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.

Saturday, August 19, 2017

"Drive Like Your Kids Live Here"

A new sign seems to be the latest trend, at least in certain areas surrounding my neighborhood. Have you seen it? Social Decay

"Drive Like Your Kids Live Here." It's just fantastic. I like to think of it as emphasizing the word "Your." I suppose the assumption, born from hard experience I am sure, is that people drive recklessly in neighborhoods with homes in which children live. What could possibly impress upon these reckless drivers to drive a little slower, a little more carefully?

I've got it. Try to get these people to think about how they would drive if their own children's lives were at risk. After all, people only really care about the safety and well being of their own children. What difference does it make if I put my neighbor's children at risk? I don't care at all about them--certainly not enough to drive safely and responsibly. But my kids. That's different. I actually would be sorry if something happened to them and I was at fault.

What a hopeful portent of the strength of American community.

August 19, 2017 in DeGirolami, Marc | Permalink

Friday, August 18, 2017

Confederate monuments and empathy

I confess that Public Discourse is not the first place I would have expected to see a stirring call to take down Confederate monuments, but Matt Franck offers just that today, and it is worth a read.  Key excerpt:

For these [monuments] are in their turn a gratuitous slap in the face of people who have felt the sting too much already. For a white Yankee like me, they’re bad enough. For black Americans, they must be intolerable. Large and forgiving natures might look on the statues now as relics of an ugly past that the country has in many ways overcome, fading into the background of noisy traffic in the modern, bustling South. But recent events in Charlottesville suggest that this overcoming is by no means a finished business. The statues should go, in order to deprive today’s feckless white supremacists of rallying points at the feet of monuments erected by yesterday’s more successful white supremacists.


Understanding the principled difference between the founding generals and statesmen of the United States—including the slave owners—and the founders and generals of the Confederate States can give us a bulwark against the slippage that President Trump evidently fears. No one ever erected a statue of George Washington in order to communicate his race’s superiority and to lord it over others.

As Franck acknowledges, reasonable (and non-racist) citizens can disagree about this.  But what's so troubling -- and this is my own editorializing -- is the utter failure among many opponents of removal to acknowledge the non-frivolous reasons for removal, much less empathize with our neighbors for whom removal would represent a burden lifted.  (I don't think the failure runs both ways -- African Americans growing up in the South are not ignorant of the arguments for Southern heritage and history.) 

Setting the tone for this failure, of course, is our President.  He doesn't have a monopoly on a lack of empathy (see, e.g., "basket of deplorables"), but combined with his lack of intellectual curiosity, utter self-absorption, and willingness to leverage fear of "the other" for strategic political advantage, President Trump's glaring lack of empathy threatens to foment social divisions in our country to an extent unseen for generations.  To be clear, I'm not suggesting that he is the source of our divisions - he is exacerbating them.

When I first became a dean, I was talking with another dean who was nearing the end of a very long and successful tenure.  I had identified a range of important leadership qualities such as vision, integrity, transparency, and confidence.  He responded, "No, the most important quality in a leader is empathy."  The longer I serve in a leadership role, the more obviously and undeniably true I find his observation to be. 

August 18, 2017 in Vischer, Rob | Permalink

Wednesday, August 16, 2017

Sugarman on the Constitution and Faith-Based Charter Schools

Here (Download Sugarman on Faith-Based Charter Schools), and forthcoming in the Journal of Law and Religion, is Prof. Stephen Sugarman -- a longtime education-law and education-reform expert -- on whether the Constitution permits the exclusion of faith-based schools from charter-school programs.  The abstract:

This article argues that it is unconstitutional for state charter school programs to preclude
faith-based schools from obtaining charters. The rst section describes the “school choice”
movement of the past fty years, 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. The second
section argues that based on the current state of the law it should not be unconstitutional,
under the First Amendment’s Establishment Clause, for states to elect to make faith-based
schools eligible for charters, and, therefore, the current practice of formal discrimination on
the basis of religion against families and school founders who want faith-based charter
schools should be deemed unconstitutional by the US 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.

August 16, 2017 in Garnett, Rick | Permalink

An . . . interesting petition for rehearing filed in Fratello

A few days back, I noted a welcome decision by the Court of Appeals for the Second Circuit in a ministerial-exception case.  I didn't mention in that post the fact that, along the way, the lawyer for the employee had repeatedly made anti-ministerial-exception arguments that were so overheated (and, frankly, anti-Catholic) I felt sorry for the judges and law clerks who had to work, I'm sure, to find actual arguments to engage.  Well, if you want an example of (a) how not to write legal arguments and (b) the unhinged nature of some of the opposition to religious freedom for institutions, see this petition for rehearing.  Here's a taste:

The Panel’s opinion, left uncorrected, will be remembered as the Dred
Scott10 of religious liberty cases. Like Dred Scott, it will be correctly seen as the
judiciary ignoring the rights of an individual for the sake of powerful interests,
there slave owners and here, the Roman Catholic Church and Christian Right. And
just as Southern law eventually deemed someone with a tiny fraction of African
blood as a “Negro” whose rights could be diminished, the Panel’s decision will
allow greater and greater expansion of who a “minister” is, so that eventually a
huge percentage of Church-affiliated or “religious” employees will be deemed
ministers by the courts (even if not by their Churches), and virtually all employers
immune from civil law.

