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.

Friday, July 31, 2015

The (Big) Money behind the anti-religious-exemptions effort

Story here.  In particular, toward the end of the piece, there's a discussion of the funding, and activities, of the "Public Rights, Private Conscience" project at Columbia's Law School, which is actively involved in coordinating scholarly efforts to criticize and, in some instances, delegitimize, religious accommodations and the ministerial exception.

July 31, 2015 in Garnett, Rick | Permalink

Sugarman on religious charter schools

Steve Sugarman has posted a new article, "Is It Unconstitutional To Prohibit Faith Based Schools from Becoming Charter Schools?", on SSRN:

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

It does seem to me that what most people presume to be the rule that, in order to be a "charter school," a school must not be a religious (or even "pervasively sectarian") school, is anomalous.  After all, charter schools aren't really government schools; they are just a new kind of delivery mechanism of a particular good -- i.e., education -- that the public authority wants to fund and bring about.  If a Catholic school can deliver that good (and, of course, Catholic schools can and do), then why not allow Catholic schools to employ that mechanism?

July 31, 2015 in Garnett, Rick | Permalink

Kathleen Brady on the "distinctiveness of religion" in American law

Congrats to my good friend Kathleen Brady, whose work is familiar to many MOJ readers, I'm sure, on the publication of her book, "The Distinctiveness of Religion in American Law."   She's been carefully refining this argument and it couldn't be more timely.  Check it out:

In recent decades, religion's traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion's uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.

July 31, 2015 in Garnett, Rick | Permalink

Thursday, July 30, 2015

A World Without Planned Parenthood

Some short reflections on NRO from myself and many others on a world without Planned Parenthood. Loved this from Frank Beckwith:  

For any culture that abandons the cold, calculating, and contractual premises of modern eugenics — that we are to measure our happiness by how unencumbered we are from the burden of our natural limitations and the dependence of those for whom we did not explicitly choose to care — means that it is a culture moving in the direction of faith, hope, and charity. 


July 30, 2015 in Bachiochi, Erika | Permalink

Wednesday, July 29, 2015

Implementing Plea Bargaining in Uganda

Pepperdine's Jim Gash has been working closely with the Ugandan Judiciary to develop and implement a system of plea bargaining in Uganda with the hopes of improving their criminal justice system and reducing the number of prisoners sitting in prison awaiting trial (sometimes as long as five years). The idea grew out of a paper two Pepperdine Law students had written for a Ugandan judge while the students were clerking for him several years ago.

I recently had the privilege of accompanying Jim on his 17th trip to Uganda in the last five years. Other participants included current and former prosecutors, public defenders, other lawyers, a current state and a current federal judge, and Pepperdine students who were spending the summer in externships in Uganda and Rwanda. The first week of the trip, I felt like a first year associate as we put in 70 hours or so, including trips to four prisons and one juvenile remand home. At the prisons, we worked in teams of an American attorney, a Ugandan defense attorney (much of the time), Pepperdine students, and Ugandan Christian University students meeting with clients in an attempt to work plea deals. You can read more about the trip and Pepperdine's work in Uganda on Jim blog, Throwing Starfish.

I greatly appreciated Jim's invitation. It was just my third trip to Uganda, and his experience and contacts will greatly enhance the experience of University of Oklahoma law students and alums as we continue our work in northern Uganda with Sr. Rosemary Nyirumbe, St. Monica's Vocational School, and Gulu University.

July 29, 2015 in Scaperlanda, Mike | Permalink

Tuesday, July 28, 2015

Fr. Barron on the Planned Parenthood videos, human dignity, and God

We've talked often, over the years, here at MOJ about the basis or ground for "human dignity."  (And, several of us -- including Michael Perry, Robby George, Tom Berg, and others -- have written important works about this question.)   In this reflection, Fr. Robert Barron (the new Auxiliary for the Archdiocese of Los Angeles!) takes on the "Death of God and the Loss of Human Dignity."  He captures really well, I think, the importance of "moral anthropology," which has been on the front burner for us at MOJ from the very first week.

Here's Fr. Barron:

. . .  In the classical Western perspective, the dignity of the human person is a consequence and function of his or her status as a creature of God. Precisely because the human being is made in the image and likeness of the Creator and destined, finally, for eternal life on high with God, he is a subject of inalienable rights. I use Jefferson’s language from the Declaration of Independence on purpose here, for the great founding father knew that the absolute nature of the rights he was describing follows from their derivation from God: “they are endowed by their Creator with certain unalienable rights…” When God is removed from the picture, human rights rather rapidly evanesce, which can be seen with clarity in both ancient times and modern. For Cicero, Aristotle, and Plato, a cultural elite enjoyed rights, privileges, and dignity, while the vast majority of people were legitimately relegated to inferior status, some even to the condition of slavery. In the totalitarianisms of the last century—marked in every case by an aggressive dismissal of God—untold millions of human beings were treated as little more than vermin.

I realize that many philosophers and social theorists have tried to ground a sense of human dignity in something other than God, but these attempts have all proven fruitless. . . . 

July 28, 2015 in Garnett, Rick | Permalink

Kudos to Sen. Joe Donnelly (D-IN).

Today, at a rally in downtown South Bend, the office of Sen. Joe Donnelly (a graduate of Notre Dame Law School) distributed a letter in which the Democratic Senator (like his Republican colleague, Sen. Coates) called for a full investigation into the recent (and ongoing) revelations regarding Planned Parenthood's practices and funding.  Thank you, Senator.   

