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, February 16, 2016

Call for Papers: Religious Perspectives on the Rule of Law at Bar-Ilan

Here's a call for papers for a conference dealing with a interesting topic, via my friend Professor Michael Helfand.

Journal of Law, Religion & State

International Conference

Rule of Law – Religious Perspectives

Call for Papers

The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from—and stand in opposition to—state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.

In this conference we seek to study this tension and discuss the following questions:

  • Does religion (in general or a specific religion) accept the rule of state law?
  • What are the boundaries (if any) of such acceptance?
  • In what cases would religion challenge state law and in what cases would it seek exemptions?
  • Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
  • What other policies should states follow in response to these tensions?

Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:

  • What is the position of religion with regard to the concept of law and the rule of law?
  • Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
  • The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law—and by what kind of law: law of nature, morality?

These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.

Submissions are invited on the themes outlined above. An abstract of 500 (max.) words should be sent to [email protected] no later than­­­­­­ April 15, 2016. Please indicate academic affiliation and attach a short CV. The conference committee will notify applicants of papers acceptance by the beginning of June, 2016. The participants will be required to submit a first (full) draft of their papers three weeks before the conference. The final papers will be published in the Journal of Law Religion and State subject to review.

The organizing committee:

Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel

Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel

JLRS website:


February 16, 2016 in DeGirolami, Marc | Permalink

Monday, February 15, 2016

Re-posting some Justice Scalia-related reflections

Here ("Dershowitz v. Scalia on Catholic Social Teaching") is Rob Vischer, reflecting on Justice Scalia's visit to Prof. Alan Dershowitz's criminal-law class. Here ("Justice Scalia, Law, Morality, and Judging") is me, intervening in the discussion about whether there is, or should be, such a thing as a "Catholic judge."   Here is Kevin Walsh on Justice Scalia, Pope Francis, and belief in the devil. Here is Marc DeGirolami, discussing his review of Scalia's Reading Law.  And, here is Marc again, on Justice Scalia's remarks on the "separation of church and state."

February 15, 2016 in Garnett, Rick | Permalink

Sunday, February 14, 2016

A lesson from Justice Scalia on the most important event in human history

Ed Hartnett passes along this story about Justice Scalia that reveals much about him as a man of faith, as a student, and as a teacher:

He spoke at Seton Hall on our Charter Day -- essentially the school's birthday --  about his experience as a history student at Georgetown. He recalled a professor who asked him, "what was the most important event in history?"  He answered with several significant events that he had learned about as a history major. The professor responded "no" to each answer. Finally, he gave up, and the professor provided the answer, "the Incarnation." 

Professor Hartnett gets the effect of this just right: "The lesson stayed with him, and the story stayed with me."

February 14, 2016 in Walsh, Kevin | Permalink

The loss of Justice Scalia is a loss for religious freedom

I've seen some commentary in which the writers suggest that, because he was the author of the Smith decision, Justice Scalia's work and legacy should not be seen as friendly to religious freedom.  This line strikes me as glaringly wrong:  Putting aside the fact that Justice Scalia was in the Court majority that moved away (in cases like Agostini, Mitchell, and Zelman) from an unsound and unwise form of "strict separationism" in funding cases, he was also with the Justices who upheld the religious-accommodation or antidiscrimination claims in (for example) Lukumi, O Centro, Cutter, and Hobby Lobby.  

His absence will, I fear, make a difference -- and not for the better -- in the pending Little Sisters and Trinity Lutheran cases.  It could well be -- and again, this is most unfortunate -- that the change to bury a rule that (paraphrasing Justice Thomas) was "born of bigotry" (that is, the Blaine Amendment-type bans on evenhanded support for students in religious schools) is gone for another generation.

February 14, 2016 in Garnett, Rick | Permalink

Misstating Scalia: One Clear Instance (This One on Evolution)

There will be reams written about Justice Scalia. You could disagree with him (for the record, I have a fair number of times). But the main NPR story, picked up by lots of other sites, has a discrete but very clear error about his record that ought to be corrected before it becomes established. Nina Totenberg writes there:

On questions of separation of church and state, Scalia was a consistent voice for accommodation between the two, and against erecting a high wall of separation. When the court, by a 7-to-2 vote, struck down a Louisiana law that mandated the teaching of creationism in school if evolution is taught, Scalia was dismissive of evolution, calling it merely a "guess, and a very bad guess at that." [Referring to Scalia's dissent in Edwards v. Aguillard]

Scalia did not call evolution "a very bad guess." That was his characterization of what the Louisiana legislators who supported the balanced-treatment law believed. He recounted their belief in order to argue that they had "secular purposes" for supporting the law  (thus satisfying prong one of the Lemon v. Kurtzman test), not that their purposes reflected accurate beliefs. The paragraph containing the phrase "bad guess" is one of several paragraphs chock full of cites to the legislators' statements in the legislative record. Here is how Scalia introduced the paragraphs, followed by the relevant paragraph itself (emphases in original):

Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point. Our task is not to judge the debate about teaching the origins of life, but to ascertain what the members of the Louisiana Legislature believed. The vast majority of them voted to approve a bill which explicitly stated a secular purpose; what is crucial is not their wisdom in believing that purpose would be achieved by the bill, but their sincerity in believing it would be.

