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, May 9, 2018

"Why American Politics are a Nightmare for Catholic Universities," featuring Garnett et al.

Our own Rick Garnett is quoted in this pretty even-handed piece in The Atlantic about the challenges Catholic universities face in having political figures speak at major events like commencement: from Obama at Notre Dame to Betsy DeVos this year at Ave Maria University. Since Catholicism cuts across the political parties' platforms, any such invitation is likely to trigger strong criticism from some significant number of people: 

There are unclear areas in what Catholicism recommends—for example, the Church holds that members should care for the poor, but what that means in practice is debated—that make it hard to associate the religion with one party exclusively. [True, although I'd say it's more that each party has, in different ways, moved away from some important aspect(s) of Catholic social teaching.--TB] But the rigidity of polarized American politics isn’t accommodating of a cafeteria-line approach to political positions: There’s no taking a little from one party, a little from another, and a little from a third. It’s all or nothing. That often means that if someone picks a side in one policy, he or she will be criticized for aligning with the broader agenda of that side.

Richard Garnett, a professor at Notre Dame who writes about freedom of speech and religion, put it like this: “It’s going to be a rare politician [who is] going to line up with the catechism on all fronts.” So, predictably, when a political figure is invited to speak at a Catholic event, it is going to be divisive. “It’s almost always going to be true given American politics and the way our parties divide up,” he said.

The answer is probably, as others have suggested, to stay away from politicians for a while and invite people doing good things in other walks of life. After all, there's not a lot to hold up as exemplary in the national political parties right now.

May 9, 2018 in Berg, Thomas, Current Affairs | Permalink

Tuesday, May 8, 2018

Democrats for Life Student Scholarship Essay Contest

Information and further links here. Deadline is June 20. The winner will be invited to read the winning essay at DFLA's annual conference, July 20-22, in Denver.


For Students age 16 to 26.

Prizes $2500, $1000, and $500.

Runs 15 March to 20 June 2018.

Welcomes Any [or No] Party Affiliation, Any [or No] Political Stance.

Here’s the prompt:

Please Forward, SnapChat, Facebook, Instagram, Twitter, Pinterest, Tumblr, WhatsApp, etc. to those you think interested. Click here to learn more.

May 8, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, May 5, 2018

USCCB announces Religious Freedom Week

It kicks off, appropriately, on the feasts of Sts. Thomas More and John Fisher.  More here.

The chairman of the USCCB's Committee for Religious Liberty, Archbishop Joseph E. Kurtz of Louisville, states: "Religious freedom allows the space for people of faith to serve others in God's love in ministries like education, adoption and foster care, health care, and migration and refugee services. We encourage people of faith to reflect on the importance of religious freedom so that we might have the space to carry out our mission of service and mercy, and we invite everyone to pray for our brothers and sisters who face intense persecution in other parts of the world."

May 5, 2018 in Garnett, Rick | Permalink

Thursday, May 3, 2018

Henry Garnet, S.J., pray for us!

On this day, Henry Garnet, S.J., was hanged, drawn, and quartered.  He was, for many years, the head of the secret Jesuit mission in England.  Pray for us!

May 3, 2018 in Garnett, Rick | Permalink

Joel Harrison on "Sovereignty"

This paper looks really interesting:

This chapter is forthcoming in Nicholas Aroney and Ian Leigh (eds), Christianity and Constitutionalism (Cambridge University Press, 2018). It discusses the rise of a modern concept of sovereignty as prior to and grounding all law, and associated with an unlimited and indivisible power that prioritises the will of a recognised authority. It then explores how the Christian tradition contains a consistent thread of challenge. This is reflected in three parts: the parallel authority of priest and king, or church and civil authority; the cultivation of multiple sites of authority, at local, regional, and international levels; and the coordinating, encouraging, and cultivating place of ‘monarchical’ rule. Rather than sovereign rule, the Christian tradition has emphasised the inter-twining of duality, plurality, and the one. Importantly, each of these components are understood as pursuing a shared horizon, a tradition, or discerning of right. Indeed, as such, it could be suggested that what is ultimately sovereign is the good itself.

May 3, 2018 in Garnett, Rick | Permalink

Congratulations to Mary Ann Glendon on the Evangelium Vitae Medal

I'm pleased to pass on the news from the University of Notre Dame that this year's winner of the Center for Ethics & Culture's Evangelium Vitae medal is Prof. Mary Ann Glendon.  (Here's the news.)  I had the pleasure of attending the Mass and dinner celebrating the occasion.  Hundreds of people, including many Notre Dame students, came together to honor and thank Glendon for her work and witness.  

Contrary to an unfortunate and misleading report from Distinctly Catholic, which was not based on any actual knowledge about the event itself, there was nothing remotely partisan (and certainly nothing "Republican") about the gathering.  (In fact, the only politician I saw was pro-life Democrat Dan Lipinski.)  Glendon's own brief remarks focused on her community of pro-life women in Boston and on the crucial connection between the pro-life cause and solidarity with the poor.  And the many Notre Dame students whose pro-life commitments inspire them to volunteer to help women in the community appreciated that connection.  Congratulations to Glendon!   

