Mirror of Justice

Garnett on the St. Isidore non-decision

Here is a short piece I did, for the Law & Liberty website, on the recent non-decision in the St. Isidore case.  It's called "Educational Pluralism Delayed".  Here is a bit:

The longstanding American constitutional experiment in religious freedom is not, and never has been, anti-religious. Our governments are “secular,” but they need not and should not be “secularist” in the sense of being hostile to religious institutions and their work and witness in the public square. To be sure, we wisely distinguish between religious and political authorities. We don’t let governors pick bishops, and we don’t let bishops set tax rates. This is what the “separation of church and state,” correctly understood, means. This distinction does not preclude cooperative arrangements between authentically religious schools and governments in the service of opportunity and pluralism.

Although the justices did not reach the merits in the St. Isidore case, their “tie goes to the lower court” order should not be seen as a retreat from settled and sound constitutional principles or as closing the door to innovative policies and programs that expand kids’ access to educational options. There is nothing about public education, properly conceived, that limits it to the work of public employees in government-owned buildings. Children and families benefit, and communities do, too, from pluralism in education. Despite the delay caused by the St. Isidore split, it is increasingly clear that this pluralism is precisely what Americans want.

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

Submissions and nominations of articles are being accepted for the sixteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2025.  The prize will be awarded at the 2026 AALS Annual Meeting in New Orleans.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2025.

More from Mary Leary on Flannery O'Connor and Criminal Law

Thank you, Rick, for highlighting my forthcoming article, "Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law."    I thought MOJ readers might appreciate a little context on my journey to write this rather unusual article for a law professor. 

As many MOJ readers are aware, 2025 is a huge year for one of America’s most famous Catholic icons, Flannery O’Connor, whose 100^th birthday is being celebrated throughout the country and the world.  There have been numerous conferences in Georgia, Torun, and this summer in London to celebrate the O’Henry Prize and National Book Award winner.  In addition to these conferences, many news outlets have covered the tremendous impact of O’Connor and the lessons she still has for contemporary America (WSJ, NYT, ArtsATL, Savannah Morning News ), not to mention the release of Ethan Hawke's feature film: Wildcat.  

While one may think the lessons O’Connor has for us are limited to literary or theological, I was fortunate to have an experience last Spring which reminded me she has a great deal to say about the law – and that was the beginning of this forthcoming article.

Last Spring, I had the pleasure of teaching as a visiting professor at the University of Georgia School of Law in Athens, Georgia.  What is a nice Irish Catholic law professor from New England to do when living in Georgia for four months?  Well, head to the Archives of Flannery O’Connor at Georgia College and State University and begin researching an article, of course.

It was here in the archives, surrounded by draft speeches and earlier versions of stories that I had a very O’Connor-esque experience.  I originally intended to research how O’Connor was influenced by true criminal law events and how they found their way into her stories.  However, as is so often the case with O’Connor, what one expects, and what O’Connor has in mind are two very different outcomes. 

Once in the archives I was able to see how actual violence and crime she or her community experienced found its way into her stories, as well as how she used the law to comment upon the treatment of the vulnerable in society.  But she had much more in store.

Quite unexpectedly,  I also saw up close her deep vocational approach to her writing - especially at a time when she felt society was not open to her message or, in her words, was a “hostile audience.” While reading these letters and draft speeches about the challenges of moving an audience to see events they do not want to accept (in her case to have the post war materialistic secular world see the presence of grace), she brought me right back to my early days as a child abuse/family violence prosecutor.  Even today, in those courtrooms women and children who suffer serious abuse are often ignored or disregarded by judges and attorneys. 

O’Connor described her work as trying to reach this unwelcoming audience by capturing their attention (“to the hard of hearing you shout, and for the almost-blind you draw large and startling figures.”).  Similarly, the prosecutor – or indeed any attorney representing the vulnerable – faces an uphill battle of convincing a jury that unimaginable violence has been inflicted on a vulnerable person.  This is a message jurors often do not want to hear because it is too disturbing and challenges their own sense of security.  But they also do not want to believe it because it often comes from the mouths of the marginalized: a segment of society that is literally pushed to the margins as unimportant and not worthy of attention. 

