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.

Saturday, June 19, 2021

On so-called "weaponization"

Few words in contemporary discourse are as hokey and tedious as "weaponization"; it simply means "making an argument that makes me uncomfortable because it forces me to consider the possibility that I'm failing to act as I should."  And so, the "statement of principles", issued by some politicians who support abortion rights, which objects to the alleged "weaponization" of the Eucharist (note that no such "weaponization" has really occured), is pretty thin stuff.

As it happens, my own view is that it would difficult to administer -- i.e., to expect parish priests to administer -- a live-action, case-by-case rule that officials who fail to support legal protections for unborn children should be denied the Eucharist (just as it would be difficult to administer such a rule that focused on officials' -- or my own -- many other failures).  But, this letter -- like much of the astroturfed outrage being expressed on social media about a "weaponization" that, again, has not actually happened -- is making a different point:  The letter's claim is that the letter writers are entitled (a) to support, fund, and indeed coerce people to provide a wrong action and (b) to declare themselves immune from the Church's determinations regarding the sacramental implications of such support (etc.)    

The letter writers claim that they "agree with the Church about the value of human life."  Not that "agreement" is really the issue but . . . they don't (agree).  As for the invocation of the "primacy of conscience" in this context, John Henry Newman is rolling over in  . . . I mean, he's enjoying the Beatific Vision and is utterly unmoved by the writers' mistake.

It seems unremarkable to me for Catholic bishops to remind Catholics that (i) legal regimes that do not protect unborn children are unjust; (b) it is wrong to support knowingly injustice; and (c) one should avoid receiving the Eucharist if one is aware that one is engaged in wrong actions.  It seems urgently needed for our bishops to teach and lead better with respect to love and reverence for the Eucharist.  Again:  I'm inclined to think it's a mistake to focus on politicians with such reminders and I'm inclined to think that priests should not adjudicate questions about mental states, etc., at the front of the Communion line.  Still, the letter is exquisitely individualistic, even Promethean; it does not seem particularly Catholic.

June 19, 2021 in Garnett, Rick | Permalink | Comments (0)

The abortion question is about justice, not "branding"

This piece, in America, tells a story about Catholicism in the United States, and about President Biden, that is very difficult to square with the facts.  In its narrative, there was a hopeful, Council-inspired Catholicism in America, of which Mr. Biden's "authentic[] and beaut[iful]" faith was a part, but then abortion politics came along and caused people to (unfairly) question the "sincerity" of that faith.  Nowhere in the piece is it mentioned that Mr. Biden previously opposed abortion, and its public funding, but then (like many other political figures) changed his stance in order to conform to perceived political-advancement necessities.  The culture warriors to whom he (and others) surrendered were not pro-life Catholic bishops.

The piece goes on to suggest that the ongoing debates about politicians, abortion, and the Eucharist is about "ownership" of the "brand" of Catholicism.  This seems a strange way to frame the question; the Church's pro-life and sacramental teachings are not about "branding" but about truths.  Nor, contrary to the piece, do these teachings have anything to do with an asserted "hesitation about democracy" (except, I suppose, insofar as they reflect a view that truths about sacraments and human dignity are not determined by majority vote).  It is asserted that the Church "cannot control public policy outcomes" (true enough) and that "[w]e must accompany democracy in order to build up the people who would choose the common good through democracy" (indeed) but it is never conceded that those who "choose" (and, indeed, would expand dramatically) the American abortion regime are opposing, not choosing, the "common good." 

June 19, 2021 in Garnett, Rick | Permalink

Friday, June 18, 2021

Why Shutdowns and Masks Suit the Elite

A marvelous review in these pages last November inspired me to read a new book by O. Carter Snead, “What It Means to Be Human: The Case for the Body in Human Bioethics.” It was published by Harvard University Press on Oct. 13. Covid-19 had begun its transformation of American life a few months before, and of course the book made no mention of it.

Yet Mr. Snead’s volume helped explain the bizarre and at times perverse response of prosperous Western nations to the pandemic: the long discontinuation of economic life, the belief that pixelated screens can facilitate human relationships, the prohibitions on ordinary social interactions, the fetishization of masks. These policies and practices weren’t handed down from the ether by Reason and Science but bore the weight of contemporary assumptions about—to borrow Mr. Snead’s title—what it means to be human.

