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.

Sunday, May 31, 2020

A collection of "Public Discourse" papers on religious freedom, church-state relations, public authority, etc.

Public Discourse has collected, here, a number of articles relating to the ongoing and important conversation about religious freedom, church-state relations, integralism, liberalism, etc.  Authors include Thomas Pink, Robert Miller, Chris Tollefsen, Gerard Bradley, and others.  And, of course, our own Adrian Vermeule has been a prominent contributor to this discussion, here at MOJ and elsewhere.  Enjoy some good Sunday reading!

May 31, 2020 in Garnett, Rick | Permalink

Friday, May 29, 2020

When American conservatism becomes un-American

The latest installment in the debate over common good constitutionalism by George F. Will in today’s Washington Post.


May 29, 2020 | Permalink

Thursday, May 28, 2020

Religious Liberty Student Writing Competition

The purpose of this competition is to promote legal and academic studies in the field of religious liberty by law students pursuing related graduate studies. Students who have graduated from law school, but are not yet practicing law due to clerkships or other similar pursuits are also eligible to submit papers.

Deadline; July 1, 2020

Sponsored by the Washington DC / Mid-Atlantic Chapter of the J. Reuben Clark Law Society & The International Center for Law and Religion Studies

Link: https://www.iclrs.org/wp-content/uploads/2020/03/2020-JRCLS-Religious-Liberty-Student-Writing-Competition.pdf

May 28, 2020 | Permalink

Wednesday, May 27, 2020

"Lessons After the Lockdown: Public Health, Economics, and the Common Good"

This "webinar", brought to us by the Lumen Christi Institute, looks really good:

After two months of lockdown, nations across Europe and parts of the US are relaxing restrictions and facing new challenges. Where do we stand economically and socially? How might we have better protected the medically and economically vulnerable? How should we view the lockdown with its costs and benefits ethically? Our earlier event on "The Economic Costs of the Pandemic: Catholic Social Teaching and Economics in Dialogue,” provoked lively reactions. This event will consider what the principles of the common good, human dignity, justice, and solidarity mean in our present circumstances and how they ought to inform our prudential judgement going forward. Join as a panel of economists, theologians, and ethicists discuss lessons learned in the pandemic.

Useful preparation for the webinar might include Fr. John Jenkins's recent op-ed in The New York Times, regarding the University of Notre Dame's plans to re-open in August.  Among other things, he said:

The pivotal question for us individually and as a society is not whether we should take risks, but what risks are acceptable and why. Disagreements among us on that question are deep and vigorous, but I’d hope for wide agreement that the education of young people — the future leaders of our society — is worth risking a good deal.

Indeed, the mark of a healthy society is its willingness to bear burdens and take risks for the education and well-being of its young. Also worthy of risk is the research that can enable us to deal with the challenges we do and will face.

May 27, 2020 in Garnett, Rick | Permalink

Tuesday, May 26, 2020

Created Equal: Clarence Thomas in His Own Words

If you missed the recent PBS documentary featuring Clarence Thomas, you can watch it at the PBS website here.

Although Clarence Thomas remains a controversial figure, loved by some, reviled by others, few know much more than a few headlines and the recollections of his contentious confirmation battle with Anita Hill. Unscripted and without narration, the documentary takes the viewer through this complex and often painful life, dealing with race, faith, power, jurisprudence, and personal resilience.

May 26, 2020 | Permalink

Thursday, May 21, 2020

Additional Thoughts on the Catholic Bishops of Minnesota and Their Decision to Reopen Churches in Defiance of Minnesota’s Emergency Executive Order

In his recent piece in Law & Liberty, Mark Movsesian made the following observation: “For the moment ... there is this striking fact: churches’ opposition to state-ordered closings seems to turn, not so much on the particulars of worship itself, but on attitudes about hierarchy and government authority more generally.”  In other words, more hierarchical religions appeared to be less willing to defy (or even challenge) state orders.  This statement was observably true just a week ago.  However, it left me wondering just how momentary this “moment” might be. Yesterday, we received some clarity.

On May 20th, the Catholic Bishops of Minnesota formally announced their intent to defy Governor Walz’s Emergency Executive Order.  Their letter states in part:

We are blessed to live in a nation that guarantees the free exercise of religion.  This right can only be abridged for a compelling governmental interest, and only in a way that is narrowly tailored to be the least restrictive means of achieving the desired end.  That is why a large majority of states now allow in-person religious services, including many states that had previously suspended in-person religious services.  We think that the executive order issued last Wednesday fails this test.  An order that sweeps so broadly that it prohibits, for example, a gathering of 11 people in a Cathedral with a seating capacity of several thousand defies reason.  Therefore, we have chosen to move forward in the absence of any specific timeline laid out by Governor Walz and his Administration.  We cannot allow an indefinite suspension of the public celebration of the Mass.

The bishops’ decision follows their attempts to work alongside the Governor’s administration to find a suitable alternative to the current policy.  All six bishops have also announced that they will continue their dispensation of Sunday Mass, so parishioners need not attend if they feel unsafe.  The state-wide unity of the bishops is particularly notable, and in this regard, similar to the protests made by the Italian Bishops Conference.

