Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, April 18, 2024

The Anniversary of Smith

(Posted one day late)

Employment Division v. Smith was decided 34 years ago today: April 17, 1990. Someone born after Smith still couldn't assume the presidency in January 2025 after winning election this cycle--but it's getting close. And Smith set off a long chain of events: The passage of the Religious Freedom Restoration Act and its state equivalents. The switching of sides by many people on the question of religious exemptions--many conservatives becoming proponents, many progressives becoming opponents--when issues involving the sexual revolution came to dominate public debate over religious freedom. The current Court's reading of Smith in ways that are relatively protective of religious freedom. What a long strange trip it's been.

April 18, 2024 in Berg, Thomas , Current Affairs , Religion | Permalink

Thursday, April 4, 2024

John Inazu at Notre Dame on "Learning to Disagree"

 

John Inazu Poster 11x17 (1)

April 4, 2024 in Garnett, Rick | Permalink

Wednesday, April 3, 2024

"Freedom and Truth": Tomorrow at The Catholic University of America, Columbus School of Law

Please join us, if you are able, for the Center for Law and the Human Person's second annual spring symposium tomorrow. The conference is Freedom & Truth, with lectures by Professors Gerard Bradley ("Freedom of the Church"), Catherine Pakaluk ("Freedom of the Family"), and Carl Trueman ("Freedom of the Human Person"). The schedule is below and attendance is free. And please say hello if you come.

Freedom and Truth Schedule

April 3, 2024 in DeGirolami, Marc | Permalink

Tuesday, April 2, 2024

On Traditionalism, in the NYT

I have a piece from last Friday's New York Times reflecting on what I've called traditionalism in constitutional law, including various thoughts about some of its challenges and strengths.

One additional thought here, and that perhaps is not as clear as it might be: this piece, like some of my other work, concerns traditionalism as something distinctive. But it does make claims about traditionalism as a monistic or total theory of constitutional law, either as a descriptive matter or as a prescriptive one. On that question, I tend toward a pluralistic view. As a matter of description, that seems to me the most accurate way of understanding things. On the prescriptive side of things, while I believe traditionalism has many attractions, I do not argue that any court should be traditionalist and only or exclusively so.

The piece is behind a paywall, but here is a bit:

This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call “traditionalist”: In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.

The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court’s traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.

Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country...

Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.

Not all traditions are worthy of preservation. Some are rightly jettisoned as the illegitimate vestiges of days gone by. But many, and perhaps most, deserve our solicitude and need a concerted defense.

Traditions can be fragile things. To the extent that a revitalized practice of constitutional interpretation is possible, it will depend on determining the content of the Constitution with an eye to their sustenance and restoration.

 

April 2, 2024 in DeGirolami, Marc | Permalink

Saturday, March 30, 2024

Religious Freedom, Copyright Royalties, and Court Review of Agency Determinations

The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief supporting the petition for certiorari in a case involving copyright royalties and religious freedom--which also turns out to be important concerning meaningful judicial review of agency determinations that affect First Amendment and religious-freedom rights. The Copyright Royalty Board, the federal agency that sets statutory royalties for digital transmissions of copyrighted sound recordings, has charged noncommercial webcasters (mostly religious in nature) an 18-times higher rate than public-radio-affiliated (also noncommercial) webcasters. That severe disparity raises significant issues under the First Amendment and the Religious Freedom Restoration Act (RFRA). But the D.C. Circuit, in reviewing the Board, treated the case as essentially about mere review of an agency under the Administrative Procedure Act (APA) and gave significant administrative-law deference to the agency's key determination on whether the activities of religious webcasters were comparable to those of NPR webcasters and therefore should not face such a grossly disparate rate.

We argue that courts can't abdicate their responsibilities to protect religious freedom and other First Amendment rights in this way. We use foundational cases. issued over several decades, requiring independent appellate review in First Amendment and other constitutional cases: Bose Corp v. Consumers' Union. (1984), New York Times v. Sullivan (1964), and Crowell v. Benson (1932). And we argue, for example in this summary bit, that

The question in this case is recurring and important. Many claims under RFRA arise from decisions by federal agencies; many claims under the Free Exercise Clause arise from decisions by federal or state agencies. If courts apply administrative-law deference to agencies in deciding RFRA and First Amendment questions, the result will be to eviscerate those protections.

The brief is on behalf of the Christian Legal Society (CLS) and the National Association of Evangelicals. Thanks to the students who worked on the brief--Arianna Wiinamaki and Kris Thompson--and to Steve McFarland and Laura Nammo at CLS.

