Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, May 24, 2019

Freedom, Autonomy and Responsibility in Catholic Education

On Freedom, Autonomy and Responsibility in Catholic Education at Our Lady Seat of Wisdom Chapel, ACU North Sydney

The Homily linked above should be of interest to anyone working in Catholic education, especially these closing three paragraphs  . . .

We don’t just learn for learning’s sake, worthy as that is. We don’t just learn for our own uses, necessary as that is also. No, we learn that we might teach, accumulate so as to share, study in order to transmit, add to what humanity knows and put it to service. Through Eastertide we read of early Church heroes passing on the faith like sparks spreading through the dry Australian scrub. Today Paul and Barnabas argue for a bigger enrolment, as it were (Acts 15:1-6). And their way of resolving matters was to become fundamental for a Catholic college: we gather together to contemplate and converse, that together we might discover what is true and good and beautiful. We share our little wisdom, and listen to others. We beg the assistance of divine wisdom also. We sharpen our opinions on each other’s. We maintain an atmosphere of curiosity and docility, civil debate and scholastic endeavour. And then we hit the road again, sharing what we’ve gained with the world.

Our conference focuses on the freedom and responsibility in Catholic education. The flowering cross reminds us what our students, academics and institutions should be free for and responsible to: free for Veritas, for discovering truth, not just preference or opinion; responsible to Veritas, for reverencing truth, for building up and passing truth on, not just storing greedily or sifting ideologically. And we discover that Truth with a capital-T is a Man who also God, who came as witness to the truth and called on the Father to consecrate us to the truth (Jn 18:37; 17:17).

If you go to Rome, after visiting St Peter’s and, of course, the Rome campus of the Australian Catholic University, a third highlight worthy of your attention is the Dominican church of St. Clemente, one of the true wonders of ancient, patristic, mediaeval and renaissance Rome. In the dome above the altar is an incredibly rich 12th-century mosaic of the Tree of the Cross become the Tree of Life, with luxurious shoots sprung from the tree in all directions, supporting abundant growth in Church and society, with branches for every kind of animal and vegetable life, and for all human activity, active and contemplative. There are several scholars amongst the foliage, each at his writing desk. A cruel and deadly cross that once stood on a hill in a backwater of the Roman Empire, now stands gloriously in the middle of Rome for all to see, a tree of new life for every young mind – and every older heart also.

May 24, 2019 | Permalink

Thursday, May 23, 2019

Barclay on "First Amendment Harms"

Prof. Stephanie Barclay (BYU) has posted a new article called First Amendment Categories of Harms.  I recommend it highly (and not just because the author cites me in a few places!); it's an important contribution to, inter alia, the religious-accommodations debate.  Here is the abstract:

What role should harm to third parties play in the Government’s ability to protect religious rights? The intuitively appealing harm principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop and Hobby Lobby. While focusing on harm appears at first to provide an appealing simple and neutral principle for avoiding other difficult moral questions, the definition of harm itself operates on top of a deep moral theory about what counts as harm and why. Consequently, multiple scholars advancing iterations of these theories use “harm” as a term of art to mean very different things. This in turn results in scholars talking past each other and trading on a superficially simple idea that turns out to be incredibly complex. For this reason, the harm principle has proven unworkable in other contexts, including criminal and environmental law. This Article highlights the flaws of this approach in the religious context by measuring the theory against its own ends, including the theory’s failure to account for harms this approach would cause for religious minorities and other vulnerable groups.

Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies four categories: (1) prohibited harm (meaning a type of harm that is categorically impermissible); (2) presumptive harm (meaning a type of harm that is presumptively, though not dispositively prohibited); (3) relevant harm (meaning harm that courts will assess alongside other important factors, but whose weight is context-specific), and (4) inadmissible harm (meaning harm that is given no weight regardless of how severely or disproportionately it is experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions, but are in fact common to all First Amendment rights. Further, this descriptive framework sheds light on which sorts of harms matter, and when, and it highlights the competing harms that always arise when any rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more fruitful normative questions, including whether there is a justifiable tradeoff between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.

