Friday, July 10, 2020
Here is a short piece I did for the Law & Liberty site, on the Supreme Court's recent decision in two cases involving the so-called "ministerial exception" and Catholic schools. A bit:
In a pair of cases involving the religious-freedom rights of parochial schools, the Supreme Court on Wednesday re-affirmed a core First Amendment rule and a crucial aspect of church-state separation, properly understood: Public officials, regulators, and courts lack the authority to decide who should, or should not, perform important religious functions. Questions about religious institutions’ religious teachings, and teachers, belong to the “church” and not to the “state.” . . .
As the Court had in Hosanna-Tabor, Justice Alito’s opinion emphasized the deeply rooted concern in our law, history, and traditions of “the general principle of church autonomy” and of religious institutions’ “independence in matters of faith and governance and in closely linked matters of internal government.” Along with other scholars, I have explored the connections between the importance of this “general principle” in American constitutional law and some of the great church-state controversies of the past and the long-running (and still continuing) struggle for the “freedom of the church.” As the Court observed, and in keeping with this history, the First Amendment has long been understood as requiring secular authorities to avoid attempting or purporting to “resolv[e] underlying controversies over religious doctrines.” Whatever disagreements might persist about the content of the Constitution’s no-establishment rule (regarding prayers at town-hall meetings or war-memorial crosses, for example), it seems clear that the paradigmatic feature of the kind of religious “establishment” that the First Amendment was designed to rule out is political meddling in the selection of religious ministers, the formulation of religious doctrines, and the teaching of religious truths. . . .
At the end of her dissent, Justice Sotomayor expressed concern about the implications of the decision “in a pluralistic society like ours.” However, it is precisely because ours is a “pluralistic society” that the Court’s 7-2 determination is so important. In a meaningfully pluralistic society, not every organization or institution will act the same way, or be structured in the same way, or have the same goals, or be governed by the same rules. A society without mission-oriented Catholic schools is a less pluralistic society than one with them. A political authority that imposes the same employment rules on every employer, regardless of sector or context or history or aims, is not diverse, but homogenous and monochrome. And, in any event, foundational commitments to limited government and religious liberty require that decisions about religious leaders and teachers be left to religious decisionmakers.
Tuesday, June 30, 2020
The Court's opinion is here. I am, I confess, a bit overwhelmed by the news. I have been working on the Blaine Amendment / school choice / religious freedom cluster of questions, as a litigator and as a scholar, for more than 20 years. I have been hoping for this day for a long time. Among other things, it was wonderful that Justice Alito told the story (ignored by or unknown to too many people) about the rank anti-Catholicism that so pervasively shaped school-funding debates for so long.
Here's a short essay of mine, from the early 2000s, on these matters. (Obviously, I would have liked a citation, but one cannot have everything!) The abstract:
The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.
First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism.
Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person.
Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.
Monday, June 29, 2020
I have a short comment up at Our Sunday Visitor on today's abortion decision from the Supreme Court. Here's a bit:
There are, of course, bigger and deeper problems with Monday’s ruling. First, as Justice Samuel Alito reminded readers, the June Medical Services decision is the latest in a depressingly long string of cases in which “the abortion rights recognized in this court’s decisions is used like a bulldozer to flatten legal rules that stand in our way.” The late Justice Scalia referred regularly to this dynamic as “the abortion distortion.”
The decision is also wrong, as Justice Clarence Thomas eloquently stated, “for a far simpler reason: The Constitution does not constrain the states’ ability to regulate or even to prohibit abortion.” Forty-seven years and tens of millions of abortions later, the sweeping and historically ungrounded abortion right invented in Roe v. Wade is, and has always been, he said, “a creation that should be undone.” Although the court was not asked by the state in June Medical Services to reconsider and reject Roe, other parties will, and should. Thomas’ opinion shows how the justices should respond.
