Thursday, May 23, 2019
Prof. Stephanie Barclay (BYU) has posted a new article called First Amendment Categories of Harms. I recommend it highly (and not just because the author cites me in a few places!); it's an important contribution to, inter alia, the religious-accommodations debate. Here is the abstract:
What role should harm to third parties play in the Government’s ability to protect religious rights? The intuitively appealing harm principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop and Hobby Lobby. While focusing on harm appears at first to provide an appealing simple and neutral principle for avoiding other difficult moral questions, the definition of harm itself operates on top of a deep moral theory about what counts as harm and why. Consequently, multiple scholars advancing iterations of these theories use “harm” as a term of art to mean very different things. This in turn results in scholars talking past each other and trading on a superficially simple idea that turns out to be incredibly complex. For this reason, the harm principle has proven unworkable in other contexts, including criminal and environmental law. This Article highlights the flaws of this approach in the religious context by measuring the theory against its own ends, including the theory’s failure to account for harms this approach would cause for religious minorities and other vulnerable groups.
Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies four categories: (1) prohibited harm (meaning a type of harm that is categorically impermissible); (2) presumptive harm (meaning a type of harm that is presumptively, though not dispositively prohibited); (3) relevant harm (meaning harm that courts will assess alongside other important factors, but whose weight is context-specific), and (4) inadmissible harm (meaning harm that is given no weight regardless of how severely or disproportionately it is experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions, but are in fact common to all First Amendment rights. Further, this descriptive framework sheds light on which sorts of harms matter, and when, and it highlights the competing harms that always arise when any rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more fruitful normative questions, including whether there is a justifiable tradeoff between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.
Wednesday, May 22, 2019
Call for nominations: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility
Submissions and nominations of articles are being accepted for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2019. The prize will be awarded at the 2020 AALS Annual Meeting in Washington, DC. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]. The deadline for submissions and nominations is September 1, 2019.
Monday, May 20, 2019
My dear friend and colleague, John Nagle, passed from this life over the weekend. He was a great teacher and legal scholar, and also -- and more importantly -- a deeply good, generous person. (I recommend this wonderful reflection, by his former student, Derek Muller. Here is something I did at Prawfsblawg. And, here is the announcement on Notre Dame Law School's page.)
MOJ readers might remember the project, "Catholics and Evangelicals Together on Law." John was one of the signatories.
John wrote and taught about so many things, it's not possible to do justice to his academic work (let alone his personal gifts) here. If you haven't read his stuff before, take a look.
Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace.
Thursday, May 9, 2019
Here, at Public Discourse, is an essay by Elizabeth Kirk in which she underscores the many missteps in the recent majority opinion of the Kansas Supreme Court which, in a "failed attempt at serious philosophy," discovered/created a natural right to abortion, protected by that state's constitution. Kirk also highlights the clear dissenting opinion of Justice Caleb Stegall.
Ukrainian Archbishop the Rev. Borys Gudziak will be presented with the Notre Dame Award at a ceremony June 29 in the Ukrainian city of Lviv, the University of Notre Dame announced Monday.
Gudziak is the founder of Ukrainian Catholic University in Lviv. He recently was elevated by Pope Francis to become metropolitan-archbishop of the Ukrainian Catholic Archeparchy of Philadelphia (the equivalent of an archdiocese).
Ukrainian Catholic University was the first Catholic university to open in territory of the former Soviet Union and the first university opened by one of the Eastern Catholic Churches. It was formally founded in 2002.
The Notre Dame Award is presented to “men and women whose life and deeds have shown exemplary dedication to the ideals for which the University stands: faith, inquiry, education, justice, public service, peace and care for the most vulnerable,” according to the university.
Learn more about Archbishop Gudziak in this moving piece by George Weigel in First Things.
Friday, May 3, 2019
Everything Russell Hittinger writes about the Church's social teachings is worth reading, so I suppose there's no need to say that this essay, "The Coherence of the Four Basic Principles of Catholic Social Doctrine: An Interpretation", is, too. (The "four basic principles" he discusses are human dignity, solidarity, subsidiarity, and the common good.) Along the way, there's a lot about "social ontology" and the challenge that the Catholic understanding of persons poses to methodological individualism, and to some understandings of religious freedom.
Thursday, April 25, 2019
Here at MOJ, we've often discussed the content and application of the core principles of the Catholic Social Thought tradition, including "solidarity." I'm pasting, below, a short reflection that my daughter Maggie (a student at Notre Dame) wrote on the idea:
. . . In his encyclical letter, Spe Salvi, Pope Benedict XVI writes: “the true measure of humanity is essentially determined in relationship to suffering and to the sufferer.” Humanity is measured by the ways in which we live in relationship when it is most difficult. Suffering challenges, breaks, and burdens us. It can quickly isolate us, or separate us from our relationships. When we love well in suffering, not despite of it, we are loving as we are called to. And, this relationship is more than just the acknowledgement of someone else’s suffering: “to accept the “other” who suffers, means that I take up his suffering in such a way that it becomes mine also.”