May 23, 2019 in Garnett, Rick | Permalink

Wednesday, May 22, 2019

Pro-life community debate prudence of new anti-abortion laws

Following a wave of new state laws significantly restricting abortion, Catholic pro-life advocates and legal experts are divided over whether such bills offer a winning strategy for the eventual overturn of Roe v. Wade or if they threaten decades-long strategies to gradually prohibit abortion.

An Alabama bill, which was signed into law last week and is now the most restrictive abortion law in the nation, has become a flashpoint - provoking widespread rage among abortion rights activists and dividing pro-lifers, some of whom prefer an incrementalist approach that chips away at abortion access, while others seek a head on challenge to the Supreme Court’s 1973 decision that established a constitutional right to abortion at any point during a pregnancy.

Read the full article by Christopher White at Crux here: https://cruxnow.com/church-in-the-usa/2019/05/21/pro-life-community-debate-prudence-of-new-anti-abortion-laws/

May 22, 2019 | Permalink

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

Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2019.

May 22, 2019 in Garnett, Rick | Permalink

Tuesday, May 21, 2019

Freedom of Religious Institutions in Society (FORIS) Project Launch

The Religious Freedom Institute will officially launch its Freedom of Religious Institutions in Society (FORIS) Project with a conference on May 29th at the Washington Hebrew Congregation. The project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world. The event is open to the public and one can RSVP here: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society

May 21, 2019 | Permalink

Monday, May 20, 2019

John Copeland Nagle, R.I.P.

My dear friend and colleague, John Nagle, passed from this life over the weekend. He was a great teacher and legal scholar, and also -- and more importantly -- a deeply good, generous person.  (I recommend this wonderful reflection, by his former student, Derek Muller.  Here is something I did at Prawfsblawg.  And, here is the announcement on Notre Dame Law School's page.)

MOJ readers might remember the project, "Catholics and Evangelicals Together on Law."  John was one of the signatories.  

John wrote and taught about so many things, it's not possible to do justice to his academic work (let alone his personal gifts) here. If you haven't read his stuff before, take a look.

Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace. 

May 20, 2019 in Garnett, Rick | Permalink

19th century Blaine Amendments impede school choice today

George Will's latest article at National Review does a great job summarizing the history of the Blaine Amendments, which were inherently anti-Catholic and written to prevent public funding of Catholic schools during the wave of Catholic immigration in the 19th century. The state of Montana adopted its own Blaine Amendment in 1889 and readopted in its 1972 constitution. It reads: There shall be no “direct or indirect appropriation or payment” of public monies “for any sectarian purpose” or to aid any institution “controlled in whole or in part by any church, sect, or denomination.”

In 2015, Montana's legislature enacted legislation providing a small tax credit of up to $150 for individuals or businesses donating to private, nonprofit scholarship organizations that award scholarships for children to attend private schools. Montana’s Department of Revenue issued a rule forbidding recipients from using their scholarships at religious schools per its Blaine Amendment, and the Montana Supreme Court has upheld the rule.

The Supreme Court will soon decide whether to hear an appeal from Montana's high court. 

May 20, 2019 | Permalink

Saturday, May 18, 2019

Evaluating how conscientious pro-life legislators change law and public discourse

Recently enacted abortion prohibitions that apply early in pregnancy raise the question of how to evaluate legislative action more generally. It is often a mistake to focus on just the content of the legislation itself when figuring out what law is made. For that legislation is not itself the law even after enactment. Instead, the law brought into being by any act of legislation is the set of new propositions about the law that are true as a result of the interaction of that newly enacted legislation with the rest of the law.  

Suppose, for instance, that a ban on abortions after 6 weeks' gestational age is unconstitutional. If the legislation is unconstitutional, then enacting it into the law does not change the law. It could have other effects, such as enabling lawsuits that enrich lawyers for abortion proponents. Those other non-legal effects are a mixed bag and it would be very challenging to analyze them comprehensively. I'm guessing that if one were able to do so, though, a conscientious pro-life legislator in one of the United States would be acting reasonably either in voting for or voting against such legislation. 

If I had to guess, conscientious pro-life legislators voting for these earlier abortion prohibitions intend primarily to move the window in terms of what counts as "mainstream" anti-abortion legislation. If so, they very well might succeed in accomplishing their goal. Assume, as is most likely, that these laws are held unconstitutional by federal district courts, such rulings are affirmed by federal courts of appeals, and the Supreme Court denies certiorari. The law has not changed much, except perhaps around the edges insofar as new judicial glosses in the caselaw might have some exploitable nuggets one way or the other for future fights.

