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 26, 2013

Windsor & Perry

It's interesting how, in late June, most bloggers and most of my Facebook friends become experts in Constitutional Law!  In any event, like many MOJ-ers I'm sure, I'm reading and thinking about today's SSM cases.  I tend, like Chief Justice Roberts, to be something of a hawk on standing, and so I'm bothered -- at least for now -- by what strikes me as the awkward juxtaposition of the "jurisdiction in Windsor but no standing in Perry" result.  But, I assume that Catholic legal theory has little to say about what ought to be the bounds of the Court's jurisdiction so I'll leave all that alone.

Reading Justice Kennedy's opinion -- which strikes me as a mixture of a "federalism" argument and a Romer v. Evans "no amimus" argument -- it strikes me that the language and rhetoric will be very helpful to those who are arguing that the Constitution, political morality, and decency require the equal treatment and legal recognition of same-sex marriages.  His claim that the opinion is limited in its application to those same-sex marriages that have already been recognized by state law does not strike me as likely to have much impact. If what Justice Kennedy says is correct, then it seems to me that it has to follow, in the next case and in future legislative debates, that those states -- and those religious communities -- that reject the revisionist approach to marriage are appropriately regarded as backward and bigoted, and not to be respected or accommodated.  We'll see.

June 26, 2013 in Garnett, Rick | Permalink | Comments (24)

Notre Dame's Prof. Carter Snead to headline National Right to Life Convention

My friend and colleague, Prof. Carter Snead, the Director of the Notre Dame Center for Ethics and Culture, will keynote the upcoming 43rd Annual National Right to Life Convention.  More details are available here.

June 26, 2013 in Garnett, Rick | Permalink | Comments (1)

Children, parents, families & tribes

I am inclined that it says something -- and not something good -- about the state of things that on what appears to be the last day of the Supreme Court's 2012 Term -- in which the Justices decided dozens of cases, most of which presented technical legal questions and most of which by 9-0, 8-1, or 7-2 votes -- the whole world is watching to see whether or not the Justices will announce -- whether Justice Kennedy will announce? -- a definitive answer to the question whether states must include same-sex unions in their legal definitions of "marriage." 

In any event, yesterday, in another "family law" case, the Court issued a ruling involving the Indian Child Welfare Act captioned (not very helpfully) "Adoptive Coule v. Baby Girl."  For more on the case, go here.  The case involves what I think are really difficult, even painful questions.  I'm not sure how they should be answered.  (Remember the Elian Gonzalez drama?)  Here is a bit, from the end of Justice Scalia's dissent:

While I am at it, I will add one thought. The Court’sopinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring achild into the world to raise that child. We do not inquirewhether leaving a child with his parents is "in the best interest of the child." It sometimes is not; he would be

better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

Of course, there might be a reason in "policy" to "dilute" that protection, namely, that the chilld spent the first several years of her life with her parents and family.  And, so, the case is hard.  Thoughts?

June 26, 2013 in Garnett, Rick | Permalink | Comments (6)

Monday, June 24, 2013

Court grants cert. in abortion-protest case

Although it has not been "lost" amid the commentary about the Court and affirmative action, the Court's decision to grant review in McCullen v. Coakley -- a case involving restrictions on pro-life speech around facilities that provide abortions -- is a potential big deal.  Here's a run-down on the case by the superhuman folks at Scotusblog, and here's a link to the amicus curiae brief that was filed on behalf of me and several other constitutional-law scholars urging the Court to take the case.

June 24, 2013 in Garnett, Rick | Permalink | Comments (3)

Professor Cathleen Kaveny Wins Catholic Press Award

June 24, 2013 | By: Kyle Fitzenreiter


Professor M. Cathleen Kaveny’s newest book, Law’s Virtues: Fostering Autonomy and Solidarity in American Society (Georgetown University Press) has won a 2013 Catholic Press Award (First Place) in the category of Faithful Citizenship, which includes books covering contemporary political issues and the formation of conscience.

In announcing the award, the Catholic Press Association of the United States and Canada noted that:

“Law’s Virtues is a lucid, timely analysis of the role of law in a complex, multi-dimensional democratic society, and law’s potential for being a “teacher of virtue.” Thoroughly researched and compellingly argued, this volume is expansive, timely, and readable. The author addresses many fraught political/moral issues and is replete with illuminating distinctions and practical wisdom.”

Professor Kaveny teaches contract law to first-year law students at the Notre Dame Law School and offers a number of seminars that explore the relationship between theology, philosophy, and law. She also teaches in the Department of Theology.

A video of the Berkley Center for Religion, Peace, and World Affairs seminar on the book is available at Georgetown University’s website.

A podcast of a discussion about the book that was hosted by the religion, policy and politics project at Brookings is available at Brookings Institution’s website.

June 24, 2013 in Perry, Michael | Permalink | Comments (2)

Congrats to Bill Galston

William Galston is a really thoughtful, amiable, and independent-thinking guy, and so I think it's great news that he has received the 2013 American Religious Freedom Award from the Ethics and Public Policy Center.  Congratulations!