Full article by Barton Swaim at WSJ: https://www.wsj.com/articles/why-shutdowns-and-masks-suit-the-elite-11624038950

June 18, 2021 | Permalink

Thursday, June 17, 2021

Fulton v. City of Philadelphia: the rule of law persists in an age of political tribalism

As the world waited for the Supreme Court’s ruling in Fulton v. City of Philadelphia, the stage was set for another headline-grabbing battle in our never-ending culture wars: the religious liberty of a Catholic foster care agency versus a municipal government committed to ending discrimination against same-sex couples. This morning, as advocates on both sides were ready to crank up the outrage-fueled fundraising machines, the Court issued its ruling in favor of the Catholic agency. And remarkably, it was unanimous, demonstrating once again that the rule of law does not stick to our increasingly polarized political scripts. Throughout this era of tumult and tribalism, our judiciary reminds us that the law is not just a set of political preferences dressed up with fancy words. Principles and precedent continue to matter.
So how did this case end up as a unanimous ruling? The dispute arose from Philadelphia’s decision not to renew its contract with Catholic Social Services (CSS) to place children with foster parents unless CSS agreed to include same-sex couples. The City argued that the refusal to include same-sex couples violated a non-discrimination provision in the agency’s contract with the City, as well as the non-discrimination requirements of a city ordinance.
In an opinion joined by all eight of his colleagues, Chief Justice Roberts observed that CSS “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and “[n]o same-sex couple has ever sought certification from CSS.” If a same-sex couple did seek to be certified, “CSS would direct the couple to one of more than 20 other agencies in the City, all of which currently certify same-sex couples.” (In other words, there is no shortage of opportunities in Philadelphia for same-sex couples to serve as foster parents.)
The Court held that the City’s refusal to renew CSS’s foster care contract violated the First Amendment’s Free Exercise Clause, recognizing at the outset that “the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”
That wasn’t the end of the analysis, though, because of a 1990 Supreme Court ruling that loomed over this case: Employment Division v. Smith. In Smith, the Court held that neutral and generally applicable laws do not violate the Free Exercise Clause even if they negatively impact religious practices. In Fulton, the City argued that its prohibition on sexual orientation discrimination was both neutral and generally applicable, and as such, CSS’s Free Exercise claim must fail.
The Court disagreed because the City’s non-discrimination requirement permitted a party to seek an exemption, and “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”
Once a law that burdens religious exercise is deemed not generally applicable, it falls outside the scope of Smith and is thus subject to strict scrutiny. This means that the law can only survive if it advances government interests of the highest order and is narrowly tailored to achieve those interests. Put more simply, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”
The Court acknowledged that important interests are at stake in the non-discrimination requirement, but found that the City failed to show how granting CSS an exemption would jeopardize those interests: “If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”
So every Justice agreed that CSS should prevail. But three Justices – Alito, Thomas, and Gorsuch – were ready to go further and overturn Smith, pointing out in a concurring opinion that the rule permitting “neutral and generally applicable” laws to withstand constitutional scrutiny, no matter their impact on religious exercise, is deeply problematic. For example, under Smith, the Volstead Act implementing Prohibition would have been constitutional even if it contained no exception for the sacramental wine necessary for Catholic masses. Or a ban on infant circumcision would be permissible, even if it applied to prohibit important Jewish and Muslim practices.
Because the Court avoided Smith by focusing on the possibility of an exemption in Philadelphia’s non-discrimination requirement, the concurrence warned that today’s decision “might as well be written on the dissolving papers sold in magic shops” because, “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”
So even in a unanimous ruling, important disagreements lurk. But even those disagreements don’t align easily with our political tribalism. The author of Smith against whom conservative stalwarts Alito, Thomas, and Gorsuch were railing? Conservative judicial hero Antonin Scalia. The rule of law does not lend itself to simplistic predictions based on which President appointed which judge. (In today’s other noteworthy ruling, Trump appointees Barrett and Kavanaugh joined five of their colleagues in upholding Obamacare against a challenge brought by Republican-led states.)
The sorting that has occurred between American conservatives and liberals maintains an ideological core, but it has morphed into something broader and deeper than ideology. In his book "Why We’re Polarized," Ezra Klein points out that the two major political parties today “are sharply split across racial, religious, geographic, cultural, and psychological lines,” and that these identities “are fusing together, stacking atop one another.” Further, since “these mega-identities stretch across so many aspects of our society, they are constantly being activated, and that means they are constantly being reinforced.” In other words, a conflict between religious liberty and LGBT rights aligns with the more fundamental conflict between our stacked social identities. We don’t need to choose a side; we already know which side we’re on based on where we live, what cable news we watch, what car or truck we drive, where (and if) we go to church, even where we shop.
The rule of law reminds us that it should not and need not be that simple. I’m confident that Justice Sotomayor and Justice Thomas, for example, do not run in the same political circles or derive their identities or sense of belonging from the same sources. And yet they can step back from the noise, examine the facts of a situation, apply sound principles not of their own creation, and agree on an outcome. Not every case will be unanimous, and a 5-4 ruling may emerge later this month. But members of the Supreme Court have not given up hope that they can still reason together to resolve deeply contested issues. And if they can do that under the white-hot national spotlight, so can the rest of us.