What about the discourse in the meantime? Some of the arguments drawn out by "heartbeat" prohibitions do not apply to later prohibitions, such as at twelve weeks' gestational age, that could more easily be upheld against constitutional attack. 

May 18, 2019 | Permalink

Thursday, May 16, 2019

Special Issue of Journal of Disability and Religion, "Navigating Impasses in Bioethics: End of Life, Disability, and Mental Illness"

The Journal of Disability and Religion has published a special issue with contributions from an interdisciplinary workshop on "Navigating Impasses in Bioethics: End of Life, Disability, and Mental Illness" that was jointly organized by the Von Hugel Institute of Critical Catholic Inquiry at Cambridge University, and the Murphy Institute of the University of St. Thomas in December 2017.  As an apology for the delay in the publication, they are making the issue available on-line for free until the end of May -- a real deal, since the publication typically secured behind a fairly prohibitive pay-wall. 

You can access the entire issue here.

My contribution explores "The Contradictory Expressive Functions of the Americans with Disabilities Act and Physician-assisted Suicide Laws."  Here's the abstract:

Certain laws, such as civil rights laws and criminal laws, are considered to have powerful expressive functions. The expressive functions may be directed at shifting social norms, or at articulating a social consensus about a particularly important norm. The Americans with Disabilities Act (ADA) is such a law, expressing the norm that “society’s accumulated myths and fears about persons with disabilities” are as debilitating as actual disabilities. This article will analyze the arguments of disability rights advocates that the expressive effect of laws legalizing physician-assisted suicide directly contradicts the norm of the ADA.

Here are links to the other excellent articles in the issue, written by scholars from many different disciplines, offering perspectives from the US, Europe, and Canada. 

MAiD in Canada and the Homo Economicus View of Dignity: Inclusive Enough?, Thana C. de Campos

The Weight of Living: Autonomy, Care, and Responsibility for the Self, Patrick McKearney

“This Condition isn't Going to get any Better so I can't see why we're Prolonging it”: Risks and Benefits of using Empirical Research to Inform Normative Decisions Concerning End-of-Life Care, Elizabeth Fistein, Gemma Clarke, Anthony Holland & Stephen Barclay

Assisted Dying and Suicide Prevention,  David Albert Jones

Lives Not Worth Living: Rethinking Autonomy and Assisted Dying in the Light of Profound Disability, Lidia Ripamonti

Living and Dying with a Disability in Debtor Society: Why Context Matters in Assisted Suicide Debates, Brian Brock

Anthropologies of Hope and Despair: Disability and the Assisted-Suicide Debate, David Elliot



May 16, 2019 in Schiltz, Elizabeth | Permalink

A Few "Legal Spirits" Podcasts on Hate Speech and the Anti-vaccination Controversy

For those that enjoy listening to podcasts, my colleague, Mark Movsesian, and I have a few as part of our "Legal Spirits" series on law and religion, perfect for commuting or that quick workout at about a half-hour each.

First, a two-part series on "religious hate speech." Part I concerns government regulation of "hate speech" (speech either motivated by, or about, religion that is deemed hateful) while Part II considers the private side of suppression of speech considered hateful, focusing on universities.

Second, our most recent podcast is about the anti-vaccination controversy now roiling in Brooklyn and other parts of the country because of the resurgence of the measles. We talk about the legal ins and outs, and reflect on what the controversy might say about our ability to come together on questions of what truly constitutes a "compelling interest."

Listen in!

May 16, 2019 in DeGirolami, Marc | Permalink

Tuesday, May 14, 2019

Supreme Court Session Includes Key Cases for Catholics: Abortion and Religious Liberty

The U.S. Supreme Court has a number of cases that Catholic and other believers should keep an eye out for, touching on areas from religious liberty to abortion. From National Catholic Register: http://www.ncregister.com/daily-news/supreme-court-spring-session-religious-liberty-abortion-on-the-docket

May 14, 2019 | Permalink

Friday, May 10, 2019

2019 Lumen Christi Institute Summer Seminars

These Lumen Christi Institute Summer Seminars introduce participants to central themes, figures, and texts from the Catholic tradition. 

