Mirror of Justice

Principles or Improvisations? Why (and how) the Justices Should Reject Anti-religious Discrimination

A little over two years ago, concurring in Trinity Lutheran Church of Columbia, Inc. v. Comer, Justice Neil Gorsuch insisted – quoting the late Chief Justice William Rehnquist – that “our cases are ‘governed by general principles, rather than ad hoc improvisations.’” A case on the Supreme Court’s docket this term, Espinoza v. Montana Department of Revenue, will – among other things – put this claim to the test.

Read the entire post by Richard Garnett at SCOTUSblog

Admitting fewer refugees ‘runs counter’ to U.S. values, say USCCB leaders

A proposal to reduce the number of refugee admissions to the United States to fewer than 30,000 “would be wholly counter to our values as a nation of immigrants,” said the president of the U.S. Conference of Catholic Bishops and the chair of the bishops’ Committee on Migration.

Since Congress passed the Refugee Act in 1980, the U.S. had admitted on average 95,000 refugees annually. In recent years, the U.S. has accepted between 50,000 to 75,000 refugees per year. The number was capped at 45,000 after Trump became president in 2017 and was scaled back to 30,000 refugees for fiscal year 2019.

Full article at Crux here

 

Huleatt Reviews Goodrich

I want to call a little notice to John Huleatt's review of Luke Goodrich's new book, Free to Believe: The Battle Over Religious Liberty in America. It's a thoughtful and positive review, and I'm especially pleased to record that Mr. Huleatt is a St. John's Law graduate, class of 2002.

Christians in Burkina Faso face options: ‘Flee, convert or die’

Christians in Burkina Faso are being forced to “flee, convert or die” by Islamic jihadists, according to a leading Catholic aid charity.

Burkina Faso’s government said on Monday that suspected extremists have carried out two attacks killing a total of 29 people.

Full article at Crux

A Catholic Pathway for Freedom in the Muslim World?

The Religious Freedom Institute recently posted the seventh of a series of nine posts that previews one chapter of the new book by Daniel Philpott, Religious Freedom in Islam: The Fate of a Universal Human Right in the Muslim World Today.

 

Why Conservative Christians Have a Stake in Protecting Muslim Religious Freedom

I have a piece on this subject up at Christianity Today. One bit:

Both groups, in different places and settings, are unpopular and face hostile, overly burdensome regulation. Opponents label them “Muslim terrorists” and “Christian bigots.” I don’t claim the situations are identical; Muslims are a small minority almost everywhere, while conservative Christians often have political and cultural power. But conservative religious beliefs about sex and other issues are highly unpopular in some places: in secular universities, in states and cities that are deep blue politically. Conservative Christians in those settings face restrictions, and it hurts their cause when Christians in power elsewhere restrict Muslims.

The piece at places, if there were room, could have cited our own Robbie George as well as Russell Moore, Luke Goodrich, and others who have made the case that religious freedom stands and falls together for all. "Everything that needs to be said has already been said. But, since no one was listening, everything must be said again.” (Andre Gide)

The piece is up simultaneously with a CT interview of Asma Uddin, former Becket Fund lawyer, on her excellent book When Islam is Not a Religion.

 

"Religious Freedom and the Common Good: A Summary of Arguments and Themes"

That's the title of my introductory/overview essay, posted on SSRN, summarizing the papers from our Law Journal symposium at St. Thomas on the subject. The full set of papers is here. A couple of paragraphs from the abstract of my overview: 

       We tend to think that the common good is simply a limit on freedom: that individual and societal claims inevitably clash, that the common good stands for society’s interests in restricting the actions of individuals and private groups. But freedoms also serve social purposes. Indeed, such arguments may be increasingly important to defending the right of religious freedom in an era of skepticism toward many religious claims. Perhaps for this reason, advocates and scholars have made a discernible turn toward exploring the common good as one key rationale for religious freedom.

