Mirror of Justice

Religious Liberty Initiative represents Muslim voices defending Jewish groups

Notre Dame Law School’s Religious Liberty Initiative has filed three amicus briefs, including one at the U.S. Supreme Court, representing Muslim organizations and scholars in defense of Jewish groups that have been shut down by discriminatory COVID-19 closures in New York City.

The first brief was filed Oct. 22 in New York federal court in support of an Orthodox Jewish girl’s school. The second brief was filed Oct. 26 in the U.S. Court of Appeals for the Second Circuit in support of Orthodox Jewish synagogues. The Religious Liberty Initiative filed a third brief in the U.S. Supreme Court on Nov. 17 also in support of Orthodox Jewish synagogues.

Full story here.

Thoughts on Catholic Diocese of Brooklyn v. Cuomo

I believe that the biggest threat we face as a nation is the growing political polarization that makes it very difficult to collaborate on the many pressing problems we face. One of the dimensions to this polarization is an overly simplistic perception that the Supreme Court is divided between “good” justices and “evil” justices, with those designations contingent solely on our political leanings. New rulings are weaponized by opposing camps and deployed in ways that lend further support to the good-versus-evil characterization.

 

With that preamble, I’ll offer an admittedly cursory, non-technical explanation of Wednesday night’s 5-to-4 Supreme Court ruling blocking enforcement of Governor Cuomo’s restrictions on attendance at religious services in New York. The majority’s analysis was not driven by an utter disregard of public health, and the dissent’s analysis was not driven by hostility toward religious liberty. There were two primary differences between the justices who joined the majority and those who wrote in dissent:

 

1) Timing: At the time of the ruling, the religious bodies objecting to the regulations were no longer subject to the rules that were the focus of their suits because the surrounding communities had shifted to less restrictive classifications based on COVID test positivity rates. The majority decided that this change did not make the case moot, as they could shift back to more restrictive classifications at any time. The dissenting justices believed that the Court should hold off on second-guessing public health authorities unless and until the conflict is real and pressing. (This is the reason that caused Chief Justice Roberts to dissent.)

 

2) Substance: Every justice agrees that, under the Constitution, the government cannot treat religious exercise worse than comparable secular activities. In the majority’s view, the fact that nearby liquor stores, acupuncture facilities, grocery stores, and bike shops could operate at full capacity while churches and synagogues faced restrictions suggests that Governor Cuomo’s order is constitutionally problematic. In the dissent’s view, the fact that lecture halls, concert venues, churches, and synagogues are all subject to the same occupancy restrictions suggests that religious exercise is not being disfavored. The justices disagree about the appropriate points of comparison.

 

When it comes to the operative background principles, there is much more consensus on the Court than most Americans would guess based on its portrayal in our political culture. To be sure, there are meaningful differences in justices’ views about how the Constitution should be interpreted. These differences matter. But each justice is committed to the rule of law and is doing their best to navigate very thorny issues.

 

The business model of the companies driving our economy, and the vote-boosting model of our elected officials, is based on drawing and keeping our attention, and polarization is a great engine for doing this. It is not healthy or helpful to take a clickbait approach to the rule of law – it’s not all a grand battle of good versus evil. We still have plenty to debate when it comes to Supreme Court rulings, but let’s be precise and particular when we disagree.

Christ the King and "Quas Primas"

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

The Trump campaign's assault on social trust

I don’t need to add my voice to the hundreds of experts who are explaining in detail why the Trump campaign’s claims of nationwide “election-stealing” fraud are demonstrably false and corrosive to democratic norms.  I write to point out an additional dimension to the claims’ toxicity: they are direct and calculated assaults on the trust Americans place in their neighbors.

It is one thing to build conspiracies around George Soros, Bill Gates, or other distant figures.  The election fraud conspiracy theory being trumpeted by the Trump campaign, though, is fundamentally about hard-working, civic-minded Americans in the communities we call home.  As (conservative) Jim Geraghty explains in the (conservative) National Review:

[T]he contention of the Trump campaign’s lawyers is that the outcome of the 2020 presidential election was rigged by a conspiracy of multiple voting-machine-software companies, poll workers across the country, local and county election officials in multiple key states, various secretaries of state, state attorney generals, governors including Republicans, law enforcement at all levels, the Department of Homeland Security, and every judge who has ruled against them so far. Oh, and almost everyone in almost every form of media who covers elections, presumably including me.

Conspiracy theories focused on distant celebrities are nothing new – the belief that Nero set fire to Rome in order to further his political agenda is an early example.  Today’s Q Anon claim that Tom Hanks leads a global pedophile ring may be laughable, but it has little impact on our day-to-day lives.