May 3, 2018 in Garnett, Rick | Permalink

When Businesses Refuse to Serve for Religious Reasons

That's the title of MOJ-friend and Seton Hall law prof Angela Carmella's new paper. The subtitle:  "Drawing Lines between 'Participation' and 'Endorsement' in Claims of Moral Complicity".

The abstract:

The owners of small businesses and others involved in for-profit work occasionally refuse to provide a service to a patient, client, or customer on the grounds that to provide the service would render them complicit in immoral conduct in violation of their religious beliefs. Some of these conscientious refusals might be protected by legislation, regulation, or court decision, as in the case of a doctor refusing to perform an abortion, or an employer refusing to provide employees with contraception coverage. The new question raised—and soon to be answered by the U.S. Supreme Court—is whether wedding vendors (bakers, florists, and the like) who refuse to provide goods and services to same-sex couples will be similarly protected or whether they will be required to abide by the non-discrimination norms of public accommodations law. For those weary of religious claims in the culture wars, the very notion that the Court might extend legal protections to wedding vendors in such situations tends to cast doubt more generally on religion-based refusals in the for-profit context.

The purpose of this article is to draw a bright line between the traditional category of complicity claims and this newer category of wedding vendor claims. Traditional claims typically involve health care personnel and others refusing to participate in activities they consider to be immoral—most often those that entail ethical issues surrounding the beginnings and endings of life, such as assisted reproduction and assisted suicide. In contrast, this newer set of claims involve wedding vendors refusing to endorse activities they consider to be immoral, like the marriage of a same-sex couple. Herein lies the critical distinction: participation in immoral activity is not the same thing as endorsement or approbation of someone else’s immoral activity. The wedding vendors concede the distinction, as they expressly claim the right not to endorse a message with which they disagree, but they seek to extend the protections of traditional complicity jurisprudence to their claims. The article contends that the traditional complicity jurisprudence, which allows businesses to refuse to participate in activity they consider immoral, has little, if anything, to say about refusals to approve the conduct of others. The Supreme Court should not extend this jurisprudence to the wedding vendor context.

You can download the paper here.


May 3, 2018 in Perry, Michael | Permalink

Tuesday, May 1, 2018

Berman Award for Law & Religion Scholarship: Call for Nominations

Call for Nominations:

Harold Berman Award for Excellence in Scholarship

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at nt277 at cornell-dot-edu by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

May 1, 2018 in Berg, Thomas | Permalink

The Costs of Invalidating the Housing-Allowance Exclusion

In Gaylor v. Mnuchin, the Seventh Circuit is reviewing a district judge's ruling that the Establishment Clause invalidates section 107(2) of the IRS Code, the provision that allows ministers/clergy (of all faiths) to exclude an employer-provided housing allowance from income for federal tax purposes. (Section 107(1), which allows exclusion of the value of an employer-provided parsonage, is not challenged.)  Becket, which represents clergy intervening in the case to defend the provision, has a case page on its website. A brief summary of the argument on the merits in Becket's opening brief (at 6):

Section 107(2) takes the longstanding convenience-of-the-employer doctrine, which [excludes employer-provided housing from income if the employee--religious or secular--uses it for the employer's convenience], and applies it to ministers in a way that reduces entanglement and discrimination. [From TB: It reduces entanglement in the sense that otherwise the IRS would have to make religiously sensitive inquiries inquire into what constitutes meaningful use of the minister's home for the church. And it reduces discrimination in the sense that limiting the exclusion only to church-provided parsonage favors those churches that are old, established, or wealthy enough to have an existing parsonage or be able to make a down payment on a new one.]

Several amicus briefs filed support the government and the clergy-intervenors. Our Religious Liberty Appellate Clinic at St. Thomas helped draft a brief laying out the serious consequences for ministers and churches if 107(2) is invalidated. Using a variety of national surveys, we document these conclusions (from our summary of argument, pp. 3-4):

      A. Housing allowances excludable under § 107(2) are deeply embedded in our national life—that is, widely used in ministerial compensation structures. [Citing the "deeply embedded" standard from the Court's approval of tax exemptions in the Walz case.] Figures in studies indicate that anywhere from 61 to 81 percent of congregations rely on housing allowances (as opposed to church-owned parsonages) to give their ministers housing benefits.

      B. Invalidating § 107(2) would significantly disrupt the activities of ministers and congregations that have relied on the provision. The effects are evident in simple hypothetical examples involving a congregation of around the median-size budget, which is a modest $85,000. Solo ministers in that range receiving the median base salary—a modest $35,000—and a median housing allowance could see their federal tax liability nearly triple. To keep their ministers or preserve their financial stability, congregations would have to offset the added tax liability, including increased state income taxes. And the added compensation to accomplish that offset must significantly exceed the added taxes, since the new compensation is itself subject to federal and state income tax and federal self-employment tax. Calculating these effects in a simple hypothetical for a median-sized congregation shows how disruptive the invalidation of § 107(2) would be for congregations that have little cushion to absorb the effects.

We also present evidence that invalidating 107(2) "would disproportionately harm smaller congregations and those that must rely on a housing allowance as a means of structuring clergy compensation," and that it "would especially retired ministers and those nearing retirement."

St. Thomas 3L student Kacie Phillips (about to graduate!) did outstanding work on the review of studies and on the initial drafting of the brief.

May 1, 2018 in Berg, Thomas, Current Affairs, Religion | Permalink