Mirror of Justice

Happy Feast of St. Thomas Becket!

2022 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.

https://churchstate.nd.edu/news-events/news/2022-church-state-society-writing-competition/

Remembering the Most Important Thing

From the first time that my University of St. Thomas offered a special Christmas Eve Mass at the Chapel of St. Thomas Aquinas, my wife, Mindy, and I have faithfully attended — other than last year during the depths of the pandemic. We were blessed to return last evening. Above is a photo I took last night of the wonderful Nativity Scene at the front of the chapel. Having seen hundreds of Nativity Scenes through the years, this is my favorite.

 

Last night, in looking at that depiction of the birth of Jesus, I was reminded of a story that the late Justice Antonin Scalia shared with a group of my faculty at the University of St. Thomas shortly before his death. As Justice Scalia had told this story to many others, including those on this list, I’m sure they could point out minor errors or omissions in my telling. But I’ll do my best and be true to my own recollection. And, as imperfect as it may be, I think it will serve the main point.

 

Justice Scalia was talking with us about how the University of St. Thomas School of Law took its Catholic identity seriously, as integrating the profession of law into the whole person of the faithful lawyer. He said the same had been true of Georgetown University, when he was an undergraduate student there.

 

As he approached graduation from Georgetown, the young Scalia had to pass an oral examination before a panel of professors in the history department. They peppered him with questions about historical events. And, as Scalia recalled it to us, “I was hitting the questions out of the park. I knew I was doing a great job.”

 

Finally, the chair of the department, a senior faculty member and Catholic priest, said, “we have one last question for you, Mr. Scalia. What was the most important event in human history?”

 

Scalia told us his thinking was, “I’ve got this. There is simply no wrong answer to this question. Any answer I give will be fine, as long as I provide a good argument for why the event I choose had a major impact on history.” He then proceeded to discuss the Battle of Waterloo and the dramatic effect that the defeat of Napoleon had on European history.

 

When he was finished, the chair of the department said, “No, Mr. Scalia, that is the wrong answer.”

 

The reverend chair continued: ”The most important event in human history was the birth of our Lord and Savior Jesus Christ in Bethlehem.”

 

And Scalia knew of course that he had been wrong. So wrapped had he been in showing his intellectual prowess on history that he had forgotten the most important thing of all. And, of course, we in the legal profession are particularly likely to mistakenly begin to think that what we are doing and saying about the law is the most important thing. It may well be an important thing. And it may be what God is calling us to do as professionals.  But it is not the most important thing.

 

So my prayer for all of us today on Christmas is that we not only remember but truly feel the love of God in this season that should be joyful. Know that God cared so deeply for us that he sent his only Son to be incarnated into a human body, born of a poor family in a stable of animals and laid in a feeding trough. God bless us all today! Merry Christmas!

Democrats for Life Brief in PA Hyde-Amendment Case

The PA Supreme Court is hearing a challenge to the state's version of the Hyde Amendment (Allegheny Reproductive Services v. PA. Dept. of Human Services, appeal from 249 A.3d 598 (Pa. Commw. Ct. 2021)). Abortion providers are petitioning the court to reverse its 1985 Fischer decision (509 Pa. 293, 502 A.2d 114) that upheld the ban on state funding of abortions (except for rape, incest, or threats to the mother's life), on grounds similar to  SCOTUS's upholding of the federal Hyde Amendment in Maher v. Roe and Harris v. McRae.

Democrats for Life of America has filled an amicus brief in support of the PA funding restriction. From the summary of argument:

DFLA files this brief to emphasize three interests that the ban on funding of elective abortion serves. These interests are important, and at the very least, are clearly valid and legitimate under rational-basis scrutiny.

     A. First, the funding ban serves the interest in protecting fetal life, which has been held to be “important” by this Court in Fischer IV and, as this Court noted, by the U.S. Supreme Court as well. Since Fischer IV, scientific advances, including ultrasound technology, have made it even clearer that the unborn child is a distinct human life during its development in the mother. These developments reinforce Fischer IV, both as a matter of stare decisis and because it is correct.

     B. Second, the funding ban serves the important, and unquestionably valid, interest in respecting the conscience of many taxpayers who believe that abortion takes an innocent human life, and that the government revenue to which they contribute should not support that practice. Although the government is not required to accommodate taxpayers’ objections by declining funding, it has discretion to do so. From the nation’s founding, our governments have accommodated taxpayers’ conscience by denying funding to various practices that violate their deeply held beliefs. Abortion-funding restrictions stand within this tradition of respecting taxpayer conscience on deeply divisive issues; indeed, the tradition is especially strong in protecting people against being forced to facilitate abortions.

