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.

Sunday, April 18, 2021

Bearing witness to the pain

Every year at orientation, when we’re explaining to our new law students the importance of disclosing their past arrests and citations, I share the story of when I was arrested for trespassing as a senior in high school. A friend and I had entered an abandoned factory to investigate a story we were working on for the school newspaper. It’s sort of a funny story, and I tell it so students know it is possible to overcome past infractions they are concerned about as they start law school.

There’s another story I don’t share.

A couple of months before my trespassing arrest, my friends and I stopped at a liquor store to buy beer with our fake IDs. As I walked in, a teenager I didn’t know approached me in the parking lot and asked if I would buy alcohol for him too. I agreed, and when I came back out and was handing him what he asked for, a uniformed officer who had been watching the whole time walked up and told us to “stop right there.” I turned and ran to my car, got in, and drove as fast as possible out of the parking lot. The officer had taken down my license plate, so I was picked up later that evening, booked, released, and eventually fined after a court appearance.

There was no question that I had committed a crime – the officer saw me hand liquor to someone who was obviously underage. There was no question that I had failed to comply with the officer’s order – I ran from him after he told me to stop. And still, I was given the chance to sleep in my own bed that night, to grow up and get my head on straight, to go to college and law school, to be certified as having the requisite character and fitness to practice law, to teach hundreds of aspiring attorneys, to marry and have kids, to watch my daughters grow up – in other words, to lead a full life that has been shaped but not defined by my many mistakes.

I share this story now because it is too easy for many of us to disconnect from the pain that surrounds us. Many white Americans – including me – like to build our life narratives in terms that have nothing to do with race. Whether or not you’ve had interactions with law enforcement, race has shaped intergenerational wealth, geographic mobility, access to education, job opportunities, the likelihood of building home equity, exposure to race-based trauma, and myriad other realities of American life. We may not agree on the labels we should attach to the role that race has played in our lives, and we may not agree on the most prudent path forward. But if you live in America – and especially if your parents and grandparents lived in America – race has been part of our stories, whether we’re ready to acknowledge it or not.

This past week has been a difficult one in the Twin Cities. The coming week may be much, much more difficult. As Christians, we are called to bear witness to the pain, even if we do not feel it as deeply or as personally as others do. I encourage us to redouble our commitment to the empathy that is made possible by truthful stories about ourselves and the world. Empathy is essential right now because it is a fertile ground for love, and love, in the words of Martin Luther King Jr., “is the only cement that can hold this broken community together.” We are therefore “commanded to love . . . to restore community, to resist injustice, and to meet the needs of my brothers.”

April 18, 2021 in Vischer, Rob | Permalink

Friday, April 16, 2021

A Public Funding Ban for Private Colleges ‘Born in Bigotry’?

A lawsuit filed in federal district court argues that a provision of the South Carolina state constitution that bars public funds from being used for the "direct benefit" of religious or other private educational institutions should be struck down because it was born out of racist and anti-Catholic animus.

Full story at Inside Higher Ed: https://www.insidehighered.com/news/2021/04/16/south-carolina-privates-sue-over-provision-denying-them-public-funds

April 16, 2021 | Permalink

Wednesday, April 14, 2021


Religious Freedom Institute will co-host an event Thursday, April 15 featuring a conversation between two career-long champions of religious freedom, Dr. Tom Farr, President of RFI, and Ken Starr, former US Solicitor General, about Judge Starr's new book, Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty. The conversion will lead the audience through an understanding of America's rich tradition of religious liberty, discuss current crises threatening that bedrock freedom, and offer practical insights about taking a more active role in advancing the cause of liberty.


April 14, 2021 | Permalink

Tuesday, April 13, 2021

What Can A Just Man Do?

After the tragedy and unrest in Minnesota yesterday, I was driven to contemplate what could be done, what is needed, what could be offered to promote true, lasting peace in my home state?  Justice is desired, truth is required, but beauty might save world.  I aspire to live justly, more justly, and I had to offer something, however meager.  So here goes.

First, an attempt at offering something which may be found beautiful; springtime brings natural beauty, yet weeds will grow.  "The tempo of [reading this poem], ..., should be brisk. It must neither drag nor sound hurried. Serenity combined with energy is required."  Gregorian Chant Volume II, Justine Ward, 1949 (original context: for psalmody).

Distraught by news of violence, anger, and cloudy skies,

What can I do?  What might I offer?  I am not wise.

Pricked by conscience, past things read, and connecting now with old,

My wedding ring cleaned, there, now more cleanly I see the gold:

A true promise of total, free, fruitful, faithful commitment.


Only those who promise to forgive, fed by forgiveness, can long live.

From the unchanging Father, every best gift, in His Mercy, we can give.

Else no hope have they to stay in peace, for we all fall yet fail in love,

And though it stirs us up, the anger of man does not work out the justice of God above.


Shall I let this sleep? Should I give it a slumber, turning back to my work?

Twin topics;  Folding my hands will bring want upon me, and poverty like a man armed.

I'll put my hands back to the plow that pays, after all, we have a baby still with the stork.

Yet for these reasons, the work of public peace must not be left undone, as it is presently quite harmed.


Second, a few Proverbs from the Douay-Rheims (DR) that could be found, here to help me feebly strain to perceive something in this mess that I must call my hometown.

The thoughts of the just are judgments: and the counsels of the wicked are deceitful. (12:5)

The substance of a rich man is the city of his strength: the fear of the poor is their poverty.  The work of the just is unto life: but the fruit of the wicked, unto sin. (10:15-16)

But see here:

The name of the Lord is a strong tower;

the just run to it and are safe.

The wealth of the rich is their strong city;

they fancy it a high wall. (18:10-11, NABRE translation)

Before destruction, the heart of a man is exalted:

and before he be glorified, it is humbled. 

He that answereth before he heareth sheweth himself to be a fool, and worthy of confusion. (DR 18:12-13)

First, I must hear and hunger to humble my heart or I will be laid low and worthy of the responding, wreaking waves of confusion.  After a moment, I summon courage and saunter on, watching my steps as best I can but I choose to walk onward so I trust my footing and strike out, thinking.  It is the just who are safe, though the rich fancy themselves well guarded.  Yet, the name of the Lord does not preclude trouble, but 'only' saves one from utter ruin.  This does bring peace, yes, it does.  But it leaves one humbled.  Splendid; good.  More to be done here than I can accomplish, perhaps the Risen Lord will direct me further.  St. Thomas More, how did you keep focus?  St. Joseph Most Just, pray for us!  Our Lady Our Mother, pray for us humble sinners with work to do, prayers to be said, and good works aplenty.

April 13, 2021 | Permalink

Sunday, April 11, 2021

Catholic legal education in an age of political tribalism

As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another.  We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together. 

I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run.  What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health. 

So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea?  She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends.  When she asks our graduate for advice regarding compliance, how should our graduate respond?  With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing?  Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law?  Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?

This is not just about COVID, of course.  Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps.  Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring.  Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits. 

This is one reason why I believe that legal education is absolutely essential to our nation’s future.  Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation.  And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them.  If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.

We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days.  We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo.  However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.

April 11, 2021 in Vischer, Rob | Permalink

Friday, April 9, 2021

Religious Liberty: Where We Are and Where We’re Going


Religious Liberty: Where We Are and Where We're Going
, the inaugural event in a series entitled Courtrooms to Classrooms, will be a panel discussion featuring the Honorable Matthew J. Kacsmaryk, U.S. District Judge, U.S. District Court for the Northern District of Texas; and James A. Sonne, Law Professor, Stanford Law School, Founding Director, Religious Liberty Clinic at Stanford Law School. Andrew Graham, Senior Fellow at the Religious Freedom Institute, will moderate the discussion, which will focus on the state of religious liberty in the United States, current trends affecting this fundamental right, and how potential legislation and case law may affect America’s First Freedom in the future.


