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.

Monday, July 25, 2022

The Contrasting Visions of the Judiciary in Brown and Dobbs

I have a short piece contrasting the Dobbs' Court's approach to judicial reasoning with that employed in Brown v. Board of Education. Here is a snippet: 

Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society. The Brown Court placed itself in the central role of creating a just society. The Dobbs Court cast itself in the supporting role of referee applying the standards set down by the Constitution, while locating the task of forming a just society in state legislatures on issues the Constitution is silent about.

July 25, 2022 in Current Affairs, Scaperlanda, Mike | Permalink

Sunday, July 17, 2022

Smolin on "Children, Mothers, Religious Liberty, and the Mission of the Catholic Church"

Prof. David Smolin (Samford) has a new paper out, which will be of interest to many MOJ readers.  Here is the abstract:

This article addresses, from religious liberty and theological perspectives, two sets of serious errors in the treatment of mothers and children, in which the Catholic Church (and other churches) participated.  These serious errors have created credibility gaps regarding the Church’s mission and societal role in assisting vulnerable children and families. 
Hence, much of this article is a theological examination of what went wrong in regard to two now prominent wrongs:  the residential schools for indigenous children in Canada, the United States, and Australia, and the treatment of single mothers and their children in Canada, the United States, Ireland, the United Kingdom, and Belgium.   The theological journey is necessary to the religious liberty claims for internal reasons---fidelity to the faith---and for external reasons---credibility to society so that society can see and understand that the church has and is learning from its own mistakes.  
The theological examination of these wrongs is framed by a discussion of the 9-0 victory of Catholic Social Services (CSS) in the Fulton v. City of Philadelphia case.   This religious liberty victory upon examination is based on the Supreme Court’s  very positive view of the work of CSS in the foster care system.  Religious liberty in the context of cooperative work between the government and religious agencies ultimately does require that the work of the Church is viewed as fulfilling secular goals of government.   


July 17, 2022 in Garnett, Rick | Permalink

Wednesday, July 13, 2022

A rare example of statesmanship--and courage--by an academic administrator

I am reproducing here a Statement by Marschall S. Runge, MD, PhD, Dean of the Medical School of the University of Michigan, demonstrating the proper response by a leader of a public or non-sectarian private institution of higher learning to efforts to dis-invite or de-platform speakers or impose ideological litmus tests. The speaker in question here was Professor Kristin Collier, MD, who came under attack by campus ideologues because she believes in the sanctity of human life in all stages and conditions. Dean Runge refused to capitulate to the mob.


Dear Medical School faculty, students and fellows,
The Medical School White Coat Ceremony is a special day for our medical students and their families as they are welcomed into the medical profession. The ceremony is a meaningful tradition that celebrates U-M medical students as they prepare to become leaders in medicine.
Kristin Collier, M.D., was chosen as the keynote speaker for the 2022 White Coat Ceremony based on nominations and voting by members of the U-M Medical School Gold Humanism Honor Society, which is comprised of medical students, house officers, and faculty. The Society chapter, which was formed at U-M Medical School in 2016, represents exemplars of humanistic patient care and who serve as role models, mentors, and leaders in medicine.
We have received both positive and negative feedback on the choice of our keynote speaker. The White Coat Ceremony is not a platform for discussion of controversial issues, and Dr. Collier never planned to address a divisive topic as part of her remarks.  Our values speak about honoring the critical importance of diversity of personal thought and ideas, which is foundational to academic freedom and excellence. We would not revoke a speaker because they have different personal ideas than others.
At this year’s White Coat ceremony, we will be honoring 168 outstanding scholars and formally welcoming them as the University of Michigan's newest class of medical students. This is an important day for them and their families, and we hope that all will honor this day dedicated to them and their families.
A forum on the importance of diversity of thought is being planned by Michigan Medicine, and additional details will be shared soon.
Marschall S. Runge, M.D., Ph.D.
Dean, University of Michigan Medical School
Executive Vice President for Medical Affairs
CEO, Michigan Medicine


July 13, 2022 | Permalink

Vatican Radio Interview on "Liberalism's Limits"

Our conference, "Liberalism's Limits: Religious Exemptions and Hate Speech," which we co-sponsored with LUMSA last week in Rome, was a great success. Mark Movsesian and I will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy's Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and some of our broader joint projects.

The interview is in Italian, but I'm taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: "This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together--of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism's tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be."

July 13, 2022 in DeGirolami, Marc | Permalink

Friday, July 1, 2022

"We the People" Podcast on Carson v. Makin and Kennedy v. Bremerton School District

I greatly enjoyed doing the National Constitution Center's "We the People" podcast (available here) with Dean Erwin Chemerinsky (UC Berkeley Law) and moderated by Jeffrey Rosen on the Supreme Court's recent decisions on school funding and prayer--Dean Chemerinsky and I had a lot of spirited but respectful disagreements!

July 1, 2022 in Moreland, Michael | Permalink

Re-Post: Abortion, Religion, and the Accusation of Establishment

Sara Feigenholtz -- Statue of Liberty Pope Gun

The Post-Dobbs world in which we now live has brought with it an oft-repeated accusation, now voiced with renewed vigor: the pro-life position is inherently religious and so cannot serve as the foundation for any law restricting abortion.  This accusation is an attempt to win an argument without really having one – to declare illicit and rule out of bounds ab initio an opposing point of view.  Moreover, it is an accusation that draws upon the ugly history of anti-Catholic animus and violence in the United States.  It is a slur that seeks to paint the advocates of the pro-life position as religious zealots who seek to impose the moral demands of their faith on the public at large.  The image above, posted by an Illinois State Senator following the Dobbs ruling (and referred to in Rick Garnett’s First Things piece) reflects the hate directed toward Catholics as a result of the Church’s efforts to protect and foster unborn human life.

In responding to this accusation, some might find it helpful to consider my article Abortion, Religion, and the Accusation of Establishment.  I am reposting it here following Rick’s suggestion.  In the piece I engage in a line-by-line critique of Justice Stevens’ opinions in Thornburgh, Webster, and Casey where he attempts to show that the pro-life position is inherently religious such that, when it is embodied in law, it constitutes an establishment of religion in violation of the Constitution.  Like others who level this accusation, Stevens fails in this regard.  Indeed, he does nothing to actually show the religious nature of the normative premises he opposes.  He merely assumes that they are religious, and in so doing channels the anti-Catholic sentiment now once again on vivid display throughout our country.

I will have more to say about this in a subsequent post.

July 1, 2022 | Permalink