Of course, the vast majority of Catholic dioceses continue to comply with state orders, even going to great lengths to do so.  For example, in the Diocese of Arlington (my own diocese in Northern Virginia), Bishop Burbidge has begun reintegrating half of his diocese as part of Governor Northam’s “Phase 1” plan, while continuing to comply with the Governor’s prolonged Stay-at-Home Order in the other half.  Other bishops have publicly voiced their support for state authorities.  Archbishop Lori, the Archbishop of the Baltimore Archdiocese and former head of the Ad Hoc Committee for Religious Liberty of the United States Conference of Catholic Bishops (USCCB), stated—“I have no sense whatsoever that the authorities, especially here in Maryland, have any animus against our faith.  I do have a sense from my personal conversations with those who have to make these decisions … that they want to keep people safe.”

A general trend seems to be to give local pastors discretion in the reintegration of their church, consistent with diocesan guidance.  However, to put it lightly, this guidance is often less than clear—individual bishops frequently provide their own recommendations and requirements, but also defer to outside guidance.  Additional guidelines for local pastors can include mandatory (but often changing) state orders, guidance from the USCCB, and CDC guidance (although notably these most recent CDC guidelines did not include any recommendations for faith-based groups).

All of this is to say that reopening won’t be simple.  Professor Movsesian’s observation was true just a week ago; religions more inclined towards hierarchy did indeed appear to be less opposed to state orders.  Now, that moment looks as if it may be beginning to pass.  While it obviously remains unlikely that Catholic dioceses will oppose state orders en masse, it seems increasingly likely that select dioceses will.  In fact, the complexity of the Church’s structure may itself begin to contribute to the likelihood of opposition within.

May 21, 2020 | Permalink

Minnesota bishops tell governor worship will resume; cite lack of ‘clear roadmap’

Minnesota’s Catholic bishops have informed the state’s governor that they will return to in-person Church services later this month in defiance of an executive order imposing strict limits on houses of worship. 

In a letter sent to Governor Tim Walz on May 20, Archbishop Bernard Hebda of Saint Paul and Minneapolis said that services would resume on May 26, two months after they were first voluntarily suspended due to the COVID-19 pandemic. 

Full article at Crux.

May 21, 2020 | Permalink

Wednesday, May 20, 2020

"Religious Freedom and Polarization: A Cause--and a Cure?"

That's the title of a short piece I did some weeks back for the Berkley Center at Georgetown (and somehow forgot to hawk here on MOJ at the time). It talks about polarization during the Reformation and then today:

[V]igorous protection of religious liberty is intended to calm fears and reduce polarization, by giving people of fundamentally different deep beliefs ample space not just to hold their beliefs but also to live consistently with them....

       Fear of the other side likewise drives today’s polarization. How, it’s asked, could 81% of white evangelicals vote in 2016 for a man with glaring character defects? A Wheaton College survey of those Trump voters found that religious liberty worries ranked third or fourth most frequent as the chief reason for their vote—higher than abortion and LGBTQ issues. The solicitor general’s statement [in Obergefell, refusing to rule out conservative institutions being stripped of tax exemptions] and the [2016] California college bill [which would have stripped modest-income students at conservative religious colleges of their state grants] received extensive evangelical attention.

       Religious liberty can calm such existential fears and reduce polarization. But it will instead aggravate polarization if it simply replicates struggles over underlying issues. Religious liberty must be strong enough to protect unpopular views, and it must recover some bipartisan status.

May 20, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Two Video Programs on Religious Liberty

1. The Murphy Institute at St. Thomas has posted video from Asma Uddin's excellent presentation, "When Islam is Not a Religion: Inside America's Fight for Religious Freedom." I was glad to moderate the session, which concerns respecting religious liberty for Muslim Americans and for everyone and is based on Asma's book of the same title. A variety of good questions from a large online audience (going online creates real possibilities for increasing outreach for organizations that are outside the Beltway hothouse). My own recent thoughts on religious freedom for Muslims, evangelical Christians, and everyone are here.

2. The Berkley Center at Georgetown sponsored a video discussion of the issues concerning  COVID-19 and religious worship and other gatherings, with Marty Lederman, Asma Uddin, Robin Fretwell Wilson, and me. Thank you to Michael Kessler for arranging and leading the discussion, to the Berkley Center for sponsoring it, and to my friends and co-panelists for a lively, productive discussion.

May 20, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink

Church Closings During the Spanish Flu

Religion scholar David Bains, a former colleague of mine, has linked on his excellent blog ("Chasing Churches") to this article about the public-health orders closing DC churches during October 1918, the deadliest spell of the 1918-19 pandemic. 
When churches were ordered closed, after several other categories of entities had been closed, the association of mainline Protestant clergy adopted a resolution "cheerfully complying with the request of the Commissioners." The tone of that resolution, I suspect, reflects that that particular group of churches in that era was less suspicious of civil government, because more comfortable with their own place in the culture, than a number of Protestant churches are today (although today too, the vast majority of houses of worship have not only compiled with but have refrained from criticizing closing orders).
Churches did, however, move to outdoor services, although there was some controversy about that. And once the deaths began to decline, and the authorities began allowing other entities to open, clergy began to protest that they should be too, for various reasons: 
  • the closings were "a certain infringement in spirit and effect of the free exercise of religious liberty";
  • "[b]ecause the purposes of church assemblages are such as to entitle them to be the very last to be absolutely forbidden by the civil authorities"; and
  • "In the influence of the churches upon the minds and souls of men, in quieting through strengthened faith in God the panic and fear in which epidemic thrives, the churches are potential anti-influenza workers, fit to co-operate helpfully with our doctors and our nurses."

The arguments have a more Protestant-Establishment vibe to them, as you might expect, but they overlap in concrete ways with arguments being made today.


May 20, 2020 in Berg, Thomas, Religion | Permalink