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, March 31, 2020

Communities of Faith and Covid-19

In these precarious times, Americans need more guidance than ever before from religious and spiritual leaders. Yet in many places we have ceased gathering together. How can faith communities cope with the COVID-19 pandemic, and what advice do religious leaders have for American citizens right now?

Hosted by Baylor in Washington's Robert P. George Initiative on Faith, Ethics and Public Policy, this discussion will examine how believers and religious communities can thrive during this extraordinary season and so be prepared to contribute to America's common good.

Apr 1, 2020 07:00 PM Eastern

Registration Link: https://zoom.us/webinar/register/WN_nBv1rjgvQJSxcQ3ZJiBLNw


March 31, 2020 | Permalink

Common-Good Constitutionalism

In the Atlantic, I offer a broad-brush take on constitutionalism and how it might be devoted to the common good. The idea is to explore an alternative to both of the standard views that dominate the legal academy, originalism and left-liberal Progressivism. An alternative inspired by Ronald Dworkin — although with a very different conception of the substantive principles that should inform constitutionalism.

March 31, 2020 | Permalink

Friday, March 27, 2020

Catholic moral theology has important role as pandemic causes ethical dilemmas

As the world faces the unprecedented effects of the COVID-19 coronavirus pandemic, thorny moral questions are arising. 

From every level and sector of society, people are asking: What is the right thing to do?

From mundane issues such as how much toilet paper is too much toilet paper, to the life-and-death decisions being made in hospitals in northern Italy, ethical dilemmas abound.

Read this conversation at Crux.

March 27, 2020 | Permalink

Thursday, March 26, 2020

"Religious Liberty and the Common Good"

In National Affairs, William Haun has a worth-reading essay called "Religious Liberty and the Common Good."  He opens with this:

Legal and cultural debates involving religious liberty are converging toward a single question: whether free religious exercise is part of the common good, or what might now be called a society's overall well-being. While Americans have long debated how religious exercise should manifest in the public square, the need for a common good shaped by religious practice went unquestioned. But this has changed over the last generation. Now, American law and culture are questioning whether such debates are worthwhile.

My agreement with much of Haun's essay is, I suppose, overdetermined:  Tocqueville and Burke citations, the happy-warrior spirit of the Becket Fund, etc.  My take on the Smith decision, which Haun criticizes, is different -- not entirely, not the opposite, but different -- from his, though.  Among other things, Haun writes:

The Smith decision presumes a deep tension between religious exercise and the common good. . . .  For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude. 

This does not seem right to me.  Every (plausible) account of religious freedom imposes some limits on religious exercise.  The Second Vatican Council's Declaration on Religious Freedom -- the inspiration, in many ways, for the founding of the Becket Fund! -- refers several times to the "just demands of the public order" and assumes that these demands are among the conditions for flourishing that constitute the "common good" of a community.  To say (as the Smith decision does) that our particular Constitution did not allocate to judges the authority to revise politically accountable actors' determinations about what those demands are is not, it seems to me, either to make an idol (as opposed to a mechanism) of "majoritarianism" nor is it presume a "deep tension" -- as opposed to "the unavoidable occurence of occasional line-drawing exercises" -- between religious exercise and the common good.

In addition, it's not obvious that "religious pluralism" (by which Haun means, if I read correctly, the diversity in our society of religious views and commitments) is "good" so much as it is given, and its manifestations protected (not without limit, again) by our commitment to religious freedom, which is grounded in human dignity.  The extent to which manifestations of this pluralism may or should be regulated, or subordinated to the "just demands of public order" is a question that has to be answered by someone, and it does not seem to me that the Smith resolution of this matter is best interpreted as denying the importance -- the goodness -- of religion.

March 26, 2020 in Garnett, Rick | Permalink

Pope Francis marks the 25th anniversary of Evangelium Vitae

Putting aside the discomfort it causes when things that happened just yesterday turn out to have happened 25 years ago . . .  Here are Pope Francis's general-audience remarks on the occasion of the 25th anniversary of The Gospel of Life.  

March 26, 2020 in Garnett, Rick | Permalink

Wednesday, March 25, 2020

"Proxy Wars Over Religious Liberty"

In the latest/current issue of National Affairs (an excellent publication, IMHO), there's a good essay by Ryan Anderson called Proxy Wars Over Religion.  A bit:

The past decade has witnessed some intense battles over religious liberty. But when you consider the character of those battles, it's often hard to avoid the conclusion that both sides have treated religious liberty as the subject under debate in order to avoid the real points of dispute between them. The resulting political arguments have given us all the impression that religious liberty is more controversial with the American public than it really is, and therefore that the progressive enemies of religious liberty have the political winds at their back. To recover a clearer sense of the matter, we need to be more careful in what we expect of religious liberty and how we understand it. . . . 

