Mirror of Justice

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

Thursday, January 6, 2022

Christian nationalism and January 6

As we observe the 1-year anniversary of the deadly attack on the U.S. Capitol, I encourage American Christians to remember that pushing back against Christian nationalism does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.
But first we have to be clear that Christian nationalism is a perversion of our faith and a threat to the rule of law. Among the heartbreaking images that linger from Jan. 6, 2021: the "Jesus Saves" banners being held by rioters entering the Capitol, right alongside the Confederate flags, nooses and Holocaust sweatshirts. The attack followed weeks of "Jericho marches," prayer meetings and rallies premised on the idea that God ordained Donald Trump to serve eight years as president, and that those who stood in the way were attempting to thwart God's will for America.
If we don't want the lessons from that day to be obscured by partisan talking points, we need to be clear about why Christian nationalism is dangerous and what healthy Christian political engagement looks like.
Andrew Whitehead and Samuel Perry provide the most comprehensive account of Christian nationalism, which they describe in Taking America Back for God as "a cultural framework that blurs distinctions between Christian identity and American identity, viewing the two as closely related and seeking to enhance and preserve their union." When we merge our identity as Christians with our identity as Americans, we invest political positions with a level of certainty and fervor traditionally reserved for matters of religious faith. Christian nationalists are no longer debating ideas about which reasonable people can disagree; they are defending Christianity against its enemies. That's a dangerous place for a democracy to be.
If American Christians are not happy with the voices that loudly proclaim direct knowledge of God's will for American politics (often arising on the right), and we're not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what's the path forward?
Christian nationalism has exemplified three characteristics that healthy Christian political engagement must avoid.
First, Christian faith should not be a conversation-stopper. Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so, provided the religious language is an entry point, not the entirety of the argument. "The Bible says it, I believe it, that settles it," may be a pithy and popular bumper sticker, but it's not fertile ground for the dialogues on which our democracy depends. 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.
Second, Christian faith should not be a rationale for self-righteousness. When Christians refuse to recognize the possibility that our political tribe is capable of evil, we are denying the reality of sin. The Christian nationalist narrative does not portray political opponents as fellow citizens with different ideological commitments; rather, they are enemies engaged in spiritual warfare. When outraged Christian nationalists attacked the Capitol, they may not have seriously considered the possibility that then-President Trump and his media champions were exaggerating and fabricating reasons to doubt the election's outcome. Their example is a cautionary lesson for citizens across the political spectrum. Self-righteousness distorts our perception of reality and precludes the mutual recognition of fallibility on which the give-and-take of democracy depend.
Third, Christian faith should not stoke fear of "the other." In contrast to the radical "love thy neighbor" teachings of Jesus, the rhetoric of Christian nationalism engenders loyalty by stoking fear. Christian nationalism is about power — to be won and wielded against external threats. Relying on fear and finger-pointing as a political weapon creates an us-vs.-them mindset. This threatens the rule of law, which aims to guarantee that all are treated fairly, that laws operate prospectively as guides to conduct, and that the application of laws does not depend on a group's popularity. By building a political movement on the scapegoating of particular groups, Christian nationalists' rhetoric creates tension with these guarantees.
Christian nationalists are espousing a version of the faith that has profound and dangerous consequences for the rule of law. We cannot defend the rule of law by relying solely on arguments that fail to address the foundational claims from which threats emerge. Christian nationalism is one such threat, and we need to respond — as Americans and, perhaps more importantly, as Christians.
(A version of this appears in the Minneapolis Star-Tribune and is based on the chapter I contributed to "Beyond Imagination?: The January 6 Insurrection," a new book published by West Academic.)

January 6, 2022 in Vischer, Rob | Permalink

Sunday, January 2, 2022

Model Free Speech Language For Your Syllabus

Fellow academics:

With the new academic term about to begin, please consider adapting this language concerning free speech for use on your course syllabi.

As set forth in Princeton University's Rights, Rules, Responsibilities section 1.1.3, this institution strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

January 2, 2022 | Permalink

Wednesday, December 29, 2021

Happy Feast of St. Thomas Becket!


December 29, 2021 in Garnett, Rick | Permalink

Tuesday, December 28, 2021

2022 Church, State & Society Writing Competition

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

Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.

Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted. Papers already published, or in the process of being published, are not eligible.

Submissions: Papers must be submitted by March 1st, 2022. Winners will be announced on or before May 6th, 2022. Papers must be e-mailed in .pdf form. Each submission must include a cover letter (that summarizes the paper and states the paper word count) and resume in a separate .pdf document. Papers should not include author names in order to ensure that submissions to judges can be scored with anonymity. Emailed submissions should be sent with “2022 Writing Competition” in the subject line, and addressed to: [email protected]

Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.


