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.

Monday, August 31, 2015

Big Mountain Jesus update

Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus."  Here's a picture I took, during my own trip to enjoy the great Montana snow:   

BMG picture 

Just as a reminder:  The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division.  As this news story reports:

The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.

The FFRF lost in the District Court.  Judge Dana Christensen wrote:

"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."

Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again.  (The opinion is here:  Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.)  Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this:  "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"

Judge Pregerson dissented.

August 31, 2015 in Garnett, Rick | Permalink

Building in the Divine Style: Christian constitutionalism

Saints weren't born saints, and anyone who has become a saint has done so with lots of help.  There is a regrettable  tendency in our political culture and its institutions  to limit the help as a normative matter  to what goes on in private, if at all.  

In the Catholic tradition, however, the entire socio-political order, including the state, was -- and should be -- understood to have its service to perform in helping to bring people to the natural and the supernatural common goods.  Getting to heaven should not be despite humanity's best efforts at building impeding social barricades -- quite the opposite!  The state and the Church should cooperate with each other, without confusing one with the other, for the sake of the salvation of souls.  

One of the principal arguments for withdrawing the socio-political structure from a role in helping people to realize the supernatural common good is the assertion, popularized by Fr. Murray, that the state is a "know nothing" when it comes to the supernatural.  The state need not, however, be a know-nothing.

In the paper linked here, "An Essay in Christian Constitutionalism: Building in the Divine Style, for the Common Good(s)," I answer the question "What would a Christian constitution, in a predominantly nation, look like?"  The paper was prepared for a conference at Rutgers University School of Law, at which Islamic and Jewish answers to the same question, mutatis mutandis, were discussed.  

My paper argues that true Christian constitutionalism, that is, Catholic constitutionalism, is a project of building in the divine style, to which there is no real alternative over the long arc of history. 

August 31, 2015 in Brennan, Patrick | Permalink

Sunday, August 30, 2015

The "repugnant conclusion"

There's been a fair bit of coverage of the controversy caused when Vox.com commissioned, and then declined to publish, this essay by Torbjorn Tannsjo.   Apparently, the editors went weak in the knees over the possibility that some readers of the essay might "misinterpret it as implying opposition to abortion rights and birth control, which . . . is a real concern.”  Ah, open-minded inquiry.   (Brian Leiter has more on the episode here.)

Tannsjo was asked, initially, to present (and in the essay he defends) the “the repugnant conclusion,” a "belief that asserts our moral duty to increase the population size because, according to the argument, more humans means more happiness."  I have to admit -- and I'm not inclined to think that moral questions reduce to hedonic-utility calculations -- that I don't understand why this conclusion is or should be "repugnant", even to those who reject it.  That is, why should the conclusion be repugnant (rather than the argument be "unsound," if it is?

August 30, 2015 in Garnett, Rick | Permalink

More human-rights violations and anti-Christian persecution in China

See (just by way of example) this piece in The Guardian.  I understand entirely the impulse, in the academy and elsewhere, to "engage" in and with the PRC.  Indeed, how could a Christian not, given the very rapid growth in the number of Christians in that country.  And yet . . . "engagement" must not be an excuse -- for researchers, universities, business executives, investors, or politicians -- for turning a blind eye to, or making excuses for, the rampant human-rights violations and the oppression of Christians and other religious minorities:   

Chinese security forces have launched a roundup of church activists who opposed a Communist party campaign to remove crosses.

“At least nine people I know have been taken away by the police and that figure is still rising,” a church leader in the eastern province of Zhejiang – the operation’s focus – told the Guardian on Thursday afternoon.

“We think it is a campaign targeting church leaders across the province. It can only be a co-ordinated action initiated by the provincial government.”

Among those understood to have been detained is Zhang Kai, a prominent Beijing human rights lawyer who had been offering legal support to a number of churches in the region.