May 10, 2019 | Permalink

Thursday, May 9, 2019

Elizabeth Kirk on the Kansas abortion decision . . . and dissent

Here, at Public Discourse, is an essay by Elizabeth Kirk in which she underscores the many missteps in the recent majority opinion of the Kansas Supreme Court which, in a "failed attempt at serious philosophy," discovered/created a natural right to abortion, protected by that state's constitution.  Kirk also highlights the clear dissenting opinion of Justice Caleb Stegall.

May 9, 2019 in Garnett, Rick | Permalink

Great news: Ukrainian Archbishop Borys Gudziak to receive Notre Dame Award

More here.

Ukrainian Archbishop the Rev. Borys Gudziak will be presented with the Notre Dame Award at a ceremony June 29 in the Ukrainian city of Lviv, the University of Notre Dame announced Monday.

Gudziak is the founder of Ukrainian Catholic University in Lviv. He recently was elevated by Pope Francis to become metropolitan-archbishop of the Ukrainian Catholic Archeparchy of Philadelphia (the equivalent of an archdiocese).

Ukrainian Catholic University was the first Catholic university to open in territory of the former Soviet Union and the first university opened by one of the Eastern Catholic Churches. It was formally founded in 2002.

The Notre Dame Award is presented to “men and women whose life and deeds have shown exemplary dedication to the ideals for which the University stands: faith, inquiry, education, justice, public service, peace and care for the most vulnerable,” according to the university.

Learn more about Archbishop Gudziak in this moving piece by George Weigel in First Things.

May 9, 2019 in Garnett, Rick | Permalink

Wednesday, May 8, 2019

Jean Vanier, R.I.P.



A truly great man passed from this life to the next two days ago -- Jean Vanier. He dedicated much of his 90 years of life to making the world a better place for people with disabilities, and, as a consequence, a better place for everyone in the world.  He is probably best known for founding L'Arche, a worldwide movement dedicated to bringing men and women with disabilities into the heart of their societies, making their voices heard, and providing a true home and the opportunity to share everyone’s unique gifts to the fullest.

For the past two years, I have had the privilege of serving on the Board of Directors of L'Arche USA, supporting the work of L'Arche communities in the US.  (In fact, I am leaving tomorrow for our bi-annual in-person board meeting, taking place in Erie, PA, where the very first L'Arche community  in the US was founded in 1972.) I have truly come to appreciate the genius of Jean, and what he set in place back in 1964, when he moved into this little house in Trosley, France, with two men with developmental disabilities, Raphaël and Philippe.


L’Arche now includes more than 150 communities in 38 countries around the globe.  L’Arche USA includes 17 communities and 5 projects in states across the country.

In addition to his work with L’Arche, Vanier co-founded Faith and Light and inspired the creation of many other organizations. He influenced thousands of people around the world and published some 40 books, including on how people with intellectual disabilities make essential contributions to building a more humane society.

His most-widely read book is probably Becoming Human.  Two more that I particularly treasure are Living Gently in a Violent World:  The Prophetic Power of Weakness (with Stanley Hauerwas), and Drawn into the Mystery of Jesus Through the Gospel of John.

His sister, Thérèse Vanier, who left a distinguished career as a pioneering doctor in palliative care to join the L'Arche movement, wrote the following beautiful prayer which captures so much of what you will find in Jean's writings, and his life's work:

“May oppressed people and those who oppress them set one another free. May those who are disabled and those who think they are not, help one another. May those who need someone to listen to them move the hearts of those who are too busy. May the homeless give joy to those who, albeit unwillingly, open their door to them. May the poor melt the hearts of the rich. May those who seek the truth give life to those who are satisfied because they have already found it. May the dying who do not want to die be comforted by those who find it very hard to live. May those who are not loved be authorized to open the hearts of those who are not successful in loving. May prisoners find true freedom and free others from fear. May those who sleep on the streets share their kindness with those who do not manage to understand them. May the hungry tear the veil from the eyes of those who do not hunger for justice. May those who live without hope purify the hearts of their brothers and sisters who are afraid of living. May the weak confuse the strong. May hatred be surmounted by compassion. May violence be neutralized by men and women of peace. May it surrender to those who are totally vulnerable, so that we may be healed.”