Both O’Connor and such an attorney are in a sense "screaming into the system," hence the title to the piece.

Therefore, what emerged from the research was an article which not only describes the influence of the law on O’Connor, but a symbiotic relationship in which O’Connor can influence today’s lawyers.  Her vocational approach to her writing - especially at a time when she felt society was not open to her message - speaks very much to today's legal advocates.  This is especially true for today’s advocates who speak for the voiceless and find themselves greatly frustrated by the odds stacked against them.  The article explores this give and take(the symbiotic relationship) and argues that O’Connor offers today’s legal advocates an inspirational framework on how to approach this important work at a time when the country is so eager to silence the marginalized. 

Steven Smith on "The American Proposition"

We had the honor, last Fall, of hosting Prof. Steven Smith (University of San Diego) for the annual Rice-Hasson Lecture at Notre Dame Law School.  His talk has been published in the (excellent) Church Life Journal, and you can read it here.  It's called "The American Proposition:  Whose Truths? Which Strategies" and is, obviously, inspired by John Courtney Murray's famous 1960 book, We Hold These Truths.  Here's a bit:

Murray’s interpretation of America reflected . . . a confidence that there is such a thing as truth, including moral and political truth. That humans have some capacity to discern such truth—and to reason about it. That one of those truths—the primary truth, actually—is the reality of a God who takes an interest in the affairs of human beings, including their political affairs. That even under conditions of pluralism, a human community should be based on truth—or on the community’s best efforts to discern and articulate truth. And that the relevant truth would itself prescribe not an imposed orthodoxy but rather freedom—freedom especially in matters of thought, speech, and religion. (This last point, by the way—namely, that the truth prescribes freedom—is central to a very different and important current debate that I will allude to later.)

In a condition of freedom, fallible human beings will disagree about the truth. But they can debate such questions in civil fashion. Or so Murray contended. And civilly engaging your neighbor about fundamental matters on which you disagree is not an affront or an insult; on the contrary, it is a manifestation of respect for your neighbor’s beliefs, cognitive capacities, and character. And this kind of civil engagement about truth is the basis of the American Republic. As Murray put it: “Civilization is formed by men locked together in argument.”

At the time his book appeared, there was nothing especially heterodox about his position. . . . 

Mary Leary on Flannery O'Connor and the Criminal Law

Our own Prof. Mary Leary (CUA) has posted a fascinating paper, "Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law."  Here is the abstract:

This year marks the 100^th birthday of one of America’s most influential writers in history – Flannery O’Connor.  Much has been written about the violence in Flannery O’Connor’s work, but relatively little about the criminal and legal aspects of the violence.  This is rather surprising given the author’s documented influence from actual crimes in stories such as A Good Man is Hard to Find and The Partridge Festival.  It is also surprising given her use of crimes (including homicide, fraud, human trafficking) in her work, as well as her particular focus on the marginalized and vulnerable.  O’Connor herself noted that she often used violence to capture her audience’s attention in an effort to ultimately bring them to her point.  This paper explores that influence on her work through original research at the Flannery O’Connor Archives.

However, as these original documents demonstrate,  with all things that involve Flannery O’Connor, there is much more to this examination than simply how she was influenced by criminal events.  With many of these criminal events, the law played a critical role in the violence, often acting as its catalyst.  Furthermore, as with many criminal events, the poor and vulnerable suffered at the hands of an uncaring society.  O’Connor saw this and utilized the criminal law to comment upon this societal reality.  This law played a critical role in her literature not simply as a historical fact or inspiration, but as a silent character.  More to the point, this silent character’s frequent failure to protect the vulnerable is a repeated theme in O’Connor’s fiction. 