The Trump campaign’s conspiracy story is different.  It seeks to sow mistrust in our local communities.  The folks who have long earned our respect by getting up before dawn to help run polling sites are now implicated in a global scheme that encompasses Hugo Chavez and Antifa. 

This should be especially troubling for Catholics, who -- in keeping with the premise of subsidiarity -- have long championed the empowerment of local communities as essential to our nation’s flourishing.  If we believe that the common good is realized from the bottom up and not imposed top down, we need to be very careful stewards of the trust on which our civic life depends.    

I am familiar with the court pleadings, and there has been nothing filed to support the outrageous conspiracy claims being made in press conferences and on social media.  I’m sure that there were isolated instances of misconduct or mistake in this election, as there are in every national election.  But that’s not what the Trump campaign is claiming.  If the Obama campaign had made similar claims in 2008 or 2012, conservatives would have been outraged, and they would have rallied to defend the thousands of Americans whose honesty and integrity make our election system work.  They would have correctly recognized that the stakes are much greater than the outcome of an election.  Now is the time to speak up.

Will Fr. James Martin, S.J., explain or withdraw his assertion that Justice Barrett voted "in defiance of Catholic pro-life teaching"?

Speaking of Twitter as an occasion or near occasion of sin, I see that I have not been the only one who has posted intemperately or injudiciously about the 6-3 order vacating the stay of execution for Orlando Hall. Fr. James Martin, S.J. singles out Justice Barrett's vote as made "in defiance of Catholic pro-life teaching." (See below.)

This is a grave charge. Will Fr. Martin explain his assertion or will he withdraw it? 

What Catholic pro-life teaching forbade any of the Justices from vacating the district court's injunction? Did Fr. Martin even look into or try to understand the legal merits of the claim at issue?

According to SCOTUSBlog, the district court's injunction was based on the federal government not having a prescription for the lethal dose of sodium pentobarbital that it was to administer, which prescription is purportedly required by the federal Food, Drug, and Cosmetic Act. The federal government "argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs. It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription." Justice Barrett (along with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kavanaugh, and Justice Gorsuch) apparently agreed with the government and voted accordingly. 

ACB & Garvey on Catholic Judges in Capital Cases

The short reading for morning prayer today was Ephesians 4:29-32:

Guard against foul talk; let your words be for the improvement of others, as occasion offers, and do good to your listeners, otherwise you will only be grieving the Holy Spirit of God who has marked you with his seal for you to be set free when the day comes. Never have grudges against others, or lose your temper, or raise your voice to anybody, or call each other names, or allow any sort of spitefulness. Be friends with one another, and kind, forgiving each other as readily as God forgave you in Christ.

Reflecting on this reading made me go back and delete a reply I had sent earlier that morning on Twitter. And this was all after I had apologized for misunderstanding another person's posts about the same topic. So perhaps I'll lay off Twitter when it comes to responding to people criticizing Justice Barrett as having violated her faith by voting to deny relief in a federal execution. But some response remains warranted. So here it is.

Let's begin with how serious an accusation it is to assert that someone has violated her faith and well-formed conscience. The gravity of such a charge is not a decisive reason against leveling it. But it is reason to make sure one knows what one is talking about in doing so. 

In this case, that is easy enough because Justice Barrett has done more than any other Justice to explain how she understands the relationship between Catholic teaching on the death penalty and what role Catholic judges may play in a legal system that imposes and carries out such sentences. That explanation appears in Catholic Judges in Capital Cases, 81 Marquette Law Review 303 (1998), co-authored with John Garvey. 

I know from personal experience how helpful this article can be for thinking through the challenging issues that confront anyone who participates in some way in a legal system that carries out the death penalty even while believing the punishment immoral in almost all circumstances in which it is imposed in society today. I'm one of those people. And there are a lot of us.

I had to think about it when handed my very first case as a judicial clerk in my first job out of law school. It was a capital case with something like 17 issues, resulting in a bench memo of over 70 pages. (I was new and very much in need of an editor.) Because many recent law graduates serve as law clerks, and many jurisdictions impose the death penalty, every year there are law clerks in the same situation I found myself in. And when I can, I try to point them to this ACB/Garvey article. This is not because it answers every question one might have about every kind of cooperation with evil one might encounter. But it is careful, thorough, and attentive to orthodoxy.

Some of Justice Barrett's casual critics have clearly not done the reading. Which is a shame because one can learn a lot by engaging the Barrett/Garvey analysis on its own terms. In some places, the authors' conclusions are appropriately tentative and tempered by an awareness that not all circumstances can be accounted for properly simply by categorizing, for example, guilt phase vs. penalty phase, trial vs. appeal vs. collateral review. Roughly speaking, though, Barrett & Garvey conclude that Catholic judges "may sit on the guilt phase of capital cases--provided they withdraw before sentencing. They may handle appeals challenging convictions and (perhaps) even sentences. They may also engage in collateral review of cases where the defendant was sentenced to death." 81 Marq. L. Rev. at 345.