August 30, 2015 in Garnett, Rick | Permalink

Matthew Franck on the "Chris Christie of Public Discourse"

At Public Discourse, Matthew Franck has posted a critique of Rawlsian "public reason" (as constructed and deployed by some) and notes:

Rawlsian public reason is more likely to cause conflict than to reduce it. It’s the Chris Christie of public discourse, telling religious citizens to “sit down and shut up.” Rawls admits that “liberty of conscience” is one of the “constitutional essentials” in any liberal political order. This is good to hear. But he also says “separation of church and state . . . protects religion from the state and the state from religion; it protects citizens from their churches and citizens from one another.” This is “separation” with a decidedly secularist bias. It fails to give liberty of conscience the freedom to be active in the world as a witness to faith in word as well as deed. . . .

As Justice Robert Jackson said over seventy years ago, “freedom to differ is not limited to things that do not matter much.” To close down debate with a “that’s strictly religious” objection is the opposite of liberalism, and there is no justification for it.

Very well said.   For another treatment of the impulse to manage public discourse and soothe "divisiveness" by excluding or marginalizing religion, see my "Religion, Division, and the First Amendment" (here):

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. 

This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. 

The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? 

Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.

August 30, 2015 in Garnett, Rick | Permalink

Robert Louis Wilken on Religious Freedom at Univ. of Texas

This should be great:

First Things and Austin Graduate School of Theology invite you to 
a First Things lecture presented by Robert L. Wilken.


Christianity & Religious Freedom


It is widely assumed that the modern understanding of religious freedom was a work of the Enlightenment. In truth, the central ideas go back to the early church fathers and the Scriptures. During the Reformation these ancient beliefs were given new life by Protestant and Catholic authors. Liberty of conscience was born, not of indifference, nor of skepticism, but of faith. Today, as religious freedom is being challenged in the U.S., and some are asking “why tolerate religion?,” Christians need to stand up to defend the religious roots of religious liberty.



Christianity & Religious Freedom, presented by Robert L. Wilken
a First Things Lecture

Hosted by

Austin Graduate School of Theology


Monday, September 14, 2015 

University Avenue Church of Christ (map & directions)
1903 University Avenue
Austin, Texas 78705

For more information about Austin Graduate School of Theology, please visit:

Robert Louis Wilken is William R. Kenan Professor Emeritus of the History of Christianity at the University of Virginia. His books include The Spirit of Early Christian Thought and The Christians as the Romans Saw Them.

August 30, 2015 in Garnett, Rick | Permalink

Friday, August 28, 2015

John Goldberg on Helmholz, Natural Law in Court

John C.P. Goldberg, one of the leading tort and private law theory scholars writing today, has a terrifically interesting review here at The New Rambler of a new book by Richard Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard Press, 2015). What Goldberg writes in his conclusion about the possible implications of Helmholz's recounting of natural law in legal history is especially rich for those working in Catholic legal theory. As Goldberg puts it, natural law (or merely lawyers' belief in natural law) might be like phlogiston theory in the history of science ("an account of how the widespread acceptance of a demonstrably false idea can contribute to the growth of knowledge"), just another discourse about law that has now been supplanted, or, perhaps, a still-relevant way of thinking about what law is: "once we better understand what past jurists actually had in mind when they talked about natural law, we will recognize that (for better and worse) we continue to think about law similarly, even though we sometimes use different terminology."