       But this justification of religious freedom also raises a number of important challenges and questions. They can generally be grouped into three areas: (A) What precisely is the evidence, and how strong is it, for the connection between religion and benefits to individuals and society? (B) What do religion’s social contributions have to do with religious freedom? (C) How does the common good suggest limits on the scope of religious freedom, or criticisms of religious freedom as it is practiced or claimed today?

The symposium brings together contributors from sociology, political science and history, law, and public-policy disciplinary perspectives. The roster includes Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance; Angela Carmella, who writes on CST and the scope of religious freedom; Roger Finke and Dane Mataic, social scientist who do empirical work on religious restrictions around the world; Brian Grim, who gives a shortened version of his important study on the economic value of U.S. religion; Mark Hall, leading scholar on the founders' views of religion in public life, including their views on religious accommodations; Byron Johnson of Baylor's Institute for Religious Studies, among our leading sociologists on the empirical contributions of religious social-service activities; Jacqueline Rivers, sociologist and scholar of the African-American church; and Melissa Rogers, now at Brookings and formerly advisor on faith-based and community work, including religious-freedom issues, in the Obama White House.

While I'm at it, I should also commend Kathleen's Brady excellent article on the same topic, here.

Should Conservatives Embrace or Reject "Liberalism"?

In 1993, when I was an untenured assistant professor, Oxford University Press published my book Making Men Moral: Civil Liberties and Public Morality. In that work, I aggressively challenged the form of "liberalism" that had dominated academic political theory since the early 1960s, and especially since the publication of John Rawls' profoundly influential book A Theory of Justice in 1971. That form of liberalism was of more than merely "academic" interest. It informed and guided political action and, perhaps even more importantly, constitutional jurisprudence among those who, in those days, styled themselves as "liberals." They had enormous success, especially in the courts.

My principal complaint against the liberalism of Rawls and others (e.g., Ronald Dworkin) was that it proposed a standard for the identification of principles of political morality and the design of political institutions--and for lawmaking and the formation of public policy--that it did not, and could not, itself meet. That standard, which Rawls labeled "anti-perfectionism," excluded as in principle unjust, at least when it came to constitutional essentials and matters of civil rights and liberties, predicating public decision-making on controversial beliefs about what makes for, or detracts from, a valuable and morally worthy way of life. Dworkin framed the requirement in terms of the duty of the state to adopt a stance of "neutrality" on such questions. I argued that such neutrality is undesirable and, indeed, strictly speaking impossible. And I proposed to show that liberal theorists themselves (inevitably and unavoidably) smuggle into their arguments precisely the sorts of controversial ideas about the human good that their theories officially exclude. One saw this, for example, in their arguments about pornography, abortion, and marriage.

But Making Men Moral was meant to be more than a critique of what Rawls came to call "political liberalism." It also proposed to show that a "conservative" alternative to liberalism needn't--and shouldn't--be illiberal. Although there were things to be learned from the broader liberal tradition on which people like Rawls ad Dworkin drew and built, that tradition did not invent freedom of religion, freedom of speech, the principle of inherent and equal human dignity, and other desirable political principles; nor did or does it supply us with the most compelling arguments for them. A better case for them could be made, I argued, on natural-law, "pluralistic perfectionist" grounds--a case that identified the ways in which respecting these principles served integral human well-being.

"Liberals," now re-styled as "progressives," have moved on. Many are embracing illiberalism, often without embarrassment or so much as a glance backward to the theory that they, or their tradition, deployed for more than fifty years to defend what they deem to be "rights" to pornography, divorce, abortion, same-sex marriage, etc. If they think of that theory at all, it is probably as something that served at the time as a useful tool in dislodging the pre-existing public morality--the fabric of legal and social norms--that had been shaped by biblical religion and classical philosophy.

Interestingly, however, some conservatives today invoke something like (or, perhaps better, some aspects of) the old "political liberalism" in attacking the illiberalism of contemporary progressives. But this draws the ire of other conservatives who see it as a sell-out of conservatism (and a rear-guard action that is bound to fail anyway). In response, conservatives in the former camp accuse those in the latter of falling into illiberalism (even proposing theocracy), as well as of undermining the constitutional basis for protecting the religious freedom and conscience rights of devout Christians, observant Jews, and others who are under pressure from illiberal progressives to conform to norms of progressive ideology.