April 9, 2021 | Permalink

Thursday, April 8, 2021

The USNWR rankings and law-school debt

Insert here [       ] all of the usual (and correct) criticisms of the USNWR law-school rankings.   And, insert here [     ] the necessary caveats relating to the fact that the rankings' new incorporation of student-loan-debt matters did not help my own institution.  All that aside, it's far from clear to me why this incorporation makes much sense.  Just two, not-at-all-original concerns, for now:  First, as others have noted, it could create incentives to (all things considered) prefer admitting wealthier students.  And (a more abstract point, I guess), it seems to neglect the likelihood that higher student-debt loads at graduation are related to students' calculations/predictions regarding the value of education, networks, credentials, etc., in which they are investing.  We should care more, it seems to me, about whether those predictions are well-grounded than about the fact of student loans.

On the other hand:  I kind of like the possibilitythat the new metric could disincentivize the practice of using transfer-admissions (and strategically-small first-year classes) as a revenue-enhancing mechanism.  We'll see, I guess . . . 

April 8, 2021 in Garnett, Rick | Permalink

Tuesday, April 6, 2021

Wayne State’s actions “obviously odious to the Constitution”

A federal court just ruled against Wayne State University, finding that it discriminated against InterVarsity Christian Fellowship, a religious student club, when it kicked the group off campus for requiring its leaders to be Christians. As the court stated, at Wayne State, “[s]tudent groups were permitted to restrict leadership based on sex, gender identity, political partisanship, ideology, creed, ethnicity, and even GPA and physical attractiveness.” However, religious groups were not allowed to require that leaders share any of a group’s religious beliefs and at Wayne State, it was a “small group of Christians, who were denied [student organization] benefits because they require their Christian leaders to be . . . Christian.”

Full press release at Becket Law.

April 6, 2021 | Permalink

Monday, March 29, 2021

Christianity, Immigration, and the Religion of Humanity

The humanitarian proposal is hard to refuse, because it postulates that we can achieve justice if everyone simply becomes aware of their essential human likeness. The Christian proposal is hard to accept, because it affirms that all human beings are prisoners of an injustice from which they cannot escape by their own efforts.

Excellent article in Public Discourse. Our Reading Group at ND Law School’s Program on Church, State & Society read Manent last semester and it led to some great conversations.

March 29, 2021 | Permalink

Thursday, March 25, 2021

John Paul II's Contribution to Law

Very interesting paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3774948&dgcid=ejournal_htmlemail_law:religion:ejournal_abstractlink#

This chapter examines John Paul II’s contribution to law as a statesman, world leader, and universal pastor of the Roman Catholic Church. John Paul II’s approach to the law was shaped by the stark realities of having suffered firsthand the injustice of two totalitarian regimes and the cruelties of the Second World War. An ardent defender of human rights, especially the rights to life and religious liberty, John Paul II saw in human dignity and human solidarity the two great levers for advancing the development of legal systems. Lastly, this chapter explores John Paul II’s invaluable role in updating and reforming the canon law of the Catholic Church. He had a singular role in promulgating the Code of Canon Law of 1983, the Code of Canons of the Eastern Churches of 1990, and the Apostolic Constitution Pastor Bonus of 1988 on reforming the Roman Curia. For these and other relevant legal contributions, John Paul II well deserves the title of jurist.