August 28, 2015 in Moreland, Michael | Permalink

Saint Augustine

This heavenly city, then, while it sojourns on earth, calls citizens out of all nations, and gathers together a society of pilgrims of all languages, not scrupling about diversities in the manners, laws, and institutions whereby earthly peace is secured and maintained, but recognizing that, however various these are, they all tend to one and the same end of earthly peace. It therefore is so far from rescinding and abolishing these diversities, that it even preserves and adopts them, so long only as no hindrance to the worship of the one supreme and true God is thus introduced. Even the heavenly city, therefore, while in its state of pilgrimage, avails itself of the peace of earth, and, so far as it can without injuring faith and godliness, desires and maintains a common agreement among men regarding the acquisition of the necessaries of life, and makes this earthly peace bear upon the peace of heaven; for this alone can be truly called and esteemed the peace of the reasonable creatures, consisting as it does in the perfectly ordered and harmonious enjoyment of God and of one another in God. When we shall have reached that peace, this mortal life shall give place to one that is eternal, and our body shall be no more this animal body which by its corruption weighs down the soul, but a spiritual body feeling no want, and in all its members subjected to the will. In its pilgrim state the heavenly city possesses this peace by faith; and by this faith it lives righteously when it refers to the attainment of that peace every good action towards God and man; for the life of the city is a social life. City of God XIX.17

August 28, 2015 in Moreland, Michael | Permalink

Stanley Carlson-Thies responds to American United on religious freedom

Not that it's surprising, but Stanley Carlson-Thies is exactly right about (among other things) why American United (et al.) is exactly wrong when it comes to the right of religious organizations to hire-for-mission, even when they are cooperating with the government to provide social-welfare and other services.  A bit:

. . . The basic American practice is to protect the religious identity and character of religious organizations by permitting them to consider religion when they hire and fire employees, just as the law does not prohibit Senate offices from assessing the political convictions of job applicants or PETA from rejecting cat-haters who apply for jobs.

Enabling religious organizations to continue to hire based on religion when they agree to partner with the government avoids making eligibility for the government funds conditional on abandonment by the organizations of a right (religious hiring) specifically protected in law.  And protecting that right when government funds are involved has a big benefit for government and society:  it keeps those many faith-based based organizations from having to reject government funds and partnerships with government in order to maintain their religious identity.  Because faith-based organizations play such critical roles in serving persons, families, and communities, protecting religious hiring is an essential way to promote the common good.

Protecting religious hiring is not simply a matter of respecting legal freedoms and constitutional principles but is thus a vital means to promoting social justice in our society. . . .

August 28, 2015 in Garnett, Rick | Permalink

"Agape, Gift, and Intellectual Property"

In the years ahead, intellectual property and related legal and policy questions will become even more important than they already are. The Catholic Church has had things in the past about intellectual property rights and common good; and the Church and other Christian bodies will need to say more in the future. Following up on my previous work in this vein, I've posted "Agape, Gift, and Intellectual Property" on SSRN. The abstract:

The scope of protection of intellectual property (IP) has become a social justice as well as a legal and business issue, especially in the international arena, where disputes continue over whether expanded IP rights help or harm people in developing nations. Scholars writing in the Christian tradition have begun to respond to these questions, analyzing IP-related issues in the light of Christian theological themes such as creation, stewardship, and solidarity with the poor.

This paper, written for a Pepperdine Law School symposium on love and justice, explores potential implications for IP of another central Christian theme, agape: the form of love, independent of particularistic loyalties, that is most distinctive of Christian ethics. Agape in turns connects with the idea of “gift”: that creativity, among other human attributes, is a gift that humans receive (from a divine giver, Christians and other religious believers say). In Christian thought the sense of gift, and gratitude for the gift, connects to love of God and neighbor: the response of gratitude to God is to use the gift to benefit others. I connect these themes to those critics of IP rights, such as Lewis Hyde, who appeal to the virtues of a “gift economy” in which knowledge is shared rather than commoditized. Economies based on gift, and gratitude to the giver, have been thought to have a dark side: they can reinforce personal indebtedness and social hierarchies. But, following on the work of other Christian thinkers, I argue that the gift-giving economy can be universalized, and made more egalitarian, if we maintain, or recover, the sense that the human talents that produce goods are themselves gifts from a universal source (in Christian and other religious thought, from the God who gives all gifts in the first place).

Creativity is thus a fundamental gift we receive, and IP law should encourage the response of gratitude: dissemination of that gift to others to benefit them, and empowerment of others to realize their own creative gifts. The paper concludes with suggested general implications for IP law and policy.

August 28, 2015 in Berg, Thomas | Permalink