And so we have the celebrated debate between two admirable conservatives, both of whom are friends of mine: David French and Sohrab Ahmari. A number of people have asked where I stand in the dispute. It would not be false to say I gave my answer twenty-six years ago in Making Men Moral: (1) anti-perfectionism is a mistake, let's not make it; (2) liberty is valuable, but not unconditionally or intrinsically, but rather instrumentally and as a condition for the realization of substantive human goods (some of which such as friendship and marriage and family life are inherently social); (3) procedural justice (like liberty itself) is important--critically so--and even properly understood as itself a requirement of substantive justice; but (4) procedural justice is not the whole of substantive justice, all that the common good requires, so achieving even perfect procedural justice does not ensure a substantively just polity or society; (5) so working for procedural justice--including in a system like ours by vindicating constitutionally and statutorily guaranteed rights by litigation--is good, but it is not enough; (6) still, we mustn't short circuit procedural justice in our zeal to achieve substantive justice--the ends do not justify the means; (7) so we need to avoid supposing that the alternative to "liberalism" (considered as the ideology that has been dominant on the left in our lifetimes) is some form of illiberalism (theocratic or otherwise); (8) and we must avoid throwing the baby (religious freedom, freedom of speech, other basic civil rights and liberties) out with the bathwater (anti-perfectionism, neutralism, the purely procedural conception of justice, together with misguided policy ideas like "rights" to pornography, abortion, etc.); (9) the way to think about civil rights and liberties (and all other questions of justice and political morality) is in relation to basic human goods--the constitutive aspects of the well-being and fulfillment (the thriving, the flourishing) of flesh-and-blood human beings and the communities we constitute and which in part constitute us (beginning with the family); and finally (10) such thinking in the cause of the overall common good will begin with basic universal moral and other practical principles, but will necessarily include, in many cases, prudential judgments that are not themselves universal ("always and everywhere") truths--judgments that take into account contingent circumstances, histories, traditions, opportunities, challenges, and the like--and which require practical wisdom of the sort that comes from a combination of experience, knowledge (including sometimes technical expertise), and sober, critical thinking.

Now, I don't expect everyone to go out and buy copies of Making Men Moral (though I do intend to send copies to Sohrab and David together with a note saying: "Why are you guys arguing when I sorted this whole business out when I was a kid--taking my professional life into my hands by publishing such a thing while I was coming up for tenure?" Just kidding!). So Ryan T. Anderson and I have an essay entitled "The Baby and the Bathwater" coming out soon in the journal National Affairs that revisits and updates the central arguments of the book (and adds some new thoughts), having in mind the division among conservatives today about what we should and shouldn't embrace going forward.

https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198260240.001.0001/acprof-9780198260240

Notre Dame Program on Church, State & Society 2019 Fellows

Four Notre Dame Law students gained valuable exposure this summer in the area of religious-institutions practice. Sponsored by the Law School’s Program on Church, State & Society, each summer fellow assisted a religiously affiliated organization or law firm that serves such organizations.

The fellowship program is one of the many ways the Program on Church, State & Society seeks to educate young lawyers about the relationship between law and religion. The fellowships allow students to experience a variety of career options that combine law and religion and involve legal services to religious institutions of all types.

Read about the work done by the 2019 fellows here

Under Assault: New York’s Private and Parochial Schools

Will the Regents and education bureaucrats succeed in forcing nonpublic schools to conform to unprecedented state control?

In New York, the Education Department is redefining an 1894 state law requiring that private schools offer “substantially equivalent” instruction to students as that provided in public schools—henceforth imposing on private schools the curriculum, scheduling, lesson plans, hiring standards, and reporting requirements that public schools must follow.

Full story here

A New Supreme Court Case From Montana Concerning the “Blaine Amendment”

In the latest episode of Legal Spirits, Mark Movsesian and Marc DeGirolami discuss a new case that the Supreme Court has agreed to hear, Espinoza v. Montana Department of Revenue, concerning a Montana law that created a tax credit scholarship program whose proceeds were directed, in part, to religious schools.