     C. Finally, because abortion-funding restrictions avoid forcing taxpayers to facilitate abortion when they deeply oppose it, such restrictions make it possible to secure broad support for health and welfare-related funding in general. The government has a strong interest in maintaining the flexibility that helps build such consensus for social-welfare assistance programs. Since 1980, Pennsylvania’s ban on funding elective abortions has bolstered support for the Medical Assistance Program. Similarly, since 1976 the federal Hyde Amendment has bolstered support for federal health and welfare spending. And adoption of abortion-funding restrictions in the Affordable Care Act—restrictions with bipartisan support—were crucial to the passage of that major healthcare-reform legislation.

In section C, the brief details the crucial role that abortion-funding restrictions, and the pro-life Democrats who pushed and hard for them, played in the passage of the Affordable Care Act. (Citing former Rep. Bart Stupak's account of the events, For All Americans.) Since the ACA's passage, of course, pro-life Democrats have been decimated in Congress and state offices across the country by the combined efforts of Republicans, major pro-life groups, and anti-abortion rights groups. It's a feature of, and a contributor to, our accelerated polarization. But the arguments in section C--that a consensus in support of strong social-welfare benefits can much more easily form if taxpayers do not thereby have to fund elective abortions--are still important in a number of purplish states, like Pennsylvania.

Sotomayor, Abortion, and Religion

In what was undoubtedly the intellectual low point in the Supreme Court's oral arguments in Dobbs v. Jackson Women’s Health on Wednesday (here), Justice Sonia Sotomayor suggested that the State’s interest in the life of a human being developing in utero is inherently religious.  In questioning Mississippi’s Solicitor General Scott Stewart, she asked (pp. 29-30):

How is your interest anything but a religious view? The issue of when life begins has been hotly debated by philosophers since the beginning of time. It's still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that's a religious view, isn't it … because it assumes that a fetus's life at -- when? You're not drawing -- you're -- when do you suggest we begin that life?

Put to one side Sotomayor’s half-witted suggestion that the question of when the life of a human being begins is only philosophical – that it is not a biological question which science has already settled.  Never mind that she is quite confident that science can answer the question of when a human life ends (pp. 20-21).  Never mind that the biologists’ amici brief in Dobbs (here, filed on behalf of neither petitioner nor respondent) makes clear that the overwhelming view of biologists around the world (including those who favor abortion) is the view that human life begins at fertilization and that this view “can only be supplanted by an alternative view if there are paradigmatic shifts to axiomatic concepts within biology” (p. 4).

To correct Sotomayor’s wrong, but oft repeated accusation, Justice Samuel Alito asked Stewart “[A]re there secular philosophers and bioethicists who take the position that the rights of personhood begin at conception or at some point other than viability?”  Stewart noted, sensibly enough, that “there's a wide array … of people of kind of all different views and -- and of no faith views who -- who would reasonably have that view, Your Honor” (p. 32).

Stewart’s observation that support for unborn human life can be found among the non-religious should be sufficient to answer the charge that this view in unavoidably religious.  But this charge against the defenders of unborn human life long precedes even Roe.  The proponents of abortion have long sought to discredit the pro-life movement as a sectarian effort to impose religious beliefs on a pluralistic society that includes many non-believers.

Like an old joke that falls flat whenever it is told, but that some people insist on telling and retelling, again and again, the reasons why it is little more than an ugly accusation – a mean-spirited and profoundly unfunny smear – must be spelled out.

Indeed, because Sotomayor’s claim is so confused, yet so frequently articulated, and is likely to be heard again and again with even greater frequency in the future (regardless of what happens in Dobbs), it is worthwhile to examine the charge more closely now.

In an article published in 2013 (here), I engaged in a line-by-line analysis of Justice John Paul Stevens’ abortion opinions in Thornburgh, Webster and Casey demonstrating the vacuous nature of the claim that laws seeking to afford some protection to the human child developing in utero are religious and so invariably violate the Establishment Clause of the First Amendment.  In that article, I noted that in Thornburgh (476 U.S. at 778) Stevens does not defend his claim that the State’s interest in the developing human “increases progressively and dramatically as the organism’s capacity to feel pain, to experience pleasure, to survive, and to react to surroundings increases day by day.”  He simply regards it as “obvious.”  But this is naked assertion.  To defend this claim would require Stevens to confront his own value preferences in favoring certain characteristics as significant, and recognizing that these preferences are no more or less “religious” than those he dismisses with that label.

If describing a claim as “religious” means that the claim depends upon value judgments that are ultimately unprovable from an empirical point of view, then the perspective that regards the unborn as something of incalculable worth is no more or less “religious” than the perspective that regards them as being of no value whatsoever—a trivial item of refuse easily discarded and soon forgotten. (p. 839)

John Noonan first made this point in his book, A Private Choice (1979), in responding to Larry Tribe’s 1973 Foreword in the Harvard Law Review.  There is no reason to exempt the selection of those criteria that would exclude fetuses and embryos from consideration as beings of moral worth and dismiss as theological and illicit those criteria that include fetuses and embryos as such beings. Rather, an argument must be made that certain criteria are inescapably “religious” and others properly “secular.”

