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, July 30, 2020

Catholic Schools, Charters, and Choice

Nicole Stelle Garnett joins Brian Anderson to discuss the importance of Catholic schools, their struggle to compete with charter schools, and what the Supreme Court's recent Espinoza decision will mean for private-school choice—the subjects of her story, "Why We Still Need Catholic Schools," in City Journal's new summer issue.


July 30, 2020 | Permalink

Wednesday, July 29, 2020

Mexico Supreme Court rejects state's bid to decriminalise abortion

Mexico's Supreme Court has rejected a landmark injunction on abortion rights across the country.

The case revolved around an injunction granted in the eastern state of Veracruz, which would have effectively decriminalised termination in the first 12 weeks of pregnancy.

Full story at BBC.

July 29, 2020 | Permalink

Monday, July 27, 2020

Barcelona cardinal holds Mass in defiance of government order

Ignoring a warning from the government of Catalonia, a Spanish cardinal on Sunday led a funeral Mass for the victims of the COVID-19 coronavirus, hours after threatening to take “legal action” against civil authorities for the “arbitrariness” with which the right of religious freedom and worship is being treated.

Full story at Crux.

July 27, 2020 | Permalink

Thursday, July 23, 2020

Private schools and civil society

I appreciated this piece at City Journal, "Liberty, Government, and the Preservation of Civil Society."  In particular -- like this wonderful book by Profs. Nicole Stelle Garnett and Margaret Brinig -- the author emphasizes the structural, freedom-enhancing role of private schools, the survival of which is gravely threatened at present by policies relating to the re-opening of schools.  Here's a bit:

we need both legal and policy strategies for preserving the mediating bodies of civil society. One timely example is the need to shore up the K-12 private schools serving low-income kids—schools now in grave danger of closing en masse because of the Covid-related economic crisis. More than 100 private schools have already closed since the lockdowns. Today’s forced economic slowdown is an aberration, one that we’re unlikely—with any luck—to see again in our lifetimes. The federal government has helped individuals and businesses get through it with various initiatives. Non-public schools are an important part of civil society; they reflect the wide diversity of American history and culture, they are often longstanding institutions, and they provide valuable benefits to students and communities. Schools serving low-income students give families options other than assigned neighborhood public schools, which might be low-performing or unsafe. Short-term aid, in the form of scholarships, tax credits, or grants, could help these schools weather this storm.

Without support, potentially hundreds of these schools will close for good. Some analysts have focused attention on the price that students would pay (and the expenses public schools would have to absorb) should the nation’s private-school sector collapse. Those are important considerations, but my focus is different. Since our founding, Americans have believed that governments are formed to protect our natural liberties. Thanks to centuries of experience, we now know that civil society is an essential contributor to our freedom. We must recognize that the government has a duty to help preserve America’s mediating institutions.

July 23, 2020 in Garnett, Rick | Permalink

Monday, July 20, 2020

Nicole Garnett, "Why We (Still) Need Catholic Schools"

Here's a great City Journal essay by the Other Professor Garnett, "Why We Still Need Catholic Schools".   A bit:

Urban Catholic schools have a long and noble record of helping to lift students out of poverty. Decades of social-science research have demonstrated a “Catholic school effect” on the academic performance and life outcomes of disadvantaged minority students. Beginning with the groundbreaking work of James Coleman and Andrew Greeley decades ago, scholars have found that Catholic school students—especially poor minorities—outperform their public school counterparts. More recently, Derek Neal’s research demonstrated that Catholic school attendance increased the likelihood that a minority student would graduate from high school from 62 percent to 88 percent and more than doubled the likelihood that a similar student would graduate from college. Catholic school students, controlling for a range of predictive demographic factors, are more likely to finish high school, attend college and graduate, maintain steady employment, and earn higher wages than similar students attending other types of schools.

Catholic schools are also especially good at forming citizens. A common argument against private school choice is that public schools are necessary to inculcate democratic values. The empirical evidence, however, suggests that private schools in general, and private schools participating in school-choice programs in particular, perform as well as, or better than, public schools in this task.

July 20, 2020 in Garnett, Rick | Permalink

Saturday, July 18, 2020

Supreme Court Expands Religious Liberties

Richard Garnett discusses the expansion of religious liberties at the Supreme Court this term with June Grasso from Bloomberg.


