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, May 29, 2018

The Irish vote

I imagine that Mirror of Justice readers have read more than enough about the recent vote in Ireland to scrap the pro-life provision in its Constitution.  The end-of-the-day results didn't surprise me, but I was struck (and sickened) by the nature of the repeal campaign and the images of ghoulish jubilation in the streets after the vote.  

It remains to be seen what legal regime Ireland will construct for regulating abortion.  It's worth noting that one of the possibilities that I've heard the most about would make 12 weeks the cut-off for abortion-on-demand.  This would mean that even Ireland's brand-new, spirit-of-the-age, cast-off-shackles-of-popery abortion regime would still be more restrictive than any American state's.   

May 29, 2018 in Garnett, Rick | Permalink

"Is Religious Freedom Under Threat? Trans-Atlantic Perspectives"

I had the pleasure and privilege of participating last week in a very engaging conference, sponsored by Emory's Center for the Study of Law and Religion and the McDonald Centre on Religion, Ethics, and Public Life at Christ Church, Oxford.  Mary Ann Glendon delivered an -- as one would expect -- excellent keynote, and the presentations (except for one) were all interesting . . . and under time!  It was great to meet scholars, litigators, and students from the U.K. who are engaged with law-and-religion and religious-freedom questions.  Thanks very much to Emory's John Witte and Christ Church's Nigel Biggar for bringing us together!

May 29, 2018 in Garnett, Rick | Permalink

Friday, May 25, 2018

The End of "Religion as a Good": Thoughts on Movsesian and Garnett

My colleague, Mark Movsesian, has a thoughtful piece over at First Things, in which he argues that the association of religion in America with particular political parties is becoming more pronounced. Mark makes the point that, increasingly, "a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party." He cites Tocqueville for the view that while in Europe, everyone understood that religion and republicanism were enemies, that was not the case in America where, notwithstanding religious differences, Americans have never had religious and non-religious parties in the same way. But that is now changing, Mark claims, citing a Pew Center survey indicating that there is increasingly a correlation between belief in God and party affiliation (Rs believe much more than Ds).

The piece may be read profitably alongside this article about the introduction of the new "Do No Harm Act" by various Senate Democrats, whose object is to narrow the protections of the Religious Freedom Restoration Act, especially as a defense against the operation of "others' civil rights." It appears that the civil right of religious liberty would take second place to any other civil right under the proposed statute. Rick Garnett offers the view in the piece that the Act "reflects a mistaken view that religious freedom should only be granted when it is costless." The story goes on to say that "since the bill is highly unlikely to pass, without Republican support, its purpose is in large part simply to announce Democrats’ priorities to voters before the midterm elections in the fall." (this opinion is attributed to Charles Haynes of the Newseum)

The story seems to support Mark's view that religion is becoming politicized along party lines. RFRA, after all, passed with very strong bipartisan support in 1993. Its aim was to protect religious freedom for all. But, so the argument might go, today the breakdown of support for RFRA, and the efforts to shrink it (and, eventually, perhaps to repeal it), demonstrate the fragmentation of support for religious freedom along party lines. Rs support religious civil liberties. Ds support other civil liberties.

I'm not sure this account is accurate. At the very least, it does not account for the way in which many progressives have thrown their support against, for example, the Trump Immigration order and in favor of Muslim immigrants. It does not account for at least some progressive support for the expansion of religious freedom to include non-traditional "religious" groups such as the Nones and other conscientious believers. It does not account for progressive support for at least some of the Court's recent religious liberty cases, such as Holt v. Hobbs.

My own view is that we are witnessing the end of the period in which "religion" is seen to be a general good, and therefore in which "religious" freedom ought to be protected for that reason. I have written before about the vacuity and ultimate unsustainability of the category of "religion" in contemporary American law, and so I do not think it is particularly surprising to see this development. But that does not mean that one party is the party of "religion" while the other is the party against "religion." It means that "religion" as a conceptual category thought, in general, to be worthwhile, and "religious freedom" as a right generally worth supporting, is moribund (there are reasons it is dying off, which I discuss in the piece).