This symbiotic relationship between the criminal law, violence, and O’Connor’s fiction is not only one where O’Connor was influenced by and utilized actual crime and violence in her writing.  But it is also one where she can be a profound inspiration and influence on the modern criminal justice system’s advocates.

O’Connor’s vocational approach to her writing has much to offer the modern justice system’s advocates.  Drafts of her talks in the O’Connor Archives demonstrate that she was challenged to write for an audience whose values and modern sensibilities were hostile to her messages of what she called the “prophetic vision” of truth, judgment, grace, and mercy.  The modern criminal justice advocate finds herself similarly challenged.  Tasked with protecting the most vulnerable – often the unseen or undervalued in society – she must convince a jury to see and value such people and to understand the truth of what has occurred enough to do something unpopular in today’s culture: render a judgment.  Presented with unspeakable violence, this advocate must convey it to her audience, the jury, who often is resistant to believing it occurred.  O’Connor frequently wrote about the writer’s “sense of frustration [being] great because [the writer] has to force by whatever means he can this vision on a resisting or a blank audience.” (Catholic Writer in the Protestant South – draft talk for Southern Literary Festival, April 20, 1962) How O’Connor navigated that vocation to bring an audience to a place of understanding people and truth can operate as a significant influence on those today forged with that task.

This paper examines the synergistic relationship between Flannery O’Connor’s fiction, crime, violence, and the criminal law and what it can offer the modern criminal justice system – a system characterized by a search for truth and justice.  It will also suggest that O'Connor offers an inspirational framework for those who participate in the system as advocates for the vulnerable.

Gerry Bradley on Fr. Burke: "Creating U.S. Catholicism"

My friend and colleague Prof. Gerry Bradley has a great review in the latest First Things of a book about a fascinating and crucially important character in U.S. Catholic history -- about whom I didn't know much before the review, I have to admit -- Fr. John Burke.  Here's a bit:

Walter Lippmann, one of the founders of the New Republic and for sixty years a journalistic man-about-the-globe, judged him to be the “most impressive man I have ever met.” Castle confided to his diary that “I should like him and at the same time be afraid of him.” The man was “so adroit and persuasive” that Castle feared “he would make me promise something that I did not want to promise.” This from America’s number two diplomat during the Hoover administration.

The man of whom these notables spoke was not a politician or a bishop or a titan of industry. He never had any money or held an academic position. He was by all accounts—including his own—an introvert, a lover of solitude. He suffered from perennially poor health and endured long periods of rest at doctor’s orders. Born in Manhattan to working-class Irish immigrant parents and educated in local public and parochial schools, he longed throughout his public career to return to his native New York City, to the editorship of the Catholic World magazine, and to his “spiritual family,” comprising devout Catholic women with whom this unmarried man worked and with whom he maintained deep—and transparently chaste—friendships. He tried several times to leave the post that made him collaborator and confidant of Presidents Coolidge and Roosevelt. His episcopal employers refused to accept his resignation. “They said he could come and go to the office as he pleased and take whatever vacations he needed,” writes Douglas Slawson in his magisterial new biography of Fr. John J. Burke. The bishops “simply wanted benefit of his judgment."

Read the whole thing!

"A Leonine Revival"

Today, as it happens, is the anniversary of Rerum novarum, and as readers of this blog no doubt know, its author, Pope Leo XIII probably wrote as much as any post-French Revolution pope on matters relating to Church, State and Society.  (Check out Russ Hittinger's "The Three Necessary Societies", from a few years back.)  Here is a new essay, in First Things, called "A Leonine Revival", which I thought was outstanding.  It's by my friend Thomas Joseph White, O.P. (a super smart Thomist-guy), and here's a taste:

Pope Leo XIII published his landmark encyclical Rerum Novarum in 1891, only twenty-five years before the outbreak of the 1917 Communist Revolution that would mark the modern world irrevocably. In that document, he sought to indicate a middle way between two extremes. On the one side, Leo was responding to the new and revolutionary changes emerging from the creation of industrialist capitalism. Against the exploitative practices of elite industrialists, Leo sought to underscore the rights of workers to reasonable working hours, a just wage, self-organization, and access to a range of human goods that should be protected and advanced in some way by the state. Here we can think of goods such as the just rule of law, education, health care, political freedom of expression, and freedom of religion, all goods that the magisterium has underscored in the hundred and fifty years since the time of Rerum Novarum. On the other side, Leo was responding to the emergence of secular “socialism,” as he called it, which would seek to deny the rights of private property, abolish the role of religion in public life, and claim authority to redefine the natural human family (especially by new divorce laws, which de facto suggested that the Church cannot publicly identify or define what either natural or sacramental marriage is). Here he was essentially seeking to confront the theoretical absolutization of the state as an ultimate authority in all human matters. 

Needless to say, these are timely considerations. 

 

Building Better than Students for Fair Admissions

The Supreme Court’s decision and opinions in Students for Fair Admissions (2023) got me thinking hard again about questions of basic human equality that I first explored (with Jack Coons) back in By Nature Equal: The Anatomy of a Western Insight (Princeton Univ. Press, 1999).  The result is a new paper, A Constitution for Equals? Building Better than Students for Fair Admissions, which is now available here.  What I have come to understand is the extent to which Enlightenment political philosophers’ claims about our being (in Jeremy Waldron’s phrase) “one another’s equals” were custom-made to fit the lowered purposes of modern political ordering.  Aiming to build better, the paper begins by working dialectically through the contributions of Hobbes, Locke, Montesquieu, the Declaration of Independence, Tocqueville, Lincoln, Harry Jaffa, Michael Zuckert, Anne Phillips, and many others in order to show that human equality properly understood is not, as Harvey Mansfield has warned, a dangerous “half truth.”  Properly understood, basic human equality is, rather, a higher truth — a higher truth that does not require us to be blind to the lesser facts of our important differences and diversity that have their own social purposes in God’s providence.  That higher truth, as Tocqueville saw, is that we are equals because we are all created in the image and likeness of God.  

The aim of the latter portion of my paper is to reground our written Constitution in our unwritten constitution’s commitment to the higher truth of  Christian understanding of our basic human equality amid our important differences.  This effort in regrounding is assisted by the work of Orestes Brownson as well as more recent work by Wilson Carey McWilliams, Peter Lawler, Richard Reinsch, and others.  By reclaiming for our written Constitution a premodern understanding of basic human equality already lodged in our unwritten constitution, we will be better able to solve some of the problems presented in a case like Students for Fair Admissions.  Specifically, questions about university admissions will be answered on the basis of doing justice among human equals who may have very different relevant capacities and, therefore, on the basis of an applicant’s capacity to contribute to the common good of the university community — not on the basis of race.   

Recent Article and Briefs: or, "How I Spent My Spring Semester (or much of it)"

Rick, thanks for keeping some content flowing on the blog during this time when others of us have been sporadic!

MOJ readers might be interested in one forthcoming scholarly paper of mine on religious liberty, and three briefs filed recent by the St. Thomas Religious Liberty Appellate Clinic in important current cases.

The paper is for a festschrift in the Journal of Law and Religion on Doug Laycock's monumental body of religious-liberty scholarship and advocacy. It continues my focus on religious liberty and polarization as laid out in my book Religious Liberty in a Polarized Age (Eerdmans). The paper notes that from the 1980s to the mid-2000s  (roughly the first two to three decades of Doug's career), the key Religion Clause question was defining (or critiquing) "neutrality toward religion" and its relation to other prominent values like religious voluntarism or church-state separation; but in the last 15 years or so, the key question has been how religious-liberty questions have become enmeshed in the broader dynamics of political-cultural conflict and polarization. So, from the abstract:

The Article shows how Laycock’s work on Religion Clause neutrality [period I] supports the effective defense of religious liberty in a polarized age [period II]. Substantive neutrality (voluntarism) provides several resources for addressing and mitigating religiously grounded polarization. Perhaps even more important, Laycock called for "aggregating" neutrality: recognizing that any policy can have differing effects on the religious choices of different relevant actors and comparing those effects with the goal of minimizing burdensome effects on religious choices overall. This approach, done with care, can take account of the effect on competing sides. And it can be extended beyond religion to take account of the comparative effects on other choices: for example, on the freedom of both same-sex couples and religious objectors. Thus the approach can be an effective means of addressing polarized conflicts by protecting the core interests of both sides.

The Article concludes with a brief discussion of whether the current Court's increasingly tradition-based approach can allow for this project of considering conflicting interests in a way that protects both sides.

 The briefs are in the following cases (great work on them by clinic students Hayden Cole and Nazeefa Nezami):

     1. Catholic Charities v. Wisconsin Labor & Industry Review Comm. (SCOTUS): This case has multiple issues pitting principles of nondiscrimination among religions and non-entanglement in religious decisions against the state's discretion to draw lines on legislative exemptions. In our brief for Christian Legal Society, InterVarsity, and other student religious groups, we connect the principles of church autonomy and denominational equality to the restrictions and discrimination that such groups face on public university and high-school campuses.  

    2. Owens v. Schuette (6th Circuit): The issue is whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) authorizes money damages as relief against state or local prison officials in their individual capacities. This is an en banc petition in a case where Notre Dame's Religious Liberty Clinic represents the inmate; SCOTUS is considering a cert petition on the issue in another case called Landor.  It's an important issue because damages are sometimes the only effective relief, either because the inmate has suffered primarily a past loss (as when prison guards destroy their religious property) or because (as here) the inmate has been transferred to another facility (or released) and thus injunctive/declaratory claims are moot. The Supreme Court has unanimously held that RFRA authorizes individual-capacity damages suits against federal officials (Tanzin v. Tanvir); our brief, for Asma Uddin and me as amici, runs through the history and context of RFRA and RLUIPA to emphasize how much these two statutes are joined at the hip, meaning that it makes no sense to reach a different result against state/local officials under RLUIPA. 

    3. Fellowship of Christian Athletes v. District of Columbia (D.D.C.): This is another brief about individual-capacity damages suits, this time opposing qualified immunity for DC public-school officials who denied FCA equal status and benefits as a student group despite a wealth of precedent holding that singling out religious student groups violates free exercise, RFRA, free speech, and the Equal Access Act. Again writing on behalf of CLS, InterVarsity, and other student religious groups, we trace the burdens that such groups, and their leaders and members, have faced around the nation and explain why holding individual officials liable provides an important deterrent to violating these rights.

Lux Aeterna

 

Program on Church, State & Society essay-writing competition

The Program on Church, State & Society is hosting, again, an essay-writing contest (for law students and recent graduates) on religious-liberty topics.  There's more information here.  Consider submitting a paper!

Smarick on "How Catholic Social Teaching Can Help Today"

I am a fan of Andy Smarick's Substack, "Governing Right", and particularly appreciated this entry, from a few weeks ago, on Catholic Social Teaching.  Here is a bit:

CST is a sturdy but continuously evolving body of thought that relates to social life. It speaks to the dignity and role of individuals, how we form various associations (e.g., families, organizations, towns), who possesses different types of responsibility and authority, and much more. All of this can inform our understanding of how best to lead in public life.

CST has had a significant influence on my thinking because it is shaped by two quite different but equally valuable lines of reasoning: 1) Immutable moral principles, and 2) the practical wisdom that comes from engaging in social life.

You would, I’m sure, expect the first given that CST is a product of a 2,000-year-old faith tradition. Indeed, CST articulates firm, permanent views on a range of moral issues, like the sanctity of life, the meaning of human flourishing, and the nature of virtuous and improper action.

The second line is less obvious and far less appreciated. It also distinguishes CST from most ideologies purporting to understand and improve society. CST’s practical wisdom comes from the Catholic Church’s millennia-long parish- and diocese-based arrangements and its fundamental commitment to service, particularly of the disadvantaged.

