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.

Wednesday, June 27, 2012

The 10th anniversary of a great day at the Court

I know that the world is focused on the upcoming Affordable Care Act decisions, but, ten years ago today, the Supreme Court decided, in an opinion authored by Chief Justice Rehnquist, Zelman v. Simmons-Harris, which upheld the Cleveland school-choice program and made it clear that the First Amendment does not disable governments from meaningful and nondiscriminatory choice-based education reform.  As I contended, ten years ago in Commonweal, Zelman was a great "win" for social justice, religious freedom, and equal opportunity.  For more, see my "The Right Questions about School Choice:  Education, Religious Freedom, and the Common Good" (here). 


June 27, 2012 in Garnett, Rick | Permalink | TrackBack (0)

Tuesday, June 26, 2012

Political Philosophy, by Michael J. White

Oxford University Press has just published the second edition of Political Philosophy: An Historical Introduction by Michael J. White, my friend and former colleague. Jeffrie G. Murphy's praise for the book is worthy of note:  “There are many analytic philosophical books on political philosophy and many historically oriented books on political philosophy. What is uniquely valuable about White’s book is its brilliant combination of both of these approaches.  White is an extremely talented philosopher in the analytic tradition but, unlike most people in that tradition, he also possesses strong scholarly expertise in the history of philosophy. Because of this, I cannot think of a better introduction to political philosophy than his new book. It would be a mistake, however, to regard White’s book as simply a textbook, since it is much more than that. Although written in a highly accessible way, it is sophisticated to a degree that will make it a valuable resource even for those who are scholarly specialists in the subject.”   

June 26, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

The Donation of Constantine and la Chiesa dei Santi Quattro Coronati

My colleague Mark Movsesian provides a little background on the "donation," and a fantastic series of medieval frescoes recounting it, in an unimposing little Roman church, Santi Quattro Coronati.

June 26, 2012 in DeGirolami, Marc | Permalink | TrackBack (0)

Lessons regarding conspiracy and the case against Msgr. Lynn

Those interested in the facts about the Commonwealth's conspiracy case against Monsignor Lynn should check this out.  I don't carry a brief for the way certain officials of the Archdiocese of Philadelphia handled priests who did wicked and harmful things to children, not by a long shot.  One should hesitate, however, to carry a brief for a conspiracy of which there now seems to have been stunningly little evidence.  One injustice does not justify another.  Those who harmed children should indeed be punished for what they did, but not for what they might have done but, thank God, didn't do.    

June 26, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

One of Many Lessons of the Lynn Trial

    Last week was quite a week for child abuse cases. As MOJ readers know, I have been periodically blogging about the Monsignor Lynn trial in Philadelphia. After 11 weeks of testimony and 12 days of deliberation, a Philadelphia jury convicted Lynn of one count of child endangerment, and acquitted him of the remaining two counts of conspiracy and child endangerment. (The trial judge previously ruled against prosecutors on another conspiracy charge). Lynn, whose bail was revoked, awaits sentencing. The jury deadlocked on the child abuse charges against Lynn's co-defendant Rev. James Brennan and the District Attorney is considering whether to retry him. The third original defendant, former priest Edward Avery, pled guilty just prior to trial to abusing a child and is serving a jail sentence. Coverage of the verdict and commentary can be found here, here, and here.

    Many commentators and advocates have hailed the verdict as an unprecedented warning to those in bureaucratic positions that they must act to protect children. Indeed, a second important trial is pending in Missouri where Bishop Robert Finn is accused of violating mandatory reporting laws regarding his knowledge of a priest's possession of child pornography. Both cases arguably represent prosecutors' innovative utilization of child abuse laws to hold accountable, not only direct offenders, but those in positions of trust who enable abuse to occur.

    These cases likely will prove to be important in deterring indirect offenders from acting in ways that jeopardize children. Thus, this approach could be a useful tool in the fight against child sexual abuse by sending a clear message that sharp prosecutors and civil lawyers will respond to incidents of child abuse to ensure that innocent children are protected.

    Among the many lessons of these cases, there is at least one lesson for legal educators. Lawyers not only play an important role in responding to victimization; they also can play a critical role in preventing it. Jurors in the Lynn trial heard significant evidence of an institutional culture that was not conducive to protecting children. Such a culture is surely not limited to the Archdioceses of Philadelphia and Kansas City-St. Joseph. One need only consider the same-day conviction of Jerry Sandusky at Pennsylvania State University and the pending cases against Tim Curley and Gary Schultz to see the problem a climate of indifference can cause in any institution.