March 25, 2021 | Permalink

Scalia on the best lesson he learned at Georgetown

For this great feast of the Annunciation, two versions of Justice Scalia's oft-told story about the best lesson he learned as an undergraduate at Georgetown:

Perhaps the best lesson I ever learned here at Georgetown occurred during my oral comprehensive examination in my major (history) at the end of my senior year. My history professor was Dr. Wilkinson, a prince of a man. He was the chairman of the three-professor panel that examined me. And I did, if I may say so myself, a smashingly good job. As the time for the examination was almost at hand, Dr. Wilkinson asked me one last question, which seemed to me a softball. Of all the historical events you have studied, he said, which one in your opinion had the most impact upon the world? How could I possibly get this wrong? There was no obviously single correct answer. The only issue was what good answer I should choose. The French Revolution perhaps? Or the Battle of Thermopylae—or of Lepanto? Or the American Revolution? I forget what I picked, because it was all driven out of my mind when Dr. Wilkinson informed me of the right answer—or at least the right answer if I really believed what he and I thought I believed. Of course it was the Incarnation. Point taken. You must keep everything in perspective and not run your spiritual life and your worldly life as though they are two separate operations.

- Scalia, On Faith, "Away from the noise—making retreats" (1998 Georgetown)

Georgetown University was a very Catholic place when I was there. One of the best lessons I learned was in the course of my oral comprehensive exam in my major subject, history, at the end of senior year. I had done pretty darned well during all of the questioning, and at the end my history professor, Dr. Wilkinson, to whom I am ever indebted, asked me one last, seemingly softball question: If I had to pick a single event as the most significant in all the history I had studied, what would it be? I say it was a softball question because there obviously could not be any single correct answer. So I groped for what might be a good one. What should I say? The Battle of Thermopylae? No, the Battle of Lepanto. No, the French Revolution. No, the Grand Convention of 1787. I forget what answer I gave, but it was wrong. The right one, Dr. Wilkinson informed me, was the Incarnation. Well, of course. Point taken, and an unforgettable lesson learned. 

- Scalia, On faith, "Moral Formation--the Character of Higher Catholic Education" (1994, Catholic University).

March 25, 2021 in Walsh, Kevin | Permalink

Wednesday, March 24, 2021


Utah Valley University will livestream what promises to be an excellent First Amendment Conference.



DAY 1 – Tuesday, March 23

9:00 a.m. MDT

Setting the Stage for Religious Liberty & the Supreme Court

Where We Are: The State of Religious Freedom Today – Stephanie Barclay, University of Notre Dame School of Law

A Look at Justice Barrett and the New Supreme Court– Mark Walsh, ABA Journal, SCOTUSblog

10:30 a.m. MDT

Revisiting Employment Division v. Smith After 30 Years

Defending Smith – Bill Marshall, University of North Carolina School of Law

Critiquing Smith & Reviewing RFRA - Alexander Dushku, Kirton McConkie 

 Case Law Developments Since Smith– Adèle Keim, Becket Fund for Religious Liberty

12:30 p.m. MDT

Lessons of Civility from the Supreme Court

Addressing Culture War Issues in a Consensus Building Manner – Dr. Ryan Owens, University of Wisconsin-Madison

DAY 2 – Wednesday, March 24 

9:00 a.m. MDT

Free Exercise Rights from the Perspective of Religious Minorities

Islam – Asma Uddin, Council on Foreign Relations

Native American Religions - Mona Polacca

Judaism – Dr. Michael Helfand, Pepperdine Law School

11:00 a.m. MDT

Looking to the Future

Religious Freedom Issues on the Horizon for the Court – Dr. Phillip Muñoz, University of Notre Dame

Moving Forward with Civility – Judge Thomas Griffith (Ret.), U.S. Court of Appeals for the District of Columbia

March 24, 2021 | Permalink

Monday, March 22, 2021

Debate on "Must churches be democratic?" with Chiara Cordelli and Richard Garnett

Friday, March 19, 2021

St. Augustine on the two loves and their corresponding stances toward social affairs

In his introductory text, Augustine's Quest of Wisdom, Vernon Bourke leads off Chapter XIII ("God and Society") with this long quotation from the twelfth book of Augustine's Literal Commentary on Genesis:

These are the two loves: the first is holy, the second foul; the first is social, the second selfish; the first consults the common welfare for the sake of a celestial society; the second grasps at a selfish control of social affairs for the sake of arrogant domination; the first is submissive to God, the second tries to rival God; the first is quiet, the second restless; the first is peaceful, the second trouble-making; the first prefers truth to the praises of those who are in error, the second is greedy for praise however it may be obtained; the first is friendly, the second envious; the first desires for its neighbor what it wishes for itself, the second desires to subjugate its neighbor; the first rules its neighbor for the good of the neighbor, the second for its own advantage; and (these two loves) make a distinction among the angels, the first love belongs to the good angels, the second to the bad angels; and they also separate the two "cities" founded among the race of men, under the wonderful and ineffable Providence of God, administering and ordering all things which have been created; the first (city) is that of the just, the second (city) is that of the wicked. And though they are now, during the course of time, intermingled, they shall be divided at the last judgment; the first, being joined by the good angels under its King, shall attain eternal life; the second, in union with the bad angels under its king, shall be sent into eternal fire. Perhaps, we shall treat, God willing, of these two cities, more fully in another place. 

I don't know about you, reader, but I'm not sure I can act well from the first kind of love on Twitter. Too often and too easily it seems so much I see externally and experience internally is foul, selfish, aiming at control for the sake of domination, rivaling God, restless, trouble-making, greedy for praise, envious, aiming at subjugation of neighbor and self-advantage.

As today's feast day comes to an end, let us pause to bring to mind and treasure the silence of St. Joseph.

March 19, 2021 in Walsh, Kevin | Permalink

Thursday, March 18, 2021

The Venice Commission and Current Challenges of Constitutionalism in Europe


About the Lecture

The European Commission for Democracy through Law (commonly known as the "Venice Commission") is the Council of Europe's advisory body, composed of independent experts, on issues of constitutional law and politics throughout its member states and beyond. As such it has been actively involved in many of the most notable recent controversies regarding constitutionalism, democracy, and the rule of law in places such as Poland and Hungary, Ukraine and Armenia, Turkey and the Balkans. In this talk, Paolo Carozza, currently the U.S. member of the Venice Commission, will describe the Venice Commission's engagement with these issues and provide an assessment, through the lens of the Venice Commission's work, of some of the principal current challenges to the future of democratic constitutionalism in Europe, and of the role of transnational institutions in addressing these challenges.

About the Speaker

Paolo Carozza is the director of the Kellogg Institute for International Studies and professor of law and concurrent professor of political science at the University of Notre Dame. With expertise in comparative constitutional law, human rights, law and development, and international law, he focuses his research on Latin America, Western Europe, and international themes more broadly.

His current research revolves around the relationships between law, human rights, education, and integral human development. Formerly the director of Notre Dame’s Center for Civil and Human Rights, he directed its doctoral program in international human rights law for a decade. Carozza is also a fellow of the Kroc Institute for International Peace Studies, the Nanovic Institute for European Studies, the Liu Institute for Asia and Asian Studies, and the Institute for Educational Initiatives.

March 18, 2021 | Permalink

Wednesday, March 17, 2021

Upcoming Discussion/Debate on Female Poverty, Abortion, Equality & Autonomy

On Saturday, March 27th, MOJer Elizabeth Schiltz and I are participating in a discussion/debate on female poverty, abortion, equality and autonomy with renowned legal scholar Robin West (Georgetown Law) and brilliant philosopher Eva Feder Kittay (Stony Brook). Learn more and register here. Come one, come all! 



March 17, 2021 in Bachiochi, Erika | Permalink

Tuesday, March 16, 2021

ND Law's Religious Liberty Clinic is hiring a Staff Attorney and Legal Fellow.

ND Law's Religious Liberty Clinic is hiring a Staff Attorney and Legal Fellow.

Staff Attorney – jobs.nd.edu/postings/20421

Legal Fellow - https://jobs.nd.edu/postings/20420

The new clinic aims to promote religious freedom for people of all faiths.