Disingenuous questions, and slippery answers, about Roe and abortion have become a familiar feature of judicial confirmation hearings in the Senate Judiciary Committee. For many years, federal judges have been nominated, supported and opposed because of predictions about how they would rule in abortion-related cases. This is unfortunate, but it is also unavoidable. Once the court announced a constitutional right to procure and perform a procedure that most Americans view — at least sometimes — as morally troubling and that many regard as a gravely wrong assault on the dignity and equality of the most vulnerable among us, we could hardly be surprised that people care very much, and politicians purport to, about the views of the court’s members.
The Supreme Court, once again, and notwithstanding the addition of several judicial conservatives, has failed to correct its serious mistake. However, legislators and citizens alike will, and should, embrace the words of the late Father Richard John Neuhaus: “We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life.”
Wednesday, June 17, 2020
Mark Hoipkemier -- whom I had the privilege of teaching when he was doing doctoral work at Notre Dame -- has an essay at Public Discourse called "Where (Not) to Begin with the Common Good." Here's the summary:
The common good is the flourishing of a community qua community. Every community is built around a common end, which is simply that it excel, in justice, as whatever kind of emergently real community it is. The common good is primarily a practical idea, but if our starting point is too practical we are apt to miss the challenge that the common good poses to the modern political imaginary. On the other hand, a starting point that is too metaphysical will fail to engage the real questions of common life.
The piece is a bit challenging/chastening for me, because I have often cited and find appealing a formulation of "the common good" that Hoipkemier says is, well, wrong, i.e., the one from Gaudium et Spes: “[T]he sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment.” (On the other hand, here is a different Public Discourse essay, by our own Robby George, which embraces this formulation.)
I'd welcome others' thoughts . . .
Friday, June 5, 2020
My friend (and now, my boss at Notre Dame Law School) Marcus Cole has written an essay reflecting on the killing of George Floyd and on his own personal experiences with violent racism. Apologies for the long post, but I'm just pasting it (with his permission):
I am George Floyd. Except, I can breathe. And I can do something.
G. Marcus Cole
Over the past several days, I have received numerous messages of care and support from
friends, neighbors, and acquaintances, each of whom simply wanted to express their concern for
how I might be feeling in the wake of the murder of George Floyd. For many, I am perhaps one of
the only African-American men in their social or business circles. Others, especially those who
know me well, are cognizant of my own personal experiences with racial violence. Their
expressions of love and support are rooted in the fact that the circumstances surrounding the deaths
of George Floyd and Ahmaud Arbery are strikingly similar to my own accounts of an attack on
my father over fifty years ago, one I witnessed as a little boy. What my friends may not know, but
surely suspect, is that each report of racial violence at the hands of a police officer or group of men
brings to the surface the vivid memories of that terrible night.
On a hot summer Friday evening, my little sister asked my parents for strawberries. We
lived in a predominantly Orthodox Jewish neighborhood in Pittsburgh, Pennsylvania, and so all of
the stores were closed. But my sister wanted strawberries, and my father wanted to get them for
her. So, he loaded me, my sister, and my baby brother into the back seat of our car, and drove to
another neighborhood to get strawberries. As we returned home, my father noticed that we were
being followed by another car. Suddenly, that other car swerved in front of us and stopped, forcing
our car to halt at the curb. In an instant, three white men, all in their twenties, jumped out of their
car and rushed to ours. They dragged my father out of the car, and began to beat him with tire
irons, a crow bar, and a baseball bat. They did this in full view of his three little children. When
neighbors came out, the three men jumped back into their car and sped off, leaving my father for
dead on the hood of our car. I can still see his hand reaching for me against the windshield covered
with his blood.
While my father survived that night, he lived the rest of his life with a surgically
reconstructed eye socket, complete with a plate in his face that set off metal detectors. But his were
not the only scars that those men left. If it were not for our neighbors, I often wonder whether my
little sister, baby brother and I would have survived that night. I often think about my failure to
remember the license plate number when asked by the police. And while I can still see the taillights
of the car through that bloody windshield, I know that those men will never have to answer for
what they did to us. At least not in this life.
