Mirror of Justice

Program on Church, State & Society Announces 2021 Writing Competition Winners

The Program on Church, State & Society at Notre Dame Law School is pleased to announce the results of our first annual writing competition. Open to law students nationwide, as well as recent law graduates not yet practicing law, the competition seeks to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection. This year’s winners and honorees were selected from a pool of very impressive essays:

 

First place: Civics in Yiddish: State Regulation of Language Instruction in New York’s Private Schools

Author: Stephen Rutman

Institution: Fordham University School of Law

 

Second place: Qualified Immunity and Religious Liberty

Author: Jacob Tyler Young

Institution: University of Virginia School of Law

 

Third place: Catholic Social Thought and the Role of the Prosecutor

Author: Zachary B. Pohlman

Institution: Notre Dame Law School

 

Honorable Mention: The SBA; Saving Biblical Affiliates

Author: Roxanne Reinfeld

Institution: University of Saint Thomas

 

Honorable Mention: Can the Reasonable Person Be Religious?

Author: Jack Vallar

Institution: University of Virginia School of Law

 

Fordham University School of Law 2L, Stephen Rutman, was awarded first place for his essay, Civics in Yiddish: State Regulation of Language Instruction in New York’s Private Schools. “ I am honored by the selection of my paper by the Notre Dame Program on Church, State & Society. My paper evaluates the constitutionality of recently proposed rules to heighten enforcement of New York’s requirement that private and parochial schools provide instruction “substantially equivalent” to the instruction offered in surrounding public schools. This award reflects the importance of this issue, which could significantly affect religious parents’ rights to direct the education of their children. I am particularly grateful to the Fordham Urban Law Journal, which will be publishing this piece and to Professor Aaron Saiger, who advised me in the project,” said Rutman.

Professor Richard W. Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law and Director of the Program on Church, State & Society judged the essays. "The Notre Dame Program on Church, State & Society is pleased and proud to be able to honor a group of student-scholars who have produced outstanding studies of timely and interesting religious-freedom topics.  Dozens of strong papers were submitted for consideration, and we are confident that all who submitted will enrich the law-and-religion conversation," said Garnett.

The Program on Church, State & Society hopes to continue the writing competition. Details will be announced this coming fall. The primary goal of our Program is to enhance the law school experience for all Notre Dame law students interested in issues related to law & religion and religious liberty. Current and prospective students can learn more about Program offerings by contacting Jonathan Hannah, JD at [email protected]

 

"Magisterial Discontents: A Symposium on Catholic Social Thought"

The Law and Liberty website has collected four essays on "the state of CST, and what we ought to make of its ideas."  Check them out.

Former U.S. Ambassador to the Holy See Mary Ann Glendon to speak at ND Law School

I’m very excited to announce that we have rescheduled the inaugural Rice-Hasson lecture with Ambassador Glendon. 

Mary Ann Glendon, the Learned Hand Professor of Law, emeritus, at Harvard Law School and a former U.S. Ambassador to the Holy See, will be the inaugural speaker for the Rice-Hasson Distinguished Lecture Series at Notre Dame Law School on Wednesday, November 17, 2021.

https://law.nd.edu/news-events/news/mary-ann-glendon-rice-hasson-lecture/

Faggioli's partisanship

Regular MOJ readers probably recall that I think Prof. Massimo Faggioli (Villanova) tends to view matters through an overly ideological and/or partisan lens.  This recent piece, in Commonweal, supports my view, I think.  It's a dog's-breakfast, but the theme seems to be that the Catholic bishops in the United States should be saying more about election-related laws and, more important, saying things with which Prof. Faggioli agrees.  (Their asserted failure to do so is seen as Trumpy, money-ish, etc.)  The term "democracy" is used imprecisely, and tactically and, somehow, the concluding paragraph ends up with something about President Biden's pick for ambassador to the Holy See.

(Much) more interesting -- and Commonweal is the kind of venue that could do this -- would be informed discussion about what, exactly, "democracy" is, involves, and requires . . . and what Catholics committed to the Church's social teaching should think about it.  For example:  I am confident that Prof. Faggioli wants the (unelected) members of the Supreme Court of the United States to invalidate various legislative and executive decision.  (So do I.)  Is this "democratic"?  I infer that he thinks some counter-majoritarian features of American constitutional democracy are icky (e.g., the Senate).  Why?  Various legislative measure that require, say, presenting legally valid identification before voting are analogized to "the anti-liberal turn in Hungary . . . "  Really?

Then there's this, which is just silly:

The USCCB is an episcopate that is culturally and theologically a fruit of John Paul II’s pontificate, and, until the 1980s at least, it was receptive of the teaching of the Second Vatican Council on the Church and politics. Now we have to wonder what remains of Vatican II’s impact on Church-state relations, religious liberty, and political participation.

The USCCB's proposals and statements on these latter matters are, entirely, consistent with Dignitatis humanae.  What is not consistent with Vatican II is the emerging view, which Prof. Faggioli seems to endorse, that the Church should, in order to avoid being tarred as a "culture warrior", submit to unlawful regulation of her internal affairs.

Henry Garnet, S.J., RIP

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

 

 

Q&A with Daniel Philpott

Daniel Philpott, Professor of Political Science at the University of Notre Dame and a faculty fellow of the Ansari Institute, is the recipient of the 2021 Religion and International Studies Distinguished Scholar Award.

The honor, given by the Religion and International Section of the International Studies Association, recognizes his pioneering contributions over 25 years as one of the earliest scholars of the “religious turn” in the study of international relations.

In this conversation, Philpott explores the topics that have animated his scholarship, including reconciliation, democratization, and religious freedom, as well as his international activist work on faith-based reconciliation.

Interview from Notre Dame’s Ansari Institute: https://ansari.nd.edu/news-events/news/a-q-a-with-faculty-fellow-daniel-philpott/

Why the Liberal Arts Matter to Catholic Legal Education

Why bother with the liberal arts? Because the liberal arts are core to our mission as a Catholic university.  If we had to distill it to a very simple message, the liberal arts show that faith and reason have nothing to fear from each other.  But it’s deeper than that.

Pope Francis has explained that Catholic universities must help students face the questions of “why,” by linking knowledge with purpose.  Facing the questions of “why” implicates the “epistemological character of education which concerns the whole span of knowledge,” and “[t]he link between knowledge and purpose refers to the theme of intentionality and to the role of the subject in every cognitive process.” In other words, “Completely impersonal experiences do not exist.”

Let’s unpack that for a minute.

The role of the subject in every cognitive process.  So for a law school, one might be tempted to argue that a liberal arts approach is irrelevant – just teach me what I need to pass the bar exam and get a job as a lawyer: legal doctrine and technical skills, period.  One must resist this temptation because, if we want to educate for professional excellence, we have to help form the person, not just teach a trade.

And we have to help each student understand their own agency in who they are becoming as a professional.  They are not just passive vessels to receive information about Torts or Civil Procedure.  They have to be able to step outside their heads so that they can see themselves as an agent in the world, growing over time, pursuing alignment between their own gifts and values and the world’s needs.  Even a professional school is forming students for a dynamic lifelong journey.

So how does a law student get outside their own heads enough to critically evaluate and prepare for their own agency?  Well, it’s not by memorizing law.  It could be, for example, by seeing the relevance of other fields of knowledge to their own agency in legal practice.  So maybe it’s contextualizing their work in family law with an understanding of sociology, maybe it’s seeing how court rulings on religious liberty interact with the theological beliefs of those affected, maybe it’s recognizing the self-serving logic employed by those who wield power in our legal system by applying the insights of philosophy to uncover the incoherence of their justifications.  But more important than any of those more particular examples, I think it requires being drawn out into other narratives that open up new ways of thinking about their lives, not just their professional identities.

For example, I’ve assigned my students Tolstoy’s The Death of Ivan Ilych, not because they need to know about the 19^th century Russian legal system, but because it is very helpful for them to lie next to Ivan Ilych on his death bed and reflect back on a life of devotion to the wrong things.  To lament time wasted on being impressive, on chasing prestige and status. 

Tolstoy can get my students out of their own heads long enough to think deeply about the life to which they aspire.  That’s good for them, and it’s also good for our world.   

C.S. Lewis wrote that:

[W]e need intimate knowledge of the past. Not that the past has any magic about it, but because we cannot study the future, and yet need something to set against the present, to remind us that the basic assumptions have been quite different in different periods and that much which seems certain to the uneducated is merely temporary fashion. . . .  the scholar has lived in many times and is therefore in some degree immune from the great cataract of nonsense that pours from the press and the microphone of his own age.

I’d expand Lewis’s point.  A knowledge of history can help us discern and discount the nonsense of our current age, and a knowledge of other disciplines can help students discern and discount the overreading of insights from any one particular discipline – or maybe put more gently, can help them contextualize what a single discipline has to teach us about ourselves and the world.

Here’s an example of why this matters.  The first case our new law students read every year is Buck v. Bell, a 1927 case in which the U.S. Supreme Court upheld a state law permitting the forced sterilization of women deemed mentally incompetent. Oliver Wendell Holmes wrote an opinion on behalf of the Court expressing concern that the offspring of the mentally incompetent would likely become criminals and would drain resources from society.  He concluded that “three generations of imbeciles are enough.”

A brand-new law student can bring to bear insights from the fields of history, economics, biology, philosophy, and theology to show why Justice Holmes was wrong as both an empirical and a normative matter.  So on the first day of classes at our law school, the most important discussion students have about the law is actually about the liberal arts.  It’s why forming the lawyer entails forming the person.  And it’s a journey of formation that is foundational to Catholic law schools. 

"Infrastructure", Georgia's voting rules, and Catholic Social Thought

It has become something of an online joke that "_______ is infrastructure", the point being that the Biden Administration's current "infrastructure"-funding proposal includes funding for a whole lot of things that have not generally been regarded as "infrastructure."  This is, of course, an entirely understandable marketing move, given the relative popularity of public spending on roads and bridges (remember the Trump Administration's recurring "Infrastructure Weeks"?) and the, perhaps, lesser popularity of some of the spending items that are included in the proposal.

I was reminded of this "let's call everything we like 'infrastructure'" move when I read John Gehring's recent piece, "Vow of Silence?", in Commonweal.  Gehring contends that the Catholic bishops in the United States have been "quiet on voting restrictions."  He writes:  "The silence from Catholic bishops when it comes to systematic, partisan, and racist efforts to undermine voting rights is a failure to apply Catholic social teaching to one of the most brazen injustices of our time."

Now, let's acknowledge, and put aside for the moment, what I take to be the facts that (a) former President Trump attempted to interfere in Georgia's election (and, indeed, in the presidential election) and lied repeatedly about asserted, but made-up, election-law violations in Georgia, thereby (probably) swinging that state's Senate seats to Democrats and (b) at least some of the Georgia legislators who supported that state's recent election-related law did so for partisan reasons and because they believe Trump's (and others') false claims about "stolen" elections, etc.  Nevertheless:  "Catholic social teaching" does not, in fact, tell us much about, say, how many days of early voting should be permitted and does not, at all, rule out, say, requiring state-issued identification for voting.  Indeed, given the high regard for political participation on display in the documents Gehring cites, it would seem that those documents call for careful attention to the important work of ensuring the integrity of elections and the regularity of voting procedures.  (Again, and to be clear:  There is no basis for partisans' claims that Georgia's election, or the national presidential election, was meaningfully compromised or undermined.)   

Gehring's piece does not reveal much familiarity either with the specifics of the Georgia law or with voting- and election-related regulations in the United States generally.  In fact, Georgia's rules are not outliers, and they do not "restrict[]" anyone's right to vote.  There is, among people who embrace the Church's social teaching, (plenty of) room for reasonable and good-faith disagreement about how the time, place, and manner of elections should be regulated and there is nothing about, say, regulating absentee and mail-in ballots that is contrary to that body of teaching, let alone "racist."  Comparisons to "Jim Crow" (or, in the President's words, "Jim Eagle") are tone-deaf and historically ignorant.  Not everything we like is "infrastructure" and not every policy arrangement we prefer is dictated by Catholic social teaching.

Supreme Court case risks government censorship of young people’s protected political and religious expression

The Supreme Court of the United States heard oral arguments today (April 28) in Mahanoy Area School District v. B.L., a case brought by a former Pennsylvania cheerleader whose profanity-laced social media post now presents challenging questions about the authority of public school officials to regulate and punish students’ speech off campus and on social media. 

The case was brought by Brandi Levy, a 14-year-old junior varsity cheerleader who did not make the varsity squad for the next year and simultaneously did not get the position she wanted on the softball team. Off school property, she aired her frustrations on social media.

“For more than 50 years, the justices have struggled to define the free-speech rights of public school students,” said Richard W. Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

Full article at news.nd: https://news.nd.edu/news/supreme-court-case-risks-government-censorship-of-young-peoples-protected-political-and-religious-expression-expert-says/

Protecting Oak Flat

The University of Notre Dame's vaccination requirement

My friend and colleague, Gerry Bradley, along with Bishop Thomas Paprocki, have published a letter to the editor in which they challenge the University's announced policy that (nearly) all students arriving or returning in the Fall will be required to have been vaccinated against COVID-19.

Although I have the greatest respect for the authors, I (think I) disagree with the letter.  Assuming (a) that it is morally permissible to use these vaccines, (b) that we ought, to the extent we can and to the extent it is (reasonably) safe and prudent, and even when we'd rather not, to do morally permissible things to help others, (c) that a vaccine requirement will help others because only with such a requirement will the onerous and damaging restrictions on students' lives and our classroom teaching be lifted, and (d) that Notre Dame is entitled to impose morally permissible conditions on admission to the community . . . it seems to me that, all things considered, students may and should bear witness to the horrors of abortion in other (more visible and so, probably, more effective) ways.  If (a)-(d) are warranted assumptions, then it strikes me as prideful -- even though, of course, students themselves are not really at risk and, in any event, are generally entitled to assume risks -- to refuse vaccination.   And, if these assumptions are warranted, then it seems wrong to say, as Prof. Bradley and Bishop Paprocki do, that "any undertaking to exclude from campus every student who declines to be vaccinated . . . would be immoral."

I should emphasize that my conclusion depends on these assumptions -- including (c) -- being correct.  If it turns out that, even with (near) universal vaccination, the University elects to continue (contrary to evidence, data, sound cost-benefit analysis, and "science") with what would be fair to characterize as (again, onerous and damaging) "safety theater", then things would (to me) look quite different.

 

Guest Commentary: Where two or three are gathered: Tandon v. Newsom and California’s ban on in-home religious worship

Nick Reaves and Joe Davis from the Becket Fund for Religious Liberty offer the following commentary on Tandon v. Newsom:

Where two or three are gathered: Tandon v. Newsom and California’s ban on in home religious worship  

In-home worship and Bible study are crucial to the religious exercise of millions of contemporary Christians in the United States, and these “house churches” have their roots in the earliest days of Christianity. See Acts 5:42 (“And every day, in the temple and from house to house, they did not cease teaching and preaching Jesus as the Christ.”). For Jews as well, religious gatherings in the home are sacred. During a Passover seder, for example, Jews gather at a family table to read the Haggadah and share a ritual meal. See Exodus 12. 

Yet, for over a year, California’s COVID restrictions prevented Jews and Christians alike from hosting any in-home religious gatherings if they included individuals from more than three households (including the host). This “gatherings ban” made it unlawful to host even a small Bible study or seder meal. By policing these deeply personal and sacred interactions between individuals in the privacy of their home, California’s gatherings ban struck at the heart of our Constitution’s protections for religious liberty and freedom of assembly. 

In the early days of the pandemic, when all economic and social activities ground to a halt, such restrictions might have been justified for a very brief time. But—as the pandemic rolled into its second year and cases ebbed across California—the State continued to keep religious exercise on the sidelines while an ever-growing list of secular activities were deemed safe and permitted to resume. Homes and backyards were forced to remain religion-free while hair salons, restaurants, retail stores, hotels, laundromats, pet groomers, bowling alleys, and the Hollywood entertainment industry (to give just a partial list) reopened with safety protocols. 

This meant four observant Jews couldn’t meet at one of their homes to celebrate the Passover, but four sports fans could gather in a stadium skybox to eat chicken wings. And a Christian pastor could be fined for hosting an in-home Bible study on Easter morning, but his flock could go bowling together that same day. 

Seeking relief from these targeted restrictions, Pastor Jeremy Wong and Karen Busch challenged the State’s ban on in-home religious gatherings in federal court, in a case called Tandon v. Newsom. Karen and Pastor Wong explained that they would carefully follow the State’s social distancing and masking requirements at their religious gatherings, and simply asked for the same treatment as California’s long list of permitted secular activities. The district court and the Ninth Circuit, however, denied their request for relief. Apparently wearing constitutional blinders, both courts held that the State’s long list of permitted secular activities (from haircuts to bowling) was irrelevant. Instead, because California banned both religious and secular gatherings in the home, the ban was permitted. 

So Karen and Pastor Wong—following a trail blazed by previous challengers to California’s draconian restrictions on religious exercise—sought emergency relief at the Supreme Court, asking for permission to host in-person Bible studies and religious worship on Easter Sunday. A week later, their prayers were answered: the Supreme Court enjoined California’s restrictions on in-home religious gatherings. 

Much of the commentary on this case has focused on the Supreme Court’s repeated intervention to protect religious worship in California; but was the Supreme Court’s intervention here really surprising? Perhaps a better question to ask is why it took five trips to the Supreme Court for California to start treating all religious worship at least as well as it treats secular activities. 

How we got here 

Tandon was far from the first time the Supreme Court had confronted California’s discriminatory treatment of religion during the pandemic. The Court’s first decision addressing any State’s COVID-19 religious worship restrictions came in a May 2020 case (now) called South Bay I, which involved California’s limitation on gatherings at houses of worship to no more than the lower of 25% of the building’s occupancy or 100 people. It was already settled law that when the government fails to treat religious exercise equal to comparable secular conduct, its actions are constitutionally suspect. Yet, while churches, mosques, and synagogues were subject to this stringent occupancy cap, California permitted many secular businesses (like factories, restaurants, hair salons, and cannabis dispensaries) to open without such limitations. Even so, the Court declined to step in, with Chief Justice Roberts—writing alone to provide the only explanation for the Court’s actions—citing the deference due to government officials at the outset of an extraordinary emergency like this one.

South Bay I was then followed by another loss for in-person worship at the Supreme Court in Calvary Chapel Dayton Valley v. Sisolak.

In November 2020, however, the tide turned. On the night before Thanksgiving, the Supreme Court protected the Diocese of Brooklyn and Agudath Israel (a national grassroots Jewish organizations with over 70 affiliated synagogues in New York, represented by our firm, the Becket Fund for Religious Liberty) from targeted caps of 10 or 25 on houses of worship, while imposing no occupancy limits on so-called “essential businesses”—a category including things like bicycle repair shops, accountants, and liquor stores. The Court explained that discriminatory worship bans like this one “strike at the very heart of the First Amendment’s guarantee of religious liberty.” And the Court pointed out a glaring disparity: “hundreds” of shoppers could crowd a big-box store while even the most cavernous cathedral remained limited to a mere handful of worshipers.

In the wake of Diocese of Brooklyn, many state and local governments—correctly reading both the legal tea leaves and the public-health data—began lifting their remaining restrictions on religious worship, recognizing that even in a pandemic religious worship can be conducted safely.

California, however, remained defiant, triggering a remarkable months-long battle with the Supreme Court over the State’s efforts to carve out the nation’s only worship-free zone, even while it elsewhere moved toward reopening secular economic activities as the pandemic waned.

On three separate occasions, in Harvest Rock Church v. Newsom, South Bay II, and Gish v. Newsom, the Supreme Court was required to step in, ensuring that California’s COVID restrictions (which continued to permit numerous secular indoor activities) didn’t exclude houses of worship. After three trips to the Supreme Court and three losses, California seemed to get the message. But then, in Gateway City Church v. Newsom, Santa Clara County (undeterred by the Supreme Court’s clear guidance) attempted to reimpose its own county-level ban on indoor worship. This triggered the Supreme Court’s fourth reversal of the Ninth Circuit.

A predictable result

All these decisions set the table for Tandon. Unlike at the Ninth Circuit, California’s argument at the Supreme Court failed to convince. As the Court’s opinion enjoining the State’s gatherings ban explained, the legal standard the Ninth Circuit should have applied was “clear” from the Court’s prior decisions. Regulations are constitutionally suspect if “they treat any comparable secular activity more favorably than religious exercise.” And, to determine “comparable” activities, what matters is “the risks various activities pose, not the reasons why people gather.” The Court’s prior precedent thus should have made the problem with California’s restrictions obvious: they permitted numerous secular commercial activities while barring at-home religious gatherings, and California provided zero evidence-based justifications for this disparate treatment.

Tandon also reflects the Court’s not-so-subtle intent to put this issue to bed once and for all. The Court, for example, pointed out that this was the “fifth time” it “summarily rejected the Ninth Circuit’s analysis,” and found it “unsurprising” that these “litigants [too] are entitled to relief.”

Tandon never should have reached the Supreme Court. By April of 2021, the Court had already forged a path forward, clearly explaining how governments and lower federal courts should evaluate COVID-19 restrictions on core First Amendment rights. The only surprising thing is that California and the Ninth Circuit ignored these clear rules, necessitating the Supreme Court’s intervention yet again.

Nick Reaves and Joe Davis are attorneys for the Becket Fund for Religious Liberty

Natural Rights and Religious Liberty: The Founders’ Perspective

The meaning of religious freedom remains one of the more contested areas of our constitutional politics. The progressive left tends to emphasize freedom from religion, especially freedom from the influence of traditional religious sexual morality. Social conservatives, by contrast, emphasize the right to be religious, especially the freedom to live and act in the public square according to one’s religious convictions. With President Joe Biden’s recent tweet that transgender equality is the “civil rights issue of our time,” the conflict between these competing views of religious liberty will only be amplified.

Full article by Vincent Phillip Muñoz at Real Clear Public Affairs: https://www.realclearpublicaffairs.com/articles/2021/04/21/natural_rights_and_religious_liberty_the_founders_perspective_773649.html

 

Bearing witness to the pain

Every year at orientation, when we’re explaining to our new law students the importance of disclosing their past arrests and citations, I share the story of when I was arrested for trespassing as a senior in high school. A friend and I had entered an abandoned factory to investigate a story we were working on for the school newspaper. It’s sort of a funny story, and I tell it so students know it is possible to overcome past infractions they are concerned about as they start law school.

There’s another story I don’t share.

A couple of months before my trespassing arrest, my friends and I stopped at a liquor store to buy beer with our fake IDs. As I walked in, a teenager I didn’t know approached me in the parking lot and asked if I would buy alcohol for him too. I agreed, and when I came back out and was handing him what he asked for, a uniformed officer who had been watching the whole time walked up and told us to “stop right there.” I turned and ran to my car, got in, and drove as fast as possible out of the parking lot. The officer had taken down my license plate, so I was picked up later that evening, booked, released, and eventually fined after a court appearance.

There was no question that I had committed a crime – the officer saw me hand liquor to someone who was obviously underage. There was no question that I had failed to comply with the officer’s order – I ran from him after he told me to stop. And still, I was given the chance to sleep in my own bed that night, to grow up and get my head on straight, to go to college and law school, to be certified as having the requisite character and fitness to practice law, to teach hundreds of aspiring attorneys, to marry and have kids, to watch my daughters grow up – in other words, to lead a full life that has been shaped but not defined by my many mistakes.

I share this story now because it is too easy for many of us to disconnect from the pain that surrounds us. Many white Americans – including me – like to build our life narratives in terms that have nothing to do with race. Whether or not you’ve had interactions with law enforcement, race has shaped intergenerational wealth, geographic mobility, access to education, job opportunities, the likelihood of building home equity, exposure to race-based trauma, and myriad other realities of American life. We may not agree on the labels we should attach to the role that race has played in our lives, and we may not agree on the most prudent path forward. But if you live in America – and especially if your parents and grandparents lived in America – race has been part of our stories, whether we’re ready to acknowledge it or not.

This past week has been a difficult one in the Twin Cities. The coming week may be much, much more difficult. As Christians, we are called to bear witness to the pain, even if we do not feel it as deeply or as personally as others do. I encourage us to redouble our commitment to the empathy that is made possible by truthful stories about ourselves and the world. Empathy is essential right now because it is a fertile ground for love, and love, in the words of Martin Luther King Jr., “is the only cement that can hold this broken community together.” We are therefore “commanded to love . . . to restore community, to resist injustice, and to meet the needs of my brothers.”

A Public Funding Ban for Private Colleges ‘Born in Bigotry’?

A lawsuit filed in federal district court argues that a provision of the South Carolina state constitution that bars public funds from being used for the "direct benefit" of religious or other private educational institutions should be struck down because it was born out of racist and anti-Catholic animus.

Full story at Inside Higher Ed: https://www.insidehighered.com/news/2021/04/16/south-carolina-privates-sue-over-provision-denying-them-public-funds

A TIME OF CRISIS AND OPPORTUNITY

Religious Freedom Institute will co-host an event Thursday, April 15 featuring a conversation between two career-long champions of religious freedom, Dr. Tom Farr, President of RFI, and Ken Starr, former US Solicitor General, about Judge Starr's new book, Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty. The conversion will lead the audience through an understanding of America's rich tradition of religious liberty, discuss current crises threatening that bedrock freedom, and offer practical insights about taking a more active role in advancing the cause of liberty.

https://www.religiousfreedominstitute.org/rfievents/a-time-of-crisis-and-opportunity

What Can A Just Man Do?

