Mirror of Justice

Fred C. Zacharias Prize to Leslie Levin and Kate Levine

Thanks to Prof. Sam Levine (Touro), I'm passing on some nice news:

The winners have  been selected for the seventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Leslie C. Levin, for Lawyers Going Bare and Clients Going Blind, 68 Fla. L. Rev. (forthcoming 2016), and Kate Levine, for Who Shouldn't Prosecute the Police, 101 Iowa L. Rev. 1447 (2016).  The Prize will be awarded at the AALS Annual Meeting in San Francisco in January.

Congrats!

Christ the King and religious freedom

Here are some very helpful insights from the USCCB on the significance and meaning of the Feast of Christ the King.  And here -- because it never hurts to read it again! -- is Quas Primas.

Human Agency and the Working Class

Today I had the pleasure of participating in a conference convened by Columbia University’s Center on Capitalism and Society. The conference explored the (expansive) topic, “Agency, Prospering, Progress and the Working Class.”  Highlights from the day included Richard Sennett (London School of Economics) offering a tour de force argument that the experience of class in the U.S. is intensely personalized; compared to Europe, Americans who struggle economically are more likely to believe that something is wrong with them, rather than with the system.  In this regard, Trump's victory cannot be explained as globalization's losers overcoming globalization's winners. It goes much deeper than that.

My panel included Philip Howard (author of The Death of Common Sense), Richard Robb (Columbia), and JD Vance (author of Hillbilly Elegy), all of whom reflected on paths by which human agency can be supported and enhanced among the working class.

Here are the questions I asked at the outset of my remarks: should caution about top-down, one-size-fits-all legal solutions to practical problems also apply to our assessment of top-down, one-size-fits-all legal resolutions of moral disputes? If we care about human agency, how do we discern the moral norms that should govern our public lives, and at what point should we invest them with legal authority?

I then explained how the disputes over transgender bathrooms, florists required to serve same-sex weddings, and demands made by Black Lives Matter protesters can all be understood as reflections of the desire for moral agency. Maintaining legal space for dissenting moral claims is a necessary but insufficient condition for moral agency; agency also requires empathy, which is essential to – some would say constitutive of – moral deliberation. We face a significant empathy deficit, as the 2016 campaign season displayed powerfully and painfully.  Strengthened commitments to civil friendship and local political engagement offer a promising path forward.

Human agency was almost completely ignored in the rhetoric and policy proposals of both presidential candidates, as JD Vance pointed out in his remarks. If we care about the insights of Catholic social teaching (e.g., subsidiarity, economic justice understood as participation in the economy), we can’t lose sight of its importance.

Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention

I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention.  After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."  

The big-picture idea (such as it is) was this:  In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise.  What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is.  RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are part of the "future of religious liberty."

The two "reasons for cautious optimism":  First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but rather imposes real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions.  Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known, hot-button-issue topics, religious-liberty claimants are very often winning.  For now.

Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election:  (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.

Then followed a lively discussion!     

National Constitution Center Event on "Is the Constitution Judeo-Christian?"

I am looking forward to being on a panel at the National Constitution Center in Philadelphia this Monday (Nov. 21) at noon on the question, "Is the Constitution Judeo-Christian?" (details and registration here) moderated by Michael Gerhardt (UNC-Chapel Hill) and joined by Menachem Lorberbaum (Penn and Tel Aviv) and Suzanne Last Stone (Cardozo). My answers to the question will be "yes, of course," "perhaps, but in a complicated way," and "no."

Catholic Scholars commend the witness of the Church of God in Christ (COGIC)

November 17, 2016

We, the undersigned Catholic scholars, express our gratitude to, and our solidarity with, the Church of God in Christ and Presiding Bishop Charles E. Blake. We deeply admire your profound commitment and bold witness to the sanctity of human life in all stages and conditions and to the protection of the poor, the weak, and the vulnerable from womb to tomb. We applaud your work to uphold marriage as the conjugal union of husband and wife and to rebuild the marriage-based family as the fundamental unit of society and the original and best department of health, education, and welfare. We acknowledge with gratitude your devotion to the cause of religious freedom at home as well as abroad and your labors to protect the conscience rights of the Little Sisters of the Poor and people of all faiths and shades of belief.

We pledge to stand with you, our Christian brothers and sisters of the historic Black church, and to work arm in arm with you in Christ-like self-sacrificial love to build in America a true culture of life and of family life. To the cultured despisers of religion and Biblical morality, we say we love you, but we will oppose you—and with our COGIC friends we will strive not so much to defeat you in a cultural and political struggle as to open your hearts and minds to the life-preserving and love-affirming truths of the Gospel that reason knows and faith confirms.

The historic Black church and the Catholic Church in America, though allies in many struggles, have been too much like strangers to each other for too long. It should not have taken the unprecedented moral challenges we now face, or the abject failures of our political elites, to bring us closer together. For this we apologize to God. But with His help and by His truly amazing grace, we pledge to be strangers no longer. Let us unite as "soldiers of the cross" to bring revival, healing, and righteousness to our people.

Sincerely,

Robert P. George, J.D., D.Phil., D.C.L.