Prof. Carl Esbeck on the Church-Autonomy Doctrine

Few have written as much -- and, more important, as well -- on church autonomy in American law as has Prof. Carl Esbeck (Missouri). He has posted this new paper, "Church Autonomy, Textualism, and Originalism:  SCOTUS's Use of History to Give Definition to Church-Autonomy Doctrine (which is forthcoming in the Missouri Law Review).  Here is the abstract:

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case of Watson v. Jones (1872), holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”

While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is identifying the full subject-matter range of the high court’s caselaw. In such a survey, church autonomy sets apart as immune five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred places; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.

The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is given definition by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical state establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely distained by American Patriots.

The final part of the article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that give definition to the domains of church autonomy. These events, most little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic.

As The Man might say, "download it while it's hot!"

 

Conedera review of Hittinger's "On The Dignity of Society"

Over at First Things, Fr. Sam Conedera has a review of Russ Hittinger's (excellent) new book, "On the Dignity of Society:  Catholic Social Teaching and Natural Law".  Russ is, of course, indispensable reading on both topics.   Here's a bit from the review:

The individual has dignity—he is made in the image of God—both because of the excellence of his rational nature and because he is able to cause good in others. The same, Hittinger argues, is true of the social order. A society is not a mere aggregate.

This understanding of what makes a society is crucial for explaining the relationships among the “three necessary societies,” namely, family, polity, and Church. Each of these societies is grounded in the natural social tendency of the human person; each has ends that are given either by nature or by grace, rather than by human will; and each has a distinctive mode of authority. According to Hittinger, one flaw of political modernity is the failure of states to recognize or respect diverse modes of authority in civil society. The modern state reduces group-persons to mere partnerships, disregarding the principle of subsidiarity, on which different societies—family, Church, and so on—have their own proper functions and their own authority. (Importantly, as Hittinger insists, subsidiarity is about doing things not at the “lowest” level, but at the “proper” level.)

 

Jon Schaff on Andrew Willard Jones's "The Church Against the State: On Subsidiarity and Solidarity"

This review, at the "Front Porch Republic" blog, by Jon Schaff, of Andrew Willard Jones's new book, The Church Against the State: On Subsidiarity and Solidarity, might be of interest. A bit:

The Church Against the State attempts to lay out a comprehensive Christian political theory that stands in stark contrast to the liberalism that has dominated the Western world for nearly four centuries. In doing so, Jones juxtaposes the commitment to subsidiarity, most thoroughly fleshed out in the Catholic social thought of Pope Pius XI, with the notion of sovereignty, undergirded by the Peace of Westphalia in 1648. What emerges is a stunningly broad and detailed analysis of both liberal and Christian politics. . . . 

Those concerned with the aggressive liberalism of our day while pondering what a Christian politics might look like will benefit from Jones’s expansive knowledge. This book serves as a warning to those Christians who wish to “heighten the contradictions,” to use the tactics of the hostile Left against the Left, who see politics as an “us against them” fight to the death. Jones’s work should caution us against the temptation to use the power of the state to further apparent Christian ends. The politics Jones advocates seems to be one of decentralization married to a hearty evangelization. As Augustine noted, the Christian citizen is actually the best citizen as he has virtue and the common good as his goals. . . .

Symposium: "In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society"

I'm looking forward (and I'm sure fellow MOJ-er Tom Berg is, too!) to this symposium, being sponsored by the Chicago-Kent Law Review: 

Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.

The public is welcome to sign-up and participate so . . . "see" you there!

Important Church-Autonomy Opinion by Judge Bumatay in the Ninth Circuit

In a Ninth Circuit en banc case called Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Judge Patrick Bumatay has (what the kids call) a "banger" of an opinion on the church-autonomy doctrine and the institutional dimension of religious freedom more broadly. It's a must-read for anyone interested in the topic.  

