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 30, 2014

Legal Scholar and Theologian Kaveny Is New Libby Professor

That's the headline of a proud announcement issued by Boston College earlier today.  The entire announcement is here.  An excerpt:

Cathleen Kaveny, a legal scholar, moral theologian and nationally noted expert on the intersections of law, morality and religion, has joined Boston College as the Darald and Juliet Libby Professor. With an appointment in the Law School and Theology Department in the College of Arts and Sciences, Kaveny is the first person to hold a faculty appointment in two schools at the University.

Prior to her arrival at Boston College, Kaveny was the John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame, where she had been on the faculty since 1995. She also held visiting professorships and fellowships at Yale University, Princeton University, University of Chicago and Georgetown University. Previously, Kaveny was an associate with in the Health Law Group at the law firm Ropes & Gray in Boston and clerked for Judge John T. Noonan Jr. in the US Court of Appeals, Ninth Circuit.

Kaveny graduated with a bachelor’s degree summa cum laude from Princeton University and earned a JD and PhD from Yale University. She is the incoming president of the Society of Christian Ethics, the major scholarly organization of Christian ethicists in North America. The society meets annually in conjunction with Jewish and Muslim ethicist groups.

“Bringing Cathleen Kaveny to Boston College is a spectacular move for the entire University community and in particular, the Law School and the Theology Department,” said Founders Professor of Theology James Keenan, SJ, acting chairman of the Theology Department. “She brings the rare combined competency of vigorously mastering law and ethics and teaches and writes with wit and brilliance. It is simply great to have her here.”

Law School Dean Vincent Rougeau said, “Professor Kaveny’s appointment places Boston College at the forefront of scholarship in both law and theology, with her most recent work offering critical insights on how American law engages highly contested moral debates in an increasingly diverse society.

January 30, 2014 in Perry, Michael | Permalink

The Pope’s Words to Notre Dame and to all Catholic Educators


Today, Pope Francis, S.J., had an audience with a delegation from Notre Dame. Rick, I am sure you are basking in this honor!

The Holy Father offered instructive words intended not only for Notre Dame, but for all persons involved with Catholic higher education. This would surely include legal education and the enterprise which is pursed at the Mirror of Justice. The major theme of the pope’s address is presented in these words of his,

In my Exhortation on the Joy of the Gospel (Evangelii Gaudium, hereinafter EG), I stressed the missionary dimension of Christian discipleship, which needs to be evident in the lives of individuals and in the workings of each of the Church’s institutions. This commitment to “missionary discipleship” ought to be reflected in a special way in Catholic universities (cf. EG, 132-134), which by their very nature are committed to demonstrating the harmony of faith and reason and the relevance of the Christian message for a full and authentically human life. Essential in this regard is the uncompromising witness of Catholic universities to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors. It is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness. And this is important: its identity, as it was intended from the beginning. To defend it, to preserve it and to advance it!

I have two brief points to make of these words of the pope.

The first is that they have a tremendous bearing on the work and debates that take place here at the Mirror of Justice. After all, the discipline and study of law, certainly within the context of efforts directed at developing Catholic legal theory, involve moral issues; thus, those who pursue legal education from and in a Catholic perspective ought to be concerned about the Church’s moral teachings (including their propagation and defense) and the Church’s freedom to pursue those engagements with civil society that the Church chooses to engage. This responsibility is unambiguous and cannot be compromised—no matter how inconvenient; no matter what pressures may be faced.

The second point is much closer to home for me. While our Holy Father was addressing a distinguished delegation from a highly regarded school founded by the Congregation of the Holy Cross, I am quite confident that he did not exempt from the application of his exhortation the twenty-eight colleges and universities founded by his (and my) religious order, the Society of Jesus. There is no question that these institutions also have a crucial role in “the uncompromising witness… to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors.” It may be that there are some within the Jesuit network of higher education institutions who are willing to compromise on such matters, but I know that there are dedicated, faithful people who view such compromise as a betrayal of one’s duty as a disciple of Christ. Pope Francis is clearly one of them, for he recognizes that the unambiguous witness of the Christian cannot compromise on any matter central to the Catholic faith.

Time will tell to what extent his words and the sentiments they carry are shared within the world of Jesuit higher education.


RJA sj

January 30, 2014 in Araujo, Robert | Permalink

Accommodation is not establishment: Response to Michael Perry et al.

As Michael Perry mentioned, a group of church-state scholars -- which includes, obviously, many friends and colleagues of MOJ -- filed an amicus brief in the Hobby Lobby case, arguing that "permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it."  I continue to think that this brief, which takes the position that a RFRA-mandated accommodation does not violate the Establishment Clause, has the better of the argument.

