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, April 29, 2021

Why the Liberal Arts Matter to Catholic Legal Education

Why bother with the liberal arts? Because the liberal arts are core to our mission as a Catholic university.  If we had to distill it to a very simple message, the liberal arts show that faith and reason have nothing to fear from each other.  But it’s deeper than that.

Pope Francis has explained that Catholic universities must help students face the questions of “why,” by linking knowledge with purpose.  Facing the questions of “why” implicates the “epistemological character of education which concerns the whole span of knowledge,” and “[t]he link between knowledge and purpose refers to the theme of intentionality and to the role of the subject in every cognitive process.” In other words, “Completely impersonal experiences do not exist.”

Let’s unpack that for a minute.

The role of the subject in every cognitive process.  So for a law school, one might be tempted to argue that a liberal arts approach is irrelevant – just teach me what I need to pass the bar exam and get a job as a lawyer: legal doctrine and technical skills, period.  One must resist this temptation because, if we want to educate for professional excellence, we have to help form the person, not just teach a trade.

And we have to help each student understand their own agency in who they are becoming as a professional.  They are not just passive vessels to receive information about Torts or Civil Procedure.  They have to be able to step outside their heads so that they can see themselves as an agent in the world, growing over time, pursuing alignment between their own gifts and values and the world’s needs.  Even a professional school is forming students for a dynamic lifelong journey.

So how does a law student get outside their own heads enough to critically evaluate and prepare for their own agency?  Well, it’s not by memorizing law.  It could be, for example, by seeing the relevance of other fields of knowledge to their own agency in legal practice.  So maybe it’s contextualizing their work in family law with an understanding of sociology, maybe it’s seeing how court rulings on religious liberty interact with the theological beliefs of those affected, maybe it’s recognizing the self-serving logic employed by those who wield power in our legal system by applying the insights of philosophy to uncover the incoherence of their justifications.  But more important than any of those more particular examples, I think it requires being drawn out into other narratives that open up new ways of thinking about their lives, not just their professional identities.

For example, I’ve assigned my students Tolstoy’s The Death of Ivan Ilych, not because they need to know about the 19th century Russian legal system, but because it is very helpful for them to lie next to Ivan Ilych on his death bed and reflect back on a life of devotion to the wrong things.  To lament time wasted on being impressive, on chasing prestige and status. 

Tolstoy can get my students out of their own heads long enough to think deeply about the life to which they aspire.  That’s good for them, and it’s also good for our world.   

C.S. Lewis wrote that:

[W]e need intimate knowledge of the past. Not that the past has any magic about it, but because we cannot study the future, and yet need something to set against the present, to remind us that the basic assumptions have been quite different in different periods and that much which seems certain to the uneducated is merely temporary fashion. . . .  the scholar has lived in many times and is therefore in some degree immune from the great cataract of nonsense that pours from the press and the microphone of his own age.

I’d expand Lewis’s point.  A knowledge of history can help us discern and discount the nonsense of our current age, and a knowledge of other disciplines can help students discern and discount the overreading of insights from any one particular discipline – or maybe put more gently, can help them contextualize what a single discipline has to teach us about ourselves and the world.

Here’s an example of why this matters.  The first case our new law students read every year is Buck v. Bell, a 1927 case in which the U.S. Supreme Court upheld a state law permitting the forced sterilization of women deemed mentally incompetent. Oliver Wendell Holmes wrote an opinion on behalf of the Court expressing concern that the offspring of the mentally incompetent would likely become criminals and would drain resources from society.  He concluded that “three generations of imbeciles are enough.”

A brand-new law student can bring to bear insights from the fields of history, economics, biology, philosophy, and theology to show why Justice Holmes was wrong as both an empirical and a normative matter.  So on the first day of classes at our law school, the most important discussion students have about the law is actually about the liberal arts.  It’s why forming the lawyer entails forming the person.  And it’s a journey of formation that is foundational to Catholic law schools. 

April 29, 2021 in Vischer, Rob | Permalink

"Infrastructure", Georgia's voting rules, and Catholic Social Thought

It has become something of an online joke that "_______ is infrastructure", the point being that the Biden Administration's current "infrastructure"-funding proposal includes funding for a whole lot of things that have not generally been regarded as "infrastructure."  This is, of course, an entirely understandable marketing move, given the relative popularity of public spending on roads and bridges (remember the Trump Administration's recurring "Infrastructure Weeks"?) and the, perhaps, lesser popularity of some of the spending items that are included in the proposal.

