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.

Monday, May 20, 2019

19th century Blaine Amendments impede school choice today

George Will's latest article at National Review does a great job summarizing the history of the Blaine Amendments, which were inherently anti-Catholic and written to prevent public funding of Catholic schools during the wave of Catholic immigration in the 19th century. The state of Montana adopted its own Blaine Amendment in 1889 and readopted in its 1972 constitution. It reads: There shall be no “direct or indirect appropriation or payment” of public monies “for any sectarian purpose” or to aid any institution “controlled in whole or in part by any church, sect, or denomination.”

In 2015, Montana's legislature enacted legislation providing a small tax credit of up to $150 for individuals or businesses donating to private, nonprofit scholarship organizations that award scholarships for children to attend private schools. Montana’s Department of Revenue issued a rule forbidding recipients from using their scholarships at religious schools per its Blaine Amendment, and the Montana Supreme Court has upheld the rule.

The Supreme Court will soon decide whether to hear an appeal from Montana's high court. 

May 20, 2019 | Permalink

Saturday, May 18, 2019

Evaluating how conscientious pro-life legislators change law and public discourse

Recently enacted abortion prohibitions that apply early in pregnancy raise the question of how to evaluate legislative action more generally. It is often a mistake to focus on just the content of the legislation itself when figuring out what law is made. For that legislation is not itself the law even after enactment. Instead, the law brought into being by any act of legislation is the set of new propositions about the law that are true as a result of the interaction of that newly enacted legislation with the rest of the law.  

Suppose, for instance, that a ban on abortions after 6 weeks' gestational age is unconstitutional. If the legislation is unconstitutional, then enacting it into the law does not change the law. It could have other effects, such as enabling lawsuits that enrich lawyers for abortion proponents. Those other non-legal effects are a mixed bag and it would be very challenging to analyze them comprehensively. I'm guessing that if one were able to do so, though, a conscientious pro-life legislator in one of the United States would be acting reasonably either in voting for or voting against such legislation. 

If I had to guess, conscientious pro-life legislators voting for these earlier abortion prohibitions intend primarily to move the window in terms of what counts as "mainstream" anti-abortion legislation. If so, they very well might succeed in accomplishing their goal. Assume, as is most likely, that these laws are held unconstitutional by federal district courts, such rulings are affirmed by federal courts of appeals, and the Supreme Court denies certiorari. The law has not changed much, except perhaps around the edges insofar as new judicial glosses in the caselaw might have some exploitable nuggets one way or the other for future fights.

What about the discourse in the meantime? Some of the arguments drawn out by "heartbeat" prohibitions do not apply to later prohibitions, such as at twelve weeks' gestational age, that could more easily be upheld against constitutional attack. 

May 18, 2019 | Permalink

Thursday, May 16, 2019

Special Issue of Journal of Disability and Religion, "Navigating Impasses in Bioethics: End of Life, Disability, and Mental Illness"

The Journal of Disability and Religion has published a special issue with contributions from an interdisciplinary workshop on "Navigating Impasses in Bioethics: End of Life, Disability, and Mental Illness" that was jointly organized by the Von Hugel Institute of Critical Catholic Inquiry at Cambridge University, and the Murphy Institute of the University of St. Thomas in December 2017.  As an apology for the delay in the publication, they are making the issue available on-line for free until the end of May -- a real deal, since the publication typically secured behind a fairly prohibitive pay-wall. 

You can access the entire issue here.

My contribution explores "The Contradictory Expressive Functions of the Americans with Disabilities Act and Physician-assisted Suicide Laws."  Here's the abstract:

Certain laws, such as civil rights laws and criminal laws, are considered to have powerful expressive functions. The expressive functions may be directed at shifting social norms, or at articulating a social consensus about a particularly important norm. The Americans with Disabilities Act (ADA) is such a law, expressing the norm that “society’s accumulated myths and fears about persons with disabilities” are as debilitating as actual disabilities. This article will analyze the arguments of disability rights advocates that the expressive effect of laws legalizing physician-assisted suicide directly contradicts the norm of the ADA.