Senator Keith and his witnesses testified essentially as set forth in the following numbered paragraphs: ....

(2) The body of scientific evidence supporting creation science is as strong as that supporting evolution. In fact, it may be stronger. Id. at E-214 (Young statement); id. at E-310 (Sen. Keith); id. at E-416 (Sen. Keith); 2 id. at E-492 (Sen. Keith). The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific "fact," since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or "guess." 1 id. at E-20 - E-21 (Morris); id. at E-85 (Ward); id. at E-100 (Reiboldt); id. at E-328 - E-329 (Boudreaux); 2 id. at E-506 (Boudreaux). It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a "myth." 1 id. at E-85 (Ward); id. at E-92 - E-93 (Kalivoda); id. at E-95 - E-97 (Sen. Keith); id. at E-154 (Boudreaux paper); id. at E-329 (Boudreaux); id. at E-453 (Sen. Keith); 2 id. at E-505 - E-506 (Boudreaux); id. at E-516 (Young).

It couldn't be clearer that Scalia was describing the legislators' views about evolution, not asserting his own.

One website had to correct this same misstatement a few months ago. NPR should correct it now.


February 14, 2016 in Berg, Thomas, Current Affairs | Permalink

"Playing God? Moral Arguments on Patents on Life"

I recently published some reflections on the issue of patenting of genes--human and non-human--from the perspective of religious and secular ethics. It includes reflections on the conference that St. Thomas's Murphy Institute co-sponsored with the Von Hugel Institute at St. Edmund's College, Cambridge (UK), last fall. A sample from my piece:

     The Cambridge conference showed how religious thought can make valuable contributions to debates over patents on life. Catholicism is well suited for these conversations, with its bedrock commitment to the dignity of human life, its history of reflection on the purposes and limits of private property, and its global network of institutions serving the poor and vulnerable....

     The conference also showed that the relationship between life patents and human dignity is complex. One cannot simplistically dismiss all patents in the genetic area as “playing God.” Christianity calls for us not to leave nature alone, but to exercise stewardship for the common good...

     But biotechnology, in the Pope’s words, also gives those with knowledge and economic resources “an impressive dominance over the whole of humanity,” and “nothing ensures that [such power] will be used wisely.” Thus patents related to living things still must be subjected to limits based in morality and the equal dignity of all persons. That means first (as all our conference speakers emphasized) that governments must continue to ban patents on natural products and processes, on human beings and on human organs.

     Second, even when biotechnology patents are appropriate, the effects of such technologies must be regulated to ensure they produce benefits, not harms.

UPDATE: Another piece on the issue, referring to our conference, by Simon Ravenscroft, one of our organizers, on the Religion and Ethics page of Australian television.



February 14, 2016 in Berg, Thomas, Current Affairs, Religion, Science | Permalink

Saturday, February 13, 2016

Struck with grief at the loss of a great man, let us pray

Justice Scalia was a great man. His loss is a loss for us all. We grieve with his family and all who loved him. 

In his praise and memory, I share the fitting words of Justice Story:  

He who has been enabled, by the force of his talents and the example of his virtues, to identify his own character with the solid interests and happiness of his country; he who has lived long enough to stamp the impressions of his own mind upon the age, and has left on record lessons of wisdom for the study and improvement of all posterity; he, I say, has attained all that a truly good man aims at, and all that a truly great man should aspire to.

Let us pray:

Eternal rest grant unto him, O Lord, and may the perpetual light shine upon him.
May his soul, and the souls of all the faithful departed, through the mercy of God, rest in peace.


February 13, 2016 | Permalink

Friday, February 12, 2016

Amici Briefs in Support of Life: Whole Woman's Health v. Hellerstedt

My colleague Teresa Collett asked that I post this:

On March 2 the U.S. Supreme Court will hear oral arguments in Whole Woman's Health v. Hellerstedt, a challenge to a Texas statute requiring abortion clinics meet the standards of ambulatory surgical centers and doctors providing abortions have admitting privileges at a hospital within 30 miles of the clinic. Plaintiffs claim that enforcement of these requirements will cause the closing of 75% of all abortion clinics in the state, which should be considered an undue burden per se. They also argue that the requirements do little or nothing to advance the health and safety of women, given the comparative safety of abortion over carrying a child to term. Texas responds that two to three Texas women end up in emergency rooms every week due to complications from abortion. The requirements advance women's safety by assuring that abortions occur in facilities that are equiped to respond to complications that arise during an abortion, and the admitting privileges provide a second check of a doctor's competency as well as promoting continuity of care should a woman need hospitalization, 

The United States Conference of Catholic Bishops, several legal scholars, a variety of medical associations, University Faculty for Life, and the Prolife Center at the University of St. Thomas lined up on the side of Texas in their amicus briefs. These briefs are available on scotusblog, ABA Supreme Court preview, and the Texas Attorney General website at https://www.texasattorneygeneral.gov/hb2/texas-women.