One difficulty I have with this "accommodation as establishment" argument is that, in my view, the requested (that is, the RFRA-required) accommodation does not actually shift or impose any costs to third-party non-adherents.  As we all tell our students all the time, premises about baselines do a lot of the work in many legal arguments and here, what Michael and his colleagues are framing as a "cost" or "burden" is really the loss of an employer-provided benefit that, under RFRA, is being illegally compelled.  If the employees of Hobby Lobby are being burdened by not receiving from their employer no-cost-sharing contraceptives, it is because the government did not choose a lawful means of providing those no-cost-sharing contraceptives, and not because the employees are being burdened with the "cost" of accommodating Hobby Lobby's religious exercise.

Of course, Marc DeGirolami has made the point better (here) than I just did, and I do not believe that the brief to which Michael linked can withstand the force of Marc's argument.


January 30, 2014 in Garnett, Rick | Permalink

A link to all of the Hobby Lobby amicus briefs

They are here (courtesy of the Becket Fund).

January 30, 2014 in Garnett, Rick | Permalink

Wednesday, January 29, 2014

Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius

The brief is available here.

Amici on the brief are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).

This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.

January 29, 2014 in Perry, Michael | Permalink

A father's right to abortion?

The story below about a young man who tricked his pregnant girlfriend into taking an abortion-inducing drug raises a question. As I understand the orthodox "pro-choice" position, it is that the "right" to abortion is a right not to be a mother—the right to order the death of the fetus (a Latin word for “new offspring” or "young one"), not merely a right to evict the fetus from the body. (The unorthodox pro-choice position—famously defended by the philosopher Judith Thomson—conceives the abortion "right" as a right to evict, a right that disappears with fetal viability and could disappear altogether with the creation of the artificial womb.) But if a woman has the right to order the death of the fetus in order not to be a mother against her will, does it not follow that a man has a right to order the death of the fetus in order not to be a father against his will? (For my own part, I don't think anyone has the right to order the death of the fetus, since the fetus is a living human being with inherent dignity and a right to life. So I have no horse in this race.)

Of course, someone holding the orthodox pro-choice position who opposes a father’s right to abortion might say that the father cannot have a right to order the death of the fetus, because that would require that a woman be subjected against her will to a surgical procedure or, at least, to the administration of an abortion-inducing drug. But a defender of a father's right to abortion might respond by saying that he then ought to be able to exercise his right by ordering the killing of the fetus as soon as it is born, or by ordering the killing of the fetus by the Intact Dilation and Extraction (IDX or “partial-birth”) abortion technique, without acting on the woman's body. (The technique, which is used by late-term abortionists such as Martin Haskell with the support of groups like Planned Parenthood and NARAL and pro-choice politicians such as Barack Obama who opposed its prohibition, involves inserting scissor’s into the base of the skull while the remainder of the head is still inside the woman’s body, opening the scissors, and using a suction device to vacuum out the brain matter.)

For organizations and individuals who support late-term abortion, it's not obvious on what ground they could reasonably oppose a father's right to abortion. I've often heard pro-choice men say that they ought not to be required to pay child support where a woman has refused the father of the child's request that she abort. They regard the woman's refusal to abort as compulsory fatherhood, just as pro-choice people claim that laws prohibiting abortion impose compulsory motherhood.


January 29, 2014 | Permalink

Tuesday, January 28, 2014

Why RFRA Applies to For-Profit Corporations: the Christian Legal Society Amicus Brief

The Christian Legal Society has filed an amicus brief in Hobby Lobby/Conestoga, written by Prof. Doug Laycock, that eviscerates the government's argument that the Religious Freedom Amendment (RFRA) does not apply to for-profit corporations.  In surgical detail (as "eviscerate" connotes!), the brief shows that during the 1999-2000 debate over reenacting RFRA as applied to the states (after the Court had struck down that application), leaders of both sides took RFRA's plain, public meaning to be that it applied universally to all claims of substantial burdens on religious exercise, with no exclusion of claims by for-profit corporations.  Liberal congressmen and civil-rights groups had crystallized their opposition to corporate religious-freedom claims against civil-rights laws, and so they wanted an amendment that would exclude such claims.  The stalemate over this issue prevented RFRA's reenactment as applied to state laws-- but the statute has always remained applicable to federal laws and regulations.  (The legislation that emerged from the 1999-2000 debate was the Religious Land Use and Institutionalized Persons Act, RLUIPA, which covers only zoning/landmarking cases and claims by state prisoners and other institutionalized persons.  UPDATE: And the 1999-2000 debate led not only to RLUIPA, but to minor changes in RFRA' text that, among other things, stated that the statute covers "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."  Thus, the 1999-2000 debate amended RFRA too and reinforced the universal reach of the term "exercise of religion.")