December 28, 2021 | Permalink

Saturday, December 25, 2021

Remembering the Most Important Thing


From the first time that my University of St. Thomas offered a special Christmas Eve Mass at the Chapel of St. Thomas Aquinas, my wife, Mindy, and I have faithfully attended — other than last year during the depths of the pandemic. We were blessed to return last evening. Above is a photo I took last night of the wonderful Nativity Scene at the front of the chapel. Having seen hundreds of Nativity Scenes through the years, this is my favorite.
Last night, in looking at that depiction of the birth of Jesus, I was reminded of a story that the late Justice Antonin Scalia shared with a group of my faculty at the University of St. Thomas shortly before his death. As Justice Scalia had told this story to many others, including those on this list, I’m sure they could point out minor errors or omissions in my telling. But I’ll do my best and be true to my own recollection. And, as imperfect as it may be, I think it will serve the main point.
Justice Scalia was talking with us about how the University of St. Thomas School of Law took its Catholic identity seriously, as integrating the profession of law into the whole person of the faithful lawyer. He said the same had been true of Georgetown University, when he was an undergraduate student there.
As he approached graduation from Georgetown, the young Scalia had to pass an oral examination before a panel of professors in the history department. They peppered him with questions about historical events. And, as Scalia recalled it to us, “I was hitting the questions out of the park. I knew I was doing a great job.”
Finally, the chair of the department, a senior faculty member and Catholic priest, said, “we have one last question for you, Mr. Scalia. What was the most important event in human history?”
Scalia told us his thinking was, “I’ve got this. There is simply no wrong answer to this question. Any answer I give will be fine, as long as I provide a good argument for why the event I choose had a major impact on history.” He then proceeded to discuss the Battle of Waterloo and the dramatic effect that the defeat of Napoleon had on European history.
When he was finished, the chair of the department said, “No, Mr. Scalia, that is the wrong answer.”
The reverend chair continued: ”The most important event in human history was the birth of our Lord and Savior Jesus Christ in Bethlehem.”
And Scalia knew of course that he had been wrong. So wrapped had he been in showing his intellectual prowess on history that he had forgotten the most important thing of all. And, of course, we in the legal profession are particularly likely to mistakenly begin to think that what we are doing and saying about the law is the most important thing. It may well be an important thing. And it may be what God is calling us to do as professionals.  But it is not the most important thing.
So my prayer for all of us today on Christmas is that we not only remember but truly feel the love of God in this season that should be joyful. Know that God cared so deeply for us that he sent his only Son to be incarnated into a human body, born of a poor family in a stable of animals and laid in a feeding trough. God bless us all today! Merry Christmas!

December 25, 2021 in Sisk, Greg | Permalink

Friday, December 17, 2021

Democrats for Life Brief in PA Hyde-Amendment Case

The PA Supreme Court is hearing a challenge to the state's version of the Hyde Amendment (Allegheny Reproductive Services v. PA. Dept. of Human Services, appeal from 249 A.3d 598 (Pa. Commw. Ct. 2021)). Abortion providers are petitioning the court to reverse its 1985 Fischer decision (509 Pa. 293, 502 A.2d 114) that upheld the ban on state funding of abortions (except for rape, incest, or threats to the mother's life), on grounds similar to  SCOTUS's upholding of the federal Hyde Amendment in Maher v. Roe and Harris v. McRae.

Democrats for Life of America has filled an amicus brief in support of the PA funding restriction. From the summary of argument:

DFLA files this brief to emphasize three interests that the ban on funding of elective abortion serves. These interests are important, and at the very least, are clearly valid and legitimate under rational-basis scrutiny.

     A. First, the funding ban serves the interest in protecting fetal life, which has been held to be “important” by this Court in Fischer IV and, as this Court noted, by the U.S. Supreme Court as well. Since Fischer IV, scientific advances, including ultrasound technology, have made it even clearer that the unborn child is a distinct human life during its development in the mother. These developments reinforce Fischer IV, both as a matter of stare decisis and because it is correct.

     B. Second, the funding ban serves the important, and unquestionably valid, interest in respecting the conscience of many taxpayers who believe that abortion takes an innocent human life, and that the government revenue to which they contribute should not support that practice. Although the government is not required to accommodate taxpayers’ objections by declining funding, it has discretion to do so. From the nation’s founding, our governments have accommodated taxpayers’ conscience by denying funding to various practices that violate their deeply held beliefs. Abortion-funding restrictions stand within this tradition of respecting taxpayer conscience on deeply divisive issues; indeed, the tradition is especially strong in protecting people against being forced to facilitate abortions.