Review of Miscamble's book "American Priest": Father Ted's Lack of Vision

 

Over at Public Discourse, my friend and co-author Lee Strang and I recently published a review of Rev. Wilson Miscamble, C.S.C.'s book American Priest, a biography of Rev. Theodore M. Hesburgh, C.S.C.  We wrote the review not only because the book is deserving a wide readership, but also as part of our ongoing book-project on the history of American Catholic legal education.

Father Ted  is, of course, the man who, as president of the University of Notre Dame from 1952-1987, worked to transform the school from an unremarkable men's Catholic college (better known for its football than its academics) into one of America's elite universities.  As much as anyone, Hesburgh is responsible for changing the face of Catholic higher education in the United States.

For all the changes he helped to bring about, Father Hesburgh enjoys the reputation of a visionary, and a man of great ambition.  Surely some of this reputation is well deserved.  Yet, somewhat surprisingly, we believe that the conclusion to be drawn from Father Miscamble's book is that Father Ted lacked the vision and imagination necessary to achieve the goal that Hesburgh set for himself: to make Notre Dame into a truly great university (as measured by the standard's of the secular academy) and one that is at the same time authentically Catholic.  Father Hesburgh seems to have thought that the ongoing Catholic identity of a Catholic university could be assured simply by hosting a theology department, supporting an active campus ministry, and fostering a sense of community in student residential life.  While each of these qualities is important, the goal of a "great Catholic university" simply cannot be attained absent the thoughtful implementation of practical strategies in the hiring and retention of faculty that are designed to build and sustain a community of Catholic intellectuals. 

We encourage everyone to read the review and Father Miscamble's excellent book. 

 

 

 

 

Robert Louis Wilken on Religious Freedom: This Thursday at Villanova

For interested readers in the Philadelphia area, the distinguished historian of Christianity Robert Louis Wilken will be speaking at Villanova this Thursday (September 5) at 4:00pm about his recent book Liberty in the Things of God: The Christian Origins of Religious Freedom (Yale, 2019). Details here.

China’s Prisons Swell After Deluge of Arrests Engulfs Muslims

The Chinese government has built a vast network of re-education camps and a pervasive system of surveillance to monitor and subdue millions from Muslim minorities in the Xinjiang region.

Now China is also turning to an older, harsher method of control: filling prisons in Xinjiang.

The region in northwest China has experienced a record surge in arrests, trials and prison sentences in the past two years, according to a New York Times analysis of previously unreported official data.

Full article from The New York Times

Trump Administration Accuses Hospital of Forcing Nurse to Assist in Abortion

The Trump administration is threatening to pull federal funding from a Vermont hospital because of allegations that a nurse was forced to participate in what federal officials said was an abortion procedure, despite her religious objections.

The Department of Health and Human Services Office for Civil Rights (OCR) on Wednesday announced it told the University of Vermont Medical Center (UVMC) that it had violated the law "by forcing a nurse to assist in an elective abortion procedure over the nurse’s conscience-based objections."

The agency said it has given the hospital 30 days to bring its conscience protection and staffing policies into compliance with federal law, or face the loss of federal funding.

Full story at The Hill

New Chinese Bishop and the New Vatican-China Deal

While many are celebrating the ordination of the first bishop in China since a deal was struck between the Vatican and the Chinese government on bishop appointments last year, some experts have said the event is indicative of neither the terms of the agreement or its success, since the bishop ordained had been selected before the accord was signed.

Read the full article at Crux

"Some Thoughts for New Law Students"

I have a short piece, posted at Public Discourse, with "some thoughts for new law students."  Comments and reactions welcome!  Here's a taste:

With apologies to Douglas Adams, this is the “meaning of life, the universe, and everything” Layer. Here, we ask not only about the “legislative intent” underlying a particular provision, but also about, for example, “who and what we are, what we were made for, and why it might matter.” Layer Four is where we think about not only the most efficient default rules and the “cheapest cost avoiders,” but also about the nature and destiny of the human person, and the connection between our human nature and the legal enterprise. St. Augustine famously wrote that “you have made us for yourself, O God, and our hearts are restless until they rest in thee.” This is a fact about us. We need to ask, “what differences does this fact make?” What does it mean for the law, and for lawyering, that we have, as C.S. Lewis suggested, a “God-shaped hole”?