McCormick Professor of Jurisprudence

Princeton University

Mary Ann Glendon, J.D., LL.M.

Learned Hand Professor of Law

Harvard Law School

Michael Novak

Catholic University of America

Gerard V. Bradley, J.D.

Professor of Law

University of Notre Dame

Hadley Arkes, Ph.D.

Edward N. Ney Professor of Jurisprudence and American Institutions emeritus

Amherst College

George Weigel

Distinguished Senior Fellow and William E. Simon Chair in Catholic Studies

Ethics and Public Policy Center

Adrian Vermeule, J.D.

Ralph S. Tyler Professor of Constitutional Law

Harvard Law School.

John C. Cavadini, Ph.D.

Professor, Department of Theology

University of Notre Dame

Dermot A. Quinn, D.Phil.

Professor of History and Director of Graduate Studies

Seton Hall University

Matthew Franck, Ph.D.

Director, Simon Center on Religion and the Constitution

Witherspoon Institute

Michael Reynolds, Ph.D.

Associate Professor of Near Eastern Studies

Princeton University

Edward Whelan, J.D.

President

Ethics and Public Policy Center

R.R. Reno, Ph.D.

Editor-in-Chief

First Things

Teresa Collett, J.D.

Professor of Law

University of St. Thomas

Robert Koons, Ph.D.

Professor of Philosophy

University of Texas at Austin

Mark Bauerlein, Ph.D.

Professor of English

Emory University

Senior Editor, First Things

Rev. Nicanor Pier Giorgio Austriaco, O.P., Ph.D., S.T.D.
Professor of Biology and of Theology
Providence College

Francis J. Beckwith, Ph.D.

Professor of Philosophy & Church-State Studies

Co-Director, Program in Philosophical Studies of Religion (Institute for   
        Studies of Religion)

Baylor University

Melissa Moschella, Ph.D.

Assistant Professor of Philosophy

The Catholic University of America

J. Budziszewski, Ph.D.

Professor of Government and Philosophy

University of Texas at Austin

Christopher Kaczor, Ph.D.

Professor of Philosophy

Loyola Marymount University

Rev. Thomas Petri, O.P., S.T.D.

Vice President and Academic Dean

Assistant Professor of Moral Theology

Pontifical Faculty of the Immaculate Conception

Dominican House of Studie

R. J. Snell, Ph.D.

Director, Center on the University and Intellectual Life

Witherspoon Institute

Senior Fellow, Agora Institute for Civic Virtue and Common Good

O. Carter Snead, J.D.

William P. and Hazel B. White Director, Center for Ethics and Culture

Professor of Law

University of Notre Dame

Alexander Pruss, Ph.D.

Professor of Philosophy

Baylor University

Mark Regnerus, Ph.D.

Associate Professor of Sociology

University of Texas at Austin

Senior Fellow, Austin Institute for the Study of Family and Culture

Rev. Prof. Stephen L. Brock, Ph.D.
Pontifical University of the Holy Cross

Aaron Kheriaty, M.D.

Associate Professor of Psychiatry

University of California, Irvine

Rev. Joseph Koterski S.J., Ph.D.

Fordham University

Robert A. Destro, J.D.

Professor of Law and Director of the Interdisciplinary Program in Law & Religion
Columbus School of Law

The Catholic University of America

Carson Holloway, Ph.D.

Political Scientist

Patrick Lee, Ph.D.
John N. and Jamie D. McAleer Professor of Bioethics
Director, Institute of Bioethics
Franciscan University of Steubenville

Christopher Tollefsen, Ph.D.

Professor of Philosophy

University of South Carolina

John M. Haas, Ph.D., S.T.L., M.Div.

President

The National Catholic Bioethics Center

Christopher Wolfe, Ph.D.

Professor of Politics

University of Dallas

Ralph Martin, S.T.D.

Sacred Heart Major Seminary

Archdiocese of Detroit

Monica Migliorino Miller, Ph.D.

Associate Professor of Religious Studies

Madonna University

Eduardo Echeverria, Ph.D., S.T.L.

Professor of Philosophy and Systematic Theology

Sacred Heart Major Seminary

Archdiocese of Detroit

Matthew Levering, Ph.D.

James N. and Mary D. Perry, Jr. Chair of Theology

University of St. Mary of the Lake

Rev. Thomas Berg, Ph.D.

Professor of Moral Theology

St. Joseph’s Seminary (Dunwoodie)

Maggie Gallagher

Senior Fellow

American Principles Project

John Grabowski, Ph.D.

Associate Professor and Director of Moral Theology/Ethics

School of Theology and Religious Studies

The Catholic University of America

Ryan T. Anderson, Ph.D.

William E. Simon Senior Research Fellow

The Heritage Foundation

Mark Latkovic, S.T.D.

Professor of Moral Theology

Sacred Heart Major Seminary

Archdiocese of Detroit

Christian Brugger, D.Phil.
J. Francis Cardinal Stafford Professor of Moral Theology
Saint John Vianney Theological Seminary

C.C. Pecknold, Ph.D.
Associate Professor of Systematic Theology

School of Theology and Religious Studies
The Catholic University of America

Rev. Kevin L. Flannery, S.J., Ph.D.

Professor of Philosophy

Pontificia Universitas Gregoriana

Rome

Lee J. Strang, J.D.

John W. Stoepler Professor of Law & Values

University of Toledo College of Law

Michael A. Scaperlanda. Ph.D.

President

St. Gregory’s University

Stephen M. Krason, J.D., Ph.D.
Professor of Political Science and Legal Studies

Franciscan University of Steubenville

President, Society of Catholic Social Scientists

Prof. Ronald J. Rychlak, J.D.

Jamie L. Whitten Chair of Law and Government 

The University of Mississippi School of Law

Kevin Govern, J.D., LL.M.

Professor of Law

Ave Maria School of Law

John M. Breen, J.D.

Professor of Law

Loyola University Chicago

Mary Rice Hasson

Director, Catholic Women's Forum

Fellow, Ethics and Public Policy Center

Bill Piatt

Professor of Law

Former Dean (1998-2007)

St. Mary's University School of Law

[Affiliations for identification purposes]

Liberal Anglicanism Emerges: Religion, Politics, and the Academy (Trollope's View in "Barchester Towers")

Here's an interesting description by the great novelist, Anthony Trollope, of the changing profile of the Anglican churchman (by name, in this case, Dr. Proudie) in chapter III of his wonderful novel, "Barchester Towers," the second of The Barsetshire Novels--and in specific the causes and effects of Anglican liberalization in early nineteenth-century England (when parallel, though not of course identical, liberalizations were occurring to Anglicanism in the United States--see, e.g., Virginia). I found especially interesting the admixture of religion, politics, and academics in the creation of this liberal Anglicanism:

Some few years since, even within the memory of many who are not yet willing to call themselves old, a liberal clergyman was a person not frequently to be met. Sydney Smith was such, and was looked on as little better than an infidel; a few others also might be named, but they were 'rarae aves,' and were regarded with doubt and distrust by their brethren. No man was so surely a tory as a country rector--nowhere were the powers that be so cherished as at Oxford.

When, however, Dr. Watley [MOD: the Irish social reformer] was made an archbishop, and Dr. Hampden some years after regius professor [MOD: Renn Hampden, who famously squabbled with John Henry Newman, and eventually became the Regius Professor of Divinity at Oxford], many wise divines saw that a change was taking place in men's minds, and that more liberal ideas would henceforward be suitable to the priests as well as to the laity. Clergymen would be heard of who ceased to anathematise papists on the one hand, or vilify dissenters on the other. It appeared clear that high church principles, as they were called, were no longer to be surest claims to promotion with at any rate one section of statesmen, and Dr. Proudie was one among those who early in life adapted himself to the views held by the whigs on most theological and religious subjects. He bore with the idolatry of Rome, tolerated even the infidelity of Socinianism, and was hand and glove with the Presbyterian synods of Scotland and Ulster. 

Such a man at such time was found to be useful, and Dr. Proudie's name began to appear in the newspapers. He was made one of a commission who went over to Ireland to arrange matters preparative to the working of the national board; he became honorary secretary to another commission nominated to inquire into the revenues of cathedral chapters; and had something to do with both the regium donum and the Maynooth grant.

It must not on this account be taken as proved that Dr. Proudie was a man of great mental powers, or even of much capacity for business, for such qualities had not been required in him. In the arrangement of those church reforms with which he was connected, the ideas and original conception of the work to be done were generally furnished by the liberal statesmen of the day, and the labor of the details was borne by officials of lower rank. It was, however, thought expedient that the name of some clergyman should appear in such matters, and as Dr. Proudie had become known as a tolerating divine, great use of this sort was made of his name. If he did not do much active good, he never did any harm; he was amenable to those who were really in authority, and at the sittings of the various boards to which he belonged maintained a kind of dignity which had its value.

Harvard Law Review issue dedicated to Justice Scalia

Find the brief In Memoriam in the current issue posted here. Justice Kagan's remarks are especially moving. 

"Religious Freedom and the Common Good"

That's the title of a symposium this Tuesday, November 15, organized by the Religious Freedom Project (RFP) of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. A number of social scientists will present their work on the relation of religious freedom to the domestic and international common good. As a legal scholar, I will join the opening panel and present some suggestions on how these findings might relate to legal doctrine, and how doctrinal questions in turn might suggest further research emphases.

Here's a bit of the symposium description:

 Our symposium will explore the following: To what extent is religious liberty critical for human flourishing? When and how does it contribute to economic prosperity, democratization, and peace? What challenges face religious communities living under repressive governments or hostile social forces? How is the persecution of religion related to other infringements of basic human rights? What is the relationship between religious freedom and violent religious extremism, and is there a role for religious freedom in efforts to undermine radicalization and counter violent religious extremism and terrorism over the long term?

Any readers who are inside or near the Beltway--this should be a really interesting and enlightening day of presentations.

Notre Dame Center for Ethics & Culture Fall Conference on Beauty this weekend

An amazing line-up. If you are in or near South Bend this weekend, come by.  Congratulations to my good friend, Carter Snead, the Center's Director.