You can read more about the case's background and context at the Becket Fund's website.  Here's just a tiny bit:

That structural rationale persisted throughout the Middle Ages. See Roscoe Pound, A Comparison of Ideals of Law, 47 Harv. L. Rev. 1, 6 (1933) (“In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign ․ was fundamental.”); see also Carl H. Esbeck, The Establishment Clause as Structural Restraint on Government Power, 84 Iowa L. Rev. 1, 50 n.206 (1998).

Take the Investiture Conflict of the 11th century. It typified the battle for church independence. There, the Papacy fought against the Holy Roman Empire for the ability to appoint its own bishops—a power then vested in the emperor. The conflict was “jurisdictional” as the church sought “liberation of the clergy from imperial, royal, and feudal domination and their unification under papal authority.” Gregory A. Kalscheur, S.J., Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject-Matter Jurisdiction, and the Freedom of the Church, 17 Wm. & Mary Bill Rts. J. 43, 61 (2008) (simplified). The church first championed “freedom of the church” because it believed the Pope sovereign over such appointments. See Charles J. Reid, Jr., The Spirit of the Learned Laws, 1 Wash. U. Global Stud. L. Rev. 507, 529 (2002) (quoting the Dictatus Papae to show how the church advocated for “papal sovereignty”); see also Richard W. Garnett, “The Freedom of the Church”: (Towards) an Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33 (2013) (drawing on the Investiture Conflict to delineate the substantive content of libertas ecclesia—“freedom of the church”).

Thus, in both ancient and medieval times, the church's basis for autonomy rested on structural grounds. Because God committed authority over spiritual matters (like the burning of incense or appointment of clergy) exclusively to the church, the state lacked authority over such matters.

Be still, my heart . . . 

John O'Callaghan on "No Mercy From a Distance"

My friend and colleague John O'Callaghan (Notre Dame, Philosophy) gave a great talk, the other day, at Providence College, on "Aquinas on Compassion and Natural Friendship."

Mercy is often thought of in our culture as an act of forgiveness of some offense, whether civic or personal, that reduces or eliminates punishment that is due for that offense, and is dominated by questions of justice. That sense of mercy is hard to square with other uses of the term that suggest something more like assistance to those in need, as in the religious notion of “works of mercy” directed to the poor and suffering. It is also hard to square with the sense that mercy requires compassion, suffering with another, a compassion that is not necessarily required by forgiveness, and may even be at odds with the justice of punishment. Thomas Aquinas provides an account of mercy that helps us understand how it differs from forgiveness and necessarily involves compassion for those who suffer. The ground for his understanding of mercy is that such compassion is grounded in natural human friendship. But the idea of natural human friendship is perhaps even more at odds with our modern sensibilities in which we typically think that while justice binds us, we are nonetheless free to choose our friends as we like. If Aquinas is correct, we do not have such freedom, and are more bound by mercy grounded in natural friendship than we are by justice.

Check it out!

21 Years of Mirror of Justice

Well, I forgot to post yesterday, which was the 21st anniversary of the first post at Mirror of Justice. (I think I have law students who were born after that first post.) A lot has happened since then (besides 2 papal conclaves, 6 presidential elections, and two Notre Dame losses in the National Championship game). Obviously, we MOJ-ers have not been posting as much here as we did in the past. (I blame Twitter, BlueSky, Substack, etc.)  Still, after many thousands of posts and many millions of page views, I believe that it remains important for lawyers, legal scholars, law students, and -- well -- everyone to think about the implications of Christianity for law, legal practice, legal education, and the legal enterprise.

I am working on some revisions, changes, adjustments, re-presentations, etc., for MOJ, so stay tuned.  And, for old times' sake, go read our first post, here:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

Pres. Biden commutes most federal death sentences

A report on today's announcement is here.  Here's a bit:

“Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole,” Biden announced in a statement released Monday.

Notably, the president did not commute the sentences of three people whose crimes included mass shootings or acts of terrorism: Dzhokhar Tsarnaev, one of two brothers responsible for the deadly Boston Marathon bombing in 2013; Dylann Roof, a White nationalist who massacred nine people at a historically Black church in Charleston, South Carolina, in 2015; and Robert Bowers, who killed 11 worshippers at Pittsburgh’s Tree of Life Synagogue in 2018.