The brief explains cogently why this is powerful evidence (not questionable "post-enactment legislative history") confirming the plain public meaning of RFRA' text, which is that the "persons" who may claim rights of religious exercise under it include for-profit corporations--consistent with the general definition of "person" in the U.S. Code set forth by the Dictionary Act.

The CLS brief also overlaps with the Democrats for Life brief I just posted about, in arguing that "the tradition of protecting conscientious objectors Is especially broad and deep with respect to taking human life."

January 28, 2014 in Berg, Thomas | Permalink

Amicus brief of Constitutional Law scholars in Hobby Lobby case

A group of constitutional-law and law-and-religion scholars (including me) filed an amicus brief in the Supreme Court today, arguing that it would not violate the Establishment Clause for the Court to grant relief under RFRA to Hobby Lobby and other plaintiffs.  The brief is available here: Download Hobby Lobby brief.  The brief is a response to the arguments -- which have been mentioned here on MOJ before -- to the contrary of Fred Gedicks, Micah Schwartzman, Nelson Tebbe, and others.

January 28, 2014 in Garnett, Rick | Permalink

Slate's misleading piece on "creationism in public schools"

The URL for this Slate essay - which purports to be about science education but is really just a re-hashed attack on the idea of school choice -- refers to "creationism in public schools."  The headline, though, is about "publicly funded schools."  And, when one reads the article itself, it turns out that the complaint has to do with schools that are attended by students whose families are benefitting from tax-credit programs and scholarship/voucher programs.  But, of course, the premise of the Court's Zelman decision, and the many precedents on which that decision rests, is that the funds in question belong to the parents -- they and their children are the beneficiaries of a public-welfare program -- and that the funds reach religious schools (where "creationism" may or may not be taught) as a result of the parents', and not the government's choice.  

If the premise of this article were sound, then it could just as well be a piece about how "public schools are preparing children to receive the Eucharist."  But, of course, they are not.

Now, to be clear:  I imagine that the author of the piece and I agree about what should, and should not, be taught in science classes when it comes to the age of the Earth and human origins.  But, again, the title is misleading and the premise is unsound.

January 28, 2014 in Garnett, Rick | Permalink

Bradley on Notre Dame and "institutional vocation"

Notre Dame senior Michael Bradley has a really nice essay-and-interview up at Ethika Politica called "How (Not) to Think About Notre Dame's Catholic Character."  It it, Bradley reflects on the interesting and important idea of "institutional vocation" and provides a helpful counter-voice to the strident and usually under-informed criticisms of Notre Dame that the University's various missteps and imperfections trigger in the more "conservative" sectors of the Catholic blogosphere.  Here is a bit:

 I would like to see a more integrated institutional witness, one that unites administrators, faculty, and other staff in a vision of the Catholic Church’s mission as being truly normative for the life of the university. As things stand, it often seems as if facets of that mission are viewed as fungible, when the cost of discipleship begins to run high. Again, there are faculty and alums more ably suited to speak to this dynamic. But even a student can see that the Catholic “diamond in the rough” vibrancy at Notre Dame should be not so in-the-rough.

Notre Dame’s institutional vocation is very different from what smaller Catholic universities or colleges are called to be in and for the Church. Not better or worse, but very different. The mistake that many critics of Notre Dame make is to compare it directly to other institutions of Catholic higher education and compare and contrast, often indiscriminately in my opinion, the merits and demerits of life at Notre Dame. But such analyses bespeak a worrisome blindness to institutional vocation.

Yes, there are normative magisterial expressions that ought to govern and guide the life of the university, among which expressions Ex Corde Ecclesiae is foremost. And undeniably, Notre Dame is falling short by ECC standards; that much is obvious in a vacuum.

But, fidelity to the Church qua the Catholic university that Notre Dame is—not as a quasi-institutional “parish,” or “youth group,” or catechesis program, or retreat, or even a smaller Catholic college or less prominent Catholic university—is what should inform analyses of Notre Dame’s Catholicism. Not comparisons with other institutions, the missions of which we really can’t pretend are all equal in either scope or even intent. . . .

Well said.

January 28, 2014 in Garnett, Rick | Permalink