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.

Friday, July 30, 2021

Garnett et al. Amicus Curiae brief in Dobbs

I was honored to file, along with my old friend (and fellow Rehnquist clerk) Chuck Cooper and his ace team from the Cooper & Kirk firm, this amicus brief in the Dobbs case, arguing that (a) Roe was wrong, (b) Casey was wrong, and (c) both should be overrruled.  The brief's theme, in a nutshell, is "Rehnquist was right."


July 30, 2021 in Garnett, Rick | Permalink

Thursday, July 29, 2021

Brief of John Finnis and Robert George in the Dobbs Case

Prof. John Finnis of Oxford University and the University of Notre Dame and I today filed an amicus curiae brief in the Dobbs case presenting historical evidence to the Supreme Court that unborn children were understood to be persons by the framers and ratifiers of the 14th Amendment.

If we are correct--and I invite everyone to examine and assess our evidence--then the 14th Amendment's guarantees of due process and equal protection apply to human beings, as persons, at all developmental stages--pre-natal as well as post-natal--and in all conditions.
(Note: In fn. 46, “the felt-movement criterion” should instead read “it,” meaning "the Bracton six weeks criterion" (as the cited material confirms). This all shows that as early as the 1820s there were treatises teaching that law must recognize and protect a new human life from conception.)

July 29, 2021 | Permalink

Newsweek on Mike Pence

This recent article in Newsweek about former Vice President Mike Pence strikes me as that increasingly rare thing in contemporary journalism--an account of a controversial political figure that is actually fair and balanced.


The former Vice President is an old friend of mine. We were introduced to each other many years ago by Chuck Colson. Pence was, at the time a member of the U.S. House of Representatives. He would later become Governor of Indiana before being chosen by Donald Trump as his running mate in 2016.

Our friendship notwithstanding, I have not hesitated to criticize Vice President Pence--even criticize him harshly--when I believed he was wrong, The best example occurred during his Governorship after the Indiana legislature had passed and the Governor had signed into law a Religious Freedom Restoration Act. I had supported the Act despite believing that it was regrettably weak. My hope was that it would later be revised to be made more robust in protecting religious liberty rights. Things quickly went in the other direction, though. Secular progressives, especially those hostile to traditional religious beliefs about marriage and sexual morality, attacked the Act and demanded its repeal. Various major corporations and other powerful interests were induced to do their bidding, and threatened to essentially boycott Indiana as a means of bullying Pence and the state's legislative leaders into repealing it. I and many other religious freedom advocates urged them to stand strong. In the end, however, the Governor capitulated--announcing, rather pathetically, in my view, that "Indiana is open for business again."

I regarded this capitulation as shameful, and publicly called for someone to challenge and defeat Governor Pence in the Republican primary when he sought re-election. Not long thereafter, the Governor asked to speak with me and we had a long and very frank telephone conversation. He asked that we treat what had happened as water under the bridge and discuss what he and those allied with him in Indiana could do going forward to protect religious liberty rights. The steps he went on to take were good ones, and I publicly commended him for them.

I was not a supporter of Donald Trump, but I was sincere in congratulating Governor Pence when he became Vice President. I was glad he was there. Later, I would become very glad he was there. Although he was as loyal to his President as any Vice President has ever been, when he was asked to choose between personal loyalty to the President and loyalty to the Constitution of the United States, he chose correctly. The well-known fact of his personal loyalty to the President was actually an asset when he was forced by constitutional duty to deny the President's request that he use his office to, in effect,  prevent the certification of the election of Joseph Biden as President of the United States. Of course, this caused some especially fierce Trump loyalists to denounce the Vice President as a "traitor"; some of the invaders of the Capitol on January 6, 2021 even called for him to be "hanged."

The essay to which I've linked here is probably right in suggesting that it's tough to see the presidency in Mike Pence's future. Donald Trump will not forgive him, and the former President still has the support of a far from insignificant number of Americans who believe, wrongly in my view, that the election was "stolen" and that Joe Biden is not the legitimately elected President of the United States. Among those who are grateful for Pence's loyalty to the Constitution and admiring of his willingness to refuse to be pressured into compromising it, many are progressives or liberals who regard him as far too socially conservative to be eligible for their support.

Of course, we don't yet know whether the former Vice President will even compete for the Republican nomination in 2024. I strongly suspect that he would like to do that, and is even now trying to identify a pathway to the goal. And, of course, there is the $64,000 question of whether Donald Trump himself will try again, and, if so, whether he has a lock on the nomination. Whether he does or doesn't, there are quite a few plausible potential Republican candidates in addition to Pence, including former Secretary of State Mike Pompeo, who is almost certainly going to run, and Florida Governor Ron DiSantis. Whether or not Pence runs, and, if he runs, wins, the nomination and the presidency, he showed himself to be a principled man and a patriot in doing what he did on January 6th. I say this as someone who did not support Biden for President and who regrets that he holds the office (though I didn't vote for Trump either), and who, as I've noted here, was harsh in my own criticism of Pence when I believed he had acted in an unprincipled and craven manner.

July 29, 2021 | Permalink

Tuesday, July 27, 2021

"Protecting Free Exercise Under Smith and After Smith" (forthcoming, Cato Sup Ct Rev)

Doug Laycock and I have posted this draft law review article on SSRN (link here), with the title and journal information above. We discuss the specific implications of Fulton v. Philadelphia for current Free Exercise Clause standards under Employment Division v. Smith. But, as the abstract states,  

we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised [in her Fulton concurrence]. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.

Comments welcome.

July 27, 2021 in Berg, Thomas , Current Affairs , Religion | Permalink

Monday, July 26, 2021

Garnett on "Fulton and the Art of Cooperation"

I posted a short piece, "Fulton and the Art of Cooperation", at the Berkley Center's website.  It's part of a larger symposium on religious freedom and LGBT issues.  Here is a bit:

The enterprise of protecting religious freedom would be straightforward and simple if all members of a political community agreed about our obligations to God and to each other or if governments did not do very much. In our communities, though, people disagree—sincerely and reasonably—about things that matter. And, governments do a lot. Conflicts, therefore, between some official actions and some religious commitments are inevitable. The law must manage these conflicts, in ways that are predictable and transparent, without denigrating those who dissent from the majorities of the moment or whose aims and aspirations depart from official policy.

Fulton’s clear ruling will not put an end to disagreements between those who endorse an expansive and expanding understanding of the role and reach of anti-discrimination law and those who continue to embrace longstanding teachings regarding marriage, family, and sexuality. To cursorily label as “bigotry” or “discrimination” the determination of persons or groups to act in accord with what they regard as—indeed, what they know to be—the truth is an unworthy strategy for negotiating these disagreements.

July 26, 2021 in Garnett, Rick | Permalink

Monday, July 19, 2021

2021 Notre Dame Prize for Religious Liberty: Acceptance speech by Commissioner Nury Turkel

The first Notre Dame Prize for Religious Liberty was presented to Nury Turkel of the U.S. Commission on International Religious Freedom at the gala for the inaugural Notre Dame Religious Liberty Summit on June 28, 2021.

