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, February 12, 2014

Painting a Portrait of the Mirror of Justice on Our Tenth Anniversary

Because so many other longtime and more recent members of the Mirror of Justice have posted their reflections on our tenth anniversary, the birthday portrait already has taken nearly full shape.  The likeness of the Mirror of Justice sketched by my colleagues has multiple facets, can be perceived from many angles, and reveals a slightly different profile depending on who is painting (and who is observing).  At the considerable risk of great over-simplification, I see the panorama depicted to include:

  • Asking the question “what is the nature of the human person, and what does that mean for law” (Rob Vischer)
  • Offering “a living witness to Christ’s love and mercy” by “being present to others” (Michael Scaperlanda)
  • “Captur[ing] something about the self-evident truths that are a part of our national legal fabric and beyond” (Robert Araujo)
  • Reminding us “that we cannot make decisions about law and public policy divorced from the teachings of our faith” (Susan Stabile)
  • Showcasing “feminist jurisprudence, in particular the concept of complementarity, and how that concept plays out in both Catholic teachings and legal theory” (Lisa Schiltz)
  • Presenting “the law of love” (Russell Powell)
  • Focusing on “the Catholic law school and ‘Catholic legal theory,’” while remembering always that “we are educating souls, not merely imparting skills training for budding bureaucrats” (Michael Moreland)
  • Recognizing “that Catholic thinking supplies something even more cosmic—knowledge and beliefs about the cosmos itself, and about the place of law in that cosmos” (Kevin Walsh)

So now, ten years after we started down the path, which of these things has the Mirror of Justice become?  All of them, of course.  How then should we explain the nature, categorize the genus, describe the distinctive characteristics of this virtual animal?  We could do little better than returning to the first words ever posted here, describing the Mirror of Justice as “a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law.”

Our messages have ranged from the political to the athletic, from the jurisprudential to the practically professional, from the sociological to the literary.  But central always has been our collective commitment to a Catholic theory (or sensibility) of the law and to a Catholic understanding of the legal profession.  Wherever else we have gone in the past ten years, and we have ranged widely in our mission to share the “profoundly countercultural elements in Catholicism," we have never wandered for too long away from driving questions about law and public life in a society that allows human thriving for the children of God.

And, as often expressed in these tenth anniversary reflections, at our best, we remember our priorities and maintain our humility.  In words written by Richard John Neuhaus to which I often return as a reminder to myself:

Whether the political dimension is major or minor in our vocations, we will all do our work much better if we understand that we are not doing the most important thing in the world.  It may be the most important thing for us to do because it is what we believe we are called to do, but not because it is the most important thing in the world.

Too many academics, political figures, and leaders in the legal profession believe they are engaged with the most important things that could occupy the attention of a human being. Without any sense of triumphalism, as we know our faith is a gift, we simply know better—even if we do not always act or speak as if we do and even if we too sometimes forget the higher things.  As Catholics, we must never forget that the Church is about salvation; that our friends, neighbors, and all others are beings of eternal significance; and that souls are at stake.

February 12, 2014 | Permalink

Witherspoon Institute Church-State Seminar

This summer the Witherspoon Institute's Simon Center on Religion and the Constitution will offer its third biennial Church and State Seminar, July 28 to August 1, at the Princeton Theological Seminary.  This five-day seminar will examine the relationship between religion and politics in the period of the American Revolution, founding, and early republic. The seminar is open to untenured faculty and post-doctoral scholars in history, political theory, law, and religion--and the Institute will consider doctoral candidates at work on their dissertations as well.  Please pass the word to your eligible junior colleagues, friends, and students!

The seminar will explore primary sources at the intersection of church and state—charters, constitutions, and legal texts, as well as sermons, pamphlets, essays, speeches, debates, and religious texts. Topics will range from the colonial era and the First Great Awakening, through the revolution, constitution-making, and founding debates over religious liberty, to the dawn of the Second Great Awakening, with a view of politics from a religious perspective, and a view of religion from a political perspective. From Edwards to Emmons, from Mather to Madison, from Whitefield to Washington, major figures of this pivotal era in American religious and political history will be considered in their own historical settings. The seminar faculty will be leading scholars of American history, law and politics, and theology.