May 8, 2019 in Schiltz, Elizabeth | Permalink

Monday, May 6, 2019

Notre Dame Program on Church, State & Society announces endowed lecture series

Notre Dame Law School’s Program on Church, State & Society has received a generous gift to endow a new lecture and conference series. The benefactors, who wish to remain anonymous, have named the series the Rice-Hasson Distinguished Lecture Series in honor of the late Notre Dame Law Professor Charles E. Rice and of Kevin J. “Seamus” Hasson '79, '82 M.A., '85 J.D., '12 Doctor of Laws (h.c.), and his wife, Mary Rice Hasson '82, '85 J.D. 

The Rice-Hasson Distinguished Lecture Series will serve as a flagship annual event and celebration of the Program on Church, State & Society. It will reflect and advance the mission of the program, the Law School, and the University by bringing accomplished and influential scholars and jurists to Notre Dame to engage students, faculty, and the entire Notre Dame community. 

You can read the full announcement here: https://law.nd.edu/news-events/news/program-on-church-state-society-announces-endowed-lecture-series/

May 6, 2019 | Permalink

Friday, May 3, 2019

Hittinger on "The Coherence of the Four Basic Principles of Catholic Social Doctrine"

Everything Russell Hittinger writes about the Church's social teachings is worth reading, so I suppose there's no need to say that this essay, "The Coherence of the Four Basic Principles of Catholic Social Doctrine:  An Interpretation", is, too.  (The "four basic principles" he discusses are human dignity, solidarity, subsidiarity, and the common good.)  Along the way, there's a lot about "social ontology" and the challenge that the Catholic understanding of persons poses to methodological individualism, and to some understandings of religious freedom.

May 3, 2019 in Garnett, Rick | Permalink

Thursday, May 2, 2019

On the natural right to obtain a dismemberment abortion in Kansas 2/

"The Kansas Unborn Child Protection from Dismemberment Abortion Act" is  the state law that the Kansas Supreme Court held unconstitutional last week. Understandably, the Act's title makes no appearance in the majority opinion. The Justices needed to shield themselves from confronting the true nature of the private lethal violence they were licensing in the name of the Kansas Constitution. Here's what the majority opinion says instead:

In 2015, the Kansas Legislature enacted S.B. 95, which is now codified at K.S.A. 65-6741 through 65-6749. S.B. 95 prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman." K.S.A. 65-6743(a).

In this case, the Doctors provide abortions, including D & E procedures, in Kansas. They filed this action challenging S.B. 95 on behalf of themselves and their patients on June 1, 2015. They argued S.B. 95 prevents them from using the safest method for most second-trimester abortions—the D & E method. These restrictions, according to the Doctors, violate sections 1 and 2 of the Kansas Constitution Bill of Rights because they infringe on inalienable natural rights, specifically, the right to liberty.

A graphic description of the D & E procedure referred to in S.B. 95 is not necessary to resolving the legal issues before us. Although the detailed nature of the procedure may factor into the lower court's later decision on the full merits, at this temporary injunction stage the United States Supreme Court's description suffices. That Court explained the procedure involves "(1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus." Stenberg v. Carhart, 530 U.S. 914, 925, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000). The Doctors argued, and the trial court found, that 95% of second-trimester abortions in the United States are performed using the D & E procedure.

Contrast the majority's description of the legal prohibition at issue with the legislature's language setting forth the prohibition:

Sec. 2. As used in sections 1 through 9, and amendments thereto:

* * *

(b) (1) ‘‘Dismemberment abortion’’ means, with the purpose of causing the death of an unborn child, knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.

(2) The term ‘‘dismemberment abortion’’ does not include an abortion which uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, although it does include an abortion in which a dismemberment abortion, as defined in subsection (b)(1), is used to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child.

Notice what is in the legislative description but absent from the judicial description: "the unborn child's body." It's odd that the body is absent from the judicial description when the reach of the legislation turns on a distinction regarding the way in which an abortionist may "dismember the body of the unborn child." The law prohibits dismemberment by means of slicing, crushing, or grasping, but not by suction.