Turkel, a Uyghur-American attorney and human rights advocate appointed to the commission by House Speaker Nancy Pelosi, is being recognized for his inspired advocacy on behalf of Uyghurs in western China. A largely Muslim ethnic group, the Uyghurs have courageously refused to abandon their faith and culture despite severe oppression from the Chinese Communist Party.

His acceptance speech can be viewed here: https://www.youtube.com/watch?v=xi9yFP273C8

July 19, 2021 | Permalink

Wednesday, July 14, 2021

Dobbs amicus brief on women's equality

Teresa Collett, Helen Alvare, Elizabeth Kirk, and I are crafting an amicus brief in Dobbs v. Jackson in direct response to the “women rely on abortion for social equality” argument (found in Planned Parenthood v. Casey but also in nearly all pro-choice scholarly and popular argument today). The brief is being written on behalf of professional women, women scholars and pro-life feminist organizations. 

If you are a woman with a terminal degree and would like more information about the brief or would like to sign on, contact me with your full name, degree and degree-conferring institution, and affiliation (for identification purposes only) by July 20.

And please share this post with others who may be interested in doing the same.

July 14, 2021 in Bachiochi, Erika | Permalink

The Rights of Women book launch events

The publication day for my new book, The Rights of Women: Reclaiming a Lost Vision, is tomorrow, July 15! In case any one is interested in book events, here's the list thus far: 

Public Discourse is hosting a Zoom book launch at noon on pub day, when I'll talk about the inspiration for the book and the "lost vision" I'm seeking to "reclaim," with Leah Libresco Sargeant and Alexandra DeSanctis Marr as respondents, and Serena Sigilito moderating. To register, go here

I'll also be at the Catholic Information Center in Washington DC doing something similar in person on Wednesday, July 20, this time with Mary Eberstadt and Ashley McGuire as respondents, and Ryan Anderson moderating. To save your seat, register here.

On Thursday, I'll be at Heritage for a luncheon. No promo yet, but if you're interested in attending, reach out to me at EPPC

Mary Ann Glendon (the book's modern heroine) will then join me on July 28th for a more casual and celebratory book launch in my hometown for any MOJ-reading Bostonians! For more info and to RSVP, go here.

Scheduling a NYC event for late August as we speak. Will update here. 

In case you want to get an early flavor for the book, an excerpt from the the introduction is up at Amazon now and will be published at more length at ND's ChurchLife this week. And Newsweek is publishing a bit from the book's conclusion on Thursday. 

Since readers of this blog are more likely than most to appreciate what I'm up to in the book, I'd be deeply grateful for book reviews (and Amazon totally counts!) 


July 14, 2021 in Bachiochi, Erika | Permalink

Tuesday, July 13, 2021

Police Reform and Support for Police

Of all the divisions currently plaguing American society, one of the saddest and most self-destructive has been the tendency of too many who rightly demand accountability for police misconduct to then travel down the negative path toward outright hostility to the police.  That hostility tends to be expressed along with foolish proposals to undermine law enforcement in its essential duties.

I have been a visible and active advocate for police reform:

In my scholarly work, I have highlighted the lack of accountability for public officers for egregious wrongdoing, including sexual violence.

I have been a party to amicus briefs before the Supreme Court emphasizing the vital need for a Bivens claim for federal unconstitutional behavior when no other remedy is available.  That a federal border patrol agent may shoot an unarmed Mexican teenager in the head with no consequences and no remedy is an injustice that besmirches America.  The crucial difference between a republican democracy and tyranny is that we reject arbitrary official killing.

I have successfully represented a client who won damages for excessive use of force by law enforcement officers.

I have testified before the state legislature for the end to qualified immunity and have taken on cases pro bono to challenge application of qualified immunity.

And I just recently lost a case in the U.S. Court of Appeals that well-illustrates everything that is wrong with qualified immunity.  The prison officials involved had violated the state statute and regulation guaranteeing confidentiality for prisoner calls to attorneys; they had deliberately bypassed telephone technology and protocols within the prison that were designed to prevent eavesdropping while simultaneously preventing abuse by call-forwarding; and yet a divided appellate court still granted qualified immunity because, in the court’s view, no prior court had ruled on those precise facts.  When a rogue operation in violation of protocols and state law violates the constitutional rights of another, no qualified immunity excuse should be accepted.  And when qualified immunity cloaks such officials wrongdoing, the result is to encourage officers who push the envelope.  This in turn further undermines public trust.

But one can be strongly supportive of essential police reforms and still recognize that the vast majority of police officers are good men and women serving an essential public safety role in a dangerous climate.  The grave error is to take the righteous demands for justice to the victims of police brutality and new rules to weed out miscreant police officers and translate that into an outright hostility to the police.  We must resist the delusional belief that defunding the police does anything other than embolden criminals and increase violent crime and multiply the number of victims of trauma.  Indeed, one of the causes of police misconduct is that many police departments are severely understaffed, which makes it harder to separate those officers who are unfit and more likely that officers will be over-stressed and fatigued to the point of making poor judgments.  The empirical evidence is solid that better paid and more professional police do a better job and that more police present in the community save lives and deter a surge in violent crime (see here).

So, yes, let’s speak up clearly to denounce official misconduct.  Let’s stand up and demand transparency when police use of force has occurred to ensure that abuses are detected.  Let’s never again ignore the subcultures of racism, a warrior mentality, and anti-professional behavior that exists within many police departments.

But let us also honor the heroes on our police departments who under the most trying circumstances today still report to the job and protect us.  When I see a police officer on the job, I try to say thank you and thereby remind them that the vast majority of us are not among the shrill voices of the anti-police haters.  Let’s take every opportunity to let the brave men and women who are persevering in police protection that we are proud of them.  They became cops to help people, and the people need to honor that when appropriate.

Continue reading

July 13, 2021 in Sisk, Greg | Permalink

Tuesday, July 6, 2021

The partnership between Catholics and Latter-day Saints

Cardinal Timothy Dolan had Elder Quentin L. Cook in stitches Monday while the two sat shoulder to shoulder for a videotaped interview in a room on the campus of the University of Notre Dame.

“When you talk about the essential, essential beliefs, you’re talking about we’re children of the one true God who has made us in his image and likeness, who loves us passionately, who wants us to love him back, and to love one another as brothers and sisters,” said Cardinal Dolan, the archbishop of New York. “That’s doctrine. That’s God’s revelation. And if we can’t get along, it’s downright sinful and scandalous right? Don’t you think?”

“Absolutely, absolutely,” said Elder Cook, a member of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints. “You said it perfectly.”

Then came the hook.

“And that applies to everybody,” Cardinal Dolan finished, “except Red Sox fans. You have to have some boundaries.”

Full article and video from the NDLS Religious Liberty Summit at Deseret News: https://www.deseret.com/2021/7/1/22557874/churchbeat-newsletter-catholics-latter-day-saints-lds-mormon-partners-notre-dame

July 6, 2021 | Permalink

Friday, July 2, 2021

Bill Cosby's release and the rule of law

As we begin the 4th of July weekend, we should not celebrate the fact that serial rapist Bill Cosby has been released from prison. His freedom is yet another trauma inflicted on his victims. We should, however, be grateful that we live in a country where the rule of law is followed, even when it results in wrongdoers going free.