June 24, 2013 in Garnett, Rick | Permalink | Comments (0)

Religious freedom is not a 'second-class right'

Speaking of Mary Ann Glendon . . . here is her recent Washington Post op-ed, "Religious freedom is not a 'second-class right'".  A bit:

Instead of fostering discord in the body politic or attempting to make everyone think in lockstep, our policy makers would do well to be more respectful of the American tradition of pluralism. At the most fundamental level, those wielding governmental power must recognize that disagreement is not discrimination. Disagreement is an essential part of any democratic system. Conflicting ideas and diverging worldviews are signs of a healthy society.


June 24, 2013 in Garnett, Rick | Permalink | Comments (8)

Prof. Mary Ann Glendon and the Structure of Religious Freedom

As I mentioned in an earlier post, I was recently blessed with the chance to participate in a conference celebrating the work of Prof. Mary Ann Glendon.  The event brought together a diverse range of fascinating scholars, and was sponsored by the Notre Dame Program on Church, State, and Society. 

The participants were asked to contribute, for discussion purposes, a very short reflection-paper on an aspect, theme, or dimension of Glendon's work.  My own effort is available here:  Download Glendon paper.  Here's the first paragraph:

In 1991, Mary Ann Glendon and Raul Yanes published in the Michigan Law
an article called “Structural Free Exercise.”[1]  This article – which I read as a law student in the early 1990s and to which I have returned many times – was and still is among the most insightful explorations and explanations of the freedom of religion that is protected by the First Amendment to the Constitution of the United States.  The problem Glendon and
Yanes identified -- namely, that an excessively expansive (and ahistorical)
understanding of the “establishment” of religion and an unduly narrow
understanding of religious “exercise” combine to compress and constrict the
“freedom of religion” – was and still is real and pressing.  And their response – that is, the claim that a “holistic, structural approach to the text is necessary [for] a workable,
coherent, church-state jurisprudence for our pluralistic, liberal, democratic
society”[2] – was and still is compelling.  I have, in my own work, attempted to develop and elaborate upon it.[3]  And, at least in some respects, it appears
that the Supreme Court of the United States might be coming around, too.[4]

[1] Mary Ann Glendon &
Raul F. Yanes, Structural Free Exercise, 90
Mich. L. Rev. 477 (1991).

[2] Id. at 478.

See, e.g., Richard W. Garnett,
“Religious Liberty, Church Autonomy, and the Structure of Freedom,” in J.
Witte, Jr. & F. Alexander, eds., Christianity and Human Rights:  An Introduction 226 (2010).

[4] Hosanna-Tabor Evangelical
Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S.
___ (2012).

June 24, 2013 in Garnett, Rick | Permalink | Comments (0)

Back from Rome . . . and Happy St. Thomas Garnet day

I am just back from Rome and Florence, after (among other things) a great conference of comparative-law, constitutional law, and church-state scholars who gathered to discuss and celebrate the work of Mary Ann Glendon, a pilgrimage to the tomb and remains of the Apostle Peter, and an audience (with 100,000 or so close friends) with Papa Francesco.  I'll have more thoughts on the Glendon conference in another post. 

For now, I just want to wish everyone (one day late) a happy "St. Thomas Garnet" day (which also happens to be the birthday of my son Tommy Garnett).  St. Thomas Garnet (S.J.) was, as it happens, the son of a lawyer named Richard Garnet, and the nephew of Henry Garnet, the head of the Jesuits in late-16th century England and -- like Sts. John Fisher and Thomas More, whose feast we celebrated this weekend and continue to reflect upon during the "Fortnight for Freedom" -- a martyr.

June 24, 2013 in Garnett, Rick | Permalink | Comments (2)

Sunday, June 23, 2013

Homily for the First Sunday of the Fortnight of Freedom

12th Sunday—C

Zechariah 12:10-11, 13:1

Galatians 3:26-29

Luke 9:18-24


The question of human identity is as old as human history. The fundamental question is: who am I; or, what am I? I began thinking about this essential matter almost half a century ago. During my college years, my sophomore English professor mandated that she would make gentlemen out of my fellow classmates and I; her method was to have us select an American poet and commit to memory ten poems of that poet. We would then recite from memory five of the poems before our classmates—all who were anxious as I. I chose Emily Dickinson—after all, her poems are rather short. But one of the poems I chose and recited was: “I’m nobody…” In this poem, Dickinson—and for that matter, anyone else—declares something about her (or his) identity and therefore addresses the interlinked questions of: who and what am I?


Today, all of our readings tackle the issue of identity: the prophet Zechariah addresses the identity of the Messiah who will be persecuted before God’s people are saved from their sin and uncleanliness—for us Catholics this is clearly our Lord, Jesus Christ. [As an aside, the reference to the mourning of Hadadrimmon is unclear—there is some thought that H was a god of antiquity, and something terrible happened at the Plain of Meggido, but no one is sure what happened.] In his letter to the Galatian church, Saint Paul reminds the faithful—including us—that our identity as Christians and as disciples of the Lord materializes at our baptism when we put on Christ. In Saint Luke’s Gospel, the question of identity is raised by Christ Himself when He asks the disciples: “Who do the crowds say that I am?” Peter offers the correct answer here and elsewhere in the synoptic Gospels (both Mark and Matthew). Well, the question of identity is settled then—or is it?