Perhaps the Justices thought that "unborn child" was too loaded of a term. But leaving out any reference to the "body" of this being---whether denominated fetus, baby, or unborn child---reflects willful blindness to the incompleteness of the majority Justices' analysis. They describe the right at issue as the right of a woman to decide what to do with her body, including whether to continue her pregnancy. But there's obviously another body as well, the baby's body. Or the fetus's body, if you prefer. Call it what you want; but do not ignore this human body. For by the time that body has developed to the point that suction aspiration must give way to slicing, crushing, and ripping as means of removing it from the mother's body, that little human body matters. 

May 2, 2019 | Permalink

Tuesday, April 30, 2019

On the natural right to obtain a Dilation & Evacuation abortion in Kansas 1/

The Supreme Court of Kansas held last week in Hodes & Nauser, MDs, P.A. v. Schmidt that Section 1 of the Kansas Constitution protects a pregnant woman's natural right to obtain a Dilation & Evacuation abortion. There's much to think about and say about the opinions. Thus far, too, I've only read the majority opinion. But I thought I'd begin with a few general thoughts:

  1. The very existence of this case shows the fragility of the current constitutional law of abortion--both state and federal. The majority distances itself from the the federal constitutional law of abortion. That is presumably because of the Kansas justices' well-founded perception that the federal constitutional law of abortion is likely to change in ways that make it harder to find abortion limitations unconstitutional.

  2. The distancing is opportunistic rather than thoroughgoing, though. The Kansas majority imports three-tiered scrutiny from federal constitutional law. And the key move to get from John Locke to a right to abortion passes through the Supreme Court's 1972 decision in Eisentadt v. Baird. Despite some surface differences, the majority opinion overall reads like a product of the 1970s.

  3. This "Back to the '70s"  feel is amplified by the majority opinion's heavy reliance on the unreliable abortion historiography in James Mohr's 1978 book, Abortion in America: The Origins and Evolution of National Policy. Any judge inclined to rely on this book would be well-served to first go through the seventy or so index entries on Mohr in Joseph Dellapenna's 2006 book, Dispelling the Myths of Abortion History.

April 30, 2019 | Permalink

Thursday, April 25, 2019

Another Garnett on solidarity and suffering

Here at MOJ, we've often discussed the content and application of the core principles of the Catholic Social Thought tradition, including "solidarity."  I'm pasting, below, a short reflection that my daughter Maggie (a student at Notre Dame) wrote on the idea:

. . . In his encyclical letter, Spe Salvi, Pope Benedict XVI writes: “the true measure of humanity is essentially determined in relationship to suffering and to the sufferer.” Humanity is measured by the ways in which we live in relationship when it is most difficult. Suffering challenges, breaks, and burdens us. It can quickly isolate us, or separate us from our relationships. When we love well in suffering, not despite of it, we are loving as we are called to. And, this relationship is more than just the acknowledgement of someone else’s suffering: “to accept the “other” who suffers, means that I take up his suffering in such a way that it becomes mine also.”

That, dear readers, is what I want to say that solidarity is. It is shared outrage, sure. It can be a recognition and resistance to injustice, absolutely. But it seems to me that solidarity exists most profoundly where it is hardest to find: in the taking up of another’s cross as my own. By sharing in suffering, being in solidarity with another in their pain, light and love enters in.

In this solidarity in suffering we encounter Christ in a powerful way. Jesus Christ became man so that he could suffer “for and with us”. “Man is worth so much to God that he himself became man in order to suffer with man in an utterly real way” (Spe Salvi). In our pain, underneath the weight of our crosses, we remember that he lived in that same pain, underneath the weight of his own cross. Solidarity is not found in a Facebook-organized leggings protest: it is found on a tree on Calvary.

That is, of course, a challenging example to live out. I do not handle suffering as well as I would like to. When I encounter hurt, it’s often with discomfort. I feel useless, unable to fix things, and eager to escape that feeling. It is easy to feel insufficient when others are suffering. But God is not calling me to be the perfect fix-it-girl. He is not asking me to have all the answers. When I am blessed enough to have a friend approach me in their suffering, they don’t want me to rattle off a solution. They are just asking me to be with them.