I won't repeat their analysis here, but will add only that by the time that any capital case gets to the Supreme Court, it has either already been through multiple layers of review, or there is some procedural bar if the claim is relatively new. The extent of material cooperation in such circumstances is thus typically lower than even the typical appellate or collateral review. 

There is a danger of scandal, though. And this is another reason why Catholics who really ought to know better should be sure they understand what they're talking about before they risk contributing to scandal with casual condemnations of alleged infidelity to one's well-formed conscience.

Spain’s bishops meet as religious freedom threatened in the country

With the U.S. Conference of Catholic Bishops holding a virtual fall assembly, the bishops of Spain are also holding their fall gathering.

On the agenda for the Spanish bishops are Europe’s rising populist currents, and a bill in Spain that threatens religious education.

Full story at Crux: https://cruxnow.com/church-in-europe/2020/11/spains-bishops-meet-as-religious-freedom-threatened-in-the-country/

One Christian’s Fallible Thoughts on the Lessons of (and Warnings from) the Election for People of Faith on Both Sides

To my faithful friends and family of who voted for the losing candidate:

“[Biden’s] victory caused people to weep in joyful relief as they became aware of the heaviness that had afflicted their hearts, after they’d suddenly been relieved of it.”

The words above express what so very many of us felt when the presidential election was finally called days afterward. I myself was startled to find tears forming in my eyes when I knew for certain that the Trump presidency was now in its last days. I truly felt like a heavy weight had been lifted off my chest.

I do understand that those who voted for President Trump had a very different emotional reaction after his defeat: grief, anger, fear, denial. I do wish to extend sympathy toward Trump supporters with their deeply felt disappointment. I have always sought to understand in a sympathetic way why so many of my brothers and sisters in Christ reached a decision to support this man, who I saw as so undeserving of their faith (and I speak more of what I think I’ve learned in my words to Biden supporters below).

But in the interests of understanding each other in the community of Christian faith, I do ask those who voted for Trump to take a moment and try to understand (and perhaps even find empathy for) why so many of us felt intense relief that we would not be experiencing another four years of this presidency. Can you appreciate the wounds that so many Americans felt from the hostile words, blizzard of insults, and unceasingly childish behavior of the man in the White House?

Continue reading

Rowan Williams on “Saving our Order: Thomas Becket, Henry II and the Law of Church and State”

A public lecture to mark the 850th anniversary of the murder of Saint Thomas of Canterbury.

The Ecclesiastical Law Society, in association with Villanova University, Notre Dame Law School, and the Dean and Chapter of Canterbury Cathedral, extend a warm invitation to this special lecture.

Registration link: https://ecclawsoc.org.uk/events/rowan-williams/

The Italian James Burnham

I want to call a little attention to this new monograph by Professor Lorenzo Castellani, L'ingranaggio del Potere ("The Gear of Power"). The book is
just published and it is in Italian. But it intervenes insightfully in debates about political power that ought to be of great interest to American and British scholars of administrative law, though its primary focus is on "Eurocracy." 

The book is a sweeping study (in just a few pages)--a history of ideas or, as he puts it in an early chapter, an analysis of the "real thing"--of how "competence" and "technical expertise" has come to dominate our political world. It helpfully contrasts the realms of "politics" and "policy." While we often think of these as united, or even one and the same, Castellani distinguishes them, locating the latter squarely as the province of the experts and not really about democratic politics at all. But policy has "hidden itself" well as derived from politics in modern democratic societies. The thesis: "In advanced modern societies, the principle of aristocracy has a much greater weight in the organization of those societies than we are commonly led to believe or admit. In contemporary democracies, this aristocratic element is based on competence--that is, on the specialized knowledge of individuals supplied and certified by the structure itself through educational institutions, programs of study, titles, exams, and competitions. This aristocratic-hierarchical principle exists together with the democratic-representative principle from which, in recent decades, it has progressively eroded significant spaces." (25)

If this sounds in some ways reminiscent of James Burnham's early work in The Managerial Revolution, it is. Indeed, I think Castellani has taken on a good deal of Burnham. But the applications he sees in Burnham's work (and the work of others including Daniel Bell) for the "techno-democracies" that rule us now, and that are nevertheless the subject of such controversy, are fresh and insightful.

American publishers take note! This book deserves a good English translation. It has a lot to say to Anglo-American concerns today.