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.

Friday, May 31, 2019

Five Insights Christianity Brings to Politics

This article by Michael Matheson Miller at Law & Liberty is a great introduction to the Christian tradition and how it intersects with politics. As the author notes, Christianity is not a political program yet it gives us a certain way of thinking about the state and the role of politics.

The summation of the Common Good is especially worth reading, as "Common Good" is becoming more difficult to define with more people using the phrase, often from a secular point of view:

The Common Good

The third major element of a Christian vision of government is the commitment to the common good. The common good consists of the political and the social conditions that enable individuals, families, and communities to “reach their fulfillment.”

It is important to note that the common good does not equal the good of the state. Individuals are not simply cogs in the machine of the state. Further, the community cannot be reduced to the political community. This is a common error. Nor does common good equal the greatest good for the greatest number. It is not simply more efficiency or more pleasure. It is rooted in a rich concept of the good life, always keeping in mind the eternal destiny of the person.

The state plays an important role in promoting the common good but cannot do everything. Its main role is in helping to create the conditions where people can flourish and to assist when necessary. As Thomas Aquinas explains, “It is contrary to the proper character of the state to impede people from acting according to their responsibilities—except in emergencies.”

May 31, 2019 | Permalink

Thursday, May 30, 2019

The Medieval Church and Modern Liberty

This great article by Paul Rahe at Hillsdale College explores some of the Christian roots of modern liberty.  

May 30, 2019 | Permalink

Tuesday, May 28, 2019

The History of Religious Freedom

Robert Louis Wilken recently posted this web exclusive on First Things about the history of religious freedom. Wilken notes the landmark decisions in the United States that have shaped the issue and then points out how Christianity has wrongly been branded intolerant and an enemy of religious freedom:

More recently, in a March op-ed in the Washington Post, historian and political commentator Robert Kagan wrote: “Only with the advent of Enlightenment liberalism did people begin to believe that the individual conscience, as well as the individual’s body, should be inviolate and protected from the intrusions of state and church.” Kagan reflects the conventional view that religious freedom was the accomplishment of the Enlightenment. Like others, he assumes that by the end of the seventeenth century the fanaticism of religious believers gave way to the cool reason and skepticism of philosophers, and this in turn led to ideas about toleration and religious freedom.


What is missing in these accounts is the contribution of Christianity. Many believe that Christianity is inescapably intolerant, and that only with the decline of religious faith in western society did liberty of conscience take root. But a more careful examination of the historical record shows that Christian thinkers provided the intellectual framework that made possible the rise of religious freedom.


Already in the ancient world, Christian writers argued (against their Roman persecutors) that religion could not be coerced. Religious belief by its very nature must be free. They also adapted and modified the understanding of conscience received from ancient philosophers, who understood conscience as a moral knowledge of one’s past actions. Christian thinkers, influenced by the use of the term “conscience” in the writings of the apostle Paul, began to see conscience not simply as knowledge of one’s past actions, but as a pedagogue of future action. To take one example: In the sixteenth century, when Protestant magistrates forced monks and sisters to abandon monastic life to embrace the teachings of the reformers, the abbess of a Franciscan community of sisters in Nuremberg told the city council: We hope that you will not apply pressure “in matters that concern conscience” and “force us to act against our wills to confess what the authorities want us to say.”


Of equal importance in the development of liberty of conscience were the writings of Christians who developed the view that civil authority and religious belief must be kept separate. They appealed to the medieval distinction of two powers—one religious, the other political (pope and emperor)—what is sometimes called the two swords. Ultimately, the distinction of realms goes back to the words of Jesus: “Render unto Caesar the things that are of Caesar and to God the things that are of God.”

May 28, 2019 | Permalink

Justice Thomas's important reminder re: abortion and eugenics

In his opinion concurring in the Supreme Court's summary reversal of the Seventh Circuit's (clearly incorrect) ruling invalidating an Indiana law requiring appropriate disposal of fetal remains, Justice Clarence Thomas provided an important and timely, even if (for some) uncomfortable and unwelcome reminder about the inescapable connections between Planned Parenthood and the rise of the abortion-rights movement, on the one hand, and eugenics and discrimination, on the other.  Scroll down to p. 13 of the Court's order list to read his powerful opinion.  He ends with this: 

The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. . .

Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.

May 28, 2019 in Garnett, Rick | Permalink

Friday, May 24, 2019

Freedom, Autonomy and Responsibility in Catholic Education

On Freedom, Autonomy and Responsibility in Catholic Education at Our Lady Seat of Wisdom Chapel, ACU North Sydney

The Homily linked above should be of interest to anyone working in Catholic education, especially these closing three paragraphs  . . .

We don’t just learn for learning’s sake, worthy as that is. We don’t just learn for our own uses, necessary as that is also. No, we learn that we might teach, accumulate so as to share, study in order to transmit, add to what humanity knows and put it to service. Through Eastertide we read of early Church heroes passing on the faith like sparks spreading through the dry Australian scrub. Today Paul and Barnabas argue for a bigger enrolment, as it were (Acts 15:1-6). And their way of resolving matters was to become fundamental for a Catholic college: we gather together to contemplate and converse, that together we might discover what is true and good and beautiful. We share our little wisdom, and listen to others. We beg the assistance of divine wisdom also. We sharpen our opinions on each other’s. We maintain an atmosphere of curiosity and docility, civil debate and scholastic endeavour. And then we hit the road again, sharing what we’ve gained with the world.