March 16, 2021 | Permalink

Monday, March 15, 2021

"Joe Biden and Catholicism in U.S. Politics"

The Berkley Center at Georgetown has posted a collection of short essays on the subject of "Joe Biden and Catholicism in U.S. Politics."  In my view, the authors (as a general matter) overstate the consonance between (a) President Biden's stated views and (b) the policies the Biden administration is likely to pursue with (c) plausible operationalizations of Catholic proposals and social teachings.  Among other things, there is in the essays a -- for me -- disappointing tendency to equate present-day public-sector unionism with the Church's longstanding emphasis on the dignity of work and the rights of workers.  And, the significance of Biden's and his administration's rejection of the Church's teachings -- that is, the truth -- about the rights and dignity of unborn children is downplayed.  (In fairness, I should note that I was invited to contribute one of the essays, and failed (multiple times!) to meet my deadline!)

In any event, check out the collection and, MOJ-ers, please weigh in with your thoughts on the topic!

March 15, 2021 in Garnett, Rick | Permalink

Friday, March 12, 2021

Amicus Brief Supporting Cert Challenging Religious Exclusion from Tuition Benefits

Our Religious Liberty Appellate Clinic at St. Thomas, joined by Prof. Doug Laycock and the Christian Legal Society, has filed an amicus brief supporting cert in Carson v. Makin, a case challenging Maine's exclusion of students at K-12 religious schools from tuition benefits allowed to students if they attend secular private schools. The program allows students in rural areas without a public school to receive tuition benefits to attend a secular private school but not a "sectarian" one. The First Circuit had upheld that exclusion on the ground that while the Supreme Court has forbidden exclusion of schools based simply on their religious affiliation ("status"), this exclusion was based on the fact that tuition funds would be used for religious teaching--a distinction reserved by the Court in its previous cases, Trinity Lutheran and Espinoza.

Here are a couple of bits from our summary of argument: 

[T]he status-use distinction collapses in the context of religiously grounded K-12 education. Religious schools teach the same secular subjects as other schools; in providing benefits assisting the teaching of these subjects, the state cannot discriminate on the basis that some schools also teach religion. To teach religion is what it means to be a religious school.... Some religious schools teach an essentially secular curriculum plus a religion course or chapel services. Other schools integrate religion into their secular subjects. These schools—and families who use them—do so because their religious identity permeates education. Whether called “belief or status” or “use,” “[i]t is free exercise either way” (Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in part)), and the state presumptively cannot discriminate against it.....
              II. Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Although cert is always an uphill  climb, this case has a decent chance, I think, because the First Circuit's decision is such a blatant evasion of the Court's ruling in Espinoza.

St. Thomas 3L student Carolyn McDonnell participated in drafting the brief.

(See also Jon's post on the case and the ND clinic's amicus brief.)

March 12, 2021 in Berg, Thomas , Current Affairs , Religion | Permalink

ND Law's Religious Liberty Initiative files amicus brief in support of Maine families in school choice case

Notre Dame Law School’s Religious Liberty Initiative filed an amicus brief in the U.S. Supreme Court yesterday (March 11), representing the Council for Islamic Schools in North America, Partnership for Inner-City Education, and Union of Orthodox Jewish Congregations of America. The case is an important parental choice case, Carson et al v. Makin, that seeks to reaffirm that the First Amendment’s Free Exercise Clause precludes discrimination against faith-based schools. In the case, three Maine families are challenging Maine’s exclusion of religious school options from the state’s school choice program. The program provides tuition support for eligible parents to send their children to private secular schools, but denies that same support to other families who chose religious schools for their children.

Full article here.

March 12, 2021 | Permalink

Wednesday, March 10, 2021

Panel Discussion - Launch of the Academic Freedom Alliance

Panel Discussion - Launch of the Academic Freedom Alliance
Q&A regarding the launch of the Academic Freedom Alliance (AFA). 

The panel will feature:

Keith Whittington -- Chair of the AFA's Academic Committee, Professor of Politics at Princeton University.

