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.

Thursday, September 19, 2019

Principles or Improvisations? Why (and how) the Justices Should Reject Anti-religious Discrimination

A little over two years ago, concurring in Trinity Lutheran Church of Columbia, Inc. v. Comer, Justice Neil Gorsuch insisted – quoting the late Chief Justice William Rehnquist – that “our cases are ‘governed by general principles, rather than ad hoc improvisations.’” A case on the Supreme Court’s docket this term, Espinoza v. Montana Department of Revenue, will – among other things – put this claim to the test.

Read the entire post by Richard Garnett at SCOTUSblog

September 19, 2019 | Permalink

Tuesday, September 17, 2019

Admitting fewer refugees ‘runs counter’ to U.S. values, say USCCB leaders

A proposal to reduce the number of refugee admissions to the United States to fewer than 30,000 “would be wholly counter to our values as a nation of immigrants,” said the president of the U.S. Conference of Catholic Bishops and the chair of the bishops’ Committee on Migration.

Since Congress passed the Refugee Act in 1980, the U.S. had admitted on average 95,000 refugees annually. In recent years, the U.S. has accepted between 50,000 to 75,000 refugees per year. The number was capped at 45,000 after Trump became president in 2017 and was scaled back to 30,000 refugees for fiscal year 2019.

Full article at Crux here


September 17, 2019 | Permalink

Friday, September 13, 2019

Huleatt Reviews Goodrich

I want to call a little notice to John Huleatt's review of Luke Goodrich's new book, Free to Believe: The Battle Over Religious Liberty in America. It's a thoughtful and positive review, and I'm especially pleased to record that Mr. Huleatt is a St. John's Law graduate, class of 2002.

September 13, 2019 in DeGirolami, Marc | Permalink

Wednesday, September 11, 2019

Christians in Burkina Faso face options: ‘Flee, convert or die’

Christians in Burkina Faso are being forced to “flee, convert or die” by Islamic jihadists, according to a leading Catholic aid charity.

Burkina Faso’s government said on Monday that suspected extremists have carried out two attacks killing a total of 29 people.

Full article at Crux

September 11, 2019 | Permalink

Tuesday, September 10, 2019

A Catholic Pathway for Freedom in the Muslim World?

The Religious Freedom Institute recently posted the seventh of a series of nine posts that previews one chapter of the new book by Daniel Philpott, Religious Freedom in Islam: The Fate of a Universal Human Right in the Muslim World Today.


September 10, 2019 | Permalink

Monday, September 9, 2019

Why Conservative Christians Have a Stake in Protecting Muslim Religious Freedom

I have a piece on this subject up at Christianity Today. One bit:

Both groups, in different places and settings, are unpopular and face hostile, overly burdensome regulation. Opponents label them “Muslim terrorists” and “Christian bigots.” I don’t claim the situations are identical; Muslims are a small minority almost everywhere, while conservative Christians often have political and cultural power. But conservative religious beliefs about sex and other issues are highly unpopular in some places: in secular universities, in states and cities that are deep blue politically. Conservative Christians in those settings face restrictions, and it hurts their cause when Christians in power elsewhere restrict Muslims.

The piece at places, if there were room, could have cited our own Robbie George as well as Russell Moore, Luke Goodrich, and others who have made the case that religious freedom stands and falls together for all. "Everything that needs to be said has already been said. But, since no one was listening, everything must be said again.” (Andre Gide)

The piece is up simultaneously with a CT interview of Asma Uddin, former Becket Fund lawyer, on her excellent book When Islam is Not a Religion.


September 9, 2019 in Berg, Thomas, Current Affairs | Permalink

Sunday, September 8, 2019

"Religious Freedom and the Common Good: A Summary of Arguments and Themes"

That's the title of my introductory/overview essay, posted on SSRN, summarizing the papers from our Law Journal symposium at St. Thomas on the subject. The full set of papers is here. A couple of paragraphs from the abstract of my overview: 

       We tend to think that the common good is simply a limit on freedom: that individual and societal claims inevitably clash, that the common good stands for society’s interests in restricting the actions of individuals and private groups. But freedoms also serve social purposes. Indeed, such arguments may be increasingly important to defending the right of religious freedom in an era of skepticism toward many religious claims. Perhaps for this reason, advocates and scholars have made a discernible turn toward exploring the common good as one key rationale for religious freedom.