2014 Faculty
Daniel L. Dreisbach, American University
Thomas S. Kidd, Baylor University
Gerald R. McDermott, Roanoke College

Applications will be accepted through March 15, 2014.  For more information, please see: http://winst.org/centers/corac/seminars/church-and-state/

February 12, 2014 in Garnett, Rick | Permalink

More on hiring and firing Catholic school teachers

Over at dotCommonweal, Cathy Kaveny has a post up about the recent case out of Montana in which an unmarried teacher was fired from her teaching position at a Catholic school after she became pregnant.  As I said in an earlier post about the much-commented-upon situation in Seattle -- where an administrator at a Catholic high school was fired after he entered into a legally recognized same-sex marriage -- these are hard cases.  (Not legally hard, in my view:  I think that Catholic schools do and should have the legal right to hire and fire in accord with their understanding of their Catholic mission. Still, they are hard.)

I agree with Cathy that part of the reason these cases are hard is that we all know that teachers and administrators at Catholic schools -- like all of us -- are imperfect sinners, and we all know that Catholic schools do not refuse to hire, or fire, people because they are imperfect sinners.  We do not investigate teachers' private lives to be sure they are loving, charitable, generous, and joyful.  When people see Catholic school teachers being fired for things having to do with sex and sexuality, it can reinforce the (false) notion that all the Church cares about is sexual morality and that sexual sins are the most grave and mission-undermining.

I also agree with Cathy that the decision to fire a teacher or administrator in a case like the one she discusses should not be framed as punishment for the teacher's having done wrong.  Again, we all do wrong, and all teachers and Catholic administrators do wrong, and so if the firing is "punishment", it looks pretty arbitrary and selective.  It should not be, as Cathy says, a matter of expelling the teacher from the Catholic community, because that's not how the Catholic community works.

And yet, I think that a Catholic school has to think about the ability of a teacher to effectively and constructively participate in the school's mission of integrated formation in the faith.  It seems that (say) a teacher who (publicly) professed his or her Bill Maher-esque contempt for theism would have a hard time doing this, as would a teacher who (publicly) advocated for (say) euthanizing severely disabled infants.  What about an unmarried teacher who gets pregnant?  It seems to me that a lot would depend on what the school, and the teacher, "said" to the students and school community about a decision to fire, or retain, her.  Would the message be "this is no big deal"?  Would it be "our Catholic school believes that sexual activity is for marriage, and the teacher did the wrong thing, but she will continue teaching here anyway because, after all, we all do wrong things sometimes -- but don't follow her exampe"?  (Would it matter whether or that the teacher publicly identified what she had done as a mistake, as wrong?)  Something else?  Again . . . difficult cases.   

February 12, 2014 in Garnett, Rick | Permalink

Carozza on "The Place of Freedom of Religion in Human Rights"

This paper (Download Carozza paper) by my friend and colleague Paolo Carozza will be of interest: "The Right and the Good, and the Place of Freedom of the Religion in Human Rights."

February 12, 2014 in Garnett, Rick | Permalink

Tuesday, February 11, 2014

A couple of observations about the government's Questions Presented in Conestoga Wood

Having very recently graded a bunch of briefs for a student moot court competition, I may be more attentive than usual to the particularities of how any given brief frames the Questions Presented. That may be why I paused over the formulations of the Questions Presented in the government’s brief in the Conestoga Wood case. These formulations do an excellent job of framing persuasive but not overly argumentative Questions Presented. Recognition of the built-in persuasive force of the first formulation, in particular, reveals an aspect of the government's case worth attending to.

The government’s brief formulates the first QP as follows: “Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.” There is subtle advocacy in this formulation’s phrase “otherwise entitled by federal law,” advocacy whose very subtlety contributes to its effectiveness. The “federal law” that grants the purported entitlement at issue is not a statute on par with the Affordable Care Act or Religious Freedom Restoration Act but rather federal regulations through which the government was obligated to implement both the ACA and RFRA. The government’s formulation of the Question Presented builds in a presumption that these regulations are valid, a presumption that itself is part of an answer to the Question Presented. I do not point this out to criticize the government’s formulation, which is effective and well within the bounds of fair advocacy. I point this out, instead, to draw critical attention to baselines issue that Rick Garnett and I have previously posted about.

The government’s brief formulates the second QP this way: “Whether the requirement that non-exempt, non-grandfathered group health plans include coverage of contraceptives violates the Free Exercise Clause of the First Amendment.” This formulation is not notable for any particular advocacy, but rather for its clarity and simplicity.

February 11, 2014 in Walsh, Kevin | Permalink

Monday, February 10, 2014

Report: "Religious Schools in America: A Proud History and a Perilous Future"

A new report, issued by the American Center for School Choice, called "Religious Schools in America:  A Proud History and a Perilous Future," is available here.  An important and sobering read.

February 10, 2014 in Garnett, Rick | Permalink

Neeson to appear in Scorcese's version of "Silence"

I'm not sure I could be more stoked about a bit of movie news than I am about this:

Actor Liam Neeson will reportedly star in the long-awaited adaptation of author Shusaku Endo’s novel “Silence,” which is set to be directed by Martin Scorsese.