Back in 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand reported that Bill Cosby had sexually assaulted her in 2004. After investigating, Castor concluded that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against [him] . . . could be proven beyond a reasonable doubt.” Castor decided that the Commonwealth of Pennsylvania would refrain from prosecuting Cosby, thus allowing him to be forced to testify in a civil suit brought by Constand.

This decision meant that the Fifth Amendment’s privilege against self-incrimination would not be available to Cosby – i.e., there was no possibility of criminal charges being brought based on Constand’s allegations. So Cosby provided four sworn depositions in Constand’s civil suit – not once invoking the Fifth Amendment – and ended up settling the suit for $3.38 million.

After the records of the civil suit were released in 2015, Castor’s successor as District Attorney reopened the criminal investigation of the Constand case despite being warned by Castor that “I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” The criminal case nevertheless proceeded, and the deposition testimony Cosby provided in the earlier civil suit was crucial to the prosecution.

In this week's ruling, the Pennsylvania Supreme Court observed that courts are obligated “to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Society “holds a strong interest in the prosecution of crimes,” but “no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” Accordingly, the Court ruled, Cosby’s convictions and sentence must be vacated.

My favorite explanation of why the rule of law matters is offered by Robert Bolt in “A Man for All Seasons” when he depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law:

William Roper: “So, now you give the Devil the benefit of law!"

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?"


William Roper: “Yes, I'd cut down every law in England to do that!”


Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

American courts must take seriously the rights extended by our Constitution, even when – especially when – the person seeking their protection deserves no public sympathy or solace. I’m not glad that Bill Cosby is free, but I’m glad I live in a country where judges decide his freedom based on what the law requires, not on what they think he – or any of us – deserve.

July 2, 2021 in Vischer, Rob | Permalink

Bruce Frohnen's introduction to Rommen's "The State in Catholic Thought"

After year's of hoarding the Notre Dame Law School library's, I recently bought my own copy of Henrich Rommen's classic The State in Catholic Thought:  A Treatise on Political Philosophy.  The 2016 edition I purchased (published by Cluny Media) comes with an excellent introduction by Prof. Bruce Frohnen, whose work is probably familiar to MOJ readers.  With his permission, I'm posting a little excerpt from that introduction:

Rommen’s task in The State in Catholic Thought is to explain the role the state plays in facilitating ordered pursuit of common goods. The modern nation state in particular too often asserts control over other associations, portraying itself as a single, national "good."  This is the path followed by the tyrannies of the twentieth century against which Rommen struggled.  Those tyrannies included the totalitarian regimes of Hitler, Stalin, and their ilk.  They also included the seemingly more humane regimes of the social democrats, with their utilitarian ethics and hostility toward the higher, more permanent good of the human person. . . . 

In opposition to [social democrats’] false vision of a neutral state, Rommen offers the just social order.  Too often confused with statism and even pursued as a kind of social democracy with confessional window-dressing, the state envisioned by Rommen is, in accordance with Catholic teaching, an accommodating structure serving man’s natural ends.  The state, on this view, works to bring together society’s various communities to reason together and seek common understanding and pursue common ends. It promotes rules ordering their relations with justice, respect for self-government, and attention to the common good.

Get your copy today!

July 2, 2021 in Garnett, Rick | Permalink

Monday, June 28, 2021

Ron DeSantis and the GOP's (literal) demonization of the Left

I've written a new op-ed for Religion News Service:

Earlier this month, Florida Governor Ron DeSantis — viewed as a leading candidate for the 2024 GOP presidential nomination — received several standing ovations during his speech to the Faith and Freedom Coalition’s “Road to Majority” conference. He told the audience that “you got to put on the full armor of God” to “take a stand against the left’s schemes,” for “you will face flaming arrows but take up the shield of faith and fight on.”

This was a reference to a passage in the New Testament in which the Apostle Paul implored the Ephesians to:

“Put on the full armor of God, so that you can take your stand against the devil’s schemes.  For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms. Therefore, put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. … (T)ake up the shield of faith, with which you can extinguish all the flaming arrows of the evil one.”

The dubious interpretive gymnastics required to apply Paul’s spiritual admonition to today’s hyperpartisan political landscape is just the latest example of Republican politicians aggressively merging their political and Christian identities. This isn’t particularly new: America’s politicians have always exploited our faith for votes. What’s different is that the tone of the political discourse has shifted as the religious landscape has changed in some pretty significant ways. 

The first change to keep in mind is that American Christianity is declining. In 2019, 65% of American adults described themselves as Christians, down 12 percentage points over the previous decade. With fewer Christians to offend and more non-Christians in the marketplace, media providers, corporations and universities are staking out positions on “culture war” issues that are in tension with traditional Christian beliefs.

This phenomenon contributes to a perception among many American Christians that they are a persecuted minority surrounded by an increasingly hostile culture. Most white evangelicals today believe that Christians are more likely to face discrimination in the United States than Muslims. If Christians believe they face an existential threat, they will tend to support candidates whose rhetoric matches the gravity of the moment.  

The second change relates to the shift in party coalitions. Today, according to Pew Research, about half of Democratic voters identify as Christian, down from 73% as recently as 2008. The percentage of Democratic voters who are religiously unaffiliated has doubled during that time, from 18% to 38%. The change among Republicans has been more modest: Christians are 79% of Republican voters, down from 87% in 2008. Only 15% of Republican voters are religiously unaffiliated, up from 9% in 2008. 

This shift means that Republican politicians have an incentive to underscore the religious beliefs that most Republican voters hold in common and that many Democratic voters do not. Ezra Klein, in his 2020 book “Why We’re Polarized,” explains that group conflict today is not primarily motivated “by zero-sum collisions over resources or power,” but by the psychological desire to increase difference between the in group and the out group.

The result, according to University of Maryland professor Lilliana Mason in her 2018 book “Uncivil Agreement,” is our current predicament in which “partisan identities fall into alignment with other social identities, stoking our intolerance of each other to levels that are unsupported by our degrees of political disagreement.”

So, it may be in the short-term self-interest of Gov. DeSantis and other GOP presidential prospects to describe policy disagreements with language traditionally reserved for spiritual battles against demonic forces. But that does not mean that such rhetoric is anything but toxic, for both democracy and the public witness of Christians.

Besides portraying the Gospel itself as a partisan proposition, this language ratchets up the perceived stakes of our debates: our political opponents are not merely separated by ideology; they are enemies engaged in spiritual warfare. 

Further, such rhetoric quickly leads to a spirit of self-righteousness. If those who reject our political views are demonic — as Eric Metaxas and Franklin Graham suggested in a 2020 interview regarding opposition to President Trump, for example — then of course we enjoy the satisfaction of knowing that God is on our side. If we refuse to recognize the possibility that our political tribe is just as capable of evil as the other side is, we are denying the reality of sin.

That’s a theological problem, but it’s also a political one. Self-righteousness obscures the mutual fallibility on which the give-and-take of democracy depends. If our tribe is on God’s side and our opponents are on Satan’s, why would we ever consider compromise?

Pushing back against this rhetoric does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.

Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so provided that the religious language is an entry point, not the entirety of the argument.

The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.  

In his 1984 State of the Union address, President Reagan explained: “We must be cautious in claiming that God is on our side, but I think it’s all right to keep asking if we’re on his side.” Though the demographics of the American electorate have changed over the ensuing decades, the underlying principle has not: When we bring our faith into politics, a little humility goes a long way.

