemed to me a softball. Of all the historical events you have studied, he said, which one in your opinion had the most impact upon the world? How could I possibly get this wrong? There was no obviously single correct answer. The only issue was what good answer I should choose. The French Revolution perhaps? Or the Battle of Thermopylae—or of Lepanto? Or the American Revolution? I forget what I picked, because it was all driven out of my mind when Dr. Wilkinson informed me of the right answer—or at least the right answer if I really believed what he and I thought I believed. Of course it was the Incarnation. Point taken. You must keep everything in perspective and not run your spiritual life and your worldly life as though they are two separate operations.
- Scalia, On Faith, "Away from the noise—making retreats" (1998 Georgetown)
Georgetown University was a very Catholic place when I was there. One of the best lessons I learned was in the course of my oral comprehensive exam in my major subject, history, at the end of senior year. I had done pretty darned well during all of the questioning, and at the end my history professor, Dr. Wilkinson, to whom I am ever indebted, asked me one last, seemingly softball question: If I had to pick a single event as the most significant in all the history I had studied, what would it be? I say it was a softball question because there obviously could not be any single correct answer. So I groped for what might be a good one. What should I say? The Battle of Thermopylae? No, the Battle of Lepanto. No, the French Revolution. No, the Grand Convention of 1787. I forget what answer I gave, but it was wrong. The right one, Dr. Wilkinson informed me, was the Incarnation. Well, of course. Point taken, and an unforgettable lesson learned.
- Scalia, On faith, "Moral Formation--the Character of Higher Catholic Education" (1994, Catholic University).
Wednesday, March 24, 2021
Utah Valley University will livestream what promises to be an excellent First Amendment Conference.
DAY 1 – Tuesday, March 23
9:00 a.m. MDT
Setting the Stage for Religious Liberty & the Supreme Court
Where We Are: The State of Religious Freedom Today – Stephanie Barclay, University of Notre Dame School of Law
A Look at Justice Barrett and the New Supreme Court– Mark Walsh, ABA Journal, SCOTUSblog
10:30 a.m. MDT
Revisiting Employment Division v. Smith After 30 Years
Defending Smith – Bill Marshall, University of North Carolina School of Law
Critiquing Smith & Reviewing RFRA - Alexander Dushku, Kirton McConkie
Case Law Developments Since Smith– Adèle Keim, Becket Fund for Religious Liberty
12:30 p.m. MDT
Lessons of Civility from the Supreme Court
Addressing Culture War Issues in a Consensus Building Manner – Dr. Ryan Owens, University of Wisconsin-Madison
DAY 2 – Wednesday, March 24
9:00 a.m. MDT
Free Exercise Rights from the Perspective of Religious Minorities
Islam – Asma Uddin, Council on Foreign Relations
Native American Religions - Mona Polacca
Judaism – Dr. Michael Helfand, Pepperdine Law School
11:00 a.m. MDT
Looking to the Future
Religious Freedom Issues on the Horizon for the Court – Dr. Phillip Muñoz, University of Notre Dame
Moving Forward with Civility – Judge Thomas Griffith (Ret.), U.S. Court of Appeals for the District of Columbia
March 24, 2021 | Permalink
Monday, March 22, 2021
Friday, March 19, 2021
In his introductory text, Augustine's Quest of Wisdom, Vernon Bourke leads off Chapter XIII ("God and Society") with this long quotation from the twelfth book of Augustine's Literal Commentary on Genesis:
These are the two loves: the first is holy, the second foul; the first is social, the second selfish; the first consults the common welfare for the sake of a celestial society; the second grasps at a selfish control of social affairs for the sake of arrogant domination; the first is submissive to God, the second tries to rival God; the first is quiet, the second restless; the first is peaceful, the second trouble-making; the first prefers truth to the praises of those who are in error, the second is greedy for praise however it may be obtained; the first is friendly, the second envious; the first desires for its neighbor what it wishes for itself, the second desires to subjugate its neighbor; the first rules its neighbor for the good of the neighbor, the second for its own advantage; and (these two loves) make a distinction among the angels, the first love belongs to the good angels, the second to the bad angels; and they also separate the two "cities" founded among the race of men, under the wonderful and ineffable Providence of God, administering and ordering all things which have been created; the first (city) is that of the just, the second (city) is that of the wicked. And though they are now, during the course of time, intermingled, they shall be divided at the last judgment; the first, being joined by the good angels under its King, shall attain eternal life; the second, in union with the bad angels under its king, shall be sent into eternal fire. Perhaps, we shall treat, God willing, of these two cities, more fully in another place.