And another:

In the Roman Catholic elementary and high schools alone, both teachers31
and principals will be faced with both the actual or the threatened loss of their civil
rights and their own First Amendment freedom. This may include around 100,000
parochial school teachers and principals, and because these educators educationally
and physical supervise their wards, the Panel’s ruling also imperils the over 2.3
million parochial school children who are educated today in these schools. Then
double that number for all non-Catholic school, and then add all other Churchaffiliated
workers, and we have a huge number of Americans who will soon
discover that the federal courts, let by the Second Circuit, have taken away their
civil rights on the altar of Organized Religion.

And . . .

The undersigned humbly requests that the Court seriously and thoughtfully
consider this Petition. This is a tremendously important case. In the big picture, it
is more important than a death penalty case or a billion dollar antitrust case,
because what is at stake is our democracy.

August 16, 2017 in Garnett, Rick | Permalink

Cardinal O'Malley on Charlottesville

I have found myself struggling for words that might appropriately convey any helpful insights for our nation's current crisis of moral leadership, but I'm grateful that Cardinal Sean O'Malley has offered a reflection that calls us back to the central importance of ideas and ideals:

Nations live and flourish because of their ideas and ideals, not simply because of their material wealth or power. Our ideas and ideals express our identity and set the standards for our behavior as citizens. For the United States a core statement of our identity is expressed in the phrase “E Pluribus Unum”, from many peoples we shape one nation. This treasured civic truth reflects and is rooted in the biblical heritage of belief in the dignity of all people, and a shared humanity.


We have not always as a nation reflected the best of our ideas and ideals, but they stand as a goal toward which we strive. Our country is once again in a moment when the civic and biblical heritage is being attacked and tested. We need to reassert and reaffirm the belief that one nation is meant to include all: the multiple races, cultures, ethnicities and religions which make up our country.


The angry and violent mob which gathered in Virginia this past weekend, by word and deed, contradicted our national creed and code of civil conduct. As a nation in the past century we led the struggle against the pagan ideas of Nazism. Those who seek to resurrect a new form of Nazism and extreme nationalism – those who denigrate African Americans, who preach and practice anti-Semitism, who disparage Muslims, those who threaten and seek to banish immigrants in our land – all these voices dishonor the basic convictions of the American political and constitutional traditions. They must be opposed in word and deed. As a Catholic bishop I welcome the opportunity to stand with other religious leaders of the land in opposition to the voices of fragmentation and hatred. As the Archbishop of Boston, it is my responsibility to call the Catholic community which I serve to remember the basic truths of faith and reason which are so central at this moment. The truth that our rights and our duties to each other derive from God. The truth that we can successfully oppose hatred and bigotry by civility and charity. These truths can bind us together across racial, religious and ethnic communities. They can help us celebrate our pluralism as a rich treasure which strengthens this land. Today when our unity is tested, when our basic truths of faith and reason are violated, as people of faith and as citizens we must uphold our ideas and ideals. My prayer is that we can rise to this challenge. My belief is that we are surely capable of doing so

August 16, 2017 in Vischer, Rob | Permalink

Saturday, August 12, 2017

The Case for Complicity-Based Religious Accommodations

This paper, by Joshua Craddock (Harvard Law School), is worth a read.  Here's the abstract:

In recent years, religious objectors in high-profile religious liberty cases such as Burwell v. Hobby Lobby and Zubik v. Burwell have claimed that government policy would force them to become complicit in the moral wrongdoing of third parties. In their article Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015), Professors Douglas NeJaime and Reva Siegel argue that these complicity-based religious liberty claims should be disfavored. According to their theory, complicity-based claims differ from other religious liberty claims in both "form" and "social logic" because they impose "material" and "dignitary harms" on third parties.

This article argues that NeJaime and Siegel's third party harm theory is fundamentally flawed, and that complicity-based religious accommodations are both a traditional and necessary part of the American legal framework. Part I examines past Supreme Court precedent in the area of free exercise and finds significant support for complicity-based accommodations. Part II reevaluates the magnitude and legitimacy of the asserted third party harms, then weighs the inconveniences imposed on third parties against the injuries to religious claimants should accommodations be weakened or withdrawn. Part III contends that culture war conflicts will not be resolved through the elimination of religious accommodations in the complicity context, and proposes a subsidiarity-based alternative to imposing coercive legal penalties on religious objectors.