It would be one thing if I could have been assured then, or even now, that such a thing
could never happen again. My own experience proves that it can.
As an African-American man, I have had the experience of being pulled over by a police
officer, with no apparent or expressed reason for the stop. I have been berated and verbally abused,
without receiving a ticket or a warning. The most scarring of these events occurred in front of my
two little boys, who are now grown, African-American men themselves. The police officer was
intent on nothing more than humiliating and emasculating me in front of my small children, hoping
to provoke me to respond. At that moment, I remember thinking that the most important thing I
could do for my sons was to survive the encounter. Still, I have often thought about what lasting
scars may have cut into their psyche by watching what that officer did to me that night. I often
wonder what my sons think of me, as a man, and as their protector, knowing that I could not fight
Yes, I am alive, and George Floyd is dead. I can breathe; he cannot. But just because a
police officer did not murder me or my children does not mean that he did not harm us.
Like many African-American men, my experiences are far too common. While they have
never left me, these memories are all too frequently brought back to the surface by watching the
videos that have become routine on American televisions and mobile telephones. The callous
murders of unarmed men like Ahmaud Arbery and George Floyd are real for me. That could have
been my father. That could have been me. That could be either one of my sons. And in a very real
sense, like many other African-American men, I am George Floyd. Except, I can breathe. And I
can do something. I must do something.
While my education and position do not grant me immunity from racial violence, they do
place me in a position to do something about it.
I am a lawyer, a law professor, and Dean of one of the nation’s leading law schools. As the
Dean of Notre Dame Law School, I have a special allegiance to the legacy of Father Theodore
Hesburgh. In addition to his role as the longtime President of the University of Notre Dame, Father
Hesburgh was the Chair of the United States Commission on Civil Rights. When his stance for
social justice caused President Richard Nixon to demand his resignation from the Commission,
Father Hesburgh continued his efforts by founding the Center for Civil Rights at Notre Dame Law
School. Early in its existence, the Center broadened its advocacy to International Human Rights.
Today, Notre Dame Law School equips lawyers from all around the world with the training and
tools they need to fight for human rights. The murder of George Floyd has shown us that we must
also cast our gaze closer to home.
It is urgent that we recognize that human rights are under threat all around the world,
including here in the United States. This reality must be acknowledged, and addressed. To do so,
I want to restore Father Hesburgh’s original vision for Notre Dame Law School by taking three
First, I will work with my faculty colleagues at Notre Dame to restore Father Hesburgh’s
vision for our Master of Laws in Human Rights. This program will continue to train lawyers from
around the world, and also lawyers interested in advancing the fight for human rights here in the
United States. We will fully fund students selected to train at Notre Dame Law School for a career
defending civil and human rights in the United States, in the same way that we do for those training
to defend human rights in other countries.
Second, I will work with Notre Dame faculty, alumni, and benefactors to fully fund
fellowships for, and actively recruit, exceptional applicants for our Juris Doctor program
committed to the cause of civil rights. Our goal will be to provide Notre Dame lawyers for every
community in this country to stand vigilant against violations of civil and human rights, wherever
those threats might arise.
Third, I will ask the Notre Dame Law School faculty to establish a new Exoneration Law
Clinic, aimed at releasing from the criminal justice system those who are victims of prosecutorial
or police misconduct. We will return fathers and mothers to their sons and daughters, particularly
when their only “crime” was to be born the wrong color.
These are things that I, in my position, can do. But it is not enough. I cannot do this alone.
Each of us must do what we can, wherever we are.
One thing that each and every one of us can do is to end the cycle of hate by ending the
separation that leads to it. This racial separation and violence will not end until we stop waiting
for African-Americans to enter our circles. Each of us needs to get to know people who differ from
us. We must all make a conscious decision and effort to expand our circles.