I don't know about you, reader, but I'm not sure I can act well from the first kind of love on Twitter. Too often and too easily it seems so much I see externally and experience internally is foul, selfish, aiming at control for the sake of domination, rivaling God, restless, trouble-making, greedy for praise, envious, aiming at subjugation of neighbor and self-advantage.
As today's feast day comes to an end, let us pause to bring to mind and treasure the silence of St. Joseph.
Thursday, March 18, 2021
About the Lecture
The European Commission for Democracy through Law (commonly known as the "Venice Commission") is the Council of Europe's advisory body, composed of independent experts, on issues of constitutional law and politics throughout its member states and beyond. As such it has been actively involved in many of the most notable recent controversies regarding constitutionalism, democracy, and the rule of law in places such as Poland and Hungary, Ukraine and Armenia, Turkey and the Balkans. In this talk, Paolo Carozza, currently the U.S. member of the Venice Commission, will describe the Venice Commission's engagement with these issues and provide an assessment, through the lens of the Venice Commission's work, of some of the principal current challenges to the future of democratic constitutionalism in Europe, and of the role of transnational institutions in addressing these challenges.
About the Speaker
Paolo Carozza is the director of the Kellogg Institute for International Studies and professor of law and concurrent professor of political science at the University of Notre Dame. With expertise in comparative constitutional law, human rights, law and development, and international law, he focuses his research on Latin America, Western Europe, and international themes more broadly.
His current research revolves around the relationships between law, human rights, education, and integral human development. Formerly the director of Notre Dame’s Center for Civil and Human Rights, he directed its doctoral program in international human rights law for a decade. Carozza is also a fellow of the Kroc Institute for International Peace Studies, the Nanovic Institute for European Studies, the Liu Institute for Asia and Asian Studies, and the Institute for Educational Initiatives.
March 18, 2021 | Permalink
Wednesday, March 17, 2021
On Saturday, March 27th, MOJer Elizabeth Schiltz and I are participating in a discussion/debate on female poverty, abortion, equality and autonomy with renowned legal scholar Robin West (Georgetown Law) and brilliant philosopher Eva Feder Kittay (Stony Brook). Learn more and register here. Come one, come all!
Tuesday, March 16, 2021
Monday, March 15, 2021
The Berkley Center at Georgetown has posted a collection of short essays on the subject of "Joe Biden and Catholicism in U.S. Politics." In my view, the authors (as a general matter) overstate the consonance between (a) President Biden's stated views and (b) the policies the Biden administration is likely to pursue with (c) plausible operationalizations of Catholic proposals and social teachings. Among other things, there is in the essays a -- for me -- disappointing tendency to equate present-day public-sector unionism with the Church's longstanding emphasis on the dignity of work and the rights of workers. And, the significance of Biden's and his administration's rejection of the Church's teachings -- that is, the truth -- about the rights and dignity of unborn children is downplayed. (In fairness, I should note that I was invited to contribute one of the essays, and failed (multiple times!) to meet my deadline!)
In any event, check out the collection and, MOJ-ers, please weigh in with your thoughts on the topic!
Friday, March 12, 2021
Our Religious Liberty Appellate Clinic at St. Thomas, joined by Prof. Doug Laycock and the Christian Legal Society, has filed an amicus brief supporting cert in Carson v. Makin, a case challenging Maine's exclusion of students at K-12 religious schools from tuition benefits allowed to students if they attend secular private schools. The program allows students in rural areas without a public school to receive tuition benefits to attend a secular private school but not a "sectarian" one. The First Circuit had upheld that exclusion on the ground that while the Supreme Court has forbidden exclusion of schools based simply on their religious affiliation ("status"), this exclusion was based on the fact that tuition funds would be used for religious teaching--a distinction reserved by the Court in its previous cases, Trinity Lutheran and Espinoza.
Here are a couple of bits from our summary of argument:
[T]he status-use distinction collapses in the context of religiously grounded K-12 education. Religious schools teach the same secular subjects as other schools; in providing benefits assisting the teaching of these subjects, the state cannot discriminate on the basis that some schools also teach religion. To teach religion is what it means to be a religious school.... Some religious schools teach an essentially secular curriculum plus a religion course or chapel services. Other schools integrate religion into their secular subjects. These schools—and families who use them—do so because their religious identity permeates education. Whether called “belief or status” or “use,” “[i]t is free exercise either way” (Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in part)), and the state presumptively cannot discriminate against it.....
II. Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.
Although cert is always an uphill climb, this case has a decent chance, I think, because the First Circuit's decision is such a blatant evasion of the Court's ruling in Espinoza.
St. Thomas 3L student Carolyn McDonnell participated in drafting the brief.
(See also Jon's post on the case and the ND clinic's amicus brief.)