As much as I want to fix everything -- to end the hurt, heal the pain, calm the anxiety, shut out any and all darkness -- I cannot do that, for myself or for those I love. What I can do is be in solidarity, simply in presence. For me, that has been a friend sitting with me on a chapel floor, staring at the tabernacle with a friend. It’s been a cold walk around the lakes, or a meal that is longer than it “should” be, because of a conversation that needed to be had. It is, and ought to be, quiet prayer intentions, tight hugs, shared tears, vulnerable moments, and admittance of weakness that allows us to be more fully and completely human.

If we approach solidarity with compassion, if we “suffer with”, we might be able to set aside the instinct to fix, and settle instead for the presence and empathy that we can offer. And, if we enter into that compassion with consolation, if we are with those we love in their solitude, suffering ceases to exist in isolation. We then exist in solidarity, not because we offer solutions but because we are willing to be present.

Solidarity is difficult. Asking for the presence of others, even those you know love you, is hard -- I can be really bad at it. But by entering into real and intentional relationships, we find people than can, imperfectly and temporarily, help us to carry what we must. Those people, in turn, point us to the One that, perfectly and eternally, carries us. . . .

April 25, 2019 in Garnett, Rick | Permalink

TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.

In American Association of Political Consultants, Inc. v. FCC, the Fourth Circuit yesterday held unconstitutional an exemption from the federal ban on automated calls to cellphones. This exemption authorized automated calls that relate to the collection of debts owed to or guaranteed by the federal government. In an opinion joined by Judges Keenan and Quattlebaum, Judge King wrote that the exemption was content-based and failed strict scrutiny, but that it could be severed. The result is that the plaintiffs' political calls remain subject to the general ban.

The Fourth Circuit panel seems to have been tripped up in entanglements among standing, substantive constitutional law, and severability. As a matter of standing, the plaintiffs are injured by the ban, not the exemption for federal debt collections. As a matter of substantive constitutional law, the ban and its exemptions form a single unit for purposes of constitutional analysis. The challenge is to a content-based restriction on speech, not to the exemption itself. If this challenge succeeds, there is no work for severability to do in separating the ban from the exemption; the whole unit is unconstitutional. Severability would keep the rest of the TCPA intact, but the content-based ban should fall because of the exemption it contains.

The appropriate unit of analysis for unconstitutionality varies among various areas of substantive constitutional law. But for freedom of speech purposes, a speech prohibition and its exemptions are a single unit of analysis for purposes of determining whether the prohibition is content-based. Consider, for instance, the ordinance in Police Department of Chicago v. Moseley:

"A person commits disorderly conduct when he knowingly:
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute . . . ." Municipal Code, c. 193-1 (i)

The proviso protecting picketing of schools involved in a labor dispute renders the ban content-based. There is not a first-step consideration of the proviso on its own followed by a second-step severability inquiry. 

Another way of thinking about the Fourth Circuit's ruling on the robocall ban is by analogy to R.A.V. v. City of St. Paul. The ordinance in that case provided: 

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

As authoritatively construed by state courts, this ordinance extended only to fighting words, which are constitutionally unprotected. The ordinance was nevertheless subject to strict scrutiny because of its content discrimination ("on the basis of race, color, creed, religion, or gender") within the otherwise unprotected class. Similarly, a blanket prohibition on robocalls may be perfectly fine on its own, unconstitutional if exemptions from the prohibition render it content-based.

In any event, I'm guessing this is not the last we'll see of this issue. In addition to the plaintiffs in the Fourth Circuit case who are smarting from their Pyrrhic victory, I expect that robocallers in the Fourth Circuit may also be alarmed. "Severance" of the statutory provision making their conduct legal means that their robocalls will be subject to the general ban. That's not how this should have gone. But now that it has, it's going to take some more lawyer and judge time to sort things out.

April 25, 2019 in Walsh, Kevin | Permalink

Saturday, April 20, 2019

Berkowitz reviews Wilken on the Christian Foundations of Human Rights

Here.  A bit:

In “Liberty in the Things of God: The Christian Origins of Religious Freedom,” Robert Louis Wilken provides a wealth of evidence drawn both from major events and seminal texts to show that the unfolding of Christian faith and the development in the West of the idea of individual freedom have been intimately intertwined.  