     C. Finally, because abortion-funding restrictions avoid forcing taxpayers to facilitate abortion when they deeply oppose it, such restrictions make it possible to secure broad support for health and welfare-related funding in general. The government has a strong interest in maintaining the flexibility that helps build such consensus for social-welfare assistance programs. Since 1980, Pennsylvania’s ban on funding elective abortions has bolstered support for the Medical Assistance Program. Similarly, since 1976 the federal Hyde Amendment has bolstered support for federal health and welfare spending. And adoption of abortion-funding restrictions in the Affordable Care Act—restrictions with bipartisan support—were crucial to the passage of that major healthcare-reform legislation.

In section C, the brief details the crucial role that abortion-funding restrictions, and the pro-life Democrats who pushed and hard for them, played in the passage of the Affordable Care Act. (Citing former Rep. Bart Stupak's account of the events, For All Americans.) Since the ACA's passage, of course, pro-life Democrats have been decimated in Congress and state offices across the country by the combined efforts of Republicans, major pro-life groups, and anti-abortion rights groups. It's a feature of, and a contributor to, our accelerated polarization. But the arguments in section C--that a consensus in support of strong social-welfare benefits can much more easily form if taxpayers do not thereby have to fund elective abortions--are still important in a number of purplish states, like Pennsylvania.

December 17, 2021 in Berg, Thomas , Current Affairs | Permalink

Sunday, December 5, 2021

Sotomayor, Abortion, and Religion

In what was undoubtedly the intellectual low point in the Supreme Court's oral arguments in Dobbs v. Jackson Women’s Health on Wednesday (here), Justice Sonia Sotomayor suggested that the State’s interest in the life of a human being developing in utero is inherently religious.  In questioning Mississippi’s Solicitor General Scott Stewart, she asked (pp. 29-30):

How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it … because it assumes that a fetus's life at -- when? You're not drawing -- you're -- when do you suggest we begin that life?

Put to one side Sotomayor’s half-witted suggestion that the question of when the life of a human being begins is only philosophical – that it is not a biological question which science has already settled.  Never mind that she is quite confident that science can answer the question of when a human life ends (pp. 20-21).  Never mind that the biologists’ amici brief in Dobbs (here, filed on behalf of neither petitioner nor respondent) makes clear that the overwhelming view of biologists around the world (including those who favor abortion) is the view that human life begins at fertilization and that this view “can only be supplanted by an alternative view if there are paradigmatic shifts to axiomatic concepts within biology” (p. 4).

To correct Sotomayor’s wrong, but oft repeated accusation, Justice Samuel Alito asked Stewart “[A]re there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability?”  Stewart noted, sensibly enough, that “there's a wide array … of people of kind of all different views and -- and of no faith views who -- who would reasonably have that view, Your Honor” (p. 32).

Stewart’s observation that support for unborn human life can be found among the non-religious should be sufficient to answer the charge that this view in unavoidably religious.  But this charge against the defenders of unborn human life long precedes even Roe.  The proponents of abortion have long sought to discredit the pro-life movement as a sectarian effort to impose religious beliefs on a pluralistic society that includes many non-believers.

Like an old joke that falls flat whenever it is told, but that some people insist on telling and retelling, again and again, the reasons why it is little more than an ugly accusation – a mean-spirited and profoundly unfunny smear – must be spelled out.

Indeed, because Sotomayor’s claim is so confused, yet so frequently articulated, and is likely to be heard again and again with even greater frequency in the future (regardless of what happens in Dobbs), it is worthwhile to examine the charge more closely now.

In an article published in 2013 (here), I engaged in a line-by-line analysis of Justice John Paul Stevens’ abortion opinions in Thornburgh, Webster and Casey demonstrating the vacuous nature of the claim that laws seeking to afford some protection to the human child developing in utero are religious and so invariably violate the Establishment Clause of the First Amendment.  In that article, I noted that in Thornburgh (476 U.S. at 778) Stevens does not defend his claim that the State’s interest in the developing human “increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to surroundings increases day by day.”  He simply regards it as “obvious.”  But this is naked assertion.  To defend this claim would require Stevens to confront his own value preferences in favoring certain characteristics as significant, and recognizing that these preferences are no more or less “religious” than those he dismisses with that label.

If describing a claim as “religious” means that the claim depends upon value judgments that are ultimately unprovable from an empirical point of view, then the perspective that regards the unborn as something of incalculable worth is no more or less “religious” than the perspective that regards them as being of no value whatsoever—a trivial item of refuse easily discarded and soon forgotten. (p. 839)

John Noonan first made this point in his book, A Private Choice (1979), in responding to Larry Tribe’s 1973 Foreword in the Harvard Law Review.  There is no reason to exempt the selection of those criteria that would exclude fetuses and embryos from consideration as beings of moral worth and dismiss as theological and illicit those criteria that include fetuses and embryos as such beings. Rather, an argument must be made that certain criteria are inescapably “religious” and others properly “secular.”