“These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder,” Biden said, referring to his Justice Department’s halt on federal executions.

I would welcome legislation (federal and / or state) that abandoned capital punishment as a sanction. At the same time, I do not believe that capital punishment violates the Constitution (and so judges should not use creative interpretations to bring about abolition) and I also think it is not consistent with the role of the "executive" to, in a blanket way, effectively nullify legislative and electoral choices. It would have been, in my view, better had Pres. Biden, when he was Vice President Biden, used his influence, and large congressional majorities, and political capital, to work for a legislative repeal.

It also seems to me that the reasons the President gives for commuting most of the federal death sentences apply with equal force to the "high profile" ones he is letting stand. If anything, his decision not to commute in the cases where it would be politically controversial to do so is inconsistent with his (correct) concern that political considerations distort the application of capital punishment.

I hope, though, that this news prompts legislative actions in the states, such as this one in my own state of Indiana.

Hittinger on "The Dignity of Society: Catholic Social Thought and Natural Law"

My copy of Russ Hittinger's new book -- which pulls together and synthesizes a lot of his great writing on the Catholic Social Teaching tradition, natural law, social-ontology, political theology, and more -- just arrived. It looks to be a perfect Christmas gift! Get yours ASAP!

Happy Repeal Day!

On this day, in 1933, the 21st Amendment was ratified, repealing the 18th, which had provided for the prohibition of the "manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes[.]" For an excellent book about the Prohibition experiment, its history and context, and its (very interesting) legal and constitutional implications and legacy, check out Daniel Okrent's Last Call.

One of the (many) not-done things on my list of "things I'd like to do as a law professor" is a seminar-course, based on Okrent's book, about Prohibition (broadly understood), including its connection to immigration, anti-Catholicism, the rise of federal criminal law, census and districting shenanigans, legal moralism, etc.  Someday . . . 

Viva Cristo Rey!

In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

"The Father of the School Choice Movement"

James Schuls (Missouri) has a fascinating piece in the latest Journal of School Choice called "The Father of the School Choice Movement", about Fr. Virgil Blum. I am more than a little bit sheepish about the fact that I'd never heard of Fr. Blum! Here is the abstract:

Milton Friedman is widely considered the intellectual father of the school choice movement. While Friedman deserves much credit, Father Virgil Blum stands out as an influential figure in the nascent school choice movement. Using archival research, this paper examines Blum’s contributions to the movement. From his 1954 doctoral dissertation, which made the legal case for funding religious schools, to his 1958 book, Freedom of Choice in Education, and his decades-long career as a professor, Blum was a tireless advocate for educational freedom. While Friedman made the market argument, Blum made the legal, moral, and religious freedom arguments for school choice.

 

 

"On the Dignity of Society: Catholic Social Thought and Natural Law"

Well, it's Russ Hittinger on Catholic Social Thought so, "self-recommending" but . . . if you are in or near Chicago on November 7, don't miss this event at the Lumen Christi Institute:

 

Russell Hittinger has long been one of the world's leading scholars of Catholic social teaching and natural law theory. His most recent book, On the Dignity of Society, presents the fruit of his mature thinking on fundamental issues in Catholic political thought. Rooted in Thomistic philosophy and natural law theory, but also animated by his study of St. Augustine and thus sensitive to historical contexts and arenas for moral and theological disputation, Hittinger articulates the deepest principles of the Church's social teaching and sheds considerable light on their historical applications. At this event, Profs. Mary Hirschfeld and R. H. Helmholz will discuss Hittinger's latest work, and the event will conclude with a response from Prof. Hittinger. 

On Saturday, Russ Hittinger and Scott Roniger will lead a master class titled "What Is a Society? On the Coherence of Catholic Social Thought from Pope Leo XIII to Pope Francis."