       But this justification of religious freedom also raises a number of important challenges and questions. They can generally be grouped into three areas: (A) What precisely is the evidence, and how strong is it, for the connection between religion and benefits to individuals and society? (B) What do religion’s social contributions have to do with religious freedom? (C) How does the common good suggest limits on the scope of religious freedom, or criticisms of religious freedom as it is practiced or claimed today?

The symposium brings together contributors from sociology, political science and history, law, and public-policy disciplinary perspectives. The roster includes Stanley Carlson-Thies, founder of the Institutional Religious Freedom Alliance; Angela Carmella, who writes on CST and the scope of religious freedom; Roger Finke and Dane Mataic, social scientist who do empirical work on religious restrictions around the world; Brian Grim, who gives a shortened version of his important study on the economic value of U.S. religion; Mark Hall, leading scholar on the founders' views of religion in public life, including their views on religious accommodations; Byron Johnson of Baylor's Institute for Religious Studies, among our leading sociologists on the empirical contributions of religious social-service activities; Jacqueline Rivers, sociologist and scholar of the African-American church; and Melissa Rogers, now at Brookings and formerly advisor on faith-based and community work, including religious-freedom issues, in the Obama White House.

While I'm at it, I should also commend Kathleen's Brady excellent article on the same topic, here.

September 8, 2019 in Berg, Thomas, Current Affairs | Permalink

Saturday, September 7, 2019

Should Conservatives Embrace or Reject "Liberalism"?

In 1993, when I was an untenured assistant professor, Oxford University Press published my book Making Men Moral: Civil Liberties and Public Morality. In that work, I aggressively challenged the form of "liberalism" that had dominated academic political theory since the early 1960s, and especially since the publication of John Rawls' profoundly influential book A Theory of Justice in 1971. That form of liberalism was of more than merely "academic" interest. It informed and guided political action and, perhaps even more importantly, constitutional jurisprudence among those who, in those days, styled themselves as "liberals." They had enormous success, especially in the courts.

My principal complaint against the liberalism of Rawls and others (e.g., Ronald Dworkin) was that it proposed a standard for the identification of principles of political morality and the design of political institutions--and for lawmaking and the formation of public policy--that it did not, and could not, itself meet. That standard, which Rawls labeled "anti-perfectionism," excluded as in principle unjust, at least when it came to constitutional essentials and matters of civil rights and liberties, predicating public decision-making on controversial beliefs about what makes for, or detracts from, a valuable and morally worthy way of life. Dworkin framed the requirement in terms of the duty of the state to adopt a stance of "neutrality" on such questions. I argued that such neutrality is undesirable and, indeed, strictly speaking impossible. And I proposed to show that liberal theorists themselves (inevitably and unavoidably) smuggle into their arguments precisely the sorts of controversial ideas about the human good that their theories officially exclude. One saw this, for example, in their arguments about pornography, abortion, and marriage.

But Making Men Moral was meant to be more than a critique of what Rawls came to call "political liberalism." It also proposed to show that a "conservative" alternative to liberalism needn't--and shouldn't--be illiberal. Although there were things to be learned from the broader liberal tradition on which people like Rawls ad Dworkin drew and built, that tradition did not invent freedom of religion, freedom of speech, the principle of inherent and equal human dignity, and other desirable political principles; nor did or does it supply us with the most compelling arguments for them. A better case for them could be made, I argued, on natural-law, "pluralistic perfectionist" grounds--a case that identified the ways in which respecting these principles served integral human well-being.

"Liberals," now re-styled as "progressives," have moved on. Many are embracing illiberalism, often without embarrassment or so much as a glance backward to the theory that they, or their tradition, deployed for more than fifty years to defend what they deem to be "rights" to pornography, divorce, abortion, same-sex marriage, etc. If they think of that theory at all, it is probably as something that served at the time as a useful tool in dislodging the pre-existing public morality--the fabric of legal and social norms--that had been shaped by biblical religion and classical philosophy.