We have traveled a long way from learning to report the implications of a fee simple or to recite the Model Penal Code’s hierarchy of culpable mental states. At the end of the day, it all comes down to Layer Four. Whether we realize it or not, this is where “the law” is. Yes, some law schools, teachers, judges, and scholars will insist or pretend otherwise; some will propose that the law in fact is, and must be, “neutral” with respect to Layer Four matters. However, it cannot, and should not, be.

Thomas Farr Gives Perspective on Second Ministerial to Advance Religious Freedom

RFI President Thomas Farr recently joined The Weekend Answer radio show to offer his perspective on the meaning and significance of last month’s Second Ministerial to Advance Religious Freedom.

The whole point of this [Ministerial] is to build international consensus about what began as a uniquely American idea back in the late 1990s…That is, religious freedom is good for everybody — not just Christians, not just Jews or Muslims, not just religious people — it is good for everybody.

Listen to the full interview here

 

Bishops Welcome Proposed Rule to Protect Rights of Religious Employers

The chairmen of three U.S. bishops’ committees Aug. 21 welcomed a proposed rule from the U.S. Department of Labor aimed at clarifying religious protections that may be invoked by federal contractors, including faith-based organizations.

“Faith-based groups should have the opportunity to compete on a level playing field as they seek to partner with the federal government to provide critical social services,” the bishops said in a statement. “These proposed rules protect religious liberty, a core constitutional right, by clarifying existing religious exemptions consistent with federal law and recent Supreme Court precedent.”

The proposed rule would clarify that religious organizations may make employment decisions “consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government,” the Labor Department said in announcing it Aug. 14. The proposal was issued by the department’s Office of Federal Contract Compliance Programs, known as OFCCP.

Full article at Crux

Weigel on the Pell verdict

Over at First Things, George Weigel has these comments about the recent (split) decision affirming the sex-abuse conviction of Cardinal George Pell.  I realize there are those who claim that skepticism about the fairness of the proceedings against Cardinal Pell simply reflects ideological or ecclesiological agreement with him, but this claim is misplaced.  As a former criminal-defense lawyer, and as one who has been teaching Criminal Law for 20 years, I am committed, across the board, to the deeply rooted and foundationally important rule that imposes an exceptionally demanding burden of proof on the government before a criminal conviction.  I do not believe that burden was met here, or that any reasonable, unbiased factfinder could have concluded that it was.  That "something might have happened" or even that "something probably happened" (and, to be clear, I am not saying I believe that either of these is the case here) is not, and should not be, enough, in the criminal context.

Maryland Case Reveals Religious Discrimination in Education

This op-ed by Neal McCluskey of the Cato Institute’s Center for Educational Freedom details a current form of discrimination in Maryland. As noted in the op-ed:

If government says that you are free to believe in something, but not to act on it, you are not truly free. That reality lies at the heart of a federal lawsuit filed by the Bethel Christian Academy against the state of Maryland, which kicked the academy out of a private school voucher program for having policies consistent with the school’s religious values. Such unequal treatment is unacceptable. 

 

Immediately at issue are the school’s policies requiring that students and staff behave in ways consistent with the idea of marriage being between a man and a woman, and an individual’s proper gender being the one assigned at birth. The state maintains that those policies are discriminatory against LGBTQ individuals and that allowing public money — school vouchers from the state’s BOOST program — to flow to Bethel Christian is unacceptable.

 

The state’s position is totally understandable: All people should be treated equally when government is involved. The problem is that the state government is not treating religious people equally – a problem in the public education system not just in Maryland, but in every state in the country.