Instead, what is emerging in the partisan fragmentation is that the Rs and Ds are becoming the parties of particular religions and religious traditions. Rs are in general more sympathetic to traditional Christian religious beliefs (in general, of course...there are prominent exceptions at the highest levels of government), while Ds are in general hostile to them--believing that Christians in particular "impose" their views (particularly their views about sexuality) on others in the name of Christianity. Ds are in general more sympathetic to religious views that are not traditionally Christian (indeed, one might even say that the Nones represent a distinctively modern Christian heresy, but that's a subject for a different post) or that they associate with minority groups that they believe warrant special protection, while Rs are in general hostile to them. The reason that Senate Ds sponsor the No Harm Act is that they oppose the right of traditional Christians to use their views about sexuality to discriminate against LGBT people (I am putting it polemically, of course). The reason that Senate Rs oppose the Act is that they disagree. None of this has much at all to do with "religion" as an abstract category.

Perhaps if we had more parties in this country than the usual dreary duo (something to be fervently wished for, but that is also for another post), we would see even more fragmentation. But the growing divisions between our existing political parties along these lines reflect preferences for certain kinds of religion over others, not religion as such. They are both religious parties. The place of the specific religious tradition (or, in the case of the Nones, view) in American public life, its substantive positions (particularly as respects sexuality), its market strength, its "other-ness"--all of these and more are true markers of partisan support or opposition. What has changed politically is the notion that religion qua religion is worth protecting as an American good. And, in light of the incoherence of the category in American law and politics, small wonder that it has.

May 25, 2018 in DeGirolami, Marc | Permalink

Wednesday, May 23, 2018

"Vocation, Expressive Conduct, and Religious Liberty"

Although I haven't read it carefully, this student note looks like a useful addition to the literature on free-exercise exemptions in the commercial sphere. Although it appears to settle on some of the same considerations as previous articles to delineate some such exemptions as proper while setting limits on their scope, it does so through the (worthwhile) introduction of the concept of religious "vocation" in one's business.

Recent scholarship on religious liberty claims, perhaps following the lead of litigants raising claims for religious exemptions in the wake of Obergefell, has largely focused on arguments that certain forms of business activity are “expressive conduct” that government cannot compel. This Note aims to shift the focus of the debate, by arguing that the expressive conduct line of argument distracts from the real collision these cases involve, between two kinds of identity that are both worthy of protection. This Note's argument is twofold. First, it invokes the concept of vocation, understood as a religious obligation or set of obligations regarding work-related conduct, to suggest that, for many, how one acts in one's work is a key part of one's religious identity. Second, it argues that the concept of vocation can, and does, impose meaningful limits on the availability of exemptions from anti-discrimination laws, mitigating the fear that allowing such exemptions will eviscerate the law's ability to protect against discrimination.

May 23, 2018 in Berg, Thomas, Current Affairs | Permalink

Monday, May 21, 2018

Upcoming events in DC - and Helen Alvare's new book

On Thursday, May 31st, the EPPC Catholic Women's Forum, together with the Notre Dame Center for Ethics and Culture will host an important symposium at the Mayflower Hotel. "The #MeToo Moment: Second Thoughts on the Sexual Revolution" will include speakers Helen Alvare and Mary Eberstadt, several distinguished medical experts, Jennifer Lahl, and CUA Law professor Mary Leary. Cardinal Wuerl will open the timely event, and Carter Snead and Mary Hasson will moderate it. Read more or register for the free event here.

One expects that Helen Alvare, who will conclude the event, will offer arguments from her important new book out of Cambridge University Press, Putting Children's Interests First in U.S. Family Law and Policy: With Power Comes Responsibility. Mark Regnerus has an excellent review of the book here, and Helen is interviewed about it here.  The legal history in the book will be familiar to MOJers, but Helen's conceptualization of the trend as one of "sexual expressionism" is unique and very helpful. She defines "sexual expressionism" as "valorizing adult sexual expression, while remaining silent or indifferent regarding the adult's marital status, and to the reality that children's family structure is usually established at conception." The slim book is expensive, but worth ordering for law libraries and recommending to law and grad students. Helen continues to be one of the most courageous, intelligent, and articulate voices out there today - her new book is no exception. 