For you see the question of identity as a disciple of Christ surfaces time and again. Yesterday on June 22, we commemorate every year on the 22nd of June two great saints—Thomas More and John Cardinal Fisher. In doing so, we must necessarily reflect on their identity. Like other martyrs, a fundamental question is this: what made them “tick”; what made them open to the ultimate sacrifice of giving their lives for that in which they believed? More was Lord Chancellor of England; he had been a successful and rather wealthy Oxford-educated lawyer; and he was a confidant—perhaps even friend—of King Henry VIII. John Fisher was a Cambridge man who was ordained into the priesthood in his early adulthood. He returned to his beloved university and assisted (with the generous help of his friend, Lady Margaret Beaufort, the paternal grandmother of King Henry) in the founding of several of the Cambridge colleges and university professorships. Eventually, he became the chancellor of Cambridge University. Fisher also became the bishop of Rochester at an early age, and he was bishop of that diocese for over thirty years. He must have anticipated what Pope Francis has been saying of late about bishops being wedded to their dioceses without having ambitions to go to a larger, more prosperous one, because Fisher never succumbed to leave his poor diocese for another or others! I hasten to add that the diocese of Rochester in his time was very poor in comparison with the dioceses over which Cardinal Wolsey administered.


Both Fisher and More were very clear on who they were. Indeed, they were prominent members of English society in the early sixteenth century; they were highly educated and displayed their intelligence without pride for they were humble before God and man. But there is abundant evidence that at the heart of their respective identities was their unshakeable fidelity to the Church. They were patriots first and last and devoted to their king; but, their commitment to God and His holy Church took precedence. They labored hard to be both good subjects of the king AND faithful sons of the Church.


However, the king tested time after time their fidelity to the Church, and it was their fidelity that cost them their lives by depriving them of their heads when Henry (with the help of Parliament, Thomas Cramner, and Thomas Cromwell) decided that he would rid himself of his wife of over twenty years, Queen Catherine, and establish himself as the “supreme” head of the church in England. Sorry Saint Peter and your successors: move over—I’ve now decided who is in charge of God’s work! Both Fisher and More knew that Henry’s actions were wrong. The monarch’s self-authored divorce from Catherine violated the law of God and the Church and his self-proclamation of Supreme Head of the Church in England, moreover, contravened the Magna Carta. But both defiances did not stop an intelligent man who was driven by worldly ways to transform himself into a despot. More and Fisher knew that at the heart of the Magna Carta was the several-times stated principle of the freedom of the Church. This is essentially a vital element of the First Amendment of the United States Constitution. This was and is a freedom not simply to be free from the civil authority; it was and is also the freedom to do what is essential to the Church’s mission in society without interference or pressure from the state. The Church’s freedom was also the freedom of More and Fisher. They understood well our Lord’s exhortation in Luke’s Gospel: in order to save one’s eternal life, it may be necessary to sacrifice some of one’s life in the City of Man. This is the nobility of self-denial; it is the affirmative response of what Pope Francis urges us in not being “self-referential”; it is the duty of one who desires to follow Christ by taking up one’s cross each day in order to be faithful in following the Lord who showed us the true path by His own sacrifice.


And this is where we come into to chronicle of identity—as disciples and as a free people who believe in God and His Church. On this past Thursday, the U.S. bishops announced the beginning of the second annual Fortnight of Freedom. It will conclude on Independence Day. Freedom and its inseparable companion, responsibility to be virtuous citizens of the City of God and the City of Man, are at the core of our individual and corporate identities of American citizens and as members of the Catholic Church. Our heritage is founded on the duty of citizens and their freedom to be true to our identity. We are not the servants or subjects of the realm, as were More and Fisher. Rather, we are participants in a realm who are served by a state whose sole ambition is and must be to attend and protect its people; not to be served by them against their will. The state is not the common good; rather it exists to serve and safeguard the common good—a vital element of our faith. Like More and Fisher, we are disciples of the Lord Jesus Christ and members of His holy Church. The freedom from state interference and for following Christ is the same freedom possessed and exercised by the same saints whom we commemorated yesterday.


But this freedom is sometimes eclipsed by the ambition of those who do not share our identity or who have abandoned this essential element of their identity. So what can we do as Americans and as Catholics who cherish our freedom as Americans and simultaneously practice it as Catholics—as I have briefly explained freedom?


Perhaps like More and Fisher, who understood what Saint Paul said so many years ago to Timothy: we know in whom we have believed! May this declaration be a part of our identity and our heritage as a free and sovereign people. May it also be a part of our prayer not only for today but for all the days of our lives! For prayer is the distinguishing mark of the good citizen who is also the faithful disciple. This is who we are as individuals and as members of the Church, the People of God. We have put on Christ; may no one remove Him regardless of their intention otherwise.



June 23, 2013 in Araujo, Robert | Permalink