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.

Tuesday, September 30, 2014

Interview at Millennial Blog on Pregnancy Discrimination Case

I did an online interview for Millennial, a popular blog by and for young Catholics, about the current pregnancy discrimination case, Young v. UPS, and the amicus brief filed by 23 pro-life organizations.  I won't quote myself at length here in a teaser--but I do emphasize that the brief makes "a strong statement: pro-life groups believe that supporting pregnant women (including through effectively enforcing non-discrimination laws) is fundamentally pro-life."

September 30, 2014 in Berg, Thomas | Permalink

Monday, September 29, 2014

"Right-Wing Nostrums"

In an editorial that purports to welcome the "end to the politics of cultural division," the NYT refers disparagingly to "old right-wing nostrums about the 'sanctity of life' . . . [that] have lost their power, revealed as intrusions on human freedom."  What, one wonders, can make "human freedom" not-to-be-intruded-upon in a world in which "sanctity of life" is an "old right-wing nostrum"?

September 29, 2014 in Garnett, Rick | Permalink

Sunday, September 28, 2014

Article on Pregnancy Discrimination and "Bipartisan Support"

An interesting article in The Week on the subject of pregnancy discrimination, headlined as "The feminist issue that too many women ignore." The articles makes reference to the briefs by both pro-life and pro-choice groups supporting Peggy Young, the plaintiff in the SCT in Young v. United Parcel Service. It quotes the pro-life brief and then adds (speaking presumably about potential legislative efforts down the line, beyond the SCT case):

While some feminists will surely resist working too closely with those who oppose abortion, others might view this as an opportunity to step outside their circles and increase the likelihood of making positive change. As writer and critic Judith Shulevitz puts it in her recent examination of the state of feminism today, getting legislation passed that will help working mothers will require "being willing to make compromises and unlikely alliances to get the necessary votes." By "unlikely" she means those who "fall afoul of Emily's List."

(Cross-posted at Whole Life Democrat)

September 28, 2014 in Berg, Thomas | Permalink

Saturday, September 27, 2014

Yuval Levin, "A Pessimistic Case for Hope"

A very thoughtful essay, by Yuval Levin, at First Things.  Here is a bit, from the end:

The permanence of the human longings for attachment and transcendence means that the endless parade of temptations and distractions we confront in modern life can yield an endless series of opportunities for the truth to recapture our imagination and prove itself indispensable. Traditionalists should therefore work to build room for their ways of living in the modern world not only as a means of defense and survival but as a means of persuasion and progress.

They should see themselves fighting not against the liberal society but for it. They should live out their faiths and their ways in the world, confident that their instruction and example will make that world better and that people will be drawn to the spark. This means traditionalists must see both the good and the bad in modern life, and must accept that our society is always getting both better and worse.

And it means that traditionalists must be committed to the preservation of spaces for private life that are protected from the perverse shortsightedness of politics. It means, in other words, that we should be intensely engaged in the struggle for the soul of our society—knowing we can expect no ultimate victory from politics, but also that we are by no means destined to defeat, and that by persisting in the struggle we make room for another generation to rise and thrive and seek to embody the good. Politics can do no more than that, but it must do no less. 

September 27, 2014 in Garnett, Rick | Permalink

Friday, September 26, 2014

Tom Farr on international religious freedom and national security

Tom Farr has this, over at Public Discourse.   A bit:

There are two powerful reasons for a coordinated, comprehensive American strategy to advance religious freedom. The first is a moral imperative.

Last year in Rome, Iraqi Patriarch of the Chaldeans, Archbishop Louis Raphael Sako, said something that still haunts me: “If they kill us all, will you do something then?” We have a responsibility to that man, and to the others of Iraq and Syria—Christian, Yazidi, and Muslim alike—who are fending for, or fleeing for, their lives.

Patriarch Sako said something else. The title of his speech was: “What Happens to the Middle East if Christians Flee?” The answer was twofold: terrible suffering for the Christians, but also increased instability and harm to the societies themselves.