On Wednesday, June 11th, Americans United for Life will host "Women Speak 2018: A Symposium on Life Without Roe." The event will take place at the Heritage Foundation and "explore the current cultural and political paradigm that argues abortion is necessary for women's advancement in society." Speakers include Mollie Hemmingway, Catherine Pakaluk, Catherine Glenn Foster, and myself, among others. More info and register here.


May 21, 2018 in Bachiochi, Erika | Permalink

Sunday, May 20, 2018

What's Missing in the New CDF Document: Critique of corrupting, inequality-increasing monopolies

The Congregation for the Doctrine of the Faith has issued a new document called "Considerations for an Ethical Discernment Regarding Some Aspects of the Present Economic-Financial System."  Although some pre-emptively criticize some "on the right" for imagining that the Church's social doctrines do not contain grounds for criticizing many aspects of contemporary economic and commercial practices, I doubt if anyone actually thinks they don't.  Of course they do.  As the document (quite correctly) points out, "economic" questions are (like all interesting questions) questions of "moral anthropology" -- a point that bloggers here at MOJ have been making for 14 years.  So, some Catholic commentators will mine the document for quotes that they regard as useful rhetorical arrows to shoot at (mostly imaginary) Randians but that frustrating fact doesn't take away from the document's welcome reminder about the centrality of the question, "what are human persons, really, and what are they for?" 

For me, there are at least two things missing from the document:  First, the document fails to appreciate that regulatory complexity is, in fact, a subsidy to the rich and to those who are already "ahead."  The document calls, repeatedly, for "regulation" (as if the economies in North America or western Europe are unregulated -- they certainly are not, and no one believes they should be) but does not acknowledge that "regulations" can be good, or bad; they can reduce dangers or they can simply protect narrow interests.  Those who are best able to navigate complex regulatory environments will not be the poor.  In this sense, regulatory complexity is like corruption.  (Paragraph 31 comes close to recognizing this point, but in the context of tax avoidance.)

A second point:  The document does, to its credit, say that "it is good to point out how often the public debt is also created by an incautious, if not fraudulent, management of the public administrative system."  More was needed, though -- given the document's title -- on the urgent and moral dimensions of the saddling of the young and of coming generations with obligations simply to fund the social-welfare, pension, vacation, and retirement policies preferred by today's Baby Boomers.  This is at least as important as, say, the use of "offshore sites" (with which the document was strikingly concerned) for various purposes.

In some Catholic commentary on these matters, it's suggested that there are "laissez faire" "libertarians" out there who are plotting an end to all "regulation."  This is silly.  Again, western economies, including the American one, are pervasively regulated, and the argument is (or should be) about which regulations serve their goals well and which do not.  Some regulations do not protect the vulnerable but instead entrench monopolies and protect rent-seeking.  "Competition" should not be an idol, or the foundational principle, but it's hardly the sole cause of the various features of modern life that we as Christians regret.    

May 20, 2018 in Garnett, Rick | Permalink

Friday, May 18, 2018

Why would Philadelphia harm children by excluding Catholic foster-care services?

The story is here:  "At the end of June, the City of Philadelphia will be terminating its contract with Catholic Social Services because of its beliefs about same-sex marriage. They will be doing this despite the fact that no same-sex couple has filed a complaint against them. They will be doing this despite that fact that the City of Philadelphia has 5,000 children in foster care and has recently asked for more people to step up to the plate to be foster parents."

Thankfully, the happy warriors at the Becket Fund are on the case.