I was reminded of this "let's call everything we like 'infrastructure'" move when I read John Gehring's recent piece, "Vow of Silence?", in Commonweal.  Gehring contends that the Catholic bishops in the United States have been "quiet on voting restrictions."  He writes:  "The silence from Catholic bishops when it comes to systematic, partisan, and racist efforts to undermine voting rights is a failure to apply Catholic social teaching to one of the most brazen injustices of our time."

Now, let's acknowledge, and put aside for the moment, what I take to be the facts that (a) former President Trump attempted to interfere in Georgia's election (and, indeed, in the presidential election) and lied repeatedly about asserted, but made-up, election-law violations in Georgia, thereby (probably) swinging that state's Senate seats to Democrats and (b) at least some of the Georgia legislators who supported that state's recent election-related law did so for partisan reasons and because they believe Trump's (and others') false claims about "stolen" elections, etc.  Nevertheless:  "Catholic social teaching" does not, in fact, tell us much about, say, how many days of early voting should be permitted and does not, at all, rule out, say, requiring state-issued identification for voting.  Indeed, given the high regard for political participation on display in the documents Gehring cites, it would seem that those documents call for careful attention to the important work of ensuring the integrity of elections and the regularity of voting procedures.  (Again, and to be clear:  There is no basis for partisans' claims that Georgia's election, or the national presidential election, was meaningfully compromised or undermined.)   

Gehring's piece does not reveal much familiarity either with the specifics of the Georgia law or with voting- and election-related regulations in the United States generally.  In fact, Georgia's rules are not outliers, and they do not "restrict[]" anyone's right to vote.  There is, among people who embrace the Church's social teaching, (plenty of) room for reasonable and good-faith disagreement about how the time, place, and manner of elections should be regulated and there is nothing about, say, regulating absentee and mail-in ballots that is contrary to that body of teaching, let alone "racist."  Comparisons to "Jim Crow" (or, in the President's words, "Jim Eagle") are tone-deaf and historically ignorant.  Not everything we like is "infrastructure" and not every policy arrangement we prefer is dictated by Catholic social teaching.

April 29, 2021 in Garnett, Rick | Permalink | Comments (0)

Wednesday, April 28, 2021

Supreme Court case risks government censorship of young people’s protected political and religious expression

The Supreme Court of the United States heard oral arguments today (April 28) in Mahanoy Area School District v. B.L., a case brought by a former Pennsylvania cheerleader whose profanity-laced social media post now presents challenging questions about the authority of public school officials to regulate and punish students’ speech off campus and on social media. 

The case was brought by Brandi Levy, a 14-year-old junior varsity cheerleader who did not make the varsity squad for the next year and simultaneously did not get the position she wanted on the softball team. Off school property, she aired her frustrations on social media.

“For more than 50 years, the justices have struggled to define the free-speech rights of public school students,” said Richard W. Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

Full article at news.nd: https://news.nd.edu/news/supreme-court-case-risks-government-censorship-of-young-peoples-protected-political-and-religious-expression-expert-says/

April 28, 2021 | Permalink

Tuesday, April 27, 2021

Protecting Oak Flat


April 27, 2021 | Permalink

The University of Notre Dame's vaccination requirement

My friend and colleague, Gerry Bradley, along with Bishop Thomas Paprocki, have published a letter to the editor in which they challenge the University's announced policy that (nearly) all students arriving or returning in the Fall will be required to have been vaccinated against COVID-19.

Although I have the greatest respect for the authors, I (think I) disagree with the letter.  Assuming (a) that it is morally permissible to use these vaccines, (b) that we ought, to the extent we can and to the extent it is (reasonably) safe and prudent, and even when we'd rather not, to do morally permissible things to help others, (c) that a vaccine requirement will help others because only with such a requirement will the onerous and damaging restrictions on students' lives and our classroom teaching be lifted, and (d) that Notre Dame is entitled to impose morally permissible conditions on admission to the community . . . it seems to me that, all things considered, students may and should bear witness to the horrors of abortion in other (more visible and so, probably, more effective) ways.  If (a)-(d) are warranted assumptions, then it strikes me as prideful -- even though, of course, students themselves are not really at risk and, in any event, are generally entitled to assume risks -- to refuse vaccination.   And, if these assumptions are warranted, then it seems wrong to say, as Prof. Bradley and Bishop Paprocki do, that "any undertaking to exclude from campus every student who declines to be vaccinated . . . would be immoral."