This unwillingness to engage the substantive moral debates that actually divide us in the culture war leaves us fighting proxy wars over religious liberty. These wars confuse the issue, and put at risk our capacity to defend the rightful place and purpose of religious liberty. . . .

March 25, 2020 in Garnett, Rick | Permalink

What It Means To Be Human: The Case for the Body in Public Bioethics

Congratulations to my friend and colleague, Carter Snead, on his forthcoming (timely, important) bookWhat It Means To Be Human.  As longtime MOJ readers know [Ed.:  All too well, Rick; you never shut up about it.]  The issue of moral anthropology is at the heart and foundation of any plausible account of "Catholic Legal Theory."   Here's a blurb: 

The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.

What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.

In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.

I've read the MS, and it's wonderful, in the tradition of Meilaender, Kass, MacIntyre . . . 

March 25, 2020 in Garnett, Rick | Permalink

Higher Education Post COVID-19

Experts and pundits are already weighing in as to how the COVID-19 pandemic might change the landscape of higher education.  While the results of this pandemic might prove to be financially devastating, I'm not quite ready to agree that it will directly cause any radical change in the way most Americans view universities and the value they bring.

One very likely scenario is that some tuition dependent smaller colleges and universities close or enter into merger agreements.  But, this was already an impending outcome for these struggling institutions well before the corona virus.  This article in the Chronicle of Higher Education offers some interesting points.

One cable news personality, Tucker Carlson, delivered a four minute anti-college rant a few days ago.  It's worth watching, but I think Carlson pretty much got it all wrong.  At one point Carlson suggests that students will see the new value in online education and opt to keep learning over computer screens instead of reporting to college campuses.  Carlson at one point says, "You can do the whole thing online."  Of course, I'm biased as a university instructor and administrator, but you can't just "do the whole thing" online, whatever that means.  It's attitudes like this that make education seem like a commodity or business transaction rather than teaching students how to live better lives, become lifelong learners, and advance the common good.  That is especially true at the nearly two hundred colleges and universities in the U.S, affiliated with the Catholic Church.  I have no doubt that some colleges will suffer in the very near future.  And, I think it's fair to say that many institutions need to be smarter about their budgets moving forward.  However, I'd be surprised if this disastrous time convinces more students and families to seek online education as an alternative to traditional college, at least at the undergraduate level.  If anything, it might cause more students to realize just how much they value campus life.

March 25, 2020 | Permalink

Monday, March 23, 2020

Can Health Care Providers Discriminate Against COVID-19 Patients on Basis of Age or Disability?

Press Release

Can Health Care Providers Discriminate Against COVID-19 Patients on Basis of Age or Disability?

Thomas More Society & Freedom of Conscience Defense Fund Warn: Age or Disability-Based Denials Violate Rights 

Media contact: Tom Ciesielka, 312.422.1333, [email protected]

(March 23, 2020 – Rancho Santa Fe, California) Current anxiety about the COVID-19 pandemic has been multiplied by the suggestion of “health care rationing” based on the age or disability of infected patients. Attorneys representing the Freedom of Conscience Defense Fund and the Thomas More Society have published a legal memorandum detailing the tenets of federal law and explaining that federal civil rights statutes prohibit discrimination - including discriminatory policies established by state health officials - based on age or disability.

The memorandum was prepared and released at the request of  three prominent scholars after reports that several state level authorities were considering the rationing of care based on age or disability in the wake of critical medical supply shortages and severe strains on health systems, facilities, and staffs.

Charles LiMandri, partner at LiMandri & Jonna LLP, in his capacity as Special Counsel for the Freedom of Conscience Defense Fund and the Thomas More Society, was the lead attorney on the memorandum that confirms the prohibitions of discriminatory health care decisions under federal civil rights laws.

“The present pandemic may be used to try to justify the ‘hard decision’ to issue policies rationing care on the basis of disability or age,” writes LiMandri. “Doing so, however, would violate federal law regarding invidious discrimination. It will open up the purveyors of those policies to legal liability.”

Thomas More Society Vice President and Senior Counsel Peter Breen explained, “We’re reading the unthinkable – the Seattle Times reported that Washington state and hospital officials have been meeting to consider how to decide who lives and dies. In our nation’s capital, the Washington Post is running editorials about the ‘nightmare’ of rationing health care, as is the National Review in the hard-hit state of New York. The horrific idea of withholding care from someone because they are elderly or disabled, is untenable and represents a giant step in the devaluation of each and every human life in America.”

Princeton University’s Dr. Robert P. George, along with Harvard University sociologist Dr. Jacqueline C. Rivers, and bioethicist Dr. Charles C. Camosy of Fordham University, made the request of the Freedom of Conscience Defense Fund and the Thomas More Society, both of whom LiMandri serves as litigation counsel.