May 18, 2018 in Garnett, Rick | Permalink

Dulles Colloquium: "Can a Liberal Society Favor One Religion"

I had the privilege, a few days ago, of drafting a discussion paper for the Dulles Colloquium, hosted by Rusty Reno and the Institute on Religion and Public Life, addressing the question, "Can a Liberal Society Favor One Religion Over the Others."  The discussion was lively and definitely not monochronic or monotonal.  Here's just a bit from the paper, and I'd welcome reactions:

. . . And, what makes a political authority, regime, or state “liberal”?  I pass over here the fascinating “genealogical” work of Patrick Deneen, Brad S. Gregory, and others who have proposed accounts of how contemporary liberalism was made and the mechanisms, reactions, and dynamics that have given it its shape (or shapes).  For present purposes, I have in mind William Galston’s recent statement of “the core idea of liberalism,” namely, “recognizing and protecting a sphere beyond the rightful reach of government in which individuals” – I would add natural and other associations and societies – “can enjoy independence and privacy.”  Galston supplements this “core idea” with three others – the “republican principle” or popular sovereignty, i.e., the idea that “the people” are the source of (this-world) political legitimacy; “democracy,” which involves both formal political and civil equality and constrained majoritarianism; and “constitutionalism,” which “denotes a basic, enduring structure of formal institutional power,” a structure in which political power is granted, distributed, and constrained by entrenched and enforceable rights as well as other mechanisms.  All this, taken together, makes up, in Galston’s account, “liberal democracy,” which is – while, again, not the only possible moral regime – the regime I think we are asking about.

Such a regime need not be (indeed, it should not be) Jacobin, comprehensive, redemptive, sacramental, eschatological, crusading, thick, ambitious, or even particular optimistic.  It cannot be entirely neutral but it can be (indeed, I think it should be) cautious, historically aware, chastened, and humble.  It can and should be clear-eyed, Schumpeterian, and MacIntyrian about its vulnerability and contradictions, about its tendency to self-undermine, about its dependence on virtues, practices, and traditions that it cannot, by itself, create or maintain.  It is pluralistic – both in the sense that it tolerates different views about the good life and respects the exercise of the authority that rightfully belongs to non-state actors and societies.  It is not jealous of society’s little platoons and is comfortably resigned to the persistence of humanity’s crooked timber. . . .


May 18, 2018 in Garnett, Rick | Permalink

Manent & Brague, "Taking Religion Seriously"

This discussion, between Pierre Manent and Remi Brague, at the Law and Liberty site, is well worth a read.  Here's just a bit, from Brague:

I would not dare to speak about individualism in the presence of someone, precisely Pierre Manent, who has written a penetrating book on Tocqueville and thus has provided a conceptual formulation of individualism at a level to which I cannot attain. What I can say is that today it is the idea according to which history begins with us, with us as individuals, with each individual. Then one generalizes this false idea – it is false because the language by which we speak comes from well before us, not to mention our customs and manners – and applies it to the collective, and affirms that history begins today. From this idea comes educational curricula in which one has the impression that history began in May, 1968, and prehistory began with the Great Crash of 1929.

Therefore, it is the awareness of a long duration of time that one must try to restore, as, for that matter, the French historical school is doing and which we would do well to follow. This would entail, for example, that we grasp that the cathedrals are part of France and therefore we must not let them disappear (in the way that David Copperfield made the Eiffel Tower disappear!). However, certain speeches by high-placed officials tend in that direction. It would be good, therefore, to break with this voluntary amnesia concerning our roots

May 18, 2018 in Garnett, Rick | Permalink

Wednesday, May 16, 2018

Recent victories in battle against legalization of physician assisted suicide

This morning, Riverside Superior Court Judge Ottolia, overturned the California End of Life Option Act, a law allowing physician-assisted suicide.  Judge Otollia “ruled that the state legislature should not have approved the assisted-suicide law during that special session because the subject of the law fell outside the grounds of the special session.” Judge Ottolia also stated that the End of Life Option Act does not fall under the category of healthcare options.  The ruling will certainly be appealed and challenged, probably overruled, but it is heartening to see some recognition of the fallacy of considering assisted suicide "health care."

Even more heartening is the fact that proposals to legalize physician assisted suicide in both Massachusetts and Delaware failed this past spring, despite intense targeting by Compassion in Choices.  Hard-fought victories by the opponents in both cases, but victories none the less.

May 16, 2018 in Schiltz, Elizabeth | Permalink