Sotomayor’s questions indicate that she is oblivious to all this.  Her questions rely upon the same unstated and undefended assumptions.

It is possible that the question “Should X be considered Y?” is inherently religious because answering it necessarily relies upon religious premises or the exercise of religious judgment. 

For example, consider the following question: “Should the Gospel of Thomas be considered the inspired word of God on par with the Gospels of Matthew, Mark, Luke, and John?  Should Christians include it within the canon of New Testament texts?”   Whether the question is answered in the affirmative or the negative – whether concluding that the text is canonical or apocryphal – answering the question requires the exercise of theological judgment. 

The same could be said about the judgment involved in the classification of other things: “Should what looks to be a piece of bread be considered the Body and Blood of Christ?”  “Should a cow be thought of as a sacred animal that should not be slaughtered for food and should be allowed to wander free?”  “Should a kirpan dagger be treated as a sign of faith that must be worn at all times?”

But the question as to whether the enity in the womb is a "person" is not of this sort. In the debate over abortion, the claim that the entity developing in the womb is or is not a “person” is normative (i.e. a rights-bearer, a subject of concern, respect, and protection by the State) rather than descriptive (e.g. a being that is sentient, feels pain, is self-conscious, or has the capacity for reason), but it is not religious.

It is not “religious” to argue that a human being of a young age (e.g. an infant or toddler) should be regarded as a “person” and so enjoy the same respect and protection as a human being of a more advanced age (e.g. an adolescent or adult) who is regarded as a “person.”  And the judgment that an entity is a human being – an organism that is a member of the species homo sapiens – is not normative at all but biological (i.e. conceptual and empirical).

Of course, one could use religious reasoning and employ religious premises to argue that a given entity ought to be regarded as a “person.”  One could argue that a given being is a “person” infused with an immortal soul by God.   One could argue that the entity in the womb bears the image of the divine and is precious in the eyes of God.

But the proponents of legal protection for the unborn – both in terms of personhood and in some status short of that – do not do so on the basis of religious premises. 

If the claim implicit in Sotomayor’s questions is to be anything more than an ugly slur, then she must show that the view that favors protection for the unborn relies upon religious premises.  This is precisely what she and others have failed to do.  They are instead content to repeat a bad joke – to tell it again and again knowing that it appeals to the prejudices of its audience.  But the real laughingstock in law is those who abandon reason, rely on accusation, and trade in religious prejudice.

Commentary on the Dobbs arguments

Here (Our Sunday Visitor) and here (The Volokh Conspiracy) are some quick comments I contributed regarding yesterday's oral arguments in the Dobbs case. In my view, the justices will, and should, jettison Roe and Casey, and adopt the approach for which the late Chief Justice, William Rehnquist, advocated in his Casey dissent.  A bit:

To be sure, it makes sense for the court to value stability and predictability in the law. Sometimes, there are good reasons to carry on with a past mistake. And it is important that the court not only be perceived as, but in fact be, a judicial, not a merely political, institution. The meaning of the Constitution should not and does not change simply because its composition does.

The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation. In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably. . . .

At one point during the arguments, Justice Sotomayor observed that many of the most famous cases where the court rejected past precedent involved expanding the rights of individuals. In her view, this fact weighed strongly against undoing the errors in Roe and Casey.

Her view is wrong, though, for at least two reasons. First, reversing Roe will respect the rights of individual citizens to have a say, and to try to convince their neighbors on a fundamental moral and policy question. Next, and no less important, the court’s confession of error would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections. That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.

Faith Groups Say the Build Back Better Act Would Exclude Faith-Based Child Care and Pre-Kindergarten Providers

Two bishop chairmen on behalf of their committees of the U.S. Conference of Catholic Bishops (USCCB) have cosigned a coalition letter to the U.S. Senate Committee on Health, Education, Labor, and Pensions Chair Patty Murray (D-WA) and Ranking Member Richard Burr (R-NC) with other faith groups raising urgent concerns that the Build Back Better Act’s (BBBA) child care and universal pre-kindergarten programs would exclude faith-based providers.

“Expanding affordable child care and pre-kindergarten is a worthy goal to help working families. However, the current child care and universal pre-kindergarten (UPK) provisions in the Build Back Better Act will suppress, if not exclude, the participation of many faith-based providers,” wrote Cardinal Timothy Dolan of New York, chairman of the Committee for Religious Liberty, and Bishop Thomas Daly of Spokane, chairman of the Committee on Catholic Education, together with numerous organizations representing denominations, schools, and charities.

Full article at USCCB: https://www.usccb.org/news/2021/faith-groups-say-build-back-better-act-would-exclude-faith-based-child-care-and-pre