Sotomayor’s questions indicate that she is oblivious to all this.  Her questions rely upon the same unstated and undefended assumptions.

It is possible that the question “Should X be considered Y?” is inherently religious because answering it necessarily relies upon religious premises or the exercise of religious judgment. 

For example, consider the following question: “Should the Gospel of Thomas be considered the inspired word of God on par with the Gospels of Matthew, Mark, Luke, and John?  Should Christians include it within the canon of New Testament texts?”   Whether the question is answered in the affirmative or the negative – whether concluding that the text is canonical or apocryphal – answering the question requires the exercise of theological judgment. 

The same could be said about the judgment involved in the classification of other things: “Should what looks to be a piece of bread be considered the Body and Blood of Christ?”  “Should a cow be thought of as a sacred animal that should not be slaughtered for food and should be allowed to wander free?”  “Should a kirpan dagger be treated as a sign of faith that must be worn at all times?”

But the question as to whether the enity in the womb is a "person" is not of this sort. In the debate over abortion, the claim that the entity developing in the womb is or is not a “person” is normative (i.e. a rights-bearer, a subject of concern, respect, and protection by the State) rather than descriptive (e.g. a being that is sentient, feels pain, is self-conscious, or has the capacity for reason), but it is not religious.

It is not “religious” to argue that a human being of a young age (e.g. an infant or toddler) should be regarded as a “person” and so enjoy the same respect and protection as a human being of a more advanced age (e.g. an adolescent or adult) who is regarded as a “person.”  And the judgment that an entity is a human being – an organism that is a member of the species homo sapiens – is not normative at all but biological (i.e. conceptual and empirical).

Of course, one could use religious reasoning and employ religious premises to argue that a given entity ought to be regarded as a “person.”  One could argue that a given being is a “person” infused with an immortal soul by God.   One could argue that the entity in the womb bears the image of the divine and is precious in the eyes of God.

But the proponents of legal protection for the unborn – both in terms of personhood and in some status short of that – do not do so on the basis of religious premises. 

If the claim implicit in Sotomayor’s questions is to be anything more than an ugly slur, then she must show that the view that favors protection for the unborn relies upon religious premises.  This is precisely what she and others have failed to do.  They are instead content to repeat a bad joke – to tell it again and again knowing that it appeals to the prejudices of its audience.  But the real laughingstock in law is those who abandon reason, rely on accusation, and trade in religious prejudice.

December 5, 2021 | Permalink

Thursday, December 2, 2021

Commentary on the Dobbs arguments

Here (Our Sunday Visitor) and here (The Volokh Conspiracy) are some quick comments I contributed regarding yesterday's oral arguments in the Dobbs case. In my view, the justices will, and should, jettison Roe and Casey, and adopt the approach for which the late Chief Justice, William Rehnquist, advocated in his Casey dissent.  A bit:

To be sure, it makes sense for the court to value stability and predictability in the law. Sometimes, there are good reasons to carry on with a past mistake. And it is important that the court not only be perceived as, but in fact be, a judicial, not a merely political, institution. The meaning of the Constitution should not and does not change simply because its composition does.

The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation. In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably. . . .

At one point during the arguments, Justice Sotomayor observed that many of the most famous cases where the court rejected past precedent involved expanding the rights of individuals. In her view, this fact weighed strongly against undoing the errors in Roe and Casey.

Her view is wrong, though, for at least two reasons. First, reversing Roe will respect the rights of individual citizens to have a say, and to try to convince their neighbors on a fundamental moral and policy question. Next, and no less important, the court’s confession of error would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections. That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.

December 2, 2021 in Garnett, Rick | Permalink

Wednesday, December 1, 2021

Faith Groups Say the Build Back Better Act Would Exclude Faith-Based Child Care and Pre-Kindergarten Providers

Two bishop chairmen on behalf of their committees of the U.S. Conference of Catholic Bishops (USCCB) have cosigned a coalition letter to the U.S. Senate Committee on Health, Education, Labor, and Pensions Chair Patty Murray (D-WA) and Ranking Member Richard Burr (R-NC) with other faith groups raising urgent concerns that the Build Back Better Act’s (BBBA) child care and universal pre-kindergarten programs would exclude faith-based providers.

“Expanding affordable child care and pre-kindergarten is a worthy goal to help working families. However, the current child care and universal pre-kindergarten (UPK) provisions in the Build Back Better Act will suppress, if not exclude, the participation of many faith-based providers,” wrote Cardinal Timothy Dolan of New York, chairman of the Committee for Religious Liberty, and Bishop Thomas Daly of Spokane, chairman of the Committee on Catholic Education, together with numerous organizations representing denominations, schools, and charities.

Full article at USCCB: https://www.usccb.org/news/2021/faith-groups-say-build-back-better-act-would-exclude-faith-based-child-care-and-pre

December 1, 2021 | Permalink

Tuesday, November 30, 2021

"States Must Stop Discriminating Against Religious Schools"

Here is a short opinion piece, which I wrote with my Notre Dame Law School student, Olivia Rogers, on the Supreme Court's upcoming school-funding case, Carson v. Makin.  A bit:

Across the country, parents and communities are demanding choice, opportunity and accountability in education. Any meaningful response to these demands will include authentically religious schools and will support those who choose them. In Carson, the justices should reaffirm that the Constitution does not permit governments to discriminate against vital partners in the crucial, common task of educating children.

November 30, 2021 in Garnett, Rick | Permalink

Monday, November 29, 2021

Not Quite Silenced: Understanding the censoring of John Courtney Murray

The Roman parable of John Courtney Murray looms large in the modern American Catholic imagination. The Jesuit theologian argued that the First Amendment was in keeping with Catholic orthodoxy at a time when the Holy See still insisted that the American model of religious freedom was a suboptimal church-state arrangement—tolerable only when the optimal arrangement, a Catholic confessional state, was out of reach. Officially censored by the Holy Office in 1954, Murray’s ideas would be vindicated a few years later by the Second Vatican Council, and specifically by the Declaration on Religious Freedom (1965), which Murray himself helped draft. As former Commonweal editor Margaret O’Brien Steinfels once said, it is “the Catholic rule of thumb, that anyone with a good idea for changing Church teaching or practice, I think here of John Courtney Murray, ought to be made to suffer for it.” Yet, so far, we have known only the contours of Murray’s pre-conciliar ordeal. Despite the meticulous historical work of Joseph A. Komonchak, who has been painstakingly piecing together evidence from a wide array of personal, ecclesiastical, and governmental archives, a crucial perspective was still missing: that of the Holy See itself.

Full article at Commonweal: https://www.commonwealmagazine.org/not-quite-silenced

November 29, 2021 | Permalink

Saturday, November 27, 2021

"Roe and Casey Were Grievously Wrong and Should Be Overruled"

The Harvard Journal of Law and Public Policy has published, online, an article-ized version of the amicus brief that Chuck Cooper and his colleagues submitted -- and that I was pleased to join -- in the Dobbs case.  It's called "Roe and Casey Were Grievously Wrong and Should Be Overruled."  As it happens, the title captures pretty well the argument!

November 27, 2021 in Garnett, Rick | Permalink

Friday, November 26, 2021

Breen and Strang Respond to Interlocutors on Catholic Legal Education

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: "A Light Unseen: A History of Catholic Legal Education." Deans of several Catholic law schools (including Rob Vischer), as well as other learned academics (including Rick Garnett), offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

November 26, 2021 in DeGirolami, Marc | Permalink

Sunday, November 21, 2021

Christ the King and "Quas Primas"

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."  A bit:

"[T]he Church, founded by Christ as a perfect society, has a natural and inalienable right to perfect freedom and immunity from the power of the state; and that in fulfilling the task committed to her by God of teaching, ruling, and guiding to eternal bliss those who belong to the kingdom of Christ, she cannot be subject to any external power."

This is, to put it mildly, a striking proposal.


November 21, 2021 in Garnett, Rick | Permalink

Friday, November 19, 2021

Mary Ann Glendon's Rice-Hasson Lecture at Notre Dame Law School

The Notre Dame Law School was honored to welcome Prof. Mary Ann Glendon, who delivered on Wednesday the inaugural Rice-Hasson Distinguished Lecture. Her topic was "Human Ecology and the Lawyer's Vocation."  You can watch a recording of the lecture, here.

Prof. Glendon drew on writings of Pope Francis and his two predecessors, to develop the intriguing proposal that our cultural, institutional, and human "ecology" requires care, attention, and stewardship, no less than our natural/environmental one.

November 19, 2021 in Garnett, Rick | Permalink

AAPC-style damage control and the Texas Heartbeat Act

I've seen people wondering out loud on social media the past few days about what might be going on with the Texas Heartbeat Act at the Supreme Court. I have not quite caught up with all the briefing, but I did get a chance to listen to the arguments recently. With apologies to anyone else who has advanced the line of analysis below, it's not one that I've seen out there but that seems plausible to me.

First, let's put aside the question of whether there is anything unconstitutional about the Texas Heartbeat Act. Just assume that at least five Justices think that there is. 

Second, assume that the unconstitutionality comes not from any textually discrete portion or temporally discrete set of possible applications but from the combination of all the features of the statutory scheme.

Third, identify what aspect of the scheme can be disregarded in order for the currently apprehended/assumed unconstitutionality to go away.

It is this third step that is most analytically liberating. For there need not be one-to-one correspondence between what makes a statutory scheme unconstitutional and what follows as a matter of being declared unconstitutional. Suppose a statute ABCDE, in which A, B, C, D, and E are distinct textual provisions of an act that each contribute something different to its operation. Now suppose that ABCDE as a combination is unconstitutional. It can but need not follow that A, B, C, D, and E are all to be judicially disregarded as unconstitutional. But it might also be enough that A or B or C or D or E be treated as not-law.

Something of this sort happened in Barr v. American Association of Political Consultants (2020). That was the robocalls-to-cellphones case in which the Court held (1) the robocalls-to-cellphones ban was unconstitutionally content-based because of its exception for government-backed debt collection robocalls, and (2) the ban was still enforceable going forward, because (3) the offending exception could be severed. 

Note the imprecise wording of (3). It's not so much the exception itself that offended. An exception does not abridge speech. The abridgement comes from the ban. The offending thing was the ban-with-exception as a package. But even though the ban-with-exception was unconstitutional, the ban remained enforceable after AAPC was decided. (Put aside for now whether severance is a thing that Courts do, or just a metaphor that has spun out of control. It's the latter, but that need not detain us here.)

There are any number of ways in which AAPC-style damage control could operate on the assumed-to-be-unconstitutional combination known as the Texas Heartbeat Act. For example, I haven't studied Texas law enough to know whether something like this would work, but presumably there is some pre-existing enforcement authority in some of the named defendants that would enable their enforcement of the Texas Heartbeat Act's criminal-law-like prohibition against performing certain abortions but for the provision that specifically singles out certain officials and says that they cannot enforce the THA. If that's right, then judicially disregarding that provision alone would be enough for the private suit to go forward, which is the only issue before the Court in the current posture. 

I haven't done the work to know if something like this might be a path the Court could take. But once one recognizes the possibility of AAPC-style damage control in situations of unconstitutional combinations, then one can appreciate one reason why a quicker answer may not have been forthcoming from the Court. It could also be, of course, that the opening assumption of this post is wrong; maybe there are not at least five firm votes for unconstitutionality. For now, we'll have to wait, see, and occasionally speculate.

November 19, 2021 | Permalink

Monday, November 15, 2021

A Reasonable Hope for Dobbs: Negate Roe's Negation of Prenatal Personhood

I was privileged over the last few days to participate in the 21st annual Fall Conference of the deNicola Center for Ethics and Culture at Notre Dame. What a gift to the Church and the Academy this Center and its activities are. I hope many people can watch the talks and discussions as they appear on the deNicola Center's YouTube channel. (If you watch just one panel, it should be "The Dignity of the Sexed Body: Asymmetry, Equality, and Real Reproductive Justice," featuring Erika Bachiochi, Abigail Favale, and Leah Libresco Sargeant. If a whole panel is too much and you want to see just one (non-plenary) talk, then ub this Year of St. Joseph, you have to go with Elizabeth Lev's visually and spiritually inspiring talk on depictions of St. Joseph in art as part of "The Dignity of Saints" presentation.)

The original title of my presentation was "Unwinding the Anti-Magisterium in the Supreme Court's Abortion Opinions." This promised too much for a talk that was to be between 18 and 20 minutes long, so I changed it to "Unwinding the Anti-Magisterium in Dobbs v. Jackson's Women's Health." (I was also pleased that this narrowed version clocked in at 18:59.) 

Because this presentation was on the undercard, no video recording of it will appear on YouTube. An audio recording (of my talk only, not of others on my panel or of the Q&A) is available here . A .pdf version of my slides is available here.

The talk is pitched to the audience of people attending a conference entitled "I Have Called You by Name: Human Dignity in a Secular World." Although discussing the law (accurately, I hope), it is not directed toward an audience of legal specialists. 

The bottom line of my reasonable hope for Dobbs is on slide 30/32: "Even if the Court does not affirm
prenatal personhood, it should negate Roe’s negation of prenatal personhood." 

The only thing I'd add at this point is that second point on slide 31/32 about nonjusticiability as an antidote to the abortion (anti-)magisterium is misleading. It says "Take the stance that the Court lacks judicially manageable standards to replace its perception of personhood with Congress’s or state governments’ perceptions." What I meant to say, instead, is that the Court should recognize that it lacks judicially manageable standards to put in place its perception of personhood in preference to Congress's or state governments' perceptions (with the implicit qualifier that these perceptions need to be reasonable in order to be acceptable).

November 15, 2021 in Walsh, Kevin | Permalink

Friday, November 12, 2021

Professor Rick Garnett to Speak at University of Chicago Law School on November 16th

Students for Religious Liberty, St. Thomas More Society, Christian Legal Society, Jewish Law Students Association present:

LAST RIGHTS, Religious Liberty, the Death Penalty, and Ramirez v. Collier 

Feat. Professor Rick Garnett

Nov. 16, 2021 

12:15 P.M. 