August 12, 2017 in Garnett, Rick | Permalink

Wednesday, August 9, 2017

Two books to consider as summer wanes

MOJ friends, Robert Cochran and Zach Calo recently published "Agape, Justice, and Law: How Might Christian Love Shape Law?" Rick Garnett and Robert George among many others have chapters in this fine book.

And, on Edith Stein's feast day, I also recommend Edith Stein: The Life and Legacy of St. Theresa Benedicta of the Cross, which will be available August 24, written by the award winning Maria Ruiz Scaperlanda.


August 9, 2017 in Scaperlanda, Mike | Permalink

Monday, August 7, 2017

Is Law Still a Helpful Analogue?

I had the opportunity earlier this summer to speak at the Portsmouth Institute Summer Conference, "Being Human: Christian Perspectives on the Human Person." I was asked to present on human ecology and, in the main, spoke from prior writings on this topic, some of which I'd published in Public Discourse earlier this year.

Relying on Pope John Paul II (and others), I made the claim in both the PD piece and at the Portsmouth Institute that perhaps "human ecology" could serve as a better analogue to the reality classically understood as natural law. Here's some from the original piece in Public Discourse:

For these recent popes, “the ecology of man” seems to approximate what would have been described classically as natural law: the idea that the human person possesses a nature that must be understood and nurtured for his full flourishing (eudaimonia, for the Greeks; beatitude, for the Christians). But the modern connotations of both nature and law are, without a great unlearning, too fixed or static to represent the dynamism of the human person in an authentic way. Consequently, natural law as a concept today is greatly misunderstood. For most, it is almost unintelligible.

But I wanted to dig a bit deeper at the Portsmouth Institute than I had in the PD piece about why "natural law" had become unintelligible to modern ears. Perhaps this was too complex to get at sufficiently as a sidebar (and may have taken my presentation too far into the weeds!), but I thought MOJers may find it of some interest. Here's some of that sidebar: 

The natural law of course requires that good is to be done and evil to be avoided. But it emerges more fully from reflections upon man’s natural inclinations to goodness, truth, and beauty, to self-preservation and intimate union, and to living in community. It is organically discovered (and discoverable) from within, we might say, not artificially (or arbitrarily) imposed from without.


But (sadly) “human nature” and natural “law” are concepts that have become reified over time (that is, these terms, to the modern mind, inaptly connote something fixed or static and, yes, imposed artificially and arbitrarily). The ecological analogue may better allow that same mind to reflect then, with fewer intellectual stumbling blocks perhaps, upon the dynamic and complex internal structure of the human person and of human experience.  


For the inner intelligibility that informs the natural world—that which allows scientists to study it, to understand it, to promote methods of protecting it—that same intelligibility informs all of creation, man no less. As Bishop Robert Barron reminds us, it is intelligibility itself, the capital ‘L’ Logos that is at the heart of, is that which makes possible, every quest for human understanding-- every small “L” logia (from ecology to biology to psychology). 


And so, the intelligible dynamic structure of the human person ought not be confined within concepts that have lost their capacity to ignite insight into the reality of things themselves, the reality, most essentially, of the transcendent yearning for truth, goodness, and beauty that God has placed in each and every human heart.


So, for instance, the term “law” now inaptly conjures for many a kind of Hobbesian command, a fixed statute borne of the arbitrary will of the legislator (to which each solitary individual owes his obedience)--with little sense of the reasoning, principles, and concrete particularity by which and from which it was derived. (This, we should be reminded, is a far cry from the more organic, reason- , virtue-, and tradition-dependent, common law understanding in which the jurist, accompanied by the accumulated wisdom and experience of the precedents before him, employed his reasoning capacity to ‘discover’ rather ‘create’ or ‘invent’ (or ‘rationalize away’) the way in which enduring legal principles might inform new circumstances. …And so we can begin to see how this older understanding of law would have properly served as a strong analogue to natural law in prior days).


And so, with the loss of law as a really good referent, the analogy to “ecology” may more readily represent to the modern mind the complex reality of human contingency, human agency, and human interdependence: that the human person is created, and he is endowed with a dynamic internal structure by which he desires, knows, and wills, and yet, by his choices, he creates himself; that he is deeply influenced by and, in turn, influences others; that he is conditioned by the environment in which he finds himself and yet is capable of transcending it.


Now, we should of course continue to work to recover the authentic meanings of natural law and of human nature in our post-modern age (and great philosophers such as Servais Pinckaers, Bernard Lonergan, and Karol Wojtyla have helped us begin to do just that). But in the meantime, those of us engaging others in the world can work to reach them by speaking in the tongues of our current culture.