That, dear readers, is what I want to say that solidarity is. It is shared outrage, sure. It can be a recognition and resistance to injustice, absolutely. But it seems to me that solidarity exists most profoundly where it is hardest to find: in the taking up of another’s cross as my own. By sharing in suffering, being in solidarity with another in their pain, light and love enters in.
In this solidarity in suffering we encounter Christ in a powerful way. Jesus Christ became man so that he could suffer “for and with us”. “Man is worth so much to God that he himself became man in order to suffer with man in an utterly real way” (Spe Salvi). In our pain, underneath the weight of our crosses, we remember that he lived in that same pain, underneath the weight of his own cross. Solidarity is not found in a Facebook-organized leggings protest: it is found on a tree on Calvary.
That is, of course, a challenging example to live out. I do not handle suffering as well as I would like to. When I encounter hurt, it’s often with discomfort. I feel useless, unable to fix things, and eager to escape that feeling. It is easy to feel insufficient when others are suffering. But God is not calling me to be the perfect fix-it-girl. He is not asking me to have all the answers. When I am blessed enough to have a friend approach me in their suffering, they don’t want me to rattle off a solution. They are just asking me to be with them.
As much as I want to fix everything -- to end the hurt, heal the pain, calm the anxiety, shut out any and all darkness -- I cannot do that, for myself or for those I love. What I can do is be in solidarity, simply in presence. For me, that has been a friend sitting with me on a chapel floor, staring at the tabernacle with a friend. It’s been a cold walk around the lakes, or a meal that is longer than it “should” be, because of a conversation that needed to be had. It is, and ought to be, quiet prayer intentions, tight hugs, shared tears, vulnerable moments, and admittance of weakness that allows us to be more fully and completely human.
If we approach solidarity with compassion, if we “suffer with”, we might be able to set aside the instinct to fix, and settle instead for the presence and empathy that we can offer. And, if we enter into that compassion with consolation, if we are with those we love in their solitude, suffering ceases to exist in isolation. We then exist in solidarity, not because we offer solutions but because we are willing to be present.
Solidarity is difficult. Asking for the presence of others, even those you know love you, is hard -- I can be really bad at it. But by entering into real and intentional relationships, we find people than can, imperfectly and temporarily, help us to carry what we must. Those people, in turn, point us to the One that, perfectly and eternally, carries us. . . .
Saturday, April 20, 2019
Here. A bit:
In “Liberty in the Things of God: The Christian Origins of Religious Freedom,” Robert Louis Wilken provides a wealth of evidence drawn both from major events and seminal texts to show that the unfolding of Christian faith and the development in the West of the idea of individual freedom have been intimately intertwined.
This is not to deny the religious persecution across centuries perpetrated by Christianity. The enforcement of religious orthodoxy and the repression of dissent have been a default option throughout history. What distinguishes Christianity has been the steady and deepening appreciation that its core teachings require not merely toleration — in the sense of grudging or politically expedient acceptance of differences in religious belief and forms of worship — but rather robust freedom because by its very nature faith cannot be coerced. So powerful was this idea within Christianity and so profound has been Christianity’s influence in the West and around the world that it has furnished an “intellectual framework” that established freedom of religion as a basic assumption of liberal democracy and eventually as a fundamental human right. . . .
Thursday, April 4, 2019
Here, at Public Discourse, is an essay by Ryan Anderson called "Catholic Thought and the Challenges of Our Time." There's a lot going on in the essay, and I recommend reading the whole thing. Among other things, it engages a topic that has been a focus of the Mirror of Justice project from the beginning, i.e., the importance of a sound, Christian moral anthropology for, well, just about everything. A bit:
The capacity to know right and wrong, good and evil, is key to recovering today a sound understanding of freedom. For the liberty on offer in many post-Christian liberal societies today is not the liberty of the ancient Greeks, Romans, or Christians. For them, the most important freedom was freedom from slavery to sin, freedom for self-mastery. Today we face two competing conceptions of freedom, in what the Belgian-born Dominican theologian Servais Pinckaers has termed a freedom of indifference and a freedom for excellence.
On the modern conception of freedom, freedom is indifferent to what is chosen. What matters is simply that I chose it. Whether I chose to degrade myself or to respect my dignity is ultimately irrelevant, provided that I freely choose either way.
The more traditional understanding of freedom flowed out of a different conception of human nature. If freedom is grounded in man’s rational and animal nature, and in how such freedoms allow man to flourish given his nature, then freedom is directional—it has a purpose, an end, and thus has limits. It is not primarily a freedom from something, but a freedom for something. A freedom for excellence, a freedom for human flourishing.
I read recently a short essay/pamphlet on the nature and mission of Catholic education, published by Notre Dame's Alliance for Catholic Education and written by some friends and colleagues associated with that (wonderful) program. It's called "Education in a Catholic Key" and I recommend it. You can download it here: Download Education in a Catholic Key. Check it out. (And pray that many bishops, superintendents, principals, teachers, and parents do, too!)