Jeannie Suk Gersen -- Member of the AFA's Legal Advisory Council, Professor of Law at Harvard Law School.

Ilana Redstone -- Member of the AFA, Associate Professor of Sociology at the University of Illinois at Urbana-Champaign.

Lucas Morel -- Member of the AFA's Academic Committee, Professor of Politics and Head of the Politics Department at Washington and Lee University.

Hosted by:

Brandice Canes-Wrone -- Donald E. Stokes Professor of Public and International Affairs, Professor of Politics, Princeton University.

Mar 11, 2021 03:00 PM Eastern Time (US and Canada)

March 10, 2021 | Permalink

Monday, March 8, 2021

Webinar on "Educational Freedom in the Age of COVID"

The McCullen Center at Villanova Law will be hosting a webinar this Wednesday, March 10 from 4:30pm-5:30pm on education policy in the wake of COVID with experts on educational pluralism, charter schools, and school choice programs. Details below. The event is open to the public and registration is available here.

One of the unmistakable challenges of the COVID-19 pandemic has been its effect on K-12 education. As policymakers, school boards and administrators continue to develop new strategies for delivering education amid a pandemic, it is a key moment to consider long-term, sustainable improvements to the traditional public education system in the United States. This webinar will discuss approaches to education policy, drawing upon the expertise of the panelists on educational pluralism, charter schools and school choice programs.  

Join us for this discussion on educational freedom, featuring panelists:

  • Ashley Rogers Berner, Director of the Johns Hopkins Institute for Education Policy and Associate Professor at the Johns Hopkins School of Education
  • Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law at Notre Dame Law School
  • Charles Mitchell, President & CEO of the Commonwealth Foundation
  • Moderated by Michael Moreland, University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University

This lecture is approved by the Pennsylvania Continuing Legal Education Board for 1 Substantive Distance CLE credit. Please note registration is required. Attendees will receive an email from Eventbrite with the Zoom link on the day of the event.

March 8, 2021 in Moreland, Michael | Permalink

Saturday, March 6, 2021

On Mill's Influence on Moral Disagreement in Constitutional Law

I have this review at the Liberty Fund Law and Liberty site of Professor John Lawrence Hill’s book, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court (2020). A bit from the end:

What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.

Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.

Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”

A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.

March 6, 2021 in DeGirolami, Marc | Permalink

Friday, March 5, 2021

Thinking clearly about "cancel culture"