Room I 

November 12, 2021 | Permalink

Wednesday, November 3, 2021

2022 Notre Dame Church, State & Society Writing Competition


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


Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.


Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted. Papers already published, or in the process of being published, are not eligible.


Submissions: Papers must be submitted by March 1st, 2022. Winners will be announced on or before May 6th, 2022. Papers must be e-mailed in .pdf form. Each submission must include a cover letter (that summarizes the paper and states the paper word count) and resume in a separate .pdf document. Papers should not include author names in order to ensure that submissions to judges can be scored with anonymity. Emailed submissions should be sent with “2022 Writing Competition” in the subject line, and addressed to: [email protected]


Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.

Download 2021-2022 CSS Writing Contest (1)

November 3, 2021 | Permalink

Monday, November 1, 2021

David Link and the meaning of vocation

Growing up, I thought my career choice – a singular choice, made only once – was a direct and public reflection of my relationship with God.  If my faith in God was strong enough, it meant I should probably be a missionary or a pastor.  One problem: I knew enough missionaries and pastors to know that I didn’t want to be either one.  I contemplated attending graduate school for theology rather than going to law school, as if that might be closer to a true “Christian” vocation.  When I moved from legal practice into the academy, I started writing about the intersection of law and religion.  Not quite ministry, but close enough to count in God’s eyes? 

Obviously, it’s taken a while for me to understand that vocation is more about becoming the person God has called me to be, less about my career choice.  Or as Thomas Merton put it, “discovering vocation does not mean scrambling toward some prize just beyond my reach but accepting the treasure of true self I already possess.”

Which brings me to David Link, who died on Thursday.  He was a tax attorney who left private practice to teach, eventually serving as Notre Dame Law School’s dean for nearly 25 years.  He left Notre Dame to become the founding dean of St. Thomas Law, helping launch the school.  Soon after Dave left St. Thomas, his wife Barbara passed away, and he went to seminary, becoming a Catholic priest at age 71.  Fr. Link devoted the rest of his days to prison ministry, working primarily at a maximum-security prison in which most of the inmates were convicted of murder.

I wonder, if we could ask David Link to describe his vocation while he was sitting in his office at Winston & Strawn parsing new tax regulations, then pose the same question to Dean Link as he welcomed the inaugural JD class to St. Thomas, and to Fr. Link as he counseled an inmate serving a life sentence, would his answers have changed?  Did his vocation shift at each new step of his career, or did his vocation actually remain constant?  His perception of the ways his gifts could best help meet the world’s needs evolved over fifty years, no doubt.  But his defining vocation was not tax attorney, law school dean, or even Catholic priest.  His defining vocation, I suspect, was his heeding of the prophet Micah’s call “to act justly and to love mercy and to walk humbly with your God.”

As we observe All Saints' Day, I encourage us to reflect on vocation, both in our own lives and in the lives of our students.  What difference might it make if we view vocation less as a one-time career choice and more as a commitment to being the person God has created us to be?

Rest in peace, David Link – may your memory be a blessing.

November 1, 2021 in Vischer, Rob | Permalink

Friday, October 29, 2021

The Right to Religious Freedom: Extension or Erosion?

Interesting chapter by Rafael Domingo.


In this chapter, I argue for religious freedom as a first-class right, and I criticize the views of some distinguished scholars who react against traditional conceptions of religious freedom and deny the right to any special protection of religion by legal systems. I focus primarily on Ronald Dworkin and Brian Leiter’s views and arguments. I conclude that Dworkin’s approach to religion belittles the idea of God. Yet conviction about the existence of God and the holding of profound ethical and moral convictions are not so independent as Dworkin argues. Leiter’s approach belittles the idea of religion, which cannot be reduced to a matter of commands, a lack of evidence, and consolation. I argue why religion is more than a matter of conscience and a personal decision about ultimate concerns and questions. Religion cannot be reduced to moral conscience, let alone ethical independence in foundational matters. An increasingly globalized and pluralistic society demands a more comprehensive approach that fully protects all religions and creeds.


October 29, 2021 | Permalink

Friday, October 22, 2021

The Popes as Guardians of Human Dignity with Cardinal Gerhard Müller

Cardinal Gerhard Müller will speak at Notre Dame on Wednesday, October 27th. 

Carey Auditorium, Hesburgh Library
4-5:30 p.m. | Wednesday, October 27

Cardinal Gerhard Müller is the former Prefect of the Congregation of the Doctrine of the Faith. He has written more than 600 works on topics of theology and the Catholic Church and is the editor of the 16-volume The Complete Works of Joseph Ratzinger: Pope Benedict XVI.

