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.

Wednesday, December 6, 2017

Economics and Catholic Social Thought: A Primer

This seminar, in June, at Notre Dame, looks to be very good.  Spread the word!  Sign up!

Now in its third year, this seminar is designed as an introduction and immersion into Catholic social thought for graduate students and faculty in economics, finance, or related fields. Participants will cover foundational principles in Catholic social thought starting with the human person, dignity, freedom, subsidiarity, solidarity, and the common good, and moving toward applications of these principles to conceptual understandings and ethical considerations involving economic topics such as utility theory, firm and business ethics, wages, markets, globalization, poverty, and development. Participants will delve into social encyclicals, secondary sources, and relevant economics texts.

This seminar is cosponsored by the Catholic Research Economists Discussion Organization, the Notre Dame Center for Ethics and Culture, and the Kellogg Institute for International Relations.

December 6, 2017 in Garnett, Rick | Permalink

Masterpiece, Free Exercise, and Oral Argument

Thanks to Marc for describing how the free-exercise claim in Masterpiece Cakeshop took on more prominence than most people expected in Tuesday's oral argument. Doug Laycock and I have a piece in the New York Daily News explaining the free-exercise argument detailed in our amicus brief, and how it seemed to attract several justices' interest Tuesday. From the piece:

Justice Samuel Alito called it “disturbing” that the other three bakers could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.”


Justice Anthony Kennedy, likely among the swing votes, raised another piece of evidence. One of the state commissioners who ruled against Phillips stated that “freedom of religion . . . used to justify discrimination . . . is one of the most despicable pieces of rhetoric.”


Not content to criticize Phillips’ traditionalist view of marriage, the commissioner invoked slavery and the Holocaust as comparisons. No wonder Kennedy suggested the case involved “a significant aspect of hostility to a religion.”

I should say that our amicus brief did not emphasize "animus" or hostility as the essence of the free-exercise violation. We focused on the state's objective discrimination in protecting the other bakers and refusing to protect Phillips, while making (in the case of the state court) flatly inconsistent arguments concerning the two situations. If the free-exercise claim indeed prevails, it will be interesting to see how much it depends on a finding of animus and how much on the objective differential treatment.

Our brief also emphasized the importance of protecting both sides in the conflict between same-sex couples and religious traditionalists. Although oral argument is always an uncertain indicator, it was encouraging to see Justice Kennedy, the author of Obergefell, sound that same theme in the oral argument. From our Daily News piece:

On Tuesday, echoing his earlier argument for gay couples, Kennedy summed up this case: “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

December 6, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, December 5, 2017

Animus! (congrats to Tom and Doug)

The Masterpiece Cakeshop case was argued today before the Supreme Court. Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable.

Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day. Those justices were pretty focused on the "animus" exhibited by one of the Colorado Civil Rights commissioners, additional comments in a similar vein by a second, and (especially in J. Alito's questioning--see 58-59) evidence that the Commission found no fault with bakers who refused to make cakes for clients who espoused views critical of homosexuality--indeed, that approved such decisions "in light of the offensive nature of the requested message." See Masterpiece Cakeshop, 370 P.3d at 282 n.8.

I didn't expect the Free Exercise Clause claim to make any headway. But this is exactly what Tom Berg and Doug Laycock emphasized in their fine brief (which was noted by counsel at oral argument). I've got my own reservations about animus arguments. But kudos to the two of them for making this argument. Who would have thought that this might be the case to give the utterly desiccated Free Exercise Clause a little juice?

December 5, 2017 in DeGirolami, Marc | Permalink

Monday, December 4, 2017

"Masterpiece Cakeshop and Protecting Both Sides"

That's the title of a short piece that Doug Laycock and I have posted at the Berkley (Georgetown) Forum about Masterpiece Cakeshop. It summarizes aspects of the amicus brief we filed presenting the free-exercise case for baker Jack Phillips, and it argues that

recognizing a carefully defined right in circumstances like Phillips’s, while applying nondiscrimination laws in most cases of commercial services, would appropriately protect both sides in the conflict between same-sex marriage and religious liberty rights. 

December 4, 2017 in Berg, Thomas, Current Affairs | Permalink

A few general and tentative thoughts about taxation

Like most people, I do not know exactly all that is contained in the tax-related proposals that have emerged from the House and the Senate, and I'm not sure what will be in the tax legislation that eventually is enacted and signed into law -- if anything is.  (Given that things so rarely get "signed into law" these days, it's hard for me to be confident that anything will be.)  These two proposals contain some specifics that strike me as good policy and some that do not.  The process that is producing the proposals and that will (perhaps) eventually produce the legislation is, in my view, impossible to admire, but -- again -- I'm afraid it's been a while since our national legislature did much legislating.

My social-media feeds and the commentary I'm reading -- particularly from public Catholics, including bishops -- are largely skeptical, critical, or worse about these proposals.  My sense is that some skepticism and criticism are warranted, but also that some of the denunciations are exaggerated, underinformed, and/or overwrought.  We'll see.

What, if anything, do "Catholic Legal Theory" or the Church's social-teaching tradition have to say about all this?  Judging, again, from my social-media streams, many are confident that the answer  is "a lot of very specific things."  I don't think that's right.  A few thoughts . . . 

First, although it's not a distinctively "Catholic" position, it is a position that Catholics and everyone else should endorse that, generally speaking, that law-making should be characterized by "regular order", due consideration, deliberation, and transparency.  At present, our federal law-making is not. 

Next, I feel confident that the Gospel and the social-teaching tradition do not prescribe any particular mechanisms for political communities' important task of raising the funds necessary to do what political communities ought to do.  As I see it, a political community's taxation policies should be seen as, and should function as, a mechanism for that task, and (pretty much) only that task.  

Third, this mechanism should function well, not poorly.  That is, it should efficiently, justly, and intelligently raise the necessary funds, in ways that do not create counter-productive incentives and wasteful losses, that are constrained by law and due-process norms, and that impose proportionate burdens across the board.

Fourth, political communities should be willing, in normal circumstances (i.e., not war), raise as much money (through taxation and other means) as they want to spend, and should not spend more than they are willing to raise.  

With these four points in mind, I'm inclined to think that the taxation mechanism should not be used for policy purposes other than raising funds, although I realize that, in our world, it is used for other purposes (e.g., encouraging and subsidizing home ownership), even though I wish it were not.  I'd like to see those other purposes pursued in more transparent and direct ways.

December 4, 2017 in Garnett, Rick | Permalink

Movsesian on Masterpiece Cakeshop

My colleague, Mark Movsesian, has done a short and helpful video for the Federalist Society explaining the basic background and issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, on for oral argument tomorrow at the Supreme Court.

December 4, 2017 in DeGirolami, Marc | Permalink

Friday, December 1, 2017

Rienzi & Barclay: In defense of religious accommodation

Mark Rienzi and Stephanie Barclay have posted their forthcoming paper, "Constitutional Anomalies or As-Applied Challenges?  A Defense of Religious Exemptions," on SSRN.  Here is the abstract:

In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.

Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.

The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

December 1, 2017 in Garnett, Rick | Permalink