February 12, 2016 | Permalink

Thursday, February 11, 2016

Mt. St. Mary's, Higher Ed, and Catholic Character

One of the topics we've discussed often, over the years, at MOJ is the challenge (and importance) of building and maintaining meaningfully (and therefore interestingly) Catholic institutions, including universities.  The recent news out of Mt. St. Mary's University provides (among other things) an occasion for thinking not only about what it means for a university to be meaningfully, pervasively "Catholic."  Does a university's "Catholic" character constrain -- and, if so, how? -- the strategies and tactics that administrators may employ in responding to what they regard as the challenges facing higher-education institution's generally?  (Here's another news story, thanks to Crux.)  


February 11, 2016 in Garnett, Rick | Permalink

Wednesday, February 10, 2016

The Commonweal Editors on the Friedrichs Case

In this editorialCommonweal asks whether the "Supreme Court will fatally weaken labor" in the Friedrichs case.  In my view, the Court's Abood case was wrong the day it was decided and it should be overruled.  

Let me start with agreement.  The Editors open with this:

Labor unions can be corrupt, obstructionist, and maddeningly bureaucratic. They are also important mediating institutions—John Paul II called them “indispensable”—that serve as a counterweight and check on government as well as corporate power. In that role, unions are essential to the health of democracy, and crucial to promoting participation in the political process.

I agree.  (I might insert a caveat, though:  It is not clear that public-sector unions consistently or effectively serve as a "counterweight and check on government . . . power."  They sometimes support and contribute to government power . . . when that power is being exercised in ways that align with those unions' interests.)

As the editors note, the power and membership of private-sector unions has declined in recent decades, while "[p]ublic-employee unions have remained relatively strong, thanks to the acceptance by government and unions alike of collective bargaining and binding arbitration."  As I see it, though, some governments have "accepted" these -- and they have done so when doing so was in the political interests of the parties in power in those governments -- while others have not.  One of the criticisms of public-sector unionism, as it is practiced today, is that it too often does not involve negotiation or checking, but instead mutual-benefit arrangements between some politicians, on the one hand, and public-sector unions, on the other.  

The editors acknowledge that public-sector unions contribute consistently and generously to the Democratic Party.  They write, next, that "[t]he Friedrichs case has been steered through the lower courts by a right-wing libertarian group that is not coy about its hope that in overturning Abood the Court will deal a devastating blow not just to the union movement, but to the Democratic Party."  I don't see why this group should be "coy" about wanting to undermine the power of the Democratic Party, especially if -- in that group's views -- the power of the Democratic Party is being unfairly (and, they think, unconstitutionally) augmented through funds obtained not through contributions but through exactions on objecting public employees.  

In any event, though, the First Amendment question should be asked and answered without regard to the ideological leanings either of the group challenging the agency-shop deal or the party that benefits from that deal.  And, I think that question has a clear answer.  The editors suggest, in one sentence, that the First Amendment theory the challengers are relying on is tainted by association with Citizens United (another case that is widely misunderstood and that was correctly decided) and with the "money is speech" theory.  But, as many have pointed out, the Court did not say that "money is speech"; it said that "forbidding spending money on speech burdens the right to speak," which it clearly does.  Here, the claim is that requiring someone to spend money on speech burdens the right not to speak.  (That the freedom of speech includes the right not to speak is well established.  See, for example, the classic flag-salute case.)  I am sure the editors would agree that it would be unconstitutional for a government to require public employees to contribute, as a condition of employment, to the production, printing, and mailing of political literature for the Republican Party.  So, it seems to me, the editors' objection is not really to the claim that mandatory dues implicates the First Amendment, but to the conclusion that the challengers' First Amendment rights outweigh the benefits that agency-shop arrangements provide to public-sector unions.  As they conclude:

Free speech has not, and should not, trump every other right or social good. The right of association and the dignity that follows from having an effective voice in the workplace are equally important.

The Constitution does protect the freedoms of association and assembly and I agree that the associational rights of unions "weigh" just as much as the speech rights of employees.  However, this case does not implicate the right of public-sector workers to associate; it does implicate the current ability of public-sector unions to require workers to engage in expressive association.  Whatever public or moral interest there might be in maintaining that ability is outweighed -- given our First Amendment -- by the objecting employees' rights.

I've written many, many times here at Mirror of Justice that criticisms of some aspects of public-sector unionism, and defenses of public-employees' constitutional right to opt-out of agency-shop arrangements, are not inconsistent -- at all -- with the emphasis in the Church's social teachings on the dignity of work and the important mediating functions of labor unions.  Those teachings do not prevent us either from (i) noting the implications and demands of our First Amendment or (ii) pointing out the many ways in which American public-sector unions undermine the common good (e.g., their opposition to school choice and their strong support for abortion rights).  

February 10, 2016 in Garnett, Rick | Permalink