This is not to deny the religious persecution across centuries perpetrated by Christianity. The enforcement of religious orthodoxy and the repression of dissent have been a default option throughout history. What distinguishes Christianity has been the steady and deepening appreciation that its core teachings require not merely toleration — in the sense of grudging or politically expedient acceptance of differences in religious belief and forms of worship — but rather robust freedom because by its very nature faith cannot be coerced. So powerful was this idea within Christianity and so profound has been Christianity’s influence in the West and around the world that it has furnished an “intellectual framework” that established freedom of religion as a basic assumption of liberal democracy and eventually as a fundamental human right. . . .

April 20, 2019 in Garnett, Rick | Permalink

Thursday, April 11, 2019

A Panel Discussion on the Life and Legacy of Rev. Theodore M. Hesburgh, C.S.C.


On Thursday, May 2nd, the Lumen Christi Institute will host a panel discussion of Rev. Wilson D. Miscamble, C.S.C.’s recent book, American Priest: The Ambitious Life and Conflicted Legacy of Notre Dame’s Father Ted Hesburgh.

I am delighted to serve as the moderator for this panel discussion.  The panelists include the book’s author, Father Bill, together with long-time religion writer Ken Woodward, William T. Cavanaugh, a professor of Catholic Studies at DePaul University, and Jennifer Mason McAward, a professor at Notre Dame Law School and the director of the Klau Center for Civil and Human Rights.

When I was an undergraduate at Notre Dame in the early 1980s the joke was: “What’s the difference between God and Father Ted? . . . God is everywhere, and Father Ted is everywhere except Notre Dame.”  Father Bill’s book covers the peripatetic life of the Holy Cross priest who raised Notre Dame from a minor Catholic college on the Indiana prairie whose greatest claim to fame was football, to a world-class university.  In doing so Father Ted changed not only Notre Dame but Catholic higher education as a whole.  But how and at what price?

The panel will address these and other matters on May 2nd in the conference room at Skadden Arps’ Chicago office, 155 N. Wacker Drive.  Friends of MOJ and others interested persons are welcome to attend. Registration and additional information are available here.

April 11, 2019 | Permalink

Thursday, April 4, 2019

"Catholic Thought and the Challenges of Our Time"

Here, at Public Discourse, is an essay by Ryan Anderson called "Catholic Thought and the Challenges of Our Time."  There's a lot going on in the essay, and I recommend reading the whole thing.  Among other things, it engages a topic that has been a focus of the Mirror of Justice project from the beginning, i.e., the importance of a sound, Christian moral anthropology for, well, just about everything.  A bit:

The capacity to know right and wrong, good and evil, is key to recovering today a sound understanding of freedom. For the liberty on offer in many post-Christian liberal societies today is not the liberty of the ancient Greeks, Romans, or Christians. For them, the most important freedom was freedom from slavery to sin, freedom for self-mastery. Today we face two competing conceptions of freedom, in what the Belgian-born Dominican theologian Servais Pinckaers has termed a freedom of indifference and a freedom for excellence.

On the modern conception of freedom, freedom is indifferent to what is chosen. What matters is simply that I chose it. Whether I chose to degrade myself or to respect my dignity is ultimately irrelevant, provided that I freely choose either way.

The more traditional understanding of freedom flowed out of a different conception of human nature. If freedom is grounded in man’s rational and animal nature, and in how such freedoms allow man to flourish given his nature, then freedom is directional—it has a purpose, an end, and thus has limits. It is not primarily a freedom from something, but a freedom for something. A freedom for excellence, a freedom for human flourishing.


April 4, 2019 in Garnett, Rick | Permalink

"Education in a Catholic Key"

I read recently a short essay/pamphlet on the nature and mission of Catholic education, published by Notre Dame's Alliance for Catholic Education and written by some friends and colleagues associated with that (wonderful) program.  It's called "Education in a Catholic Key" and I recommend it.  You can download it here:  Download Education in a Catholic Key.  Check it out.  (And pray that many bishops, superintendents, principals, teachers, and parents do, too!)

April 4, 2019 in Garnett, Rick | Permalink