Our conference focuses on the freedom and responsibility in Catholic education. The flowering cross reminds us what our students, academics and institutions should be free for and responsible to: free for Veritas, for discovering truth, not just preference or opinion; responsible to Veritas, for reverencing truth, for building up and passing truth on, not just storing greedily or sifting ideologically. And we discover that Truth with a capital-T is a Man who also God, who came as witness to the truth and called on the Father to consecrate us to the truth (Jn 18:37; 17:17).

If you go to Rome, after visiting St Peter’s and, of course, the Rome campus of the Australian Catholic University, a third highlight worthy of your attention is the Dominican church of St. Clemente, one of the true wonders of ancient, patristic, mediaeval and renaissance Rome. In the dome above the altar is an incredibly rich 12th-century mosaic of the Tree of the Cross become the Tree of Life, with luxurious shoots sprung from the tree in all directions, supporting abundant growth in Church and society, with branches for every kind of animal and vegetable life, and for all human activity, active and contemplative. There are several scholars amongst the foliage, each at his writing desk. A cruel and deadly cross that once stood on a hill in a backwater of the Roman Empire, now stands gloriously in the middle of Rome for all to see, a tree of new life for every young mind – and every older heart also.

May 24, 2019 | Permalink

Thursday, May 23, 2019

Barclay on "First Amendment Harms"

Prof. Stephanie Barclay (BYU) has posted a new article called First Amendment Categories of Harms.  I recommend it highly (and not just because the author cites me in a few places!); it's an important contribution to, inter alia, the religious-accommodations debate.  Here is the abstract:

What role should harm to third parties play in the Government’s ability to protect religious rights? The intuitively appealing harm principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop and Hobby Lobby. While focusing on harm appears at first to provide an appealing simple and neutral principle for avoiding other difficult moral questions, the definition of harm itself operates on top of a deep moral theory about what counts as harm and why. Consequently, multiple scholars advancing iterations of these theories use “harm” as a term of art to mean very different things. This in turn results in scholars talking past each other and trading on a superficially simple idea that turns out to be incredibly complex. For this reason, the harm principle has proven unworkable in other contexts, including criminal and environmental law. This Article highlights the flaws of this approach in the religious context by measuring the theory against its own ends, including the theory’s failure to account for harms this approach would cause for religious minorities and other vulnerable groups.

Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies four categories: (1) prohibited harm (meaning a type of harm that is categorically impermissible); (2) presumptive harm (meaning a type of harm that is presumptively, though not dispositively prohibited); (3) relevant harm (meaning harm that courts will assess alongside other important factors, but whose weight is context-specific), and (4) inadmissible harm (meaning harm that is given no weight regardless of how severely or disproportionately it is experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions, but are in fact common to all First Amendment rights. Further, this descriptive framework sheds light on which sorts of harms matter, and when, and it highlights the competing harms that always arise when any rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more fruitful normative questions, including whether there is a justifiable tradeoff between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.

May 23, 2019 in Garnett, Rick | Permalink

Wednesday, May 22, 2019

Pro-life community debate prudence of new anti-abortion laws

Following a wave of new state laws significantly restricting abortion, Catholic pro-life advocates and legal experts are divided over whether such bills offer a winning strategy for the eventual overturn of Roe v. Wade or if they threaten decades-long strategies to gradually prohibit abortion.

An Alabama bill, which was signed into law last week and is now the most restrictive abortion law in the nation, has become a flashpoint - provoking widespread rage among abortion rights activists and dividing pro-lifers, some of whom prefer an incrementalist approach that chips away at abortion access, while others seek a head on challenge to the Supreme Court’s 1973 decision that established a constitutional right to abortion at any point during a pregnancy.

Read the full article by Christopher White at Crux here: https://cruxnow.com/church-in-the-usa/2019/05/21/pro-life-community-debate-prudence-of-new-anti-abortion-laws/

May 22, 2019 | Permalink

Call for nominations: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019.  The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2019.

May 22, 2019 in Garnett, Rick | Permalink

Tuesday, May 21, 2019

Freedom of Religious Institutions in Society (FORIS) Project Launch

The Religious Freedom Institute will officially launch its Freedom of Religious Institutions in Society (FORIS) Project with a conference on May 29th at the Washington Hebrew Congregation. The project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world. The event is open to the public and one can RSVP here: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society

May 21, 2019 | Permalink

Monday, May 20, 2019

John Copeland Nagle, R.I.P.

My dear friend and colleague, John Nagle, passed from this life over the weekend. He was a great teacher and legal scholar, and also -- and more importantly -- a deeply good, generous person.  (I recommend this wonderful reflection, by his former student, Derek Muller.  Here is something I did at Prawfsblawg.  And, here is the announcement on Notre Dame Law School's page.)

MOJ readers might remember the project, "Catholics and Evangelicals Together on Law."  John was one of the signatories.  

John wrote and taught about so many things, it's not possible to do justice to his academic work (let alone his personal gifts) here. If you haven't read his stuff before, take a look.

Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace. 

May 20, 2019 in Garnett, Rick | Permalink