He will speak on the Pope’s role in protecting human dignity as part of his tour promoting his new book, The Pope: His Mission and His Task, and copies of his book will be available for purchase at the event.

October 22, 2021 | Permalink

Tuesday, October 12, 2021

Oral argument yesterday a glimpse of Supreme Court's post-Roe abortion-law docket

The Supreme Court heard oral argument yesterday in Cameron v. EMW Women's Surgical Center. The case involves the constitutionality of a Kentucky law regulating abortion. But abortion barely came up at all. That's because the question presented has nothing to do with the constitutionality of the Kentucky law at issue. The question, instead, is about the ability of Kentucky's Attorney General to intervene and defend the law further after a different state official declined to press the defense any further. 

One way to think about yesterday's argument is as providing a glimpse of what the Supreme Court's post-Roe abortion-law docket might look like.

If the Supreme Court reverses the Roe/Casey regime, the Court will still hear cases that involve abortion laws. But those cases will not be about first-order questions of personal autonomy. They will instead be about the scope of Congress's power to regulate commerce, choice of law questions, and so on. They will implicate trans-substantive bodies of doctrine rather than adding to the accumulation of abortion-specific caselaw.


October 12, 2021 | Permalink

Sunday, October 10, 2021

Indigenous Peoples' Day

I don’t have family roots in Minnesota, with one exception: during the 1940s, my grandfather was the manager of the Firestone store at 1107 Harmon Place in Minneapolis – i.e., the future site of the law school where I serve as dean. That very modest historical connection to the land where I work today can be a source of encouragement during hard days. Whatever I’m dealing with, it’s helpful to imagine the perseverance of my grandfather, plucked from Ohio to a strange new city and tasked with selling tires in the face of wartime rubber rationing.
Of course, in the long history of human beings living and working here, my roots through that Firestone shop are very shallow. This land was not a significant part of my story, or of my family’s story. Our language, religious practices, and way of life stayed intact when my grandfather was transferred to another store in another state.
Tomorrow is Indigenous Peoples’ Day, when we celebrate and reflect on the many Indigenous communities and cultures that have shaped our nation. One way we do that is by caring about – and being honest about – our history, including the history of the land where we live and work today. St. Thomas Law is on what was Dakota land until that land was ceded to the United States through the treaty of 1851. That treaty called for the payment to the Dakota of what amounted to 12 cents per acre. Treaty negotiations were driven by the American Fur Company, which had been providing supplies to the Dakota in exchange for fur. As the lands were overhunted and European demand for fur dropped, the system collapsed and the Dakota were left owing huge debts to American Fur. Debt payments (inflated by the company) were taken out of the land proceeds before anything was given to the tribe. Essentially, the fur traders were bailed out by the U.S. government, the U.S. government got 24 million acres of land, and the Dakota got almost nothing. This was all made possible by the strategist behind the arrangements: Henry Sibley, who was a partner and agent of the American Fur Company, the future governor of Minnesota, and a lawyer. We need to know these stories.
Like just about everything else in our country today, the choice to celebrate Indigenous Peoples’ Day rather than Columbus Day is itself a political minefield. It’s worth pointing out, though, that even the older holiday’s creation emerges from injustice. As Italian immigration to the United States increased in the late 1800s, so did persecution of the new arrivals. In 1891, anti-Italian sentiment boiled over in New Orleans, and a mob broke into the jail, where they beat, shot, and hanged 11 Italian-American prisoners. The Italian government called for reparations and cut off diplomatic relations. In an attempt to appease Italy, in 1892 President Benjamin Harrison proclaimed a “Discovery Day,” recognizing Columbus as “the pioneer of progress and enlightenment.”

We are stewards of the rule of law, and that means we also have to be honest and unflinching students of our history.  Under the gaze of previous generations, what does it mean – what should it mean – to be called to help form the next generation of lawyers and leaders?  Are we being faithful to the witness of those who came before us?

October 10, 2021 in Vischer, Rob | Permalink

Saturday, October 9, 2021

Podcast on Religious Exemption From the New York COVID Vaccine Mandate

Mark Movsesian and I discuss a set of challenges on the basis of religious scruple to the recently imposed New York COVID vaccine mandate in this new podcast.

Along the way, we chat about some of New York Governor Kathleen Hochul's recent remarks that "[t]here are not legitimate religious exemptions because the leaders of all the organized religions have said there's no legitimate reason." Also: "I'm not aware of a sanctioned religious exemption from any organized religion"; and, "In fact, they are encouraging the opposite. Everybody from the pope on down is encouraging people to get vaccinated." As it happens, Mark and I have expressed some sympathy, in different fora and for somewhat different reasons, for this general position as respects religion's legal definition. But on the existing doctrine, it may run into some problems.

October 9, 2021 in DeGirolami, Marc | Permalink