Here are links to the other excellent articles in the issue, written by scholars from many different disciplines, offering perspectives from the US, Europe, and Canada. 

MAiD in Canada and the Homo Economicus View of Dignity: Inclusive Enough?, Thana C. de Campos

The Weight of Living: Autonomy, Care, and Responsibility for the Self, Patrick McKearney

“This Condition isn't Going to get any Better so I can't see why we're Prolonging it”: Risks and Benefits of using Empirical Research to Inform Normative Decisions Concerning End-of-Life Care, Elizabeth Fistein, Gemma Clarke, Anthony Holland & Stephen Barclay

Assisted Dying and Suicide Prevention,  David Albert Jones

Lives Not Worth Living: Rethinking Autonomy and Assisted Dying in the Light of Profound Disability, Lidia Ripamonti

Living and Dying with a Disability in Debtor Society: Why Context Matters in Assisted Suicide Debates, Brian Brock

Anthropologies of Hope and Despair: Disability and the Assisted-Suicide Debate, David Elliot



May 16, 2019 in Schiltz, Elizabeth | Permalink

A Few "Legal Spirits" Podcasts on Hate Speech and the Anti-vaccination Controversy

For those that enjoy listening to podcasts, my colleague, Mark Movsesian, and I have a few as part of our "Legal Spirits" series on law and religion, perfect for commuting or that quick workout at about a half-hour each.

First, a two-part series on "religious hate speech." Part I concerns government regulation of "hate speech" (speech either motivated by, or about, religion that is deemed hateful) while Part II considers the private side of suppression of speech considered hateful, focusing on universities.

Second, our most recent podcast is about the anti-vaccination controversy now roiling in Brooklyn and other parts of the country because of the resurgence of the measles. We talk about the legal ins and outs, and reflect on what the controversy might say about our ability to come together on questions of what truly constitutes a "compelling interest."

Listen in!

May 16, 2019 in DeGirolami, Marc | Permalink

Tuesday, May 14, 2019

Supreme Court Session Includes Key Cases for Catholics: Abortion and Religious Liberty

The U.S. Supreme Court has a number of cases that Catholic and other believers should keep an eye out for, touching on areas from religious liberty to abortion. From National Catholic Register: http://www.ncregister.com/daily-news/supreme-court-spring-session-religious-liberty-abortion-on-the-docket

May 14, 2019 | Permalink

Friday, May 10, 2019

2019 Lumen Christi Institute Summer Seminars

These Lumen Christi Institute Summer Seminars introduce participants to central themes, figures, and texts from the Catholic tradition. 

May 10, 2019 | Permalink

Thursday, May 9, 2019

Elizabeth Kirk on the Kansas abortion decision . . . and dissent

Here, at Public Discourse, is an essay by Elizabeth Kirk in which she underscores the many missteps in the recent majority opinion of the Kansas Supreme Court which, in a "failed attempt at serious philosophy," discovered/created a natural right to abortion, protected by that state's constitution.  Kirk also highlights the clear dissenting opinion of Justice Caleb Stegall.

May 9, 2019 in Garnett, Rick | Permalink

Great news: Ukrainian Archbishop Borys Gudziak to receive Notre Dame Award

More here.

Ukrainian Archbishop the Rev. Borys Gudziak will be presented with the Notre Dame Award at a ceremony June 29 in the Ukrainian city of Lviv, the University of Notre Dame announced Monday.

Gudziak is the founder of Ukrainian Catholic University in Lviv. He recently was elevated by Pope Francis to become metropolitan-archbishop of the Ukrainian Catholic Archeparchy of Philadelphia (the equivalent of an archdiocese).

Ukrainian Catholic University was the first Catholic university to open in territory of the former Soviet Union and the first university opened by one of the Eastern Catholic Churches. It was formally founded in 2002.

The Notre Dame Award is presented to “men and women whose life and deeds have shown exemplary dedication to the ideals for which the University stands: faith, inquiry, education, justice, public service, peace and care for the most vulnerable,” according to the university.

