Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, January 17, 2019

Regarding the controversy surrounding Mrs. Pence's new Christian School employer

The news cycle being what it is, there is a story going around -- and being much remarked upon by Blue-Check-Twitter types -- the theme of which is surprise/shock/horror that the Christian school at which Mrs. Karen Pence has a policy of requiring staff and students to act in accord with a variety of familiar, traditional Christian norms regarding sexuality.  (The story to which I linked, like most stories I've seen, says -- incorrectly -- that the school "bans" gay students and employees.)

Two things (at least) are worth noting about this:  First, this story (and others like it) are tactical moves in an effort to "condition the environment" for situations when nominees to federal courts are revealed to have been involved with/sent their children to schools that have policies in place that reflect the abovementioned norms.  Second, this story (and others like it) are tactical moves in an effort by opponents of school choice to -- having largely lost the battle over the "statist monopoly or parental choice?" debate -- cripple voucher and other school-choice programs by pushing legislatures (and enlisting business boycotts and pressure to push legislatures) to exclude from voucher programs those schools that "discriminate."   

January 17, 2019 in Garnett, Rick | Permalink

Friday, January 11, 2019

Pappin on Rosenblatt, "Liberalism Against the Church"

Add to the conversation on liberalism, Catholicism, integralism, etc., this First Things review, by Gladden Pappin, of Helena Rosenblatt's The Lost History of Liberalism.  He concludes with this:

The political development of Europe,” Pierre Manent once wrote, “is understandable only as the history of answers to problems posed by the Church.” The Lost History of Liberalism reinforces Manent’s observation even while Helena Rosenblatt colors the goals of early liberalism in golden hues. However noble early liberalism’s project of moral improvement may have been, its self-perception always included the specific aim of overthrowing the Church. As that institution has suffered under liberal advances, so has the morality and liberality that liberals claim they want to secure.

Though this is hardly its intention, The Lost History of Liberalism offers a counterpoint to the hopes of Catholics seeking rapprochement with liberalism. In spite of her best efforts to make liberalism’s interest in public morality stand on its own two feet, Rosenblatt shows that liberal public morality is always in opposition to the accounts of morality and public life offered by the Church. Liberals have never been seriously interested in the ways Catholics have sought to make peace with liberalism. The more liberals return to their roots, the more apparently shared ground will give way. The future lies in anti-­ecclesiastical liberal ressourcement on the one hand, and anti-liberal ­ecclesiastical ressourcement on the other. 

As one of those who continues to resist some aspects of the current Catholic (and other) critiques of liberalism (properly understood, which is to say, as I understand it!), I have to say this is bracing stuff. Stay tuned!

January 11, 2019 in Garnett, Rick | Permalink

The Peter Steinfels article on the PA grand-jury report

I am very glad that Commonweal published this piece by Peter Steinfels ("The PA Grand-Jury Report:  Not What It Seems").  The article should be required reading for Catholics and non-Catholics, journalists and citizens.  Peter makes, among other things, some of the points I tried to make (but he makes them better) in this post ("Disentangling the Crisis") a few months ago.  It's a long read, but -- again -- a must-read nevertheless.

My sense is that many Catholics are reluctant to take issue with reports and news stories about clerical abuse and episcopal cover-ups, for fear of seeming to minimize or excuse the grave wrongs committed by some. This reluctance is understandable. And yet, it is very important that Catholics and others be told the truth and understand what did, and what did not (or, what might not have) happen.  Here's a bit, from near the end:

What does the report document? It documents decades of stomach-churning violations of the physical, psychological, and spiritual integrity of children and young people. It documents that many of these atrocities could have been prevented by promptly removing the credibly suspected perpetrators from all priestly roles and ministry. It documents that some, although far from all, of those failures were due to an overriding concern for protecting the reputation of the church and the clergy and a reckless disregard for the safety and well-being of children. It also documents that a good portion of these crimes, perhaps a third or more, only came to the knowledge of church authorities in 2002 or after, when the Dallas Charter mandated automatic removal from ministry. It documents, well before 2002, many conscientious attempts to determine the truth of accusations and prevent any further abuse, often successful though sometimes poorly executed or tragically misinformed. It documents significant differences between dioceses and bishops and time periods in the response to allegation of abuse. It documents major changes in vigilance and response in some dioceses during the 1990s and, as far as the evidence shows, dramatic changes after 2002.

What does the report not document? It does not document the sensational charges contained in its introduction—namely, that over seven decades Catholic authorities, in virtual lockstep, supposedly brushed aside all victims and did absolutely nothing in the face of terrible crimes against boys and girls—except to conceal them. This ugly, indiscriminate, and inflammatory charge, unsubstantiated by the report’s own evidence, to say nothing of the evidence the report ignores, is truly unworthy of a judicial body responsible for impartial justice.

Why the media were so amenable to uncritically echoing this story without investigation, and why Catholics in particular were so eager to seize on it to settle their internal differences, are important topics for further discussion.

January 11, 2019 in Garnett, Rick | Permalink

Thursday, January 10, 2019

Prof. Marcus Cole to be Dean of Notre Dame Law School

Announcement here. This is a great "get" for Notre Dame, and a testament, I think, to the importance of our aspiration, mission, and calling to be a meaningfully and interestingly great Catholic law school.  Stay tuned!  

January 10, 2019 in Garnett, Rick | Permalink

Friday, December 21, 2018

"Law and Love": Call for Proposals (from Zach Calo)

Law and Love Project Description

Drawing on jurisprudential, theological, and philosophical sources, this project explores the relationship between law and love.  In particular, it seeks to understand how the category of love can inform our understanding of the meaning, foundation, and ends of law.  Other recent projects have explored the relationship between law and love, including essays in Agape, Justice, and Law (Cochran and Calo, eds., Cambridge) and Law, Religion and Love:  Seeking Ecumenical Justice for the Other (Babie and Savić, eds., Routledge).  This project builds on such recent work, while also inviting particular reflection on the fundamental normative connective between law and love.  In brief, the aim is to work towards developing the outlines of a theological jurisprudence organized around the category of love, focusing above all on the application of resources from within the Christian intellectual tradition.   

We will convene a one day working group at the University of Notre Dame Australia (Sydney) on Saturday 20 July 2019.  It is expected that participants will have prepared papers in advance to be distributed and discussed by the group.  Our expectation is that these papers will be subsequently published in an edited volume.

Please send a brief proposal (200-300 words) to Zachary Calo ([email protected]) and Joshua Neoh ([email protected]) by 1 April 2019.

December 21, 2018 in Garnett, Rick | Permalink

Wednesday, December 19, 2018

Senators take aim at the Knights of Columbus

The Knights of Columbus -- the 125+-year-old Catholic fraternal and good-works organization -- is, it appears, in the minds of some U.S. Senators, an extremist and unworthy organization.  Good grief.   Here are the written answers to questions from senators provided by Brian Buescher, who has been nominated for a seat on the U.S. District Court.  Sen. Mazie Hirono asked (inter alia) if he "intend[ed] to end [his] membership with this organization to avoid any appearance of bias" (because the Knights took the "extreme position" of supporting California's Proposition 8 -- which, of course, was supported by a majority of the voters in the relevant election).  And, Sen. Kamala Harris asked if he was "aware that the Knights of Columbus opposed a woman’s right to choose when [he] joined the organization", as if there were something remarkable about the fