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, January 30, 2017

We've Been There

When it comes to religious discrimination, we Catholics have been there before in American history.  We’ve been reviled as ignorant and subservient subjects of a foreign monarchy.  We’ve been subjected to second-class status.  We’ve been accused of undermining American values.

People of good faith will have differences of policy on national security, immigration, educational policy, etc.  The need for exercise of prudential judgment in implementing such policies must be acknowledged. Liberty

But we as Catholics above all others have a moral duty to stand up against discrimination on the basis of faith, whether blatantly expressed or hidden with a thin veil.

As Professor Robert George has said, “Let us, Muslims and Christians alike, forget past quarrels and stand together for righteousness, justice, and the dignity of all.”  When too many would like to divide, and when others act through ignorance or incompetence in a manner that divides us, we should choose the path of unity and solidarity.

January 30, 2017 in Sisk, Greg | Permalink

Statement by Father John I. Jenkins, C.S.C., president, University of Notre Dame ...

... on "[t]he sweeping, indiscriminate and abrupt character of President Trump’s recent Executive Order ...", here.

January 30, 2017 in Perry, Michael | Permalink

Sunday, January 29, 2017

Political virtues and Trump's refugee order

Why is there a strong likelihood that this weekend's chaos will repeat itself over the next four years?  It's not simply about the clash of worldviews or a politically divided citizenry.  We have largely learned to live with our disagreements, and I highly doubt that tougher immigration laws from President Rubio or President Kasich would've brought thousands of protesters to airport terminals and city centers.  The outrage is not a product of our failure to realize that President Obama barred Iraqis in 2011, or that we've always had limits on the number of refugees admitted, or that this is what our President said he would do on the campaign trail.  The outrage arises from a combination of the substantive overreaching, the background anti-Muslim rhetoric, the rushed timing, the failure to consult, the confused roll-out, and the utter failure to contextualize the EO as part of a broader story: perhaps a story of the EO as a regrettable but necessary concession to our fallen world, to be undertaken along with a redoubled commitment to care for our Muslim brothers and sisters who are here legally, along with refugees from around the world who are vetted under whatever new processes emerge.  I still might disagree with such a decision on the merits, but it would be a disagreement, period.  In context, the current EO feels like a repudiation of core American values.  I think it boils down to a question of character, which is why I'm afraid that it's a harbinger of things to come.  

As the Church has been trying to tell us for many years, the character of our leaders matters (and yes, the Church's own history sadly reflects that fact):

[R]esponsible authority . . .  means authority exercised with those virtues that make it possible to put power into practice as service (patience, modesty, moderation, charity, efforts to share), an authority exercised by persons who are able to accept the common good, and not prestige or the gaining of personal advantages, as the true goal of their work.

Compendium of the Social Doctrine of the Church para. 410.

You may not think that Jimmy Carter or George H.W. Bush were effective Presidents. That's fine - reasonable people can disagree about either one. But I submit that they were good men, and their goodness made them better Presidents than they otherwise would have been.

January 29, 2017 in Vischer, Rob | Permalink

Some disturbing background on the contraception-coverage-mandate conflict

Often during the past few years, I've heard the argument that, somehow, the Catholic bishops and other entities challenging the application of the contraception-coverage mandate were on-the-march "culture warriors" waging a misguided offensive campaign instead of pursuing compromise.  As I see it, and as I've said on this blog, it was not the challengers who asked for this conflict. In any event, Michael Wear's new bookReclaiming Hope, apparently details the cynical calculations of at least some in the previous administration who saw in the issue an opportunity to marginalize the bishops for political gain.  (Mark Halperin and John Heilemann had chronicled some of this in their account of the 2012 election, Double Down.)   Here's a bit from Jim Geraghty's review:

In describing the battle that erupted between the administration and the Little Sisters of the Poor over Obamacare’s contraception mandate, Wear casts himself as Cassandra. “This was not a standard disagreement between religious conservatives and a progressive White House, but instead a potentially landscape-shifting conflict-stoking move. This reality was conveyed to the highest levels of the White House repeatedly.” He claims that the administration chose “the path of most resistance” in the contraception fight as a deliberate, cynical political strategy: “A senior political advisor repeatedly thought that the bishops’ complaints would bolster a useful campaign narrative: that supporters of their view, including Republican Mitt Romney, held anachronistic views about women and family planning.’”

Unfortunately, there are more than a few reasons to think cynical attacks on Catholic bishops by prominent White House staffers will continue. . . .

January 29, 2017 in Garnett, Rick | Permalink

Saturday, January 28, 2017

Misogyny Does Not Arise Out of Nothingness

It has been two weeks of protests and counter protests here in Washington. So much energy and so much concern hang in the atmosphere. Additionally, for some of us the time between November and now has been one of reflection as to how low on the totem pole women actually are seen in America. Like many, I fear that we are all attacking symptoms of the problem, and ignoring the larger causes. In my view we create a culture awash in objectification of women, and then wonder how it is that so many could overlook repugnant treatment of women by candidates.

I shared a more in depth reflection here over at National Review Online…

January 28, 2017 | Permalink

The Executive Order regarding immigration and refugees

The text of the recent Executive Order regarding immigration and refugees is available here. One provision of that Order states:

(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

I tend to think that a relatively stable and prosperous country like the United States should be generous -- prudent and deliberate, but generous -- when it comes to accepting refugees, and so I am -- without, I admit, having studied the matter closely -- inclined to think the Order is, at least in some respects, misguided and bad policy. I am not sure, however, that I agree with those who are characterizing the particular provision quoted above as unfair or immoral. If we assume, as it seems to me we must, that our ability to admit refugees -- and, again, I think we can and should admit a lot of them -- is not infinite, then we are going to have to employ some criteria to identify who will be admitted and who will not. It seems, to me, reasonable and defensible to prioritize -- assuming that "prioritize" doesn't mean "categorically or reflexively reject all others" -- "refugee claims made by individuals on the basis of religious-based persecution." (I am putting aside, for now, questions about that the language regarding "minority religion in the individual's country of nationality," which, given the current givens, would probably in practice favor Christian applicants.)

I'd welcome other MOJers' views, especially President Scaperlanda's!


January 28, 2017 in Garnett, Rick | Permalink | Comments (0)

Friday, January 27, 2017

Religious liberty, immigration, and "sanctuary"

A few days ago, Notre Dame's Center on Civil and Human Rights convened a panel discussion on immigration and sanctuary.  I participated, and talked about the religious-freedom dimension of the issue.  The video is here, if you are interested.  (My remarks start at about 40:00.)

Among other things, I talked about an Alabama case in which the state's Catholic bishops (and others) filed a lawsuit challenging, on religious-freedom grounds, a law that purported to forbid anyone to assist or harbor unlawful immigrants.  (More here on the bishops' criticisms.)

In some quarters, the Catholic bishops' religious-freedom advocacy has been (unfairly and inaccurately, in my view) criticized as partisan or as excessively focused on a few "culture wars" issues.  (The same criticisms, increasingly, are directed at religious-freedom laws generally).  In fact, the USCCB's Ad Hoc Committee on Religious Freedom, like the Alabama bishops, criticized Alabama's law just as it did the contraception-coverage mandate.  

I'm wondering, relatedly, whether this particular provision of the President's recent executive order on immigration similarly imposes, or could impose, an unlawful burden on religious exercise:

Sec. 6.  Civil Fines and Penalties.  As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.

It depends, I suppose, on how "facilitate" is interpreted.  Still, something for those of us who care about religious freedom (as we all should) to keep an eye on.

January 27, 2017 in Garnett, Rick | Permalink | Comments (0)

Notre Dame Fighting Irish for Life

ND at March

January 27, 2017 in Garnett, Rick | Permalink

Mark Roche on "Realizing the Distinctive University"

My Notre Dame colleague, Prof. Mark Roche, has written and thought a lot about the liberal arts and Catholic higher education.  He has a new book outRealizing the Distinctive University:  Visions and Values, Strategy and Culture.  It is noted, here, in the Chronicle of Higher Education.  Here's a bit:

But distinctive institutions don’t have to be religious, single sex, or historically black, he says; and they don’t have to have wed "intellectual vigor and nonconformity" like, say, Reed College, or have a signature honors program like the one at Swarthmore College. Rather, they can emulate some of the many strengths of American higher education, and they can reap benefits from its shortcomings, such as its indifferent record in serving underrepresented racial, ethnic, and socioeconomic groups: "You can say, OK, where is there an objective gap, something important that needs to be addressed?"

I'm reminded of the theme that then-Dean John Garvey proposed, a few years ago, during his tenure as President of the AALS:  "Institutional Pluralism" (and that I blogged about a few times -- here, here, and here -- at the time).  I think Garvey was right then, and Roche is right now, that we need more of this in higher education.  I worry, though, that we are moving towards less.  Check out Roche's book.   

January 27, 2017 in Garnett, Rick | Permalink

Sunday, January 22, 2017

Roe v. Wade, 44 years later: "We Shall Not Weary, We Shall Not Rest"

It's always a good move to re-read Fr. Richard John Neuhaus's great talk, "We Shall Not Weary, We Shall Not Rest":

Nobody is a nobody; nobody is unwanted. All are wanted by God, and therefore to be respected, protected, and cherished by us.

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person¯of every human person.

January 22, 2017 in Garnett, Rick | Permalink