Mirror of Justice

"States Must Stop Discriminating Against Religious Schools"

Here is a short opinion piece, which I wrote with my Notre Dame Law School student, Olivia Rogers, on the Supreme Court's upcoming school-funding case, Carson v. Makin.  A bit:

Across the country, parents and communities are demanding choice, opportunity and accountability in education. Any meaningful response to these demands will include authentically religious schools and will support those who choose them. In Carson, the justices should reaffirm that the Constitution does not permit governments to discriminate against vital partners in the crucial, common task of educating children.

Not Quite Silenced: Understanding the censoring of John Courtney Murray

The Roman parable of John Courtney Murray looms large in the modern American Catholic imagination. The Jesuit theologian argued that the First Amendment was in keeping with Catholic orthodoxy at a time when the Holy See still insisted that the American model of religious freedom was a suboptimal church-state arrangement—tolerable only when the optimal arrangement, a Catholic confessional state, was out of reach. Officially censored by the Holy Office in 1954, Murray’s ideas would be vindicated a few years later by the Second Vatican Council, and specifically by the Declaration on Religious Freedom (1965), which Murray himself helped draft. As former Commonweal editor Margaret O’Brien Steinfels once said, it is “the Catholic rule of thumb, that anyone with a good idea for changing Church teaching or practice, I think here of John Courtney Murray, ought to be made to suffer for it.” Yet, so far, we have known only the contours of Murray’s pre-conciliar ordeal. Despite the meticulous historical work of Joseph A. Komonchak, who has been painstakingly piecing together evidence from a wide array of personal, ecclesiastical, and governmental archives, a crucial perspective was still missing: that of the Holy See itself.

Full article at Commonweal: https://www.commonwealmagazine.org/not-quite-silenced

"Roe and Casey Were Grievously Wrong and Should Be Overruled"

The Harvard Journal of Law and Public Policy has published, online, an article-ized version of the amicus brief that Chuck Cooper and his colleagues submitted -- and that I was pleased to join -- in the Dobbs case.  It's called "Roe and Casey Were Grievously Wrong and Should Be Overruled."  As it happens, the title captures pretty well the argument!

Breen and Strang Respond to Interlocutors on Catholic Legal Education

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: "A Light Unseen: A History of Catholic Legal Education." Deans of several Catholic law schools (including Rob Vischer), as well as other learned academics (including Rick Garnett), offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

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 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."  A bit:

"[T]he Church, founded by Christ as a perfect society, has a natural and inalienable right to perfect freedom and immunity from the power of the state; and that in fulfilling the task committed to her by God of teaching, ruling, and guiding to eternal bliss those who belong to the kingdom of Christ, she cannot be subject to any external power."

This is, to put it mildly, a striking proposal.

 

Mary Ann Glendon's Rice-Hasson Lecture at Notre Dame Law School

The Notre Dame Law School was honored to welcome Prof. Mary Ann Glendon, who delivered on Wednesday the inaugural Rice-Hasson Distinguished Lecture. Her topic was "Human Ecology and the Lawyer's Vocation."  You can watch a recording of the lecture, here.

Prof. Glendon drew on writings of Pope Francis and his two predecessors, to develop the intriguing proposal that our cultural, institutional, and human "ecology" requires care, attention, and stewardship, no less than our natural/environmental one.

AAPC-style damage control and the Texas Heartbeat Act

I've seen people wondering out loud on social media the past few days about what might be going on with the Texas Heartbeat Act at the Supreme Court. I have not quite caught up with all the briefing, but I did get a chance to listen to the arguments recently. With apologies to anyone else who has advanced the line of analysis below, it's not one that I've seen out there but that seems plausible to me.

First, let's put aside the question of whether there is anything unconstitutional about the Texas Heartbeat Act. Just assume that at least five Justices think that there is. 

Second, assume that the unconstitutionality comes not from any textually discrete portion or temporally discrete set of possible applications but from the combination of all the features of the statutory scheme.

Third, identify what aspect of the scheme can be disregarded in order for the currently apprehended/assumed unconstitutionality to go away.

It is this third step that is most analytically liberating. For there need not be one-to-one correspondence between what makes a statutory scheme unconstitutional and what follows as a matter of being declared unconstitutional. Suppose a statute ABCDE, in which A, B, C, D, and E are distinct textual provisions of an act that each contribute something different to its operation. Now suppose that ABCDE as a combination is unconstitutional. It can but need not follow that A, B, C, D, and E are all to be judicially disregarded as unconstitutional. But it might also be enough that A or B or C or D or E be treated as not-law.

Something of this sort happened in Barr v. American Association of Political Consultants (2020). That was the robocalls-to-cellphones case in which the Court held (1) the robocalls-to-cellphones ban was unconstitutionally content-based because of its exception for government-backed debt collection robocalls, and (2) the ban was still enforceable going forward, because (3) the offending exception could be severed. 