I should emphasize that my conclusion depends on these assumptions -- including (c) -- being correct.  If it turns out that, even with (near) universal vaccination, the University elects to continue (contrary to evidence, data, sound cost-benefit analysis, and "science") with what would be fair to characterize as (again, onerous and damaging) "safety theater", then things would (to me) look quite different.


April 27, 2021 in Garnett, Rick | Permalink | Comments (0)

Thursday, April 22, 2021

Guest Commentary: Where two or three are gathered: Tandon v. Newsom and California’s ban on in-home religious worship

Nick Reaves and Joe Davis from the Becket Fund for Religious Liberty offer the following commentary on Tandon v. Newsom:

Where two or three are gathered: Tandon v. Newsom and California’s ban on in home religious worship  

In-home worship and Bible study are crucial to the religious exercise of millions of contemporary Christians in the United States, and these “house churches” have their roots in the earliest days of Christianity. See Acts 5:42 (“And every day, in the temple and from house to house, they did not cease teaching and preaching Jesus as the Christ.”). For Jews as well, religious gatherings in the home are sacred. During a Passover seder, for example, Jews gather at a family table to read the Haggadah and share a ritual mealSee Exodus 12. 

Yet, for over a year, California’s COVID restrictions prevented Jews and Christians alike from hosting any in-home religious gatherings if they included individuals from more than three households (including the host). This “gatherings ban” made it unlawful to host even a small Bible study or seder meal. By policing these deeply personal and sacred interactions between individuals in the privacy of their home, California’s gatherings ban struck at the heart of our Constitution’s protections for religious liberty and freedom of assembly. 

In the early days of the pandemic, when all economic and social activities ground to a halt, such restrictions might have been justified for a very brief time. But—as the pandemic rolled into its second year and cases ebbed across California—the State continued to keep religious exercise on the sidelines while an ever-growing list of secular activities were deemed safe and permitted to resume. Homes and backyards were forced to remain religion-free while hair salons, restaurants, retail stores, hotels, laundromats, pet groomers, bowling alleys, and the Hollywood entertainment industry (to give just a partial list) reopened with safety protocols. 

This meant four observant Jews couldn’t meet at one of their homes to celebrate the Passover, but four sports fans could gather in a stadium skybox to eat chicken wings. And a Christian pastor could be fined for hosting an in-home Bible study on Easter morningbut his flock could go bowling together that same day. 

Seeking relief from these targeted restrictions, Pastor Jeremy Wong and Karen Busch challenged the State’s ban on in-home religious gatherings in federal court, in a case called Tandon v. Newsom. Karen and Pastor Wong explained that they would carefully follow the State’s social distancing and masking requirements at their religious gatherings, ansimply asked for the same treatment as California’s long list of permitted secular activities. The district court and the Ninth Circuit, however, denied their request for relief. Apparently wearing constitutional blinders, both courts held that the State’s long list of permitted secular activities (from haircuts to bowling) was irrelevant. Instead, because California banned both religious and secular gatherings in the home, the ban was permitted. 

So Karen and Pastor Wong—following a trail blazed by previous challengers to California’s draconian restrictions on religious exercisesought emergency relief at the Supreme Court, asking for permission to host in-person Bible studies and religious worship on Easter Sunday. A week later, their prayers were answered: the Supreme Court enjoined California’s restrictions on in-home religious gatherings. 

Much of the commentary on this case has focused on the Supreme Court’s repeated intervention to protect religious worship in California; but was the Supreme Court’s intervention here really surprising? Perhaps a better question to ask is why it took five trips to the Supreme Court for California to start treating all religious worship at least as well as it treats secular activities. 