June 28, 2021 in Vischer, Rob | Permalink

Closure on the 2020 election

In the past week, three news stories that may have escaped widespread attention are nevertheless crucial to bringing closure to the 2020 presidential election.

First, a Michigan senate committee led by Republicans issued a 35-page report on its investigation of claims made regarding election improprieties and irregularities. The committee found “no evidence of widespread or systematic fraud in Michigan’s prosecution of the 2020 election.” Regarding Antrim County (the county at the center of many claims), the committee found that “all compelling theories that sprang forth from the rumors surrounding Antrim County are diminished so significantly as for it to be a complete waste of time to consider them further.” In conclusion, the committee urged citizens to “be confident the results represent the true results of the ballots cast by the people of Michigan,” and to “use a critical eye and ear toward those who have pushed demonstrably false theories for their own personal gain.”

Second, a New York court suspended Rudy Giuliani from practicing law based on falsehoods he knowingly spread while representing President Trump. Giuliani’s defense was not that his statements were true, but that he did not know they were false at the time he made them. For example, he claimed repeatedly that Pennsylvania sent out 1.8 million absentee ballots before the election, but nearly 2.6 million absentee ballots came in during the election. In reality, 3.08 million absentee ballots were sent out by Pennsylvania. In his disciplinary proceeding, Giuliani said that he relied on an unidentified member of his team who took the information from the Pennsylvania website, which allegedly posted the incorrect information. The court observed that there was no evidence to support Giuliani’s explanation, no screen shot of the website with the mistaken information, no affidavit or other information from the unidentified team member. Giuliani did not bother to contest the court’s observation that his earlier statements were false. There were similar inquiries about his other statements regarding election fraud and irregularities. No one disputed that his statements were false; the only dispute was whether he knew they were false when he made them.

Third, former Attorney General William Barr, one of President Trump’s core loyalists, told reporter Jonathan Karl, regarding the stolen election claims, “It was all bullsh*t.”

Just as President Trump was legitimately elected in 2016, President Biden was legitimately elected in 2020. You may love him, you may hate him, or you may be somewhere in between. But let’s ground our criticisms in reality. We already have plenty of issues to disagree about. The outcome of the 2020 election should not be one of them.

June 28, 2021 in Vischer, Rob | Permalink

Saturday, June 26, 2021

Acker on Fulton, Justice Kavanaugh, and the "Most Favored Organization" Argument

My former student and research assistant, Caleb Acker, has written up some comments on the recent Fulton case, and graciously permitted me to share them:

Fulton Paves the Way for “Most-Favored-Organization” Approach to Free Exercise

In his dissenting opinion to the Court’s denial of the application for injunctive relief in Calvary Chapel Dayton Valley v. Sisolak, Justice Kavanaugh explicitly endorsed Doug Laycock’s “most-favored nation status” approach to Free Exercise. See Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50. In international multilateral treaty-making, a most-favored-nation clause requires one WTO member to accord to every other member the privileges that the member grants to its most-favored nation. Even though each nation retains discretion to favor certain nations as it pleases, it is required by law not to disfavor other nations concerning the same privileges.

Justice Kavanaugh based this First Amendment framework in the “system of individual exemptions” exception to Smith (“the Exception”) established in that case, where a law that requires a decisionmaker to make an “evaluation of the particular justification” for religious conduct triggers strict scrutiny. See Lukumi, 508 U.S. at 537. In cases that “divvy up organizations into a favored or exempt category and a disfavored or non-exempt category,” Justice Kavanaugh argues, Sherbert-Smith requires judges to ask if the law creates a favored or exempt class of organizations and, if so, if religious organizations fall outside that class. In SherbertThomas, and Hobbie, regimes that required government bodies to determine on an individual basis whether religious reasons constituted “no fault” or “good cause” faced strict scrutiny. In other words, the decisionmaker should be required to treat any religious exemption-seeker as favorably as the secular exemption-seeker under Smith.

Josh Blackman has noted the major weakness of Justice Kavanaugh’s approach: its seeming travel beyond the boundaries of Smith’s language. See the extremely helpful Blackman, The ‘Essential’ Free Exercise Clause, 44 Harv. J.L. & Pub. Pol’y 637, 692–95. Blackman understands Justice Scalia to be making no “broad pronouncement about Free Exercise Clause jurisprudence” and to be speaking “about a specific aspect of unemployment compensation.” Id. at 693. By Blackman’s writing earlier this year, the Supreme Court had not expanded the Exception to other contexts, but lower courts (Third, Sixth, and Tenth Circuits) had. Put simply, to Blackman, Justice Kavanaugh’s Most-Favored-Organization approach sounds good, but it is limited to unemployment compensation.

That is, it was limited, until Fulton, where the Court completely unbounded Sherbert-Smith’s Exception, endorsing the expansion to all contexts already undertaken by the lower courts. Just read the Court’s unlimited language: “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it invites the government to decide which reasons for not complying with the policy are worthy of solicitude.” Fulton, slip op., at 10 (cleaned up). That’s any government mechanism (whatever exactly that will mean), not just an unemployment benefits system. The main holding of Fulton simply made this expansion. “Like the good cause provision in Sherbert, [the Philadelphia policy] incorporates a system of individual exemptions.” Id. at 7.

Going forward, lower courts should completely adopt Justice Kavanaugh’s suggested Calvary Chapel approach through the language of Fulton. That is, if lower courts are confused at how exactly to apply Fulton to their own cases, Justice Kavanaugh’s dissent may be a guiding light of specificity. As he is wont to do, the Justice was certainly trying to give that very kind of guidance in his opinion, equipping judges with a two-step approach. Lower courts should ask whether a policy separates organizations into favored and disfavored categories for exemptions. If so, that obviously creates a “formal mechanism for granting exceptions,” rendering any such policy not generally applicable under Fulton. State governments would then need a compelling interest to refuse to treat religious organizations as Most-Favored Organizations under that policy.

For example, let’s apply Fulton to the Nevada regulations at issue in Calvary Chapel. The governor’s orders divvied up organizations into favored and disfavored organizations through differing population caps. The policy is a formal mechanism allowing higher caps for certain secular organizations while forcing lower caps for certain religious organizations. Governor Sisolak certainly decided which reasons for less regulation were “worthy of solicitude”: economic ones. (Religious reasons were not considered so worthy). Secular organizations were, essentially, given exemptions from the strict 50-person attendance cap levied against churches. Favored = Exempt. The policy was a system of individualized exemptions under Fulton.

As administrative states grow at all levels of government, religious organizations will continue to face state and local governments that place them in disfavored categories (including in ways devised explicitly to get around Fulton). Future claimants, in my view, would be wise to use Justice Kavanaugh’s Most-Favored-Organization approach through Fulton’s language. Favored means exempt, and any formal mechanism for granting exemptions—categorizing organizations as favored—triggers strict scrutiny.

June 26, 2021 in Garnett, Rick | Permalink

Friday, June 25, 2021

ND Religious Liberty Summit

A reminder that the ND Religious Liberty Summit will take place June 28-29. Many of the sessions will be streamed live on the NDLS YouTube channel.