ND Law's Religious Liberty Initiative files amicus brief in support of Maine families in school choice case
Notre Dame Law School’s Religious Liberty Initiative filed an amicus brief in the U.S. Supreme Court yesterday (March 11), representing the Council for Islamic Schools in North America, Partnership for Inner-City Education, and Union of Orthodox Jewish Congregations of America. The case is an important parental choice case, Carson et al v. Makin, that seeks to reaffirm that the First Amendment’s Free Exercise Clause precludes discrimination against faith-based schools. In the case, three Maine families are challenging Maine’s exclusion of religious school options from the state’s school choice program. The program provides tuition support for eligible parents to send their children to private secular schools, but denies that same support to other families who chose religious schools for their children.
Full article here.
March 12, 2021 | Permalink
Wednesday, March 10, 2021
The panel will feature:
Keith Whittington -- Chair of the AFA's Academic Committee, Professor of Politics at Princeton University.
Jeannie Suk Gersen -- Member of the AFA's Legal Advisory Council, Professor of Law at Harvard Law School.
Ilana Redstone -- Member of the AFA, Associate Professor of Sociology at the University of Illinois at Urbana-Champaign.
Lucas Morel -- Member of the AFA's Academic Committee, Professor of Politics and Head of the Politics Department at Washington and Lee University.
Brandice Canes-Wrone -- Donald E. Stokes Professor of Public and International Affairs, Professor of Politics, Princeton University.
Mar 11, 2021 03:00 PM Eastern Time (US and Canada)
March 10, 2021 | Permalink
Monday, March 8, 2021
The McCullen Center at Villanova Law will be hosting a webinar this Wednesday, March 10 from 4:30pm-5:30pm on education policy in the wake of COVID with experts on educational pluralism, charter schools, and school choice programs. Details below. The event is open to the public and registration is available here.
One of the unmistakable challenges of the COVID-19 pandemic has been its effect on K-12 education. As policymakers, school boards and administrators continue to develop new strategies for delivering education amid a pandemic, it is a key moment to consider long-term, sustainable improvements to the traditional public education system in the United States. This webinar will discuss approaches to education policy, drawing upon the expertise of the panelists on educational pluralism, charter schools and school choice programs.
Join us for this discussion on educational freedom, featuring panelists:
- Ashley Rogers Berner, Director of the Johns Hopkins Institute for Education Policy and Associate Professor at the Johns Hopkins School of Education
- Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law at Notre Dame Law School
- Charles Mitchell, President & CEO of the Commonwealth Foundation
- Moderated by Michael Moreland, University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University
This lecture is approved by the Pennsylvania Continuing Legal Education Board for 1 Substantive Distance CLE credit. Please note registration is required. Attendees will receive an email from Eventbrite with the Zoom link on the day of the event.
Saturday, March 6, 2021
I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:
What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.
Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.
Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”
A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.
Friday, March 5, 2021
Thursday, March 4, 2021
Mar 10, 2021 10:30 AM Eastern
Please join the U.S. Commission on International Religious Freedom (USCIRF) for a virtual hearing about the ways in which U.S. companies and other entities facilitate the persecution of Uyghurs and other Turkic Muslims in China through forced labor and other practices that undermine international human rights standards in that country.
Since 2017, the Chinese government has detained millions of Uyghurs and other Turkic Muslims in internment camps across the Uyghur region, also known as Xinjiang. As part of its repression of these Muslim minorities, Chinese authorities have subjected them to forced labor in these camps, as well as in prisons, factories, and industrial parks. U.S. companies with supply chains in China—particularly those in the apparel, footwear, and other related industries—are inevitably entangled in Uyghur forced labor and therefore must take steps urgently to address this growing problem. This issue has become especially acute following the U.S. government’s formal determination of the atrocities in Xinjiang as “genocide.”
Witnesses will discuss the magnitude and complexity of the issues surrounding Uyghur forced labor and provide policy recommendations to the U.S. government.
• Gayle Manchin, Chair, USCIRF
• Gary Bauer, Commissioner, USCIRF
• Nury Turkel, Commissioner, USCIRF
• Scott Nova, Executive Director, Worker Rights Consortium
• Adrian Zenz, Senior Fellow in China Studies, Victims of Communism Memorial Foundation
• Olivia Enos, Senior Policy Analyst, Asian Studies Center, The Heritage Foundation
March 4, 2021 | Permalink
Monday, March 1, 2021
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.
March 1, 2021 | Permalink
Saturday, February 27, 2021
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!
Thursday, February 25, 2021
A Catholic approach to diversity, equity and inclusion at Notre Dame: 10 Theses
Letter to the Editor | Thursday, February 25, 2021
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/
February 25, 2021 | Permalink
Sunday, February 21, 2021
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.
Saturday, February 20, 2021