How we got here 

Tandon was far from the first time the Supreme Court had confronted California’s discriminatory treatment of religion during the pandemicThe Court’s first decision addressing any State’s COVID-19 religious worship restrictions came in a May 2020 case (now) called South Bay I, which involved California’s limitation on gatherings at houses of worship to no more than the lower of 25% of the building’s occupancy or 100 people. It was already settled law that when the government fails to treat religious exercise equal to comparable secular conduct, its actions are constitutionally suspect. Yet, while churches, mosques, and synagogues were subject to this stringent occupancy cap, California permitted many secular businesses (like factories, restaurants, hair salons, and cannabis dispensaries) to open without such limitationsEven so, the Court declined to step in, with Chief Justice Roberts—writing alone to provide the only explanation for the Court’s actions—citing the deference due to government officials at the outset of an extraordinary emergency like this one.

South Bay I was then followed by another loss for in-person worship at the Supreme Court in Calvary Chapel Dayton Valley v. Sisolak.

In November 2020, however, the tide turned. On the night before Thanksgiving, the Supreme Court protected the Diocese of Brooklyn and Agudath Israel (a national grassroots Jewish organizations with over 70 affiliated synagogues in New York, represented by our firm, the Becket Fund for Religious Liberty) from targeted caps of 10 or 25 on houses of worship, while imposing no occupancy limits on so-called “essential businesses”—a category including things like bicycle repair shops, accountants, and liquor stores. The Court explained that discriminatory worship bans like this one “strike at the very heart of the First Amendment’s guarantee of religious liberty.” And the Court pointed out a glaring disparity: “hundreds” of shoppers could crowd a big-box store while even the most cavernous cathedral remained limited to a mere handful of worshipers.

In the wake of Diocese of Brooklyn, many state and local governments—correctly reading both the legal tea leaves and the public-health data—began lifting their remaining restrictions on religious worship, recognizing that even in a pandemic religious worship can be conducted safely.

California, however, remained defiant, triggering a remarkable months-long battle with the Supreme Court over the State’s efforts to carve out the nation’s only worship-free zone, even while it elsewhere moved toward reopening secular economic activities as the pandemic waned.

On three separate occasions, in Harvest Rock Church v. Newsom, South Bay II, and Gish v. Newsom, the Supreme Court was required to step in, ensuring that California’s COVID restrictions (which continued to permit numerous secular indoor activities) didn’t exclude houses of worship. After three trips to the Supreme Court and three losses, California seemed to get the message. But then, in Gateway City Church v. Newsom, Santa Clara County (undeterred by the Supreme Court’s clear guidance) attempted to reimpose its own county-level ban on indoor worship. This triggered the Supreme Court’s fourth reversal of the Ninth Circuit.

A predictable result

All these decisions set the table for Tandon. Unlike at the Ninth Circuit, California’s argument at the Supreme Court failed to convince. As the Court’s opinion enjoining the State’s gatherings ban explained, the legal standard the Ninth Circuit should have applied was “clear” from the Court’s prior decisions. Regulations are constitutionally suspect if “they treat any comparable secular activity more favorably than religious exercise.” And, to determine “comparable” activities, what matters is “the risks various activities pose, not the reasons why people gather.” The Court’s prior precedent thus should have made the problem with California’s restrictions obvious: they permitted numerous secular commercial activities while barring at-home religious gatherings, and California provided zero evidence-based justifications for this disparate treatment.

Tandon also reflects the Court’s not-so-subtle intent to put this issue to bed once and for all. The Court, for example, pointed out that this was the “fifth time” it “summarily rejected the Ninth Circuit’s analysis,” and found it “unsurprising” that these “litigants [too] are entitled to relief.”

Tandon never should have reached the Supreme Court. By April of 2021, the Court had already forged a path forward, clearly explaining how governments and lower federal courts should evaluate COVID-19 restrictions on core First Amendment rights. The only surprising thing is that California and the Ninth Circuit ignored these clear rules, necessitating the Supreme Court’s intervention yet again.