The Notre Dame Religious Liberty Summit will be an annual gathering of the foremost thought leaders on religious liberty. The summit will stimulate engaging conversations between scholars, advocates, and religious leaders about the future of religious liberty in the United States and around the world.


June 25, 2021 | Permalink

Thursday, June 24, 2021

The Tablet's mistake about church-state "separation"

In this editorial ("Bishops must not bar Biden"), the editors of The Tablet say the following:

[The American bishops] want Mr Biden, a practising Catholic, to commit to the repeal of federal laws that allow women access to legal abortion, which he has said he will not do, though he is personally opposed to abortion. The pressure they hope to apply to him by denying his access to Communion is a brazen infringement of the separation of Church and State, guaranteed by the Constitution of the US.

The first sentence inaccurately characterizes the policy matters in question:  President Biden has committed (that is, he has changed his mind about) to change federal policy and to provide public funding for abortions and supports a federal move to displace regulations, in state law, of abortion.  (It is the Supreme Court's interpretation of the Constitution, and not any particular federal laws, that "allow women access" to legal abortion.)  It also reports that the President is "personally opposed to abortion" and while I do not purport to know all that the President believes, it is not clear to me that it is plausible, given his policy positions and his public statements and campaigning on the matter, to describe his view that way.  

The second quoted sentence is entirely mistaken about the "separation of Church and State" which is "guaranteed by the Constitution of the US."  (See Robby George's earlier post, here.)  The Constitution's no-establishment rule has nothing, at all, do to with what religious leaders say to their co-religionists about their moral obligations, including their obligations as public officials.  Although I welcome a concerted and focused effort by the bishops to better teach American Catholics about the Eucharist, I am, as I have said elsewhere, skeptical about the prudence of calls or attempts to deny, publicly, the Eucharist to Catholic political figures who support abortion rights (although these figures are wrong to do so) or who take other policy positions that are clearly immoral.  I am certain, though, that it would not (somehow) violate the Constitution to do so.   

June 24, 2021 in Garnett, Rick | Permalink | Comments (0)

Garnett on the Fulton case

Here is a short piece of mine, at the First Things site, on the Court's recent Fulton decision.  A bit:

[T]here is no getting around the fact that—not always, but sometimes—a “win” in a religious-accommodations case is also a kind of loss. Although most religious-exemption requests do not involve moral challenges to the law in question, some do, and CSS’s does. That is, CSS needs an exemption in order to do its important and generous work because its understanding of marriage and family has been rejected officially.

Most religious exemptions requests do not involve hot-button moral questions or “social issues.” They seem easier to navigate, because the political authority is being asked to incur some cost or inconvenience, or to sacrifice a bit in terms of efficiency and uniformity, but not to abandon an orthodoxy. Increasingly, though, as the understanding of the public interest in preventing invidious discrimination has expanded—for example, to requiring Catholic health-care institutions to perform abortions—exemptions requests are taking on a different character, and are seen as threatening to progressive commitments. Fulton is hardly the end of the matter.

June 24, 2021 in Garnett, Rick | Permalink

Tuesday, June 22, 2021

Amicus Brief on Title IX Exemption

In Maxon v. Fuller Theological Seminary (9th Circuit), two plaintiffs who had been studying for the ministry at Fuller have sued the Seminary under Title IX for dismissing them for entering into same-sex marriages in violation of the institution's student covenant. Fuller has multiple defenses, including the ministerial exception, but one is the Title IX exemption for schools "controlled by a religious organization." The plaintiffs claim that phrase means the school must be controlled by a separate organization in order to qualify for the exemption. The district court said no, holding that the controlling religious organization can be the school's own governing board. That statutory interpretation can stand on its own. But it's also supported by the doctrine of constitutional avoidance, because reading the exception to exclude a seminary or other deeply religious institution merely because it's organizationally independent or nondenominational would create an impermissible denominational preference under decisions like Larson v. Valente--and at the very least would raise "serious, grave" constitutional questions.

That's the argument of the amicus brief that the St. Thomas religious liberty appellate clinic filed on behalf of a host of colleges, K-12 schools, associations of such institutions, and the Christian Legal Society. Becket's pages on the case are here

June 22, 2021 in Berg, Thomas , Current Affairs , Religion | Permalink

Sunday, June 20, 2021

Berg and Laycock on Fulton on SCOTUS Blog

Doug Laycock and I have commentary up about Fulton. The lion's share is some initial thoughts on some of the questions raised in Justice Barrett's concurrence, which obviously lots of people will be aiming to answer.

(FWIW, I've been inactive on the blog because I've been preoccupied with finishing my manuscript, Religious Liberty in a Polarized Age, forthcoming from Eerdmans.)




June 20, 2021 in Berg, Thomas , Current Affairs , Religion | Permalink

"Political Obligations, Moral Conscience, and Human Life" (2006)

Remarks delivered in September of 2006 at the Vatican at a conference sponsored by the Pontifical Academy for Life.

The Catholic Church proclaims the principle that every human being — without regard to race, sex, or ethnicity, and equally without regard to age, size, stage of development, or condition of dependency — is entitled to the full protection of the law.

The Church teaches that human beings at every stage of development — including those at the embryonic and fetal stages — and those in every condition — including those who are [cognitively] or physically disabled, and those who are suffering from severe dementia or other memory and mind-impairing afflictions — possess fundamental human rights. Above all, each of us possesses the right to life.

Now this teaching is disputed by some. There are those, including some Catholics, who deny that human embryos are human beings. They assert that a human embryo is merely “potential” human life, not nascent human life.

The trouble with this position is not theological but scientific. It flies in the face of the established facts of human embryology and developmental biology. A human embryo is not something distinct in kind from a human being — like a rock or potato or alligator.

A human embryo is a human being at a particular, very early, stage of development. An embryo, even prior to implantation, is a whole, distinct, living member of the species Homo sapiens. The embryonic human being requires only what any human being at any stage of development requires for his or her survival, namely, adequate nutrition and an environment sufficiently hospitable to sustain life.

From the beginning, each human being possesses — actually and not merely potentially — the genetic constitution and epigenetic primordia for self-directed development from the embryonic into and through the fetal, infant, child, and adolescent stages and into adulthood with his or her unity, determinateness, and identity intact. In this crucial respect, the embryo is quite unlike the gametes — that is, the sperm and ovum — whose union brought a new human being into existence. You and I were never sperm or ova; those were genetically and functionally parts of other human beings.

But each of us was once an embryo, just as each of us was once an adolescent, and before that a child, an infant, a fetus. Of course, in the embryonic, fetal, and infant stages we were highly vulnerable and dependent creatures, but we were nevertheless complete, distinct human beings.

As the leading textbooks in human embryology and developmental biology unanimously attest, we were not mere “clumps of cells”, like moles or tumors. So the basic rights people possess simply by virtue of their humanity — including above all the right to life — we possessed even then.

Another school of thought concedes that human embryos are human beings; however, it denies that all human beings are persons. There are, according to this school of thought, pre-personal and post-personal human beings, as well as severely retarded or damaged human beings who are not, never will be, and never were, persons.