Religious schools need the ability to act on their religious principles without being cut off from choice programs. More than 482,000 students across the country are exercising private school choice.  As McCluskey points out, the Maryland policy now essentially says that educators and parents may pick a school consistent with their faith, but as a practical matter that faith must be dead.

USCIRF Commissioner Calls for Release of Religious Prisoner of Conscience

WASHINGTON, DC – United States Commission on International Religious Freedom (USCIRF) Commissioner Tenzin Dorjee today called on Chinese authorities to immediately and unconditionally release Gulmira Imin, a Uighur Muslim detained in 2009. Ms. Imin was a web administrator for the Uighur-language website Salkin.

“The extreme and unjust sentence imposed on Gulmira Imin foreshadowed the mass internment and other forms of persecution we see today against Uighur Muslims in China,”said Dorjee, who adopted Gulmira Imin in 2018 as part of USCIRF’s Religious Prisoners of Conscience Project. “The Chinese government used Ms. Imin as a scapegoat for unrest in Xinjiang rather than reflecting upon the role its repressive policies might have had in fueling discontent. We urge China to release Ms. Imin and the other Uighur Muslims that it has detained because of their religious or cultural identity.”

https://www.uscirf.gov/news-room/press-releases-statements/press-release-uscirf-commissioner-tenzin-dorjee-calls-release

 

Open Rank Faculty Position in Constitutional Studies at Notre Dame

Open Rank Faculty Position in Constitutional Studies

Department of Political Science

University of Notre Dame

 

The Department of Political Science at the University of Notre Dame invites applications for an open-rank full-time, tenure track/tenured faculty position in Constitutional Studies. The department seeks applications from promising and distinguished scholars with a research focus in American constitutionalism, which includes but is not limited to public law, the history and philosophy of American democracy, and American constitutional development.

 

The successful candidate will be a member of and offer graduate-level courses in the Department’s Ph.D. subfield in Constitutional Studies and core classes in the University’s undergraduate minor in Constitutional Studies, such as: “American Constitutionalism,” “Constitutional Government & Public Policy,” and “The History and Philosophy of Constitutional Government.”

 

The successful candidate will also contribute to Notre Dame’s thriving Program in Constitutional Studies, a center of research and teaching devoted to the production of distinguished scholarship and the cultivation of knowledgeable and civically-minded citizens. The Program directs the University’s growing 100+ student minor in Constitutional Studies and sponsors many lectures, seminars, and colloquia each academic year.

 

Application Instructions

All applicants are required to submit a letter of interest, a C.V., three letters of reference, and a teaching statement which includes a summary of any teaching evaluations available.

Apply by October 1, 2019 at https://apply.interfolio.com/66463

 

 

Equal Employment Opportunity Statement

This appointment is contingent upon the successful completion of a background check.  Applicants will be asked to identify all felony convictions and/or pending felony charges.  Felony convictions do not automatically bar an individual from employment.  Each case will be examined separately to determine the appropriateness of employment in the particular position.  Failure to be forthcoming or dishonesty with respect to felony disclosures can result in the disqualification of a candidate.  The full procedure can be viewed at https://facultyhandbook.nd.edu/?id=link-73597.

Equal Opportunity Employment Statement

The University of Notre Dame seeks to attract, develop, and retain the highest quality faculty, staff and administration.  The University is an Equal Opportunity Employer, and is committed to building a culturally diverse workplace.  We strongly encourage applications from female and minority candidates and those candidates attracted to a university with a Catholic identity.  Moreover, Notre Dame prohibits discrimination against veterans or disabled qualified individuals, and requires affirmative action by covered contractors to employ and advance veterans and qualified individuals with disabilities in compliance with 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).

National Moot Court Competition in Law and Religion at Touro

Thanks to Sam Levine for the tip - more information on the 6th Annual competition at Touro is here.

The Inspired Mary Ann Glendon and Her Dismal Critics

The best path to understanding why Mary Ann Glendon is such an inspired choice to lead Secretary of State Mike Pompeo’s Commission on Unalienable Rights may run through the apoplexy of her critics.

Full article at Law & Liberty here.