Nick Reaves and Joe Davis are attorneys for the Becket Fund for Religious Liberty

April 22, 2021 | Permalink

Wednesday, April 21, 2021

Natural Rights and Religious Liberty: The Founders’ Perspective

The meaning of religious freedom remains one of the more contested areas of our constitutional politics. The progressive left tends to emphasize freedom from religion, especially freedom from the influence of traditional religious sexual morality. Social conservatives, by contrast, emphasize the right to be religious, especially the freedom to live and act in the public square according to one’s religious convictions. With President Joe Biden’s recent tweet that transgender equality is the “civil rights issue of our time,” the conflict between these competing views of religious liberty will only be amplified.

Full article by Vincent Phillip Muñoz at Real Clear Public Affairs: https://www.realclearpublicaffairs.com/articles/2021/04/21/natural_rights_and_religious_liberty_the_founders_perspective_773649.html


April 21, 2021 | Permalink

Sunday, April 18, 2021

Bearing witness to the pain

Every year at orientation, when we’re explaining to our new law students the importance of disclosing their past arrests and citations, I share the story of when I was arrested for trespassing as a senior in high school. A friend and I had entered an abandoned factory to investigate a story we were working on for the school newspaper. It’s sort of a funny story, and I tell it so students know it is possible to overcome past infractions they are concerned about as they start law school.

There’s another story I don’t share.

A couple of months before my trespassing arrest, my friends and I stopped at a liquor store to buy beer with our fake IDs. As I walked in, a teenager I didn’t know approached me in the parking lot and asked if I would buy alcohol for him too. I agreed, and when I came back out and was handing him what he asked for, a uniformed officer who had been watching the whole time walked up and told us to “stop right there.” I turned and ran to my car, got in, and drove as fast as possible out of the parking lot. The officer had taken down my license plate, so I was picked up later that evening, booked, released, and eventually fined after a court appearance.

There was no question that I had committed a crime – the officer saw me hand liquor to someone who was obviously underage. There was no question that I had failed to comply with the officer’s order – I ran from him after he told me to stop. And still, I was given the chance to sleep in my own bed that night, to grow up and get my head on straight, to go to college and law school, to be certified as having the requisite character and fitness to practice law, to teach hundreds of aspiring attorneys, to marry and have kids, to watch my daughters grow up – in other words, to lead a full life that has been shaped but not defined by my many mistakes.

I share this story now because it is too easy for many of us to disconnect from the pain that surrounds us. Many white Americans – including me – like to build our life narratives in terms that have nothing to do with race. Whether or not you’ve had interactions with law enforcement, race has shaped intergenerational wealth, geographic mobility, access to education, job opportunities, the likelihood of building home equity, exposure to race-based trauma, and myriad other realities of American life. We may not agree on the labels we should attach to the role that race has played in our lives, and we may not agree on the most prudent path forward. But if you live in America – and especially if your parents and grandparents lived in America – race has been part of our stories, whether we’re ready to acknowledge it or not.

This past week has been a difficult one in the Twin Cities. The coming week may be much, much more difficult. As Christians, we are called to bear witness to the pain, even if we do not feel it as deeply or as personally as others do. I encourage us to redouble our commitment to the empathy that is made possible by truthful stories about ourselves and the world. Empathy is essential right now because it is a fertile ground for love, and love, in the words of Martin Luther King Jr., “is the only cement that can hold this broken community together.” We are therefore “commanded to love . . . to restore community, to resist injustice, and to meet the needs of my brothers.”

April 18, 2021 in Vischer, Rob | Permalink

Friday, April 16, 2021

A Public Funding Ban for Private Colleges ‘Born in Bigotry’?

A lawsuit filed in federal district court argues that a provision of the South Carolina state constitution that bars public funds from being used for the "direct benefit" of religious or other private educational institutions should be struck down because it was born out of racist and anti-Catholic animus.

Full story at Inside Higher Ed: https://www.insidehighered.com/news/2021/04/16/south-carolina-privates-sue-over-provision-denying-them-public-funds

April 16, 2021 | Permalink

Wednesday, April 14, 2021


Religious Freedom Institute will co-host an event Thursday, April 15 featuring a conversation between two career-long champions of religious freedom, Dr. Tom Farr, President of RFI, and Ken Starr, former US Solicitor General, about Judge Starr's new book, Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty. The conversion will lead the audience through an understanding of America's rich tradition of religious liberty, discuss current crises threatening that bedrock freedom, and offer practical insights about taking a more active role in advancing the cause of liberty.


April 14, 2021 | Permalink