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, December 2, 2021

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.

December 2, 2021 in Garnett, Rick | Permalink

Tuesday, November 30, 2021

"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.

November 30, 2021 in Garnett, Rick | Permalink

Saturday, November 27, 2021

"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!

November 27, 2021 in Garnett, Rick | Permalink

Sunday, November 21, 2021

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.

 

November 21, 2021 in Garnett, Rick | Permalink

Tuesday, September 7, 2021

Boston College Law School Dean Search

The Dean Search Committee for the Boston College Law School has been announced.  Former MOJ-er Vince Rougeau (now President of the College of the Holy Cross) has left big shoes to fill!  Good luck to BC!

September 7, 2021 in Garnett, Rick | Permalink

Monday, September 6, 2021

O. Carter Snead on the Texas abortion law and Roe v. Wade

My friend and colleague, Carter Snead -- whose work is almost certainly familiar to MOJ readers -- has an excellent op-ed in The Washington Post, called "Critics of Texas's Convoluted Abortion Law Have a Point:  The Solution is To Overrule Roe v. Wade."  A bit:

[W]hy are we now reduced to having a fevered meta-argument about procedural technicalities regarding the jurisdiction of federal courts? In short, it is because Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court.

There is a road back to normalcy. The Supreme Court can put us on it by dismantling its ill-founded abortion law apparatus and freeing the American people to reason together, just like our friends in numerous other countries including England, France, and Germany have been free to do, and enact laws that protect and care properly for women, children (born and unborn) and families in need.

September 6, 2021 in Garnett, Rick | Permalink

Saturday, August 21, 2021

"The Church and China: Can Catholics Serve Two Masters?"

Ed Condon has this piece, at The Pillar, which includes some (sadly) typically obtuse comments by Cardinal Parolin.  To be sure, it is not only the PRC, among political authorities, that purports to demand of Catholics that they be "good citizens" first.  Some might say that the PRC and its apologists simply "say the quiet part out loud." And, it is far from obvious what the all-things-considered best way is for the Church to deal with the PRC, and best care for Catholics in China and bear witness to the faith there. I feel confident, though, that Parolin's inclinations and ruminations are not a reliable guide to finding it. 

August 21, 2021 in Garnett, Rick | Permalink

Friday, August 20, 2021

Call for Papers: Governments’ Legal Responses and Judicial Reactions during a Global Pandemic: Litigating Religious Freedom in the Time of COVID-1

More info, from the Journal on Church and State, is available here.

August 20, 2021 in Garnett, Rick | Permalink

Tuesday, August 17, 2021

A Symposium on Bachiochi's "Rights of Women"

At the Law and Liberty blog, there is a symposium dedicated to our own Erika Bachiochi's new bookThe Rights of Women:  Reclaiming a Lost Vision.  Check it out!

August 17, 2021 in Garnett, Rick | Permalink

Tuesday, August 10, 2021

"What Is Religious Freedom?"

Here is a short piece I did for the USCCB's "First Freedom" blog.  It is meant for parishes, high schools, etc., so please feel free to share!  A bit:

Religious freedom plays a significant role in the American imagination.  When asked what it means to be an American, many Americans will refer to freedom and equality, which speaks to our intuitive sense of the equal dignity of all people.  But how we think of religious freedom can differ from one person to the next.  The ideal of religious freedom may be summarized as “separation of church and state” and “the right to follow my conscience.”  Many Americans will often think primarily in terms of human rights.  Religion – belief and practice, ritual and worship, and perhaps expression and profession – is considered an object of human rights laws, that is, as something that the laws protect. The leading human rights instruments confirm this entirely reasonable, if not quite complete, way of thinking. For example: “Everyone has the right to freedom of thought, conscience, and religion,” the Universal Declaration of Human Rights (1948) proclaims, and political communities should “strive ... to promote respect for [this right]” and “to secure [its] universal and effective recognition and observance.” Similarly, the European Convention on Human Rights (1950) declares that its signatories resolve to “secure [this right] to everyone within their jurisdiction.” The Constitution of the United States frames the issue in terms of constraints on government.  The government may not prevent the free exercise of religion, nor may it establish a religion.  In other words, religious liberty is often framed negatively, as “freedom from,” rather than as something more aspirational, as “freedom for.”

But what, exactly, is this religious liberty that needs safeguarding?  Despite general agreement that religious liberty is protected by the Constitution, the extent of those protections, and what constitutes true religious liberty at its core, is disputed. . . .  

August 10, 2021 in Garnett, Rick | Permalink