June 17, 2021 in Vischer, Rob | Permalink

Supreme Court sides with Catholic foster care agency

A unanimous Supreme Court ruled Thursday that a Catholic foster care agency in Philadelphia may turn away gay and lesbian couples as clients, a victory for conservatives with the potential to shift the balance between LGBTQ rights and the First Amendment's protection of religious exercise.  

In one of the most significant cases before a Supreme Court that has become more conservative in recent years, the justices handed down the most high profile defeat to LGBTQ rights advocates since a 2018 decision absolved a Colorado baker of discrimination for refusing to create a custom wedding cake for a same-sex couple.

Catholic Social Services said its religious views keep it from screening same-sex couples as foster parents. The agency, with a long history of placing foster children, said it shouldn’t be blocked from its work because of those views. Philadelphia countered that all of itsfoster care agencies are required to not discriminate on the basis of sexual orientation.

"It is striking, and telling, that the court's more liberal justices joined the court's decision," said Richard Garnett, director of the University of Notre Dame law school program on church, state and society. "Today's ruling illustrates that respect for religious freedom should not be a partisan, or left-right issue."

Full article at USA TODAY: https://www.usatoday.com/story/news/politics/2021/06/17/supreme-court-catholic-foster-care-agency-may-turn-away-gay-couples/4155263001/


June 17, 2021 | Permalink

Thursday, June 10, 2021

2021 Religious Freedom Annual Review (RFAR), to take place online June 15–16, 2021

The theme of this year’s Review is “Religion’s Role in Overcoming Divides and Strengthening American Democracy.”

BYU’s RFAR will address questions such as "Is it possible for religion to help overcome divides and strengthen democracy in the U.S? Partisan and social divides have rocked the country over the last year; to what extent can or does religion play a role in healing conflict and creating a stable, just democratic society?"

Register today for updates and information. Registration is free.


June 10, 2021 | Permalink

Tuesday, June 8, 2021

Gillman and Chemerinsky’s Masonic Religion Clauses

In 1948, Justice Stanley Reed pithily proposed that a “[r]ule of law should not be drawn from a figure of speech.” Justice Reed was referring to President Thomas Jefferson’s reference, in an 1802 piece of constituent-service correspondence, to the “wall of separation between church and State” supposedly built by “the whole American people” when the First Amendment to the Constitution was ratified.

Chancellor Howard Gillman and Dean Erwin Chemerinsky insist, in The Religion Clauses, that “Thomas Jefferson got it right” and that “the First Amendment was meant to create a wall that separates church and state.” The better view, though, was expressed in 1985, by then-Justice William Rehnquist, who warned that “[i]t is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Full book review by Rick Garnett at Law & Liberty: https://lawliberty.org/book-review/gillman-and-chemerinskys-masonic-religion-clauses/

June 8, 2021 | Permalink

Wednesday, June 2, 2021

Notre Dame Religious Liberty Summit

Notre Dame Law School’s Religious Liberty Initiative will bring together some of the world’s foremost thought leaders on religious freedom at the end of June for the inaugural Notre Dame Religious Liberty Summit.

The summit, to be held on Notre Dame’s campus, will stimulate conversations between scholars, advocates, and religious leaders about the future of religious liberty in the United States and around the world.

His Eminence Timothy Cardinal Dolan, the Archbishop of New York, will deliver a keynote address, followed by a panel on interfaith cooperation with Elder Quentin L. Cook of the Quorum of the Twelve Apostles, Rabbi Dr. Meir Y. Soloveichik of the Congregation Shearith Israel, and Dr. Jacqueline Rivers of the Seymour Institute.

Full article: https://law.nd.edu/news-events/news/2021-religious-liberty-summit/

June 2, 2021 | Permalink