March 30, 2024 in Berg, Thomas , Current Affairs , Religion | Permalink

Wednesday, March 13, 2024

Mark Rienzi on the Transgender Cases at SCOTUS

Mark Rienzi (CUA and Becket) has shared with Mirror of Justice the following report and analysis:

Transgender cases hit SCOTUS

This week, the Supreme Court is set to consider several cases dealing with the hot-button topic of gender transitions for minors.  Although this has been a major political firestorm for the last couple of years, SCOTUS has largely stayed out of the fray.  The Bostock decision established the right for transgender employees to be free from certain types of discrimination on the job. The Court has so far avoided ruling on Title IX’s application to transgender students, dismissing one case as moot and waiting to weigh in on state laws requiring students to play on sports teams aligned to their natal sex, not current gender identity.

But sooner or later, the Court will have to weigh in on the limits of Bostock, as well as the national controversies over how far parents, schools, and doctors should go in supporting gender transitions for minors.

A trio of cases at Friday’s conference presents a surprising contrast in how state officials handle these issues.

First, the Solicitor General and a group of parents, represented by the ACLU, have asked the Court to consider challenges to laws banning medical transition procedures for minors. Tennessee and Kentucky (along with numerous other states) have banned such procedures, and the challenges to their laws have now reached the court. The A­­CLU has asked the Court to consider its parental rights argument. The SG has taken a different tack, asking the Court to focus on whether the bans violate the Equal Protection Clause as an impermissible sex-based classification.  The states have argued there is not yet a circuit split, citing the Eight Circuit’s pending en banc decision on a similar law in Arkansas. Whether the Court takes this set of cases or waits for a later opportunity, it seems inevitable that the nationwide controversy will eventually end up at SCOTUS.

A third petition raises a troubling question of parental rights in Indiana. Indiana is among the states that have banned such medical procedures for minors, but state officials nonetheless removed a teenager from his parents’ custody because they refused to use his preferred pronouns and agree to treat him as a girl. In M.C. and J.C. v. Indiana Dep’t of Child Services, Mary and Jeremy Cox have appealed the state’s decision to remove their teenage son from their home and place him in a home where “she is [ac]cepted for who she is.” The state refused to return the teen to his parents, even after an investigation showed that all allegations of abuse and neglect were unsubstantiated. The court pointed to an eating disorder and reasoned that, if the child were returned to his legally fit parents, he would experience distress due to the disagreement over gender. That was grounds to keep him out of his parents’ home until he turned 18.

The Coxes kept appealing, hoping their son might come home, but Indiana and its courts refused to return the child.  Now they have asked the Supreme Court to review their case, hoping to overturn a decision that could continue to have dire consequences for their family and put them at risk of further state intervention for their younger children. Our team at Becket is proud to represent them. But Indiana, confoundingly, continues to defend the decision. The state reasons that because it succeeded in keeping A.C. from his parents until he turned 18, his case is now moot. It’s a dangerous argument that would set a dangerous precedent nationwide: parents lose their legal recourse against state officials who take a teen away, since teens will soon reach the age of majority and their cases will be moot, too.

It’s not just Indiana. California and Minnesota have passed laws which allow state courts to take jurisdiction over minors for the purpose of allowing them to receive medical interventions for their transitions. Maine is considering a similar law. Washington state has passed a law that allows teens to effectively emancipate themselves by going to shelters which will help facilitate social and medical transitions—it’s then up to the state, not the parents, how long the teens can stay. The state doesn’t even have to notify the parents of the child’s whereabouts.

The Supreme Court will soon have to decide the rights of loving parents who don’t support a child’s desire to engage in a social or medical transition.  It should do so now, not years from now, when more families have been torn apart. And the Coxes’ case presents an unusually strong scenario: the state admits the parents are fit, so there are no overlapping issues about state law on abuse. The fact that A.C. has turned 18 makes the case an especially clean vehicle—there is no danger of changed circumstances once the Court grants cert. 

These disturbing cases will only continue to multiply until, and unless, parental rights are established. Loving families should not have their children removed because the parents disagree with state officials about gender.

March 13, 2024 in Garnett, Rick | Permalink

Friday, March 8, 2024

Notre Dame Religious Liberty essay contest

The Program on Church, State & Society at Notre Dame Law School is pleased to announce its annual writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersections of church, state & society and, in particular, how the law structures and governs them.