February 10, 2014 in Garnett, Rick | Permalink

"Beyond Red and Blue"

Some good thoughts, here, from John Carr on poverty-related policies and the general principles that should shape our evaluation of them:

The Catholic social tradition of thought and action offers alternatives to the paralyzed status quo. Our principles and experience point to the moral, political and policy imperative of both/and, making connections between family and economic factors, human life and dignity, rights and responsibilities, solidarity and subsidiarity, dignity of work and rights of workers, race and class, discrimination and dependency, personal and social responsibility. These are not slogans but nuanced guides to policy. They focus more on overcoming poverty than achieving equality, require policy participation of poor people themselves, support a genuine safety net and insist on decent work at decent wages for all who can work.

The U.S. bishops have offered a four-part framework: 1. The responsibilities of individuals and families to make wise choices, marry before having children, pursue education and work. 2. The supporting roles of community and religious groups (including unions and community organizations). 3. The necessary contributions of a growing economy and the market: decent jobs, wages and benefits. 4. The obligations of government to provide a genuine safety net, promote economic vitality and act when other institutions fail to protect human life, dignity and rights. In Washington, many embrace one of these priorities and neglect the others. The complexity of poverty requires that all these institutions work together to help the poor build better lives.

"These are not slogans but nuanced guides to policy."  Well said.  In the spirit of his piece, I propose that we all abandon both the "_____ is a Randian!" and "_____ is a Socialist!" tics. 

February 10, 2014 in Garnett, Rick | Permalink

Prof. Alan Brownstein on this Term's religious-freedom cases

Those of us in the First Amendment area know well that Prof. Alan Brownstein (UC-Davis) is among the most thoughtful and insightful -- as well as the most decent and charitable -- scholars now working.  He shared with me the following reflection on religious freedom and the different reactions to the church-state cases before the Court this year.  I urge all MOJ readers to, as they say, "read the whole thing": 

I have been working in the church-state area for 25 years but I don’t think I have ever felt quite as out of synch with my colleagues in the academy as I do this year. Two important church-state cases will be decided by the Supreme Court this term: the Town of Greece case dealing with the offering of state-sponsored prayers before town board meetings and the Hobby Lobby case involving a RFRA challenge to the Affordable Care Act’s contraceptive mandates.


I don’t suggest that either dispute is particularly easy to resolve. But I do think that both cases raise serious religious liberty issues. As a matter of law and a recognition of social reality, I think the plaintiffs in both cases raise serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, I think there are important parallels between the two cases. In particular, some of the arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case. 

Apparently, very few church-state scholars and commentators, including many of my colleagues that I greatly admire and respect, share my perspective. Instead, commentary seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to what I am about to write), most liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs’ claims in Hobby Lobby and related cases. Conversely, most conservative commentators see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs’ claims in Town of Greece. Of course, there may be a good reason why I am odd man out. Maybe I’m just plain wrong to see parallels between these two cases. But I worry that political and cultural polarization is making it harder for all of us to see and appreciate the legitimate concerns of claimants who from one perspective or the other are on the wrong side of the culture war dividing line. And I think the protection of religious liberty is undermined if we only choose to protect it when nothing that we value personally is at stake. 

Again, generally speaking, liberals especially value gender equity and see universal access to medical contraceptives as an important public health and woman’s rights concern. For liberals, protecting religious liberty in a situation which even risks the burdening or sacrifice of these interests is hard to do. Conservatives value government sponsored religious activities such as state sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as particularly costly. Put simply, if we expect other people to bear what they experience as real and significant costs to protect religious liberty, we have to be prepared to demonstrate that we are willing to accept costs to interests that we value as well. But In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little if any weight to the religious liberty interests of the Town of Greece claimants. 

Let me give some specific examples. In vernacular terms, both liberals and conservatives raise an incredulous, “What can they possibly be complaining about” question in one case or the other. In Hobby Lobby, the suggestion seems to be that in the context of the case, there is no reason to think that the plaintiffs’ rights are abridged. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement decisions. Being in commerce and employing hundreds or thousands of people means that a lot is going to happen in your business that other people control. That the way the world is and how it has to be. In Town of Greece, the argument is that town board meetings necessarily involve exposure to a lot of expression from both board members and the public. If you attend the meeting, you will have to sit through a lot of speech that you find objectionable. That’s the way the system works. Learn to live with it. 