Note the imprecise wording of (3). It's not so much the exception itself that offended. An exception does not abridge speech. The abridgement comes from the ban. The offending thing was the ban-with-exception as a package. But even though the ban-with-exception was unconstitutional, the ban remained enforceable after AAPC was decided. (Put aside for now whether severance is a thing that Courts do, or just a metaphor that has spun out of control. It's the latter, but that need not detain us here.)

There are any number of ways in which AAPC-style damage control could operate on the assumed-to-be-unconstitutional combination known as the Texas Heartbeat Act. For example, I haven't studied Texas law enough to know whether something like this would work, but presumably there is some pre-existing enforcement authority in some of the named defendants that would enable their enforcement of the Texas Heartbeat Act's criminal-law-like prohibition against performing certain abortions but for the provision that specifically singles out certain officials and says that they cannot enforce the THA. If that's right, then judicially disregarding that provision alone would be enough for the private suit to go forward, which is the only issue before the Court in the current posture. 

I haven't done the work to know if something like this might be a path the Court could take. But once one recognizes the possibility of AAPC-style damage control in situations of unconstitutional combinations, then one can appreciate one reason why a quicker answer may not have been forthcoming from the Court. It could also be, of course, that the opening assumption of this post is wrong; maybe there are not at least five firm votes for unconstitutionality. For now, we'll have to wait, see, and occasionally speculate.

A Reasonable Hope for Dobbs: Negate Roe's Negation of Prenatal Personhood

I was privileged over the last few days to participate in the 21st annual Fall Conference of the deNicola Center for Ethics and Culture at Notre Dame. What a gift to the Church and the Academy this Center and its activities are. I hope many people can watch the talks and discussions as they appear on the deNicola Center's YouTube channel. (If you watch just one panel, it should be "The Dignity of the Sexed Body: Asymmetry, Equality, and Real Reproductive Justice," featuring Erika Bachiochi, Abigail Favale, and Leah Libresco Sargeant. If a whole panel is too much and you want to see just one (non-plenary) talk, then ub this Year of St. Joseph, you have to go with Elizabeth Lev's visually and spiritually inspiring talk on depictions of St. Joseph in art as part of "The Dignity of Saints" presentation.)

The original title of my presentation was "Unwinding the Anti-Magisterium in the Supreme Court's Abortion Opinions." This promised too much for a talk that was to be between 18 and 20 minutes long, so I changed it to "Unwinding the Anti-Magisterium in Dobbs v. Jackson's Women's Health." (I was also pleased that this narrowed version clocked in at 18:59.) 

Because this presentation was on the undercard, no video recording of it will appear on YouTube. An audio recording (of my talk only, not of others on my panel or of the Q&A) is available here . A .pdf version of my slides is available here.

The talk is pitched to the audience of people attending a conference entitled "I Have Called You by Name: Human Dignity in a Secular World." Although discussing the law (accurately, I hope), it is not directed toward an audience of legal specialists. 

The bottom line of my reasonable hope for Dobbs is on slide 30/32: "Even if the Court does not affirm
prenatal personhood, it should negate Roe’s negation of prenatal personhood." 

The only thing I'd add at this point is that second point on slide 31/32 about nonjusticiability as an antidote to the abortion (anti-)magisterium is misleading. It says "Take the stance that the Court lacks judicially manageable standards to replace its perception of personhood with Congress’s or state governments’ perceptions." What I meant to say, instead, is that the Court should recognize that it lacks judicially manageable standards to put in place its perception of personhood in preference to Congress's or state governments' perceptions (with the implicit qualifier that these perceptions need to be reasonable in order to be acceptable).

Professor Rick Garnett to Speak at University of Chicago Law School on November 16th

Students for Religious Liberty, St. Thomas More Society, Christian Legal Society, Jewish Law Students Association present:

LAST RIGHTS, Religious Liberty, the Death Penalty, and Ramirez v. Collier 

Feat. Professor Rick Garnett

Nov. 16, 2021 

12:15 P.M. 

Room I 

2022 Notre Dame Church, State & Society Writing Competition

 

The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.

 

Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.

 

Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted. Papers already published, or in the process of being published, are not eligible.

 

Submissions: Papers must be submitted by March 1st, 2022. Winners will be announced on or before May 6th, 2022. Papers must be e-mailed in .pdf form. Each submission must include a cover letter (that summarizes the paper and states the paper word count) and resume in a separate .pdf document. Papers should not include author names in order to ensure that submissions to judges can be scored with anonymity. Emailed submissions should be sent with “2022 Writing Competition” in the subject line, and addressed to: [email protected]

 

Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.

Download 2021-2022 CSS Writing Contest (1)