More info here.

March 8, 2024 | Permalink

Tuesday, March 5, 2024

Sub Deo Ep. 2: In Which We Discuss the Alabama Supreme Court IVF Ruling With a Colleague

That colleague is Prof. Elizabeth Kirk, a family law expert. Kevin, Elizabeth, and I tackle statutory interpretation, tort law, family law, and law and religion (this was recorded before the Alabama state legislature took action in proposing new legislation, but don't miss Kevin's smart prognostication on this front). Have a listen!

March 5, 2024 in DeGirolami, Marc | Permalink

"The Death and New Life of Law and Religion"

I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.

The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.

These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.

This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.

March 5, 2024 in DeGirolami, Marc | Permalink

Friday, March 1, 2024

"Sub Deo et Lege": A New Podcast About Law and Learning Under God

Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.

For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!

March 1, 2024 in DeGirolami, Marc | Permalink

Friday, February 16, 2024

Duncan on School Choice and Religious Freedom

Prof. Rick Duncan (Nebraska) has a new paper up called "Why School Choice Is Necessary for Religious Liberty and Freedom of Belief."  Amen!  Here's a bit:

Education is not value-free; indeed, it is value-laden. And in a country as divided as ours, we no longer share common values and common truths. We have competing versions of what is good, what is true, what is fair, what is just, what is morally good, and what is beautiful. Moreover, we are at odds over the most important question in life—whether God exists and whether His Word is relevant to a quality education.  And a one-size-fits-all K–12 curriculum cannot possibly serve all these competing versions of the good life. Although I think competition is always good for the quality and efficiency of any product or service, my argument in this Article is not about higher standardized test scores or better mastery of subjects and skills. My perspective is based on First Amendment values of freedom of religion, thought, and belief formation. In other words, I believe that school choice is necessary for religious liberty and for freedom of thought and belief. If religious and intellectual autonomy are to survive and thrive in a deeply divided, pluralistic nation such as ours, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools.

I tried to make a similar argument, a (long!) while back, in this paper, "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good."  Time flies!

February 16, 2024 in Garnett, Rick | Permalink

Thursday, February 15, 2024

Mirror of Justice -- Twenty Years Ago

As Rick Garnett said in his post, we've reached the age of 20 for the Mirror of Justice. The anniversary provoked me to look back on some of the early messages from that period and reminded me that the hottest topic and source of strongest rhetoric of disagreement on posts in the initial months involved the forthcoming 2004 presidential election. Catholics troubled by the strong pro-abortion advocacy of Democratic Senator John Kerry argued he was disqualified from Catholic support. Others were troubled about the ongoing war in Iraq and contended that Catholics should withdraw support from President Bush based on the debacle about never-found weapons of mass destruction while thousands of innocent lives were lost.

In sum, as one writer put it to Mirror of Justice posters at the time, people were feeling rather "anguished" about the upcoming presidential election. Oh, how things change!

Electoral_map

February 15, 2024 in Sisk, Greg | Permalink

Sunday, February 4, 2024

20 Years of Mirror of Justice

This weekend, the Mirror of Justice blog turned 20 years old.  Here is a link to our first post (authored not by me, as the link suggests, but by Mark Sargent):

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!

It is, I suppose, cringe-inducingly obvious to note that a lot has changed since February of 2004. (There were a lot of back-and-forth postings about the Bush v. Kerry election!) A fair bit of the conversation among law-types has migrated to Twitter, Substack, etc. And yet, blogs survive (and, in some well-known cases, continue to thrive). 

It continues to be my view -- as I tried to express in this very early post of mine, and in a lot of posts since -- that at the heart of any "Catholic legal theory" has to be the Christian proposal about moral anthropology, that is, about what it means and why it matters to be human.  As I said in this short essay, "persons" are "the point of the law."

Ad multos annos!

 

 

February 4, 2024 in Garnett, Rick | Permalink

Thursday, February 1, 2024

"Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn"

The Center for Law and the Human Person is delighted to host Professor Daniel Mahoney this coming Wednesday, February 7, from 5:15-6:15 in the Slowinski Courtroom of the Columbus School of Law. Professor Mahoney is the author most recently of "The Statesman as Thinker" and "The Idol of Our Age," as well as other insightful work in the history of political ideas. He is one of the world's foremost experts on the thought of Aleksandr Solzhenitsyn and what it has to tell us today. 

Please join us for his lecture, Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn.