I think the answer here to the “What can they possibly be complaining about” question in both cases is simply that religion is different. A commitment to religious liberty means that burdens relating to religion are evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct the owner or manager’s religion prohibits requires a different analysis than other regulatory burdens receive. Having to sit through a state sponsored prayer is different than having to sit through a discussion of the municipal budget. What is key here is that if religious liberty claims deserve attention in one of these contexts, regardless of the way things generally work, religious liberty claims deserve respect in both contexts. 

Or consider more focused and sophisticated arguments. Some liberal commentators argue that the burden on religious liberty in cases like Hobby Lobby is too indeterminate to justify requiring the government to take any steps that might alleviate it. For example, an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may decline to continue to offer a health insurance plan to its employees.  The employer will have to pay a penalty for doing so but that payment will probably be far less than the savings it incurs by ending employee health care benefits. True, there may be other costs associated with discontinuing employee health insurance coverage. But it is unclear whether and in what circumstances those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty. 

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have negative consequences on worker morale and the retention of employees.  Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. I would characterize this argument as questioning whether a risk of adverse consequences constitutes a cognizable burden on religious liberty. The employer does not know what will happen if it protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer’s worry can hardly be characterized as mere speculation. 

I think the claimants in Town of Greece identify very similar risk based burdens on their religious liberty in their coercion arguments. They worry that the town board members they will be petitioning for support or assistance will be alienated by the claimants’ refusal to stand, bow their heads, or otherwise participate in state sponsored prayers at the beginning of the board meeting. Of course, no one knows whether board members will be alienated or whether they will allow their feelings about claimants not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are there. 

I think significant risk of adverse consequences, that is, reasonable grounds for worrying about adverse consequences, should be understood to burden protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on religious liberty deserve recognition and justify steps to alleviate them. In Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on religious liberty should be recognized and steps taken to alleviate them. I think the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases. 

Another criticism of plaintiffs’ claims focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior or that support for such behavior may be attributed to them. These concerns transcend material support and emphasize the expressive dimension of being associated with unacceptable conduct. I think these concerns are captured in the Catholic idea of “scandal.” Liberals dismiss claims based on complicity as being too attenuated. Concerns about misperception are also deemed insignificant since they can be so easily remedied by the religious nonprofit publicly proclaiming its opposition to the conduct at issue. 

A similar problem with misperception, indeed I suggest an arguably more powerful example of it, arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what I call a “we” prayer rather than an “I” prayer. The member of the clergy offering the prayer purported to be speaking to G-d in the name of the audience and the community. Sitting silently by, much less standing or bowing one’s head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. I consider this to be as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in my judgment, if either misperception argument deserves to be taken seriously, the misperception arguments in both cases deserve to be taken seriously. 

Here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases but seem unconcerned about the claimants in Town of Greece. In the contraceptive mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government’s requirements. In Town of Greece, however, by publicly disassociating oneself from the offered prayers at the town board meeting, dissenters expose themselves to the risk of closed ears to their petitions and adverse decisions on matters before the board. The risk of adverse consequences is increased by their attempts to avoid misperception and misattribution. 

I know, of course, that Town of Greece is a constitutional law case and the contraceptive mandate litigation primarily involves statutes and public policy. Thus, one might plausibly argue that town board prayers are constitutional, while also insisting that as a public policy matter they are a bad idea or at least have to be carefully structured in ways to minimize their coercive impact. I don’t see conservatives making this argument, however. They seem to ignore the burden on religious liberty both for constitutional and policy purposes. 

I think there are other arguments to support my suggestion that people who take religious liberty seriously should be respectful of plaintiffs’ claims in both Town of Greece and Hobby Lobby (and related contraceptive mandate cases). But this blog post is long enough. 

My key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case.  But it does reflect a willingness to take such claims seriously even when we are uncomfortable in doing so.

February 10, 2014 in Garnett, Rick | Permalink

Sunday, February 9, 2014

Gratitude, hope, and a couple of thoughts on MOJ at 10

As one of the latest-added contributors to Mirror of Justice, I suppose it makes sense that I am among the last to post on the blog’s tenth anniversary. Who knows what the next ten years may hold for this blog? Given the continual changes in how legal analysis of the sort we offer is produced and consumed (e.g., Twitter did not come around until a couple years after this blog was started), it is hard to say. Rather than offer predictions, then, I would instead like to express my gratitude and hope.