July 28, 2015 in Garnett, Rick | Permalink

Ryan Anderson on the challenges to religious freedom

At First Things, Ryan Anderson has posted a short piece summarizing the argument he advances in his new book, Truth Overruled:  The Future of Marriage and Religious Freedom (available here).   Among other things, Anderson identifies succinctly three reasons why religious freedom (correctly understood) is vulnerable at present:  First, "government has changed"; second, "sexual values have changed"; and third, "religious liberty has changed."  

As Michael McConnell, Tom Berg, and John Garvey note in their excellent Law and Religion casebookReligion and the Constitution, it is (paraphrasing) relatively easy to protect and respect religious liberty when everyone agrees about the big questions and when governments don't do very much.  But, as governments do more, and as disagreement with respect to non-trivial matters (including, as Anderson points out, sexual morality) deepen, the occasions for conflict between religious believers and government actions and aims increase.  Add to this mix a diminishing commitment to religious freedom as a fundamental human right -- or, an increasing view that "religious freedom" is a special-interest concern only to people whose views are increasingly out of sync with academic and other elites -- and, well, we've got trouble.  

Anderson's First Things piece concludes with this:

So the three steps that have undone core elements of the American Founding—progressive government and the administrative state, the sexual revolution’s elevation of desire, and the whittling of religious free exercise down to the freedom to worship—all need to be countered. Political organizations, religious and civic organizations, and legal organizations will have to play their roles in empowering the citizenry to reclaim their government and culture. I offer a roadmap for these groups to follow in Truth Overruled.

Without a return to the principles of the American Founding— ordered liberty based on faith and reason, natural rights and morality, limited government and civil society—Americans will continue to face serious and perplexing challenges. The dilemmas faced by bakers and florists and charities and schools are only the beginning.

I am less confident than, it appears, Anderson is that government and culture are likely to be "reclaimed" in a way that will undo the developments that he (correctly, I think) identifies as having made religious freedom vulnerable.  (That said, if everyone were as civil, even-keeled, and charitable in public argument about controversial matters as Anderson is, I might have more confidence.)  Like Anderson, however, I think that the work of organizations like the Becket Fund is and will continue to be crucial, in order to protect space for believers and institutions alike not only to worship and pray privately but also to teach, serve, bear witness, and inspire by example.  

Anderson writes (and I agree) that "[t]rue religious liberty entails the freedom to live consistently with one’s beliefs seven days a week—in the chapel, in the marketplace, and in the public square."  At the same time, I do not think it is likely that, "in the marketplace" (and in public employment) employers, employees, and business organizations whose owners hold traditional beliefs about sexual morality will be accommodated through exemptions from nondiscrimination laws.  As I see it, the live and pressing issue on which religious-freedom advocates should focus, now and going forward, is on the importance of making sure that the government's (and others') many carrots and sticks -- accreditation requirements, licensing standards, public-forum access, public-funds eligibility, television contracts, merchandising agreements, tax exemptions, student-loan-participation rules -- are not used to force religious educational, healthcare, and social-welfare institutions to assimilate, homogenize, or give up their distinct religious character and mission.

July 28, 2015 in Garnett, Rick | Permalink

Monday, July 27, 2015

"Push Within Religions for Gay Marriage Gets Little Attention"

That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times.  The article, by Samuel G. Freedman, will be of great interest to MOJ readers.  Here.

July 27, 2015 in Perry, Michael | Permalink

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016


We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 


Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia


Their topics and bios are at the end of this message.   


Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content.  As Alasdair McIntyre has asked, “Whose Justice?”  During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment.  (We seem now to be experiencing the latter.) 


Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates).  The first theme is a call to do justice and to serve a hurting world.  What do our traditions say about justice to the 21st century?  What are the great injustices and causes of suffering in our world?  How might they be addressed by individuals, religious congregations, NGOs, and governments? 


A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good.  Attempts to help can generate dependence or harm bystanders.  The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems.  Laws can have unintended consequences that do greater harm than good.  We need to make a difference, but to do so wisely.


Please join us for the conversation.  Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work. 


Questions to be addressed might include: 

-           What do our secular and religious traditions teach about justice and its place in the 21st century? 

-           What is the relationship between justice and love?

-           How can the law best be used to promote the ideals of justice.

-           What is social justice and what is its relationship with other forms of justice? 

-           What are the greatest injustices in our world and what can we do about them? 

-           What are the greatest injustices in our neighborhoods and what can we do about them?

-           What are examples of attempts to help the poor which have harmed them?

-           How can attempts to do justice lead to injustice?

-           How might we help those in the greatest need without harming them? 


If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email to[email protected]. Proposals should be two pages maximum and should include a short abstract and a bio.  

If you have questions about the substance of the conference, contact Bob Cochran[email protected] or Michael Helfand[email protected]  For questions about the details of the conference, contact Jenna Anderson [email protected] or (310) 506-6978

For information on the conference as it becomes available and to view details of past conferences, see:


The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies. 


All our best,

Bob Cochran & Michael Helfand

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law and

Director, Herbert and Elinor Nootbaar

      Institute on Law, Religion, and Ethics


Michael A. Helfand

Associate Professor of Law and

Associate Director, Glazer Institute for Jewish Studies


Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, California 90263-4611

July 27, 2015 in Garnett, Rick | Permalink