Solzhenitsyn Lecture v. 1.5

February 1, 2024 in DeGirolami, Marc | Permalink

Sunday, January 28, 2024

"The Servant Lawyer"

One of the legal academy's true treasures, Bob Cochran, has a new book out, called The Servant Lawyer:  Facing the Challenges of Christian Faith in Everyday Law Practice.  Cochran draws not only on his own crucial body of work on religious lawyering, but also on the thought and legacy of our mutual friend and mentor, Tom Shaffer. 

Here's the blurb from that huge Bezos website:

Most lawyers, from Wall Street to the county seat, spend their days drafting documents, negotiating with other attorneys, trying cases, researching the law, and counseling clients. How does this everyday law practice relate to Jesus' call to follow him in servanthood?

With decades of experience in the law office, courtroom, and classroom, Robert F. Cochran Jr. explores Jesus' call on lawyers to serve both individual clients and the common good. Cochran pulls back the curtain with stories from his own career and from the legal community to address a wide range of challenges posed by law practice, including counseling clients, planning trial tactics, navigating tensions with coworkers, and handling temptations toward cynicism and greed. This honest and accessible book

  • shares wisdom from an experienced practitioner and master teacher
  • addresses real-world situations and relationships experienced by most lawyers
  • charts the way toward a truly Christian practice of everyday law

For students considering a career in law as well as for seasoned attorneys, The Servant Lawyer casts an encouraging vision for how lawyers can love and serve their neighbor in every facet of their work.

Check it out!

January 28, 2024 in Garnett, Rick | Permalink

Friday, January 26, 2024

Preziosi on Biden (and Trump) on the Federal Death Penalty

Dominic Preziosi has a piece in Commonweal called "Executioner in Chief" in which, inter alia, he criticizes the decision by the Biden Administration's Department of Justice to seek the death penalty for Payton Gendron, shot and killed ten black people at a Buffalo supermarket. As Preziosi observes, this decision seems inconsistent with Biden's stated (although not always consistent) opposition to capital punishment and his promises to do what is within his power to abolish the federal death penalty (or, at least, to restore the effective moratorium that had been in place on federal executions until 2020.

Like Preziosi, I would welcome legislation that repealed the death penalty at the federal level. (I would be less enthusiastic about a judicial decision that purported to invalidate the federal death penalty, because I am confident that the Constitution, correctly understood, permits the use of capital punishment for at least some federal crimes. And, while prosecutorial discretion is, appropriately, a fact of life, I am not entirely comfortable with executively-annouced moratoria that amount to non-enforcement of duly enacted federal law. But, put these reservations aside.)

There was a time, during the early years of the Obama administration, when abolition of the federal death penalty was politically possible, and that administration failed to take advantage of that opportunity.  At present, abolition is probably not politically feasible. And, in any event, it seems that -- given all the political givens -- the administration has decided (perhaps, for reasons like those that motivated then-Governor Bill Clinton in the Rector case) to shelve, at least for now, its earlier professed abolitionism.

January 26, 2024 in Garnett, Rick | Permalink | Comments (0)

Wednesday, January 17, 2024

USCCB releases report on threats to religious freedom

Thanks to my local bishop, Kevin Rhoades, for his leadership on this new report from the USCCB.  As he said, "Catholics have a vital role to play in defending religious freedom and promoting the common good”. 

Here is a bit from "The State of Religious Liberty in the United States":

This report identifies the top five threats to religious liberty in 2024 as follows:  

  • attacks against houses of worship, especially in relation to the Israel-Hamas conflict  
  • the Section 1557 regulation from the U.S. Department of Health and Human Services, which will likely impose a mandate on doctors to perform gender transition procedures and possibly abortions  
  • threats to religious charities serving newcomers, which will likely increase as the issue of immigration gains prominence in the election  
  • suppression of religious speech on marriage and sexual difference 
  • the EEOC’s Pregnant Workers Fairness Act regulations, which aim to require religious employers to be complicit in abortion in an unprecedented way 

 

January 17, 2024 in Garnett, Rick | Permalink

Tuesday, January 16, 2024

"Tolle et Lege": Our Reading Group at the CLHP at Catholic

I'm delighted to announce "Tolle et Lege," an initiative of the Center for Law and the Human Person at Catholic University. This is a reading group that invites (gently urges?) students to "pick up and read" classic literature in the Catholic intellectual tradition. We'll meet on selected evenings for discussion and fellowship. We have an edifying slate of reading this semester. 

First, on January 29, and in preparation for Professor Daniel Mahoney's lecture on Aleksandr Solzhenitsyn, we'll be discussing two of Solzhenitsyn's essays, "Live Not By Lies" (1974) and his Harvard University address, rather timely again, "A World Split Apart" (1978).

Second, on March 25, we'll consider C.S. Lewis's wonderful tale of heaven and hell, The Great Divorce (1945).

All readings not otherwise available on the web are provided for free to students. Join us!

1

January 16, 2024 in DeGirolami, Marc | Permalink

Monday, January 15, 2024

Title IX and the Assault on Hillsdale College

In the Wall Street Journal, Tunku Varadarajan has a piece called "Title IX and the Assault on Hillsdale College."  It's important.  Here's a bit:

The lawsuit seeks to impose Title IX’s strictures on Hillsdale, arguing that the college’s tax-exempt status under Section 501(c)(3) of the Tax Code “operates as a subsidy, which is a form of federal financial assistance.”

Mr. Arnn sees a darker ideological intent in this claim. “This is about the kind of society some people want us to have,” he says. “The principle that because you have a tax deduction you’re spending government money can’t mean anything other than that all money, in principle, belongs to the government.” This “tax-deduction thing,” as he calls the argument, “would be a massive expansion of government authority in one go. And of course, there are many people who seek that in America.”

Arnn is correct.  The notion that a tax exemption -- that is, a decision by the government not to impose a tax -- "counts" as a subsidy is a dangerous one, in a community that attaches any importance to civil society.

January 15, 2024 in Garnett, Rick | Permalink

Rob Vischer on "Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice"

Our own Rob Vischer ("el presidente" now, I guess!) published, a few years ago, a book called Martin Luther King Jr. and the Morality of Legal Practice:  Lessons in Love and Justice.  Here is the Amaz-n blurb:

This book seeks to reframe our understanding of the lawyer's work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King's success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality's relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.

January 15, 2024 in Garnett, Rick | Permalink

Saturday, January 13, 2024

On Freedom: The Center for Law and the Human Person's Spring Theme

One of the great joys of my new position at The Catholic University of America is to co-direct the Center for Law and the Human Person with the excellent Elizabeth Kirk. We have very big plans for the Center in the coming months and years. 

Those plans begin with our program for the spring. We have chosen to explore the theme of freedom. We will do that in a series of lectures and conferences. Here is the schedule, which I will be writing about and detailing here in the future. Join us!

  • February 7, 2024: 5:00 p.m. • Columbus School of Law
    “Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn” Download
    Plenary Lecture by Prof. Daniel Mahoney, Assumption University, and Senior Fellow, Claremont Institute
    Reception to follow

  • February 13, 2024: 12:30 p.m. • Columbus School of Law
    Faith in Action Lecture: “The Truth Shall Set You Free: Seeking Truth and Finding Your Calling”
    Fr. Dominic Legge, O.P., Pontifical Faculty of the Immaculate Conception, and Director, Thomistic Institute

  • March 19, 2024: 12:30 p.m. • Columbus School of Law
    Faith in Action Lecture: "Top Ten Tips for Living and Lawyering Authentically"
    Jennie Bradley Lichter,  Deputy General Counsel, The Catholic University of America

  • April 4, 2024: All day • Columbus School of Law
    “Freedom & Truth”: Second Annual Spring Symposium
    Speakers include: Prof. Carl Trueman, Grove City College; Prof. Catherine Pakaluk, The Catholic University of America; Prof. Gerard Bradley, Notre Dame Law School.

January 13, 2024 in DeGirolami, Marc | Permalink

Wednesday, January 10, 2024

Steve Smith on "Was Thomas More a Hypocrite?"

The title of this essay, by Steve Smith, in the latest issue of The Lamp, might seem designed to jar, even to scandalize, Mirror of Justice readers.  But, press on!  First, it's by Steve Smith so . . . 'nuff said.  Smith reminds us that many of More's friends thought him -- at the time -- less a heroic martyr than one wallowing in (his words) “stubbornness and obstinacy.”  Later, some would sniff at the talk of More, the champion of "conscience", given that he had, well, punished heretics.  Hypocrisy?

Smith explores the possibility that More meant something by "conscience" very different than what we mean today (i.e., "I gotta be me."):

But if we understand conscience more substantively as acting on beliefs based on the collective understanding of Christendom, as More did, then it seems that he was not being inconsistent after all. That is because, sincere or not, the Protestants were not acting on conscience—not as he understood it. Rather, they were acting against conscience. Indeed, they were openly and unapologetically acting against conscience by setting up their own personal judgement in opposition to and in defiance of the doctrines held by the Church and by Christians generally. Martin Luther had been proudly explicit at Worms on exactly this point (“Here I stand, I can do no other”). For More, this course was not only hubristic and reckless and self-contradictory; it was precisely the opposite of what it meant to act on conscience.

But in More’s view the Protestants were acting against conscience in an even more basic and threatening way. They were not merely acting against conscience themselves; they were working to make it impossible for Christians generally to act on conscience.

Check it out.

January 10, 2024 in Garnett, Rick | Permalink

Friday, December 29, 2023

Happy Feast of St. Thomas Becket

I'm re-printing a Becket-Day post from our own Michael Moreland:

Today is the Feast of St. Thomas Becket, murdered on this date in 1170. I've reposted below a post from 2012 with an excerpt from John Guy's fine biography of Becket.

And for those looking to learn more about medieval English law and its legacy, I commend the exhibit on Magna Carta now on display at the Library of Congress in Washington, including a rare viewing of the Lincoln Cathedral original of Magna Carta. It was Henry II's feckless youngest son John, of course, who was forced to issue Magna Carta in 1215. And the (likely) principal author of Magna Carta was Becket's successor as Archbishop of Canterbury, Stephen Langton, who, like Becket, was forced into exile in France by the King but returned to England to lead the struggle against an overweening monarch. Recall that the first clause of Magna Carta is: "That We have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." ("In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas.")

From December 29, 2012:

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

December 29, 2023 in Garnett, Rick , Moreland, Michael | Permalink

Friday, December 15, 2023

A Misguided Attack on Educational Choice in Commonweal

A recent issue of Commonweal includes an unfortunate, and unsound, attack on school choice called "The Battle Against School Vouchers", by Luke Mayville.  Let's start with the fact -- and, to be clear, it is a fact -- that Catholic Social Teaching clearly supports policies that not only permit Catholic schools to operate as Catholic schools but also that make it possible for parents to choose such schools.  To put the matter differently, the standard anti-pluralism argument of school-choice opponents that, somehow, school-choice programs "take money away from public education" is unsound:  Public education, correctly understood, is the education of the public; it is not limited to education delivered by government employees in state-owned buildings.

Mayville draws on a variety of tropes in the first paragraph:  "In place of a school system that is publicly funded, democratically governed, and accessible to all, policy entrepreneurs have sought to transform American education into a commodity—something to be bought and sold in a free market."  Let's put aside that systems of state schools in the United States are not, in a meaningful sense, "democratically governed."  Let's also put aside the notion that using market mechanisms, and permitting choice, insidiously transforms education (from what?) into a "commodity." The fact is that the "policy entrepreneurs" in question have sought to expand the range of "publicly funded" educational opportunities and options and thereby to better meet the needs, reflect the values, and empower the decisions of "all".

Mayville also gets the law quite wrong:  "Meanwhile, voucher proponents were energized by landmark decisions of the United States Supreme Court, most notably Espinoza v. Montana in 2020 and Carson v. Makin in 2022, both of which appeared to remove constitutional obstacles to the use of public dollars for private religious education."  In fact, as MOJ readers probably know, "the use of public dollars for private religious education" (again, this misstates the issue:  school choice involves using "public" dollars, to which parents who choose religious rather than government schools are no less entitled, for education, provided by non-state schools) has been, in various circumstances, constitutionally permissible for decades.  Espinoza and Carson -- correctly -- affirmed that governments may not single out religious private schools, as opposed to other non-state schools, for discriminations.

The piece continues with various false political-advocacy claims, and recounts efforts to block school-choice (and preserve the interests of those who benefit from the current monopoly), and descends into various teacher-union talking points.  None of this kind of thing is new, but what does seem new, and disappointing, is that the piece -- without any engagement with Catholic Social Teaching -- ran in one the longest running Catholic journals.

December 15, 2023 in Garnett, Rick | Permalink | Comments (0)

Wednesday, December 13, 2023

Announcing The Mattone Center for Law and Religion

Some happy news for our Center for Law and Religion (press release here), which I co-direct with Mark Movsesian. The Center has been named after Denise and Michael Mattone (classes of 1990 and 1991 respectively) in recognition of their transformative, multi-million dollar gift. We are deeply grateful and look forward to exciting times ahead for the Center.

December 13, 2023 in DeGirolami, Marc | Permalink