Above all, I am grateful for the people of Mirror of Justice, by which I mean the entire Mirror of Justice community—not just the contributors but the blog’s regular readers and occasional visitors. As someone who has drifted from occasional visitor, to more regular reader, to commenter and “Friend of MOJ,” to contributor, I have long appreciated Mirror of Justice, and from a number of perspectives. Speaking personally, the perspectives from which Mirror of Justice has made the biggest difference for me were my former perspective from outside the legal academy looking in and contemplating whether to leave my firm, and my perspective now as an untenured law professor still trying to figure out the right mix of topics to write about and the best angles to approach them from. These perspectives have helped me to appreciate the personal courage and intellectual equanimity that I have observed on Mirror of Justice over the last ten years. 

We all fall short of our aspirations sometimes (some of us more than others!), and blogs present spiritual dangers of their own. But this blog has been a more substantial source of sustenance for me than so much else that is out there. I am grateful for the many labors of love that have been lavished on Mirror of Justice in the last decade. They are evidence of the truth of Pope Benedict’s observation in Caritas in Veritate that “[l]ove—caritas—is an extraordinary force which leads people to opt for courageous and generous engagement in the field of justice and peace.” 

Continuing to take my cues here from Caritas in Veritate, I am convinced that careful thinking about the law can provide “a service to charity enlightened by truth” and can “help give credibility to truth, demonstrating its persuasive and authenticating power in the practical setting of social living.” One of my hopes for Mirror of Justice is that it can provide that kind of thinking, with charity at its core.

Careful thinking about the law can, of course, take many forms. And just as there are many ways that it can be done well, there are also many ways in which it can go wrong. May God bless all efforts to get it right.

And now for something more specific: The inescapably controversial character of many of the topics appropriately addressed on a blog of this sort presents obvious difficulties with respect to both caritas and veritas. As someone who controverts (maybe too often), I do not believe that controversy in itself is an evil to be avoided. But I have often wondered how this blog might best be used for construction and not just criticism. Others’ tenth anniversary reflections have prompted a couple of thoughts along those lines that I’d like to conclude by sharing.

First, the concept of “Catholic legal theory” remains something of a difficult concept for me to grasp. Michael Moreland’s discussion of the danger of “extrincism,” together with reflecting about a project on Judge Posner and Judge Wilkinson that Marc DeGirolami and I have been working on for a while now, leads me to think that “Catholic legal theory” may not provide the best label for what Mirror of Justice may best be able to offer. In the essay quoted by Michael Moreland in his post, Michael Buckley contends that “the dynamism inherent in all inquiry and knowledge—if not inhibited—is toward ultimacy, toward a completion in which an issue or its resolution finds place in a universe that makes final sense.” That contention seems correct, and it should affect how we think about a blog devoted to “Catholic legal theory.” Perhaps we can do a better job at Mirror of Justice by not conceiving of the project as one of developing “Catholic legal theory,” as if this were one legal theory alongside others out there. With respect to constitutional law, for example, “Catholic legal theory” need not take the form of any one of the types of “Cosmic Constitutional Theory” criticized by Judge Wilkinson in his book of that title. Instead, we should recognize that Catholic thinking supplies something even more cosmic—knowledge and beliefs about the cosmos itself, and about the place of law in that cosmos. And just as one can navigate neighborhoods in one's town or city without thinking explicitly about the cosmos as a whole (consider commuting, for instance), one can navigate neighborhoods of the law without thinking explicitly about the cosmos as such. And maybe it would be worthwhile for us to do more of that: think as Catholics (or as Catholics would think) about various neighborhoods of the law, but without conscioulsy tying this thinking into anything explicitly Catholic.

The second thought, which stands in some tension with the first, is that it would be helpful to more directly address the jurisprudential underpinnings of American law from the point of view of Catholic thought. I hesitate to suggest this because theoretical jurisprudence has never been one of my strong suits. I am much more comfortable dealing with doctrine and probing the particularities of cases than I am in deciding who is right as between Jules Coleman and Ronald Dworkin. But I am convinced more than ever that neglect of the natural law tradition has left American legal thought unstably oscillating between impoverished positivism and impassioned emotivism. If I were stronger in jurisprudence, I could explain better what I was trying to say in that last sentence. But because that is not my strong suit, I will just say this: Read all of the opinions in Windsor and the lower court decisions purporting to “apply” it/them. 

I do not think that better natural law reasoning or more perspicuous “Catholic legal theory” will make a difference today or tomorrow or any time soon in American constitutional law. If that were the case, a majority of the Supreme Court would have had the sense to at least recognize, as Justice Alito explained in dissent, that the Windsor majority was taking sides in “a debate between two competing views of marriage.” But I do think that the natural law tradition and Catholic thinking about the law more generally can help us recognize American constitutional law’s positivity for what it is, which would be no small thing. Or so I posit.

February 9, 2014 in Walsh, Kevin | Permalink