July 18, 2020 | Permalink

Friday, July 17, 2020

"Big Mountain Jesus" statue vandalized

I have blogged a few times, over the years, about the "Big Mountain Jesus" statue at Whitefish ski resort (a great place, BTW) in Montana.  I'm very sorry to share the news that the statue was vandalized last weekend.  I hope this latest attack will be, in the long run, no more successful than the failed efforts to have it removed as an Establishment Clause violation.  Here's a little bit, from a First Things piece I did a while back, about the statue:

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier ­National Park. And, of course, for “Big Mountain Jesus.”

Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be ­reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”

The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of ­Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” andbecause “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”the statue does not “endorse” Christianity.


July 17, 2020 in Garnett, Rick | Permalink

Thursday, July 16, 2020

Why the Religion Cases Matter Most

Great read by John McGinnis today in Law & Liberty. Too often we fail to acknowledge the benefit of having competition in education, and this paragraph does so very well:

The constitutional religion cases decided this term are the most practically important of all of the term’s cases, precisely because they will improve the ecosystem of K-12 education both by boosting competition to public education and forcing the inclusion of more private schools with traditional values in that competition. They will allow more parents to do what we are trying to do for our daughter—get an education that provides both deep knowledge and sound values. Nothing is more essential to our nation than that we sustain schools that will compete against the monolithically left-liberal educational establishment for the minds of the next generation.

July 16, 2020 | Permalink

Tuesday, July 14, 2020

Defending the Freedom of the Church

It's freedom of the church month (or year!) here at Mirror of Justice. I have a piece today on the First Things web site, "Defending the Freedom of the Church," discussing the church autonomy principle in Our Lady of Guadalupe v. Morrissey-Berru, the institutional religious freedom argument in Little Sisters of the Poor v. Pennsylvania, and some thoughts about the implications of the cases all by way of St. Thomas Becket, Harold Berman, John Courtney Murray, Doug Laycock, and our own Rick Garnett.

July 14, 2020 in Moreland, Michael | Permalink

Friday, July 10, 2020

"Religious Schools and the Freedom of the Church"

Here is a short piece I did for the Law & Liberty site, on the Supreme Court's recent decision in two cases involving the so-called "ministerial exception" and Catholic schools.  A bit:

In a pair of cases involving the religious-freedom rights of parochial schools, the Supreme Court on Wednesday re-affirmed a core First Amendment rule and a crucial aspect of church-state separation, properly understood: Public officials, regulators, and courts lack the authority to decide who should, or should not, perform important religious functions. Questions about religious institutions’ religious teachings, and teachers, belong to the “church” and not to the “state.” . . . 

As the Court had in Hosanna-Tabor, Justice Alito’s opinion emphasized the deeply rooted concern in our law, history, and traditions of “the general principle of church autonomy” and of religious institutions’ “independence in matters of faith and governance and in closely linked matters of internal government.” Along with other scholars, I have explored the connections between the importance of this “general principle” in American constitutional law and some of the great church-state controversies of the past and the long-running (and still continuing) struggle for the “freedom of the church.” As the Court observed, and in keeping with this history, the First Amendment has long been understood as requiring secular authorities to avoid attempting or purporting to “resolv[e] underlying controversies over religious doctrines.” Whatever disagreements might persist about the content of the Constitution’s no-establishment rule (regarding prayers at town-hall meetings or war-memorial crosses, for example), it seems clear that the paradigmatic feature of the kind of religious “establishment” that the First Amendment was designed to rule out is political meddling in the selection of religious ministers, the formulation of religious doctrines, and the teaching of religious truths. . . . 

At the end of her dissent, Justice Sotomayor expressed concern about the implications of the decision “in a pluralistic society like ours.” However, it is precisely because ours is a “pluralistic society” that the Court’s 7-2 determination is so important. In a meaningfully pluralistic society, not every organization or institution will act the same way, or be structured in the same way, or have the same goals, or be governed by the same rules. A society without mission-oriented Catholic schools is a less pluralistic society than one with them. A political authority that imposes the same employment rules on every employer, regardless of sector or context or history or aims, is not diverse, but homogenous and monochrome. And, in any event, foundational commitments to limited government and religious liberty require that decisions about religious leaders and teachers be left to religious decisionmakers.  


July 10, 2020 in Garnett, Rick | Permalink