    Legal educators can take this opportunity to remind our students that lawyers can do more than react to victimization – they can work to prevent it. A young attorney need not seek out a career as a prosecutor to impact important social change. Imagine if in each of these situations there was an attorney present in the institution who was doing more than responding to the abuse of a child, but proactively creating an institutional climate conducive to protecting children. Such a lawyer would be involved in training people at all institutional levels about the realities of child sexual abuse, the strategies to prevent it, and the indicators of unhealthy and high risk situations. This lawyer would recognize the value of an atmosphere where employees feel safe in sharing their concerns and are not fired or accused of ecclesiastical disobedience when they voice alarms. Such a lawyer would contribute to a climate concerned first with child protection and second with protection of anything else. It would be a climate of prevention and protection, not reaction and preservation. It would be a climate consistent with our Catholic teaching that "dignity of the human person is the foundation of a moral vision for society" and, therefore, certainly a solid foundation for any institution.

June 26, 2012 in Leary, Mary G. | Permalink | TrackBack (0)

Monday, June 25, 2012

Religious Freedom and the Nondiscrimination Norm

Here's a paper of mine, "Religious Freedom and the Nondiscrimination Norm", written for a (great) conference last year at the University of Alabama, which was organized by Austin Sarat and Paul Horwitz.

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take
regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business.

When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited powers to do so. To label a decision or action “discrimination” is simply to note that one factor or another was or will be taken into account in the course of a decision; it is to invite, but not at all to answer, the questions whether that decision or action was or would be wrong, and whether the public authority may or should forbid or discourage

The important enterprise of respecting and protecting religious freedom in and through law is closely related, in several ways, to the also-important enterprise of deploying public power to identify, regulate, and discourage wrongful discrimination. It is suggested in this chapter the
rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law. This is because the near-universal, if sometimes unreflective, conviction that “discrimination” is wrong means that assertions of religious freedom are sometimes heard as requests that the political authorities
tolerate a wrong – i.e., “discrimination” – which they would otherwise prohibit, penalize, or discourage. Such requests then raise the question whether it is “worth it” for the authorities to do so – that is, whether doing so would complicate too much the government’s own projects or conflict too glaringly with its values—and so, when they are granted, accommodations are regarded all around as concessions. Sometimes, to be sure, we do and probably should think about
legal rights as protecting, or simply tolerating, a liberty to do even the wrong thing (so long as the wrong thing is not too wrong). We should not forget, though, that a dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong –
sometimes it is, sometimes it isn’t – but because it is inextricably tied to a human right and is, sometimes, beyond political authorities’ legitimate reach.


June 25, 2012 in Garnett, Rick | Permalink | TrackBack (0)

Chaput's speech

A few days ago I provided a snippet of Archbishop Chaput's address on religious freedom. Here is the full thing.

June 25, 2012 in Scaperlanda, Mike | Permalink | TrackBack (0)

Immigration, Preemption, Arizona, and Scalia's dissenting opinion

The Supreme Court has issued its long awaited opinion in Arizona v. United States, in which it found major portions of Arizona's recent immigration law to be preempted by federal immigration law. Justice Scalia's dissent is fascinating for two reasons.  First, citing Vattel and Pufendorf, he seems to argue that Arizona (at least when not acting contracy to federal law) has sovereign powers to exclude rooted in international law. Second, he recognizes that these "17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reasons.  Pufendorf, for example, maintained that states are generally expected to grant 'permanent settlement to strangers who have been driven from their former home..." Page 1, note 1.

While his first point is unlikely to gain much traction among the current court, he second point plants a seed that may bear fruit in the future. Misreading Vattel, Pufendorf, and others, the Supreme Court in the 19th century created what is known in immigration circles as the plenary power doctrine, concluding that Congress (and to some extent the Executive) have almost unbridled power over issues of immigration:  admission, exclusion, and expulsion. This view has carried over into the 20th- and 21st- centuries.  Justice Scalia is the first justice - as far as I can tell - to recognize that even the Law of Nations counciled sovereigns to exercise this "plenary power" prudentially with an eye toward opening boarders as far as possible to those in need. Although it is too early to tell, this footnote might be provide a basis for revisiting the absolutist misreading of the right to exclude.

June 25, 2012 in Scaperlanda, Mike | Permalink | Comments (4) | TrackBack (0)

Photographed Somewhere in Rome

What does this image represent?  Best answer gets the MOJ honorary gold star.

Concilium Oecumenicum

UPDATE: The commenters seem to be on to it.  Gold stars all around.  I will make the next one more challenging.

June 25, 2012 in DeGirolami, Marc | Permalink | Comments (13) | TrackBack (0)

Cert. Denied in Mount Soledad Cross Case

This is a big day for Supreme Court opinions (not the big day, but a big day).  But it's also perhaps worth noting that the Supreme Court has denied certiorari in the Ninth Circuit's Mt. Soledad cross case, Trunk v. City of San Diego

Justice Alito issued a separate statement regarding the denial of cert.  Note that this is not a dissent from the denial of cert., but only a "statement."  In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time.  The reason is the posture of the case.  In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed.  Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out.  Justice Alito wrote:

Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari.  Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.

(footnotes and citations omitted). 

I have mentioned this before, but if you have not read Judge McKeown's Trunk opinion, you'd do yourself a favor by checking it out.  One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method.  Or...just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!

June 25, 2012 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)