Moreover, translating natural law insights not only affords a potential bridge to our fellow man; it also inspires those of us doing so to re-appropriate for ourselves the tradition anew so that we do not, in Russell Hittinger’s words, simply “regurgitate truisms,” without ever penetrating these ancient truths for ourselves. This inauthenticity is rejected immediately today, as well it should be...


Human ecology, as used by the popes then, implicitly assumes the existence of the moral law written on the heart of every human person, that when nurtured through love, cultivated in virtue, and protected from moral toxins, affords each of us an internal guide toward happiness. But “ecology” is also better able than “law” today to help conjure in the modern mind’s eye the social influences that may either support or undermine the development of that internal guide. In John Paul the Great’s words: "Man receives from God his essential dignity and with it the capacity to transcend every social order so as to move towards truth and goodness. But he is also conditioned by the social structure in which he lives, by the education he has received and by his environment. These elements can either help or hinder his living in accordance with the truth."


What the great saint was urging us toward, of course, is a more dignified culture, a social ecology worthy of the dignity of the human person. [It was to that topic I then turned.]

For more on how thinking ecologically can assist in the assimilation of ancient truths with scientific discoveries --and how all this can help get us beyond the (destructively) false modern idea of freedom as autonomy, I cannot recommend enough Matthew Crawford's brilliant book, The World Beyond Your Head: Becoming an Individual in an Age of Distraction. You may have seen reference to the book in John Water's must-read First Things piece, "Back to Work." 

In case you needed any more summer reading... 

August 7, 2017 in Bachiochi, Erika | Permalink

Sunday, August 6, 2017

Place, Memory, and Affection

A wonderful set of observations from Victor Hugo on the importance of places and spaces of affection in the memory of one's homeland (Les Miserables, Cosette, Book V, Chapter 1):

The author of this book, who regrets the necessity of mentioning himself, has been absent from Paris for many years. Paris has been transformed since he quitted it. A new city has arisen, which is, after a fashion, unknown to him. There is no need for him to say that he loves Paris: Paris is his mind’s natal city. In consequence of demolitions and reconstructions, the Paris of his youth, that Paris which he bore away religiously in his memory, is now a Paris of days gone by. He must be permitted to speak of that Paris as though it still existed. It is possible that when the author conducts his readers to a spot and says, ‘In such a street there stands such and such a house,’ neither street nor house will any longer exist in that locality. Readers may verify the facts if they care to take the trouble. For his own part, he is unacquainted with the new Paris, and he writes with the old Paris before his eyes in an illusion which is precious to him.

It is a delight to him to dream that there still lingers behind him something of that which he beheld when he was in his own country, and that all has not vanished. So long as you go and come in your native land, you imagine that those streets are a matter of indifference to you; that those windows, those roofs, and those doors are nothing to you; that those walls are strangers to you; that those trees are merely the first encountered haphazard; that those houses, which you do not enter, are useless to you; that the pavements which you tread are merely stones. Later on, when you are no longer there, you perceive that the streets are dear to you; that you miss those roofs, those doors; and that those walls are necessary to you, those trees are well beloved by you; that you entered those houses which you never entered, every day, and that you have left a part of your heart, of your blood, of your soul, in those pavements. All those places which you no longer behold, which you may never behold again, perchance, and whose memory you have cherished, take on a melancholy charm, recur to your mind with the melancholy of an apparition, make the holy land visible to you, and are, so to speak, the very form of France, and you love them; and you call them up as they are, as they were, and you persist in this, and you will submit to no change: for you are attached to the figure of your fatherland as to the face of your mother.

May we, then, be permitted to speak of the past in the present? That said, we beg the reader to take note of it, and we continue.

August 6, 2017 in DeGirolami, Marc | Permalink

Wednesday, August 2, 2017

Some thoughts on the Trinity Lutheran case

I have a short comment up at Commonweal on the Supreme Court's recent decision in the Trinity Lutheran case.  A bit:

. . . All things considered, the justices in the majority had the better of the argument. It is certainly true, as Justice Sotomayor emphasized, that the separation—that is, the differentiation—between religious and political authority safeguards religious and political freedom. Yet this separation is not so strict as to require the blanket exclusion of churches from generally available and entirely secular public benefits, or to rule out cooperation between governments and religious institutions in advancing safety, education, health, and social welfare. Some observers, such as the incoming dean of Berkeley Law, Erwin Chemerinsky, complained that “the noble and essential idea of a wall separating church and state is left in disarray, if not shambles,” but this overreaction reflects a misunderstanding of the idea. Our Constitution wisely protects religious liberty by preventing official interference with strictly religious affairs. It would be unconstitutional for Missouri to pick Trinity Lutheran’s hymns or ordain its pastor, but it is well within our tradition to allow the church, like anyone else, to apply for help with playground safety. . . .

August 2, 2017 in Garnett, Rick | Permalink