Here lies the second reason for a coordinated, comprehensive US strategy on religious freedom. Religious freedom is not simply a “nice to have” human right, consisting mainly of the right not to be tortured or killed, or a right to private worship. It is a fundamental human right that has distinct and inevitable public dimensions. As such it is utterly necessary, not only for individual human flourishing but for the success of any state—especially highly religious nations like Iraq, Pakistan, or Egypt.

Ample research demonstrates what common sense suggests: democracies cannot consolidate without religious freedom. Economies cannot develop without religious freedom. And—perhaps most important for American national security—religious freedom is a counter to religion-based terrorism.

September 26, 2014 in Garnett, Rick | Permalink

"Pomofoco" and religious freedom

Over at Arc of the Universe, my friend Tim Shah has a great post about Jacque Berlinerblau's "gutsy" (I agree) piece in The Chronicle of Higher Education, "The Crisis in Secular Studies."  Fans of Benedict XVI's "healthy secularity" will definitely want to check this out.  (And this.)

September 26, 2014 in Garnett, Rick | Permalink

"Some Things Do Not Change, Being the Work of Centuries"

A lovely column by Roger Cohen a few days ago on the stubborn persistence of personal attachments and traditions, and the way in which they seem perpetually to obstruct efficiency, globalization, progress, and other modern dispensations of the spirit of the age. I remember a few years ago when our family sold the home in which it had thrived, and grown, and lived together. Even property is never "just property." A bit:

A few weeks ago I was in France, where I’ve owned a village house for almost 20 years that I am now planning to sell. A real estate agent had taken a look at the property and we had made an appointment to discuss how to proceed. She swept into the kitchen, a bundle of energy and conviction, with an impassioned appeal:

“Monsieur Cohen, whatever you do, you must on no account sell this house!”

I gazed at her, a little incredulous.

“You cannot sell it. This is a family home. You know it the moment you step in. You sense it in the walls. You breathe it in every room. You feel it in your bones. This is a house you must keep for your children. I will help you sell it if you insist, but my advice is not to sell. You would be making a mistake.”

This was, shall we say, a cultural moment....

September 26, 2014 in DeGirolami, Marc | Permalink

Thursday, September 25, 2014

225 Years Ago Today: First Twelve Amendments Proposed by Congress

Today marks the two hundred and twenty-fifth anniversary of the day on which the First Congress proposed to the states for ratification the first set of amendments to the Constitution. The first two did not make it with other ten, which are now more commonly known as the Bill of Rights. (The first proposal was never ratified at all, while the second was ratified over two hundred years later as the twenty-seventh amendment.)

September 25, 2014 in Walsh, Kevin | Permalink

"Conscience and Community: Understanding the Freedom of Religion"

Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project.  A taste:

 “Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .

September 25, 2014 in Garnett, Rick | Permalink

Finnis on the relationship between judicial impartiality and the technical rationality of positive law

I recently came across this passage from John Finnis that explains the relationship between judicial impartiality and the technical rationality of the law:

In the working of the legal process, much turns on the principle--a principle of fairness--that litigants (and others involved in the process) should be treated by judges (and others with power to decide) impartially, in the sense that they are as nearly as possible to be treated by each judge as they would be treated by every other judge. It is this above all, I believe, that drives the law towards the artificial, the techne rationality of  laying down and following a set of positive norms identifiable as far as possible simply by their 'sources' (i.e. by the fact of their enactment or other constitutive event) and applied so far as possible according to their publicly stipulated meaning, itself elucidated with as little as possible appeal to considerations which, because not controlled by facts about sources (constitutive events), are inherently likely to be appealed to differently by different judges. This drive to insulate legal from moral reasoning can never, however, be complete.

John Finnis, Natural Law and Legal Reasoning, in Natural Law Theory, Robert George, ed., p. 150.

While Professor Finnis acknowledges that legal reasoning is never completely insulated from moral reasoning, this passage explains one way in which natural law theory justifies the positivity of positive law. It is a helpful corrective to a tendency in contemporary constitutional theory to set natural law reasoning in opposition to constitutional originalism.

September 25, 2014 in Walsh, Kevin | Permalink