Interestingly, however, some conservatives today invoke something like (or, perhaps better, some aspects of) the old "political liberalism" in attacking the illiberalism of contemporary progressives. But this draws the ire of other conservatives who see it as a sell-out of conservatism (and a rear-guard action that is bound to fail anyway). In response, conservatives in the former camp accuse those in the latter of falling into illiberalism (even proposing theocracy), as well as of undermining the constitutional basis for protecting the religious freedom and conscience rights of devout Christians, observant Jews, and others who are under pressure from illiberal progressives to conform to norms of progressive ideology.

And so we have the celebrated debate between two admirable conservatives, both of whom are friends of mine: David French and Sohrab Ahmari. A number of people have asked where I stand in the dispute. It would not be false to say I gave my answer twenty-six years ago in Making Men Moral: (1) anti-perfectionism is a mistake, let's not make it; (2) liberty is valuable, but not unconditionally or intrinsically, but rather instrumentally and as a condition for the realization of substantive human goods (some of which such as friendship and marriage and family life are inherently social); (3) procedural justice (like liberty itself) is important--critically so--and even properly understood as itself a requirement of substantive justice; but (4) procedural justice is not the whole of substantive justice, all that the common good requires, so achieving even perfect procedural justice does not ensure a substantively just polity or society; (5) so working for procedural justice--including in a system like ours by vindicating constitutionally and statutorily guaranteed rights by litigation--is good, but it is not enough; (6) still, we mustn't short circuit procedural justice in our zeal to achieve substantive justice--the ends do not justify the means; (7) so we need to avoid supposing that the alternative to "liberalism" (considered as the ideology that has been dominant on the left in our lifetimes) is some form of illiberalism (theocratic or otherwise); (8) and we must avoid throwing the baby (religious freedom, freedom of speech, other basic civil rights and liberties) out with the bathwater (anti-perfectionism, neutralism, the purely procedural conception of justice, together with misguided policy ideas like "rights" to pornography, abortion, etc.); (9) the way to think about civil rights and liberties (and all other questions of justice and political morality) is in relation to basic human goods--the constitutive aspects of the well-being and fulfillment (the thriving, the flourishing) of flesh-and-blood human beings and the communities we constitute and which in part constitute us (beginning with the family); and finally (10) such thinking in the cause of the overall common good will begin with basic universal moral and other practical principles, but will necessarily include, in many cases, prudential judgments that are not themselves universal ("always and everywhere") truths--judgments that take into account contingent circumstances, histories, traditions, opportunities, challenges, and the like--and which require practical wisdom of the sort that comes from a combination of experience, knowledge (including sometimes technical expertise), and sober, critical thinking.

Now, I don't expect everyone to go out and buy copies of Making Men Moral (though I do intend to send copies to Sohrab and David together with a note saying: "Why are you guys arguing when I sorted this whole business out when I was a kid--taking my professional life into my hands by publishing such a thing while I was coming up for tenure?" Just kidding!). So Ryan T. Anderson and I have an essay entitled "The Baby and the Bathwater" coming out soon in the journal National Affairs that revisits and updates the central arguments of the book (and adds some new thoughts), having in mind the division among conservatives today about what we should and shouldn't embrace going forward.


September 7, 2019 | Permalink

Notre Dame Program on Church, State & Society 2019 Fellows

Four Notre Dame Law students gained valuable exposure this summer in the area of religious-institutions practice. Sponsored by the Law School’s Program on Church, State & Society, each summer fellow assisted a religiously affiliated organization or law firm that serves such organizations.

The fellowship program is one of the many ways the Program on Church, State & Society seeks to educate young lawyers about the relationship between law and religion. The fellowships allow students to experience a variety of career options that combine law and religion and involve legal services to religious institutions of all types.

Read about the work done by the 2019 fellows here

September 7, 2019 | Permalink

Friday, September 6, 2019

Under Assault: New York’s Private and Parochial Schools

Will the Regents and education bureaucrats succeed in forcing nonpublic schools to conform to unprecedented state control?

In New York, the Education Department is redefining an 1894 state law requiring that private schools offer “substantially equivalent” instruction to students as that provided in public schools—henceforth imposing on private schools the curriculum, scheduling, lesson plans, hiring standards, and reporting requirements that public schools must follow.

Full story here

September 6, 2019 | Permalink