The three have heavyweight credentials. George, Princeton’s McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, has also served on the U.S. Commission on Civil Rights and the President’s Council on Bioethics. Rivers is a lecturer at Harvard and is the executive director of the Seymour Institute for Black Church and Policy Studies. Camosy has authored five books examining cultural ethics, including the healthcare focused Too Expensive to Treat?

The joint legal analysis concluded that withholding care based on age or disability would indeed be contrary to federal law, which requires that, “Decisions regarding the critical care of patients during the current crisis must not discriminate on the basis of disability or age. Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.”

LiMandri observed that, “All those involved in making critical decisions concerning who gets such life-saving care, including the use of a limited supply of respirators, would be wise to heed this advice.”

Read the March 23, 2020, Memorandum on Federal Law on Rationing Medical Care on the Bases of Disability and Age, published by attorney Charles LiMandri, of LiMandri & Jonna LLP, in the capacity of Special Counsel with the Freedom of Conscience Defense Fund and the Thomas More Society here [https://www.thomasmoresociety.org/wp-content/uploads/2020/03/Age-and-Disability-Discrimination-Memo_FINAL.pdf].

About the Freedom of Conscience Defense Fund

The Freedom of Conscience Defense Fund is a nonprofit civil rights organization dedicated to vindicating the constitutional rights of all Americans. Through impact litigation, educational programs and policy advocacy, the Freedom of Conscience Defense Fund spearheads initiatives on issues related to religious freedom, bioethics, and American values, with a focus on funding trial-level constitutional litigation. For more information, visit fcdflegal.org.


About the Thomas More Society

The Thomas More Society is a national not-for-profit law firm dedicated to restoring respect in law for life, family, and religious liberty. Headquartered in Chicago, Omaha, and Fairfield, NJ, the Thomas More Society fosters support for these causes by providing high quality pro bono legal services from local trial courts all the way up to the United States Supreme Court. For more information, visit thomasmoresociety.org.


March 23, 2020 | Permalink

Reflections on Liturgy and Community in the midst of the COVID-19 crisis

As citizens concerned about “flattening the curve” of the impact of the Corona virus, especially for our most vulnerable populations, here in my Maryland Focolare community house we are hunkered down indoors, pretty much emerging only for essential groceries and a socially distanced walk in the neighborhood. 

As we stayed home yesterday (Sunday), what to make of the cessation of public liturgies? I realize there has been some discussion in the religious press about whether this is a sign of solidarity or of cowardly capitulation.  Personally, I see it as an unambiguous sign of wise, prudent, loving solidarity. 

Perhaps because of our community’s international reach, the news of the tragic proportion of the crisis, especially in Italy and other countries, often arrives with a very individual human face: the illness or death of someone we know, or of their relatives, of a community leader in a specific city, and yesterday the news that in one Italian town a whole convent of 40 religious sisters is infected.

With this awareness, I have received the national and local public health recommendations with tremendous sense of gravity.  As a Catholic who in normal times is a daily mass goer, this past week I have found great solace by participating in a recording of the daily mass celebrated by Pope Francis.  I have been wonderfully nourished by his essential homilies, petitions that embrace the wide range of suffering on our planet, and the profound invitation to reverent “spiritual communion.” 

When the Holy Father pauses at length before the Blessed Sacrament at the end of the liturgy, I of course realize that there is a tremendous difference between physical presence in church and my interaction with a recording on a screen.

But in these circumstances, I also sense that this enormous gap can be filled with love: the love that emerges from being united with our local Archbishop, who issued the guidelines to not publicly gather; love for those who are most vulnerable to the virus, especially those who are elderly or with fragile health; and of course a very concrete love for our medical workers, with the awareness of how reductions in public gatherings can contribute to keeping them from getting overwhelmed… and so on.

We are One Body, the Body of Christ – and we are experiencing that reality in a way that I never imagined we could. 

So what is mine to do in these circumstances?  First, I feel a very deep invitation to prayer.  Struggling with insomnia as I worry about the people in my life who are vulnerable, I have been pasting tiny post-its with their names on a large picture of “Mary Untier of Knots,” and I feel that with this Our Lady herself is helping me to let her hold those fears in her loving hands.  Second, I try to reach out (via email, zoom or phone) to at least two people per day (beyond those in my community house), to simply check in, listen, and participate in whatever they are going through, to again bring all of those concerns to prayer. 

Finally, leaning on these two walking sticks, I have sensed over the past week that these practices nourish the insight that I need to be thoughtful in my approach to accompanying my students as we proceed with a virtual teaching platform.  I intuit that they may need different things at different times:  some need continuity in the projects that they have undertaken, others need flexibility, and others are in dire need of a listening ear.  And perhaps most fruitful, these practices also help me to admit that I too feel vulnerable, and greatly in need of a sense of connection and community.   Amy Uelmen

March 23, 2020 in Current Affairs, Religion, Uelmen, Amy | Permalink