The Rev. Dr. Martin Luther King, Jr. spoke in King Chapel at Cornell College, Mount
Vernon, Iowa, on Oct. 15, 1962. He said,
I am convinced that men hate each other because they fear each other. They fear each
other because they don’t know each other, and they don’t know each other because they
don’t communicate with each other, and they don’t communicate with each other because
they are separated from each other.
Each one of us can choose to finally end hate, by ending this separation. We must do
something. This is something each one of us can do.
I am committed to doing three things to change this world for the better. Please join me.
What three things can you do to make this world a better place? How can I help you?
I appreciated David Cloutier's piece in the current issue of Commonweal, "What the Experts Can't Tell Us." (In several respects, Cloutier's piece is consonant with the recent New York Times op-ed by the President of the University of Notre Dame, John Jenkins.) Here's a bit, from Cloutier:
. . . “What should we do?” is never just a scientific question; it’s also a moral one. The misleading identification of prudent public policy with attention to empirical data is deeply problematic in our present situation, for two reasons.
First, it obscures the uncertainty and provisionality of the data itself. Scientific research is a long, messy process of conjecture and refutation. . . .
Even if we had perfect data, however, governing would still require more than just public-health predictions. Some leaders confuse political prudence with what we might call “bureaucratic prudence,” or what Thomas Aquinas calls partial prudence: its error, Aquinas says, is to “take for an end not the common end of all human life, but of some particular affair.” The good bureaucrat is an expert narrowly concerned with his or her own area of expertise. We need good experts—good economists and doctors and statisticians. But such expertise, however necessary, is insufficient to answer questions that are properly political, questions that affect the whole community. For that, you also need political prudence.
To call it “political” is to say it is “for the polis,” which Aristotle defines as the “complete” community. What distinguishes the polis is that it is not a group or society aimed at some specific end, but includes all ends needed for human flourishing.
Tuesday, June 2, 2020
Submissions and nominations of articles are being accepted for the eleventh 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 2020. The prize will be awarded at the 2021 AALS Annual Meeting in San Francisco. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected]. The deadline for submissions and nominations is September 1, 2020.
Sunday, May 31, 2020
A collection of "Public Discourse" papers on religious freedom, church-state relations, public authority, etc.
Public Discourse has collected, here, a number of articles relating to the ongoing and important conversation about religious freedom, church-state relations, integralism, liberalism, etc. Authors include Thomas Pink, Robert Miller, Chris Tollefsen, Gerard Bradley, and others. And, of course, our own Adrian Vermeule has been a prominent contributor to this discussion, here at MOJ and elsewhere. Enjoy some good Sunday reading!
Wednesday, May 27, 2020
This "webinar", brought to us by the Lumen Christi Institute, looks really good:
After two months of lockdown, nations across Europe and parts of the US are relaxing restrictions and facing new challenges. Where do we stand economically and socially? How might we have better protected the medically and economically vulnerable? How should we view the lockdown with its costs and benefits ethically? Our earlier event on "The Economic Costs of the Pandemic: Catholic Social Teaching and Economics in Dialogue,” provoked lively reactions. This event will consider what the principles of the common good, human dignity, justice, and solidarity mean in our present circumstances and how they ought to inform our prudential judgement going forward. Join as a panel of economists, theologians, and ethicists discuss lessons learned in the pandemic.
Useful preparation for the webinar might include Fr. John Jenkins's recent op-ed in The New York Times, regarding the University of Notre Dame's plans to re-open in August. Among other things, he said:
The pivotal question for us individually and as a society is not whether we should take risks, but what risks are acceptable and why. Disagreements among us on that question are deep and vigorous, but I’d hope for wide agreement that the education of young people — the future leaders of our society — is worth risking a good deal.
Indeed, the mark of a healthy society is its willingness to bear burdens and take risks for the education and well-being of its young. Also worthy of risk is the research that can enable us to deal with the challenges we do and will face.
Sunday, May 3, 2020
On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London. (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.) He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot." (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.") Ora pro nobis.