Proponents of this view insist that human beings in the embryonic and fetal stages are not yet persons. Indeed, logically consistent and unsentimental proponents say that even human infants are not yet persons, and therefore do not possess a right to life; hence, the willingness of Peter Singer, Michael Tooley, and others to countenance infanticide as well as abortion.

Permanently comatose or severely retarded or demented human beings are also denied the status of persons. So euthanasia is said to be justified for human beings in these conditions. Although some who think along these lines will allow that human individuals whom they regard as “not yet persons” deserve a certain limited respect by virtue of the purely biological fact that they are living members of the human species, they nevertheless insist that “pre-personal” humans do not possess a right to life that precludes them from being killed to benefit others or to advance the interests of society at large.

Only those human beings who have achieved and retain what are regarded as the defining attributes of personhood — whether those are considered to be detectable brain function, self-awareness, or immediately exercisable capacities for characteristically human mental functioning — possess a right to life.

The trouble with this position is that it makes nonsense of our political, philosophical, and, for many of us, theological commitment to the principle that all human beings are equal in fundamental worth and dignity.

It generates puzzles that simply cannot be resolved, such as the puzzle as to why this or that accidental quality which most human beings eventually acquire in the course of normal development but others do not, and which some retain and others lose, and which some have to a greater degree than others, should count as the criterion of “personhood”.

The superior position, surely, is that human beings possess equally an intrinsic dignity that is the moral ground of the equal right to life of all. This is a right possessed by every human being simply by virtue of his or her humanity. It does not depend on an individual’s age, or size, or stage of development; nor can it be erased by an individual’s physical or mental infirmity or condition of dependency.

It is what makes the life of even a severely [cognitively disabled] child equal in fundamental worth to the life of a Nobel prize-winning scientist. It explains why we may not licitly extract transplantable organs from such a child even to save the life of a brilliant physicist who is afflicted with a life-threatening heart, liver, or kidney ailment.

In any event, the position that all human beings equally possess fundamental human rights, including the right to life, is the definitively settled teaching of the Catholic Church. It is on this basis that the Church proclaims that the taking of human life in abortion, infanticide, embryo-destructive research, euthanasia, and terrorism are always and everywhere gravely wrong.

And there is more. For the Church also teaches that it is the solemn obligation of legislators and other public officials, as servants of the common good, to honor and protect the rights of all. The principle of equality demands as a matter of strict justice that protection against lethal violence be extended by every political community to all who are within its jurisdiction.

Those to whom the care of the community is entrusted — above all those who participate in making the community’s laws — have primary responsibility for ensuring that the right to life is embodied in the laws and effectively protected in practice. Notice, by the way, that the obligation of the public official is not to “enforce the teaching of the Catholic Church”, it is, rather, to fulfill the demands of justice and the common good in light of the principle of the inherent and equal dignity of every member of the human family.

Yet, today many Catholic politicians, including the Democratic leaders of both houses of the United States Congress and the Republican governor of New York and the former Republican governor of Pennsylvania, are staunch supporters of what they describe as a “woman's right to abortion”.

Most of these politicians also support the creation and government funding of an industry that would produce tens of thousands of human embryos by cloning for use in biomedical research in which these embryonic human beings would be destroyed.

Catholic politicians in the United States and in other nations who support abortion and embryo-destructive research typically claim to be “personally opposed” to these practices but respectful of the rights of others who disagree to act on their own judgments of conscience without legal interference.

Former New York Governor Mario Cuomo famously articulated and defended this view in a speech at the University of Notre Dame in 1984. Recently, Cuomo revisited the issue, speaking in Washington at a Forum on Politics and Faith in America. He offered an argument which, if successful, not only justifies Catholic politicians in supporting legal abortion and embryo-destructive research, but requires them to respect a right of people to engage in these practices despite their admitted moral wrongfulness.

Cuomo asserted that holders of public office — including Catholic office-holders — have a responsibility “to create conditions under which all citizens are reasonably free to act according to their own religious beliefs, even when those acts conflict with Roman Catholic dogma regarding divorce, birth control, abortion, stem cell research, and even the existence of God”.

According to Cuomo, Catholics should support legalized abortion and embryo-destructive research, as he himself does, because in guaranteeing these rights to others, they guarantee their own right “to reject abortions, and to refuse to participate in or contribute to removing stem cells from embryos”.

But Cuomo’s idea that the right “to reject” abortion and embryo-destructive experimentation entails a right of others, as a matter of religious liberty, to engage in these practices is simply, if spectacularly, fallacious. The fallacy comes into focus immediately if one considers whether the right of a Catholic (or Baptist, or Jew, or member of any other faith) to reject infanticide, slavery, and the exploitation of labor entails a right of others who happen not to share these “religious” convictions to kill, enslave, and exploit.

By the expedient of classifying pro-life convictions about abortion and embryo-destructive experimentation as “Roman Catholic dogmas,” Cuomo smuggles into the premises of his argument the controversial conclusion he is trying to prove. If pro-life principles were indeed merely dogmatic teachings —such as the teaching that Jesus of Nazareth is the only begotten Son of God — then according to the Church herself (not to mention American constitutional law and the law of many other republics) they could not legitimately be enforced by the coercive power of the state.

The trouble for Cuomo is that pro-life principles are not mere matters of “dogma”, nor are they understood as such by the Catholic Church, whose beliefs Cuomo claims to affirm, or by pro-life citizens, whether they happen to be Catholics, Protestants, Jews, Muslims, Hindus, Buddhists, agnostics or atheists. Rather, pro-life citizens understand these principles and propose them to their fellow citizens as fundamental norms of justice and human rights that can be understood and affirmed even apart from claims of revelation and religious authority.

It will not do to suggest, as Cuomo seems to suggest, that the sheer fact that the Catholic Church (or some other religious body) has a teaching against these practices, and that some or even many people reject this teaching, means that laws prohibiting the killing of human beings in the embryonic and fetal stages violate the right to freedom of religion of those who do not accept the teaching.

If that were anything other than a fallacy, then laws against killing infants, owning slaves, exploiting workers, and many other grave forms of injustice really would be violations of religious freedom. Surely Cuomo would not wish to endorse that conclusion.

Yet he provides no reason to distinguish those acts and practices putatively falling within the category of religious freedom from those falling outside it. So we must ask: If abortion is immunized against legal restriction on the ground that it is a matter of religious belief, how can it be that slavery is not similarly immunized?

If today abortion cannot be prohibited without violating the right to religious freedom of people whose religions do not object to abortion, how can Cuomo say that the prohibition of slavery by the Thirteenth Amendment to the United States Constitution in 1866 did not violate the right to religious freedom of those in the 19th century whose religions did not condemn slaveholding?

Cuomo says that the Catholic Church “understands that our public morality depends on a consensus view of right and wrong”, but it would be scandalous to argue that Catholics should have opposed a constitutional amendment abolishing slavery in the 19th century, or legislation protecting the civil rights of the oppressed descendants of slaves in the mid-20th century, on the ground that “prudence” or “realism” requires respect for “moral pluralism” where there is no “consensus” on questions of right and wrong.

At one point at the forum on Politics and Faith, Cuomo suggested that laws against abortion and embryo-destructive research would force people who do not object to such things to practice the religion of people who do. But this is another fallacy. No one imagines that the constitutional prohibition of slavery forced those who believed in slaveholding to practice the religion of those who did not.