Learn more about Archbishop Gudziak in this moving piece by George Weigel in First Things.

May 9, 2019 in Garnett, Rick | Permalink

Wednesday, May 8, 2019

Jean Vanier, R.I.P.



A truly great man passed from this life to the next two days ago -- Jean Vanier. He dedicated much of his 90 years of life to making the world a better place for people with disabilities, and, as a consequence, a better place for everyone in the world.  He is probably best known for founding L'Arche, a worldwide movement dedicated to bringing men and women with disabilities into the heart of their societies, making their voices heard, and providing a true home and the opportunity to share everyone’s unique gifts to the fullest.

For the past two years, I have had the privilege of serving on the Board of Directors of L'Arche USA, supporting the work of L'Arche communities in the US.  (In fact, I am leaving tomorrow for our bi-annual in-person board meeting, taking place in Erie, PA, where the very first L'Arche community  in the US was founded in 1972.) I have truly come to appreciate the genius of Jean, and what he set in place back in 1964, when he moved into this little house in Trosley, France, with two men with developmental disabilities, Raphaël and Philippe.


L’Arche now includes more than 150 communities in 38 countries around the globe.  L’Arche USA includes 17 communities and 5 projects in states across the country.

In addition to his work with L’Arche, Vanier co-founded Faith and Light and inspired the creation of many other organizations. He influenced thousands of people around the world and published some 40 books, including on how people with intellectual disabilities make essential contributions to building a more humane society.

His most-widely read book is probably Becoming Human.  Two more that I particularly treasure are Living Gently in a Violent World:  The Prophetic Power of Weakness (with Stanley Hauerwas), and Drawn into the Mystery of Jesus Through the Gospel of John.

His sister, Thérèse Vanier, who left a distinguished career as a pioneering doctor in palliative care to join the L'Arche movement, wrote the following beautiful prayer which captures so much of what you will find in Jean's writings, and his life's work:

“May oppressed people and those who oppress them set one another free. May those who are disabled and those who think they are not, help one another. May those who need someone to listen to them move the hearts of those who are too busy. May the homeless give joy to those who, albeit unwillingly, open their door to them. May the poor melt the hearts of the rich. May those who seek the truth give life to those who are satisfied because they have already found it. May the dying who do not want to die be comforted by those who find it very hard to live. May those who are not loved be authorized to open the hearts of those who are not successful in loving. May prisoners find true freedom and free others from fear. May those who sleep on the streets share their kindness with those who do not manage to understand them. May the hungry tear the veil from the eyes of those who do not hunger for justice. May those who live without hope purify the hearts of their brothers and sisters who are afraid of living. May the weak confuse the strong. May hatred be surmounted by compassion. May violence be neutralized by men and women of peace. May it surrender to those who are totally vulnerable, so that we may be healed.”

May 8, 2019 in Schiltz, Elizabeth | Permalink

Monday, May 6, 2019

Notre Dame Program on Church, State & Society announces endowed lecture series

Notre Dame Law School’s Program on Church, State & Society has received a generous gift to endow a new lecture and conference series. The benefactors, who wish to remain anonymous, have named the series the Rice-Hasson Distinguished Lecture Series in honor of the late Notre Dame Law Professor Charles E. Rice and of Kevin J. “Seamus” Hasson '79, '82 M.A., '85 J.D., '12 Doctor of Laws (h.c.), and his wife, Mary Rice Hasson '82, '85 J.D. 

The Rice-Hasson Distinguished Lecture Series will serve as a flagship annual event and celebration of the Program on Church, State & Society. It will reflect and advance the mission of the program, the Law School, and the University by bringing accomplished and influential scholars and jurists to Notre Dame to engage students, faculty, and the entire Notre Dame community. 

You can read the full announcement here: https://law.nd.edu/news-events/news/program-on-church-state-society-announces-endowed-lecture-series/

May 6, 2019 | Permalink