I continue to be concerned by our growing tendency to weaponize shorthand expressions for complicated ideas in ways that shed more heat than light. “Cancel culture” is in the news everywhere one turns, and it is being deployed in ways that are both too broad and too narrow: too broad to the extent the term is applied whenever someone experiences consequences for their actions (even self-imposed consequences, as the brouhaha over Seuss Enterprises' decision to stop publishing six of the author's books reflects); too narrow to the extent that the term tends to be applied to the opposing political tribe, not our own. Before reflexively shouting “cancel culture,” let’s ask ourselves three questions:
First, what consequences have been imposed against the person deemed problematic? Has a social media post been criticized by others who find it offensive? That’s criticism, not cancellation. Has a person been disinvited from speaking at a conference or representing an organization based on something they have written or said? That may simply be enforcement of the boundaries surrounding an organization’s identity and values, not cancellation. (And yes, it’s problematic for a newspaper to stake out an identity that precludes the expression of controversial ideas.) Has a company been subjected to calls for a grass-roots boycott by those who find their practices or products offensive? That’s accountability in the marketplace of ideas, not cancellation. Has a company or person been effectively precluded from participating in the marketplace by those who control access to the marketplace? Now we’re getting close to cancellation, but we have to answer another question . . . .
Second, who is imposing the consequences? One genius of American pluralism is that people can live out their beliefs by joining together with others to support a particular way of life or moral perspective. Usually this happens through voluntary associations (churches, clubs, charities). But this can also happen through for-profit companies. If the mom-and-pop pharmacy down the street believes that the morning-after pill acts as an abortifacient and so declines to carry it, customers may choose them because of that stance, or customers may avoid doing business there because of that stance. No one would accuse the pharmacy of “cancelling” the big pharmaceutical company that makes the drug. As long as there is a functioning marketplace with viable options, we should applaud the diversity of moral claims reflected in our various associations.
But what if Amazon decides to stop selling a controversial book? Amazon – like other Big Tech companies – doesn’t just participate in the market; in a real sense, they function as gatekeepers to the market. When those gatekeepers act to remove certain people or ideas from circulation, we should be concerned. (That doesn’t mean it should never happen – e.g., I don’t think Amazon should sell a do-it-yourself kit for building a dirty bomb at home.) In my view, the power of Big Tech is what makes today’s “cancel culture” debates relevant. Many of the debates today are not really new at all, which leads to the last question . . . .
Third, am I tempted to describe as “cancel culture” something that has been happening for many years? Many debates about cancel culture today involve the use of racial, ethnic, or homophobic terms – the N-word most prominently. What’s changed, though, is the words that bring consequences, not our willingness to impose consequences for someone’s choice of words. There was a longstanding list of words that served as red lines not to be crossed (as George Carlin memorably explained), the F-word chief among them. In past eras, you could’ve lost your job, your reputation, and your social standing by uttering obscenities. In a way, we’ve traded the N-word for the F-word as the line not to be crossed, and I think that’s a healthy trade given each word’s history. The notion that words (or images) bring social consequences is not new.
Our social norms are changing. Maybe you disagree with those changes – if so, I suggest focusing your arguments on the substance of those changes and why you believe they are detrimental to society. Or maybe you think people shouldn’t experience consequences for the ideas they express – if so, I think your position would actually weaken the rough-and-tumble marketplace of ideas in our country, and that would be a shame. Or maybe you fear that certain arguments or beliefs are being removed from the marketplace, not through the free exchange of ideas, but through the top-down imposition of contested moral norms. If so, I share your concern, but the answer is not to issue blanket condemnation of the “cancel culture” bogeyman – it’s to take on an even more complicated topic: what should we do about Big Tech? (And no, I don’t know the answer to that one.)

March 5, 2021 in Vischer, Rob | Permalink

Thursday, March 4, 2021

A Religious Minority Enslaved: Addressing the Complicity of U.S. Companies in Uyghur Forced Labor

Mar 10, 2021 10:30 AM Eastern


Please join the U.S. Commission on International Religious Freedom (USCIRF) for a virtual hearing about the ways in which U.S. companies and other entities facilitate the persecution of Uyghurs and other Turkic Muslims in China through forced labor and other practices that undermine international human rights standards in that country.

Since 2017, the Chinese government has detained millions of Uyghurs and other Turkic Muslims in internment camps across the Uyghur region, also known as Xinjiang. As part of its repression of these Muslim minorities, Chinese authorities have subjected them to forced labor in these camps, as well as in prisons, factories, and industrial parks. U.S. companies with supply chains in China—particularly those in the apparel, footwear, and other related industries—are inevitably entangled in Uyghur forced labor and therefore must take steps urgently to address this growing problem. This issue has become especially acute following the U.S. government’s formal determination of the atrocities in Xinjiang as “genocide.”

Witnesses will discuss the magnitude and complexity of the issues surrounding Uyghur forced labor and provide policy recommendations to the U.S. government.

Opening Remarks
• Gayle Manchin, Chair, USCIRF
• Gary Bauer, Commissioner, USCIRF
• Nury Turkel, Commissioner, USCIRF

• Scott Nova, Executive Director, Worker Rights Consortium
• Adrian Zenz, Senior Fellow in China Studies, Victims of Communism Memorial Foundation
• Olivia Enos, Senior Policy Analyst, Asian Studies Center, The Heritage Foundation

March 4, 2021 | Permalink