Would Cuomo have us suppose that laws protecting workers against what he, in line with the solemn teaching of every pope from Leo XIII to Benedict XVI, considers to be exploitation and abuse have the effect of forcing non-Catholic factory owners to practice Catholicism?

At another point, in denying that there was any inconsistency between his willingness as governor to act on his anti-death penalty views but not on his anti-abortion views, Cuomo denied ever having spoken against the death penalty as “a moral issue.” He claimed, in fact, that he “seldom talk[s] in terms of moral issues” and that, when he speaks of the death penalty, he never suggests that he considers it a moral issue.

Then, in the very next sentence, he condemned the death penalty in the most explicitly, indeed flamboyantly, moralistic terms: “I am against the death penalty because I think it is bad and unfair. It is debasing. It is degenerate. It kills innocent people.” He did not pause to consider that these are precisely the claims made by pro-life citizens against the policy of legal abortion and its public funding — a policy that Cuomo defends in the name of religious liberty.

The fact is that Catholics and others who oppose abortion and embryo-destructive research oppose these practices for the same reason we oppose postnatal homicide. Pro-life citizens of every faith oppose these practices because they involve the deliberate killing of innocent human beings.

Our ground for supporting the legal prohibition of abortion and embryo-destructive research is the same ground on which we support the legal prohibition of infanticide, for example, or the principle of noncombatant immunity even in justified wars. We subscribe to the proposition that all human beings are equal in worth and dignity and cannot be denied the right to protection against killing on the basis of age, size, stage of development, or condition of dependency.

One cannot with moral integrity be “personally opposed” to abortion or embryo-destructive research yet support the legal permission of these practices and even, their public funding as so many Catholic politicians do, including most Catholic Democrats and some Catholic Republicans in the United States. For by supporting abortion and embryo-destructive research they unavoidably implicate themselves in the grave injustice of these practices.

Of course, it is possible for a person wielding public power to use that power to establish or preserve a legal right to abortion, for example, while at the same time hoping that no one will exercise the right. But this does not get such a person off the moral hook. For someone who acts to protect legal abortion necessarily wills that abortion’s unborn victims be denied the elementary legal protections against deliberate homicide that one favors for oneself and those whom one considers to be worthy of the law’s protection.

Thus one violates the most basic precept of normative social and political theory, the Golden Rule. One divides humanity into two classes: those whom one is willing to admit to the community of the commonly protected and those whom one wills to be excluded from it.

By exposing members of the disfavored class to lethal violence, one deeply implicates oneself in the injustice of killing them — even if one sincerely hopes that no woman will act on her right to choose abortion. The goodness of what one hopes for does not redeem the evil — the grave injustice — of what one wills. To suppose otherwise is to commit yet another fallacy.

If my analysis so far is correct, the question arises: What should the leaders of the Church do about people like Cuomo and his successor as New York’s governor, Republican George Pataki, who evidently takes the same position? What should they do about those who claim to be in full communion with the Church yet promote gravely unjust and scandalous policies that expose the unborn to the violence and injustice of abortion?

In the run up to the last election, St. Louis Archbishop Raymond Burke offered an answer. He declared that public officials who support abortion and other unjust attacks against innocent human life may not be admitted to Holy Communion, the preeminent sacrament of unity.

Pro-life citizens of every religious persuasion applauded the archbishop’s stand. Critics, however, were quick to condemn Archbishop Burke. They denounced him for “crossing the line” separating church and state.

But this is silly. In acting on his authority as a bishop to discipline members of his flock, who commit what the Church teaches are grave injustices against innocent human beings, Archbishop Burke is exercising his own constitutional right to the free exercise of religion; he is not depriving others of their rights.

Freedom is a two way street. No one is compelled by law to accept ecclesiastical authority. But Archbishop Burke — and anyone else in the United States of America or other freedom-respecting nations — has every right to exercise spiritual authority over anyone who chooses to accept it. There is a name for people who do accept the authority of Catholic bishops. They are called “Catholics”.

In many cases, the charge that Archbishop Burke and other bishops who adopt the policy of excluding pro-abortion politicians from Communion “are crossing the line separating church and state” is also hypocritical. A good example of this hypocrisy comes from the Bergen Record, a prominent newspaper in my home state of New Jersey.

Bishop John Smith of Trenton did not go as far as Raymond Burke had gone in forbidding pro-abortion Catholic politicians from receiving Communion. Bishop Smith did, however, in the words of the Bergen Record, “publicly lash” Governor James McGreevey, a pro-abortion Catholic, for his support of abortion and embryo-destructive research.

For criticizing the governor on these grounds, the Record lashed the bishop in an April 25 editorial. The paper accused him of jeopardizing the delicate “balance” of our constitutional structure, contrasting Bishop Smith’s position unfavorably with President John F. Kennedy’s assurance to a group of Protestant ministers in Houston in 1960 that he, as a Catholic, would not govern the nation by appeal to his Catholic religious beliefs.

Since the Record had seen fit to take us back to 1960 for guidance, I thought I would invite its editors to consider a case that had arisen [in the same era]. In a letter to the editor, I proposed a question that would enable readers to determine immediately whether the editors of the Bergen Record were persons of strict principle or mere hypocrites.

I reminded readers that [] in the midst of the political conflict over segregation, Archbishop Joseph Rummel of New Orleans publicly informed Catholics that support for racial segregation was incompatible with Catholic teaching on the inherent dignity and equal rights of all human beings.

Archbishop Rummel said that “racial segregation is morally wrong and sinful because it is a denial of the unity and solidarity of the human race as conceived by God in the creation of Adam and Eve.” He warned Catholic public officials that support for segregation placed their souls in peril. Indeed, Rummel took the step of publicly excommunicating Leander Perez, one of the most powerful political bosses in Louisiana, and two others who promoted legislation designed to impede desegregation of diocesan schools.

So I asked the editors of the Bergen Record: Was Archbishop Rummel wrong? Or do Catholic bishops “cross the line” and jeopardize the delicate constitutional balance, only when their rebukes to politicians contradict the views of the editors of the Record? To their credit, the editors published my letter — but I am still waiting for them to reply to my question.

Now, some good and sincere people have expressed concern that Archbishop Burke and bishops of similar mind are guilty of a double standard when it comes to demanding of politicians fidelity to Catholic teaching on justice and the common good.

They point out that the bishops who would deny Communion to those who publicly support abortion and embryo-destructive research do not take the same stand against politicians who support the death penalty, which Pope John Paul II condemned in all but the rarest of circumstances, and the US invasions of Iraq, of which the pope and many other Vatican officials were sharply critical.

The Catechism of the Catholic Church indeed teaches that the death penalty should not be used, except in circumstances so rare these days as to be, in words of the late pope, “practically non-existent”. However, two points must be borne in mind in considering the obligations of Catholics and the question whether Catholic politicians who support the death penalty have in fact broken faith and communion with the Church.

First, neither the pope nor the Catechism places the death penalty on a par with abortion and other forms of direct killing of the innocent. (Indeed, the Church will probably never equate the death penalty with these forms of homicide, even if it eventually issues a definitive condemnation of the practice.)

Second, the status of the teaching differs from the status of the teaching on abortion. As John Paul II made clear in the great encyclical Evangelium Vitae, the teaching on abortion (as well as on euthanasia and all forms of direct killing of the innocent) is infallibly proposed by the ordinary and universal magisterium of the Church pursuant to the criteria of Lumen Gentium, No. 25.

The same is plainly not true of the developing teaching on the death penalty. Moreover, Cardinal Avery Dulles and others have interpreted the teaching against the death penalty as essentially a prudential judgment about its advisability, not a moral prohibition following from the application of a strict principle.

As it happens, I don’t agree with their analysis, but no one will be able to say with confidence from a Catholic point of view which side in this debate is right until the Magisterium clarifies the teaching. So, it cannot be said that supporters of the death penalty are “obstinately persisting in manifest grave sin”, and may or should be denied Holy Communion pursuant to Canon 915 of the Code of Canon Law.

No one can legitimately claim for opposition to the death penalty the status of a definitively settled moral teaching of the Church. (Nor can one claim that the Church teaches or will ever teach that the death penalty — except in cases where it is applied unjustly — involves the grave intrinsic injustice attaching to any act involving the direct killing of the innocent.)

Regarding the question of the United States invasions of Iraq, it is important to understand the precise terms of Catholic teaching on just and unjust warfare. These terms are set forth with clarity and precision in the Catechism.

In line with the Church’s historic teaching on the subject, neither Pope John Paul II nor Pope Benedict XVI has asserted that opposition to the war is binding on the consciences of Catholics. John Paul II’s statements opposing the use of force in the run up to both invasions plainly questioned the prudential judgments of political leaders who, in the end, had and have the right and responsibility (according to the Catechism and the entire tradition of Catholic teaching on war and peace) to make judgments as to whether force is in fact necessary.

That is why the pope and the bishops have not said, and will not say, that Catholic soldiers may not participate in the war. This contrasts with their clear teaching that Catholics may not participate in abortions or other forms of embryo-killing or support the use of taxpayer monies for activities involving the deliberate killing of innocent human beings.

I wish to close with a word to those in politics and the media — Catholics and non-Catholics alike — who have expressed anger, even outrage, at the world’s Catholic bishops for teaching that the faithful must never implicate themselves in unjust killing by supporting legal abortion and embryo-destructive research.

In scolding the bishops, the editors of the New York Times, for example, have insisted that “separation of church and state” means that no religious leader may presume to tell public officials what their positions may and may not be on matters of public policy.

But if we shift the focus from abortion to, say, genocide, slavery, the exploitation of labor, or racial segregation we see how implausible such a view is. When Archbishop Rummel excommunicated the segregationist politicians [Leander Perez, Jackson Ricau, and Una Gaillot], far from condemning the archbishop, the editors of the New York Times praised him.

They were right then; they are wrong now.


June 20, 2021 | Permalink

June 20, 2021 | Permalink

Saturday, June 19, 2021

On so-called "weaponization"

Few words in contemporary discourse are as hokey and tedious as "weaponization"; it simply means "making an argument that makes me uncomfortable because it forces me to consider the possibility that I'm failing to act as I should."  And so, the "statement of principles", issued by some politicians who support abortion rights, which objects to the alleged "weaponization" of the Eucharist (note that no such "weaponization" has really occured), is pretty thin stuff.

As it happens, my own view is that it would difficult to administer -- i.e., to expect parish priests to administer -- a live-action, case-by-case rule that officials who fail to support legal protections for unborn children should be denied the Eucharist (just as it would be difficult to administer such a rule that focused on officials' -- or my own -- many other failures).  But, this letter -- like much of the astroturfed outrage being expressed on social media about a "weaponization" that, again, has not actually happened -- is making a different point:  The letter's claim is that the letter writers are entitled (a) to support, fund, and indeed coerce people to provide a wrong action and (b) to declare themselves immune from the Church's determinations regarding the sacramental implications of such support (etc.)    

The letter writers claim that they "agree with the Church about the value of human life."  Not that "agreement" is really the issue but . . . they don't (agree).  As for the invocation of the "primacy of conscience" in this context, John Henry Newman is rolling over in  . . . I mean, he's enjoying the Beatific Vision and is utterly unmoved by the writers' mistake.

It seems unremarkable to me for Catholic bishops to remind Catholics that (i) legal regimes that do not protect unborn children are unjust; (b) it is wrong to support knowingly injustice; and (c) one should avoid receiving the Eucharist if one is aware that one is engaged in wrong actions.  It seems urgently needed for our bishops to teach and lead better with respect to love and reverence for the Eucharist.  Again:  I'm inclined to think it's a mistake to focus on politicians with such reminders and I'm inclined to think that priests should not adjudicate questions about mental states, etc., at the front of the Communion line.  Still, the letter is exquisitely individualistic, even Promethean; it does not seem particularly Catholic.

June 19, 2021 in Garnett, Rick | Permalink | Comments (0)

The abortion question is about justice, not "branding"

This piece, in America, tells a story about Catholicism in the United States, and about President Biden, that is very difficult to square with the facts.  In its narrative, there was a hopeful, Council-inspired Catholicism in America, of which Mr. Biden's "authentic[] and beaut[iful]" faith was a part, but then abortion politics came along and caused people to (unfairly) question the "sincerity" of that faith.  Nowhere in the piece is it mentioned that Mr. Biden previously opposed abortion, and its public funding, but then (like many other political figures) changed his stance in order to conform to perceived political-advancement necessities.  The culture warriors to whom he (and others) surrendered were not pro-life Catholic bishops.

The piece goes on to suggest that the ongoing debates about politicians, abortion, and the Eucharist is about "ownership" of the "brand" of Catholicism.  This seems a strange way to frame the question; the Church's pro-life and sacramental teachings are not about "branding" but about truths.  Nor, contrary to the piece, do these teachings have anything to do with an asserted "hesitation about democracy" (except, I suppose, insofar as they reflect a view that truths about sacraments and human dignity are not determined by majority vote).  It is asserted that the Church "cannot control public policy outcomes" (true enough) and that "[w]e must accompany democracy in order to build up the people who would choose the common good through democracy" (indeed) but it is never conceded that those who "choose" (and, indeed, would expand dramatically) the American abortion regime are opposing, not choosing, the "common good." 

June 19, 2021 in Garnett, Rick | Permalink

Friday, June 18, 2021

Why Shutdowns and Masks Suit the Elite

A marvelous review in these pages last November inspired me to read a new book by O. Carter Snead, “What It Means to Be Human: The Case for the Body in Human Bioethics.” It was published by Harvard University Press on Oct. 13. Covid-19 had begun its transformation of American life a few months before, and of course the book made no mention of it.

Yet Mr. Snead’s volume helped explain the bizarre and at times perverse response of prosperous Western nations to the pandemic: the long discontinuation of economic life, the belief that pixelated screens can facilitate human relationships, the prohibitions on ordinary social interactions, the fetishization of masks. These policies and practices weren’t handed down from the ether by Reason and Science but bore the weight of contemporary assumptions about—to borrow Mr. Snead’s title—what it means to be human.

Full article by Barton Swaim at WSJ: https://www.wsj.com/articles/why-shutdowns-and-masks-suit-the-elite-11624038950

June 18, 2021 | Permalink