After the tragedy and unrest in Minnesota yesterday, I was driven to contemplate what could be done, what is needed, what could be offered to promote true, lasting peace in my home state?  Justice is desired, truth is required, but beauty might save world.  I aspire to live justly, more justly, and I had to offer something, however meager.  So here goes.

First, an attempt at offering something which may be found beautiful; springtime brings natural beauty, yet weeds will grow.  "The tempo of [reading this poem], ..., should be brisk. It must neither drag nor sound hurried. Serenity combined with energy is required."  Gregorian Chant Volume II, Justine Ward, 1949 (original context: for psalmody).

Distraught by news of violence, anger, and cloudy skies,

What can I do?  What might I offer?  I am not wise.

Pricked by conscience, past things read, and connecting now with old,

My wedding ring cleaned, there, now more cleanly I see the gold:

A true promise of total, free, fruitful, faithful commitment.

 

Only those who promise to forgive, fed by forgiveness, can long live.

From the unchanging Father, every best gift, in His Mercy, we can give.

Else no hope have they to stay in peace, for we all fall yet fail in love,

And though it stirs us up, the anger of man does not work out the justice of God above.

 

Shall I let this sleep? Should I give it a slumber, turning back to my work?

Twin topics;  Folding my hands will bring want upon me, and poverty like a man armed.

I'll put my hands back to the plow that pays, after all, we have a baby still with the stork.

Yet for these reasons, the work of public peace must not be left undone, as it is presently quite harmed.

 

Second, a few Proverbs from the Douay-Rheims (DR) that could be found, here to help me feebly strain to perceive something in this mess that I must call my hometown.

The thoughts of the just are judgments: and the counsels of the wicked are deceitful. (12:5)

The substance of a rich man is the city of his strength: the fear of the poor is their poverty.  The work of the just is unto life: but the fruit of the wicked, unto sin. (10:15-16)

But see here:

The name of the Lord is a strong tower;

the just run to it and are safe.

The wealth of the rich is their strong city;

they fancy it a high wall. (18:10-11, NABRE translation)

Before destruction, the heart of a man is exalted:

and before he be glorified, it is humbled. 

He that answereth before he heareth sheweth himself to be a fool, and worthy of confusion. (DR 18:12-13)

First, I must hear and hunger to humble my heart or I will be laid low and worthy of the responding, wreaking waves of confusion.  After a moment, I summon courage and saunter on, watching my steps as best I can but I choose to walk onward so I trust my footing and strike out, thinking.  It is the just who are safe, though the rich fancy themselves well guarded.  Yet, the name of the Lord does not preclude trouble, but 'only' saves one from utter ruin.  This does bring peace, yes, it does.  But it leaves one humbled.  Splendid; good.  More to be done here than I can accomplish, perhaps the Risen Lord will direct me further.  St. Thomas More, how did you keep focus?  St. Joseph Most Just, pray for us!  Our Lady Our Mother, pray for us humble sinners with work to do, prayers to be said, and good works aplenty.

Catholic legal education in an age of political tribalism

As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another.  We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together. 

I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run.  What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health. 

So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea?  She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends.  When she asks our graduate for advice regarding compliance, how should our graduate respond?  With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing?  Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law?  Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?

This is not just about COVID, of course.  Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps.  Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring.  Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits. 

This is one reason why I believe that legal education is absolutely essential to our nation’s future.  Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation.  And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them.  If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.

We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days.  We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo.  However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.

Religious Liberty: Where We Are and Where We’re Going

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.

https://www.religiousfreedominstitute.org/rfievents/religious-liberty-where-we-are-and-where-were-going

The USNWR rankings and law-school debt

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 . . . 

Wayne State’s actions “obviously odious to the Constitution”

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.

Christianity, Immigration, and the Religion of Humanity

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.

John Paul II's Contribution to Law

Very interesting paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3774948&dgcid=ejournal_htmlemail_law:religion:ejournal_abstractlink#

Abstract
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.

Scalia on the best lesson he learned at Georgetown

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).

RELIGIOUS LIBERTY UNDER A NEW COURT

Utah Valley University will livestream what promises to be an excellent First Amendment Conference.

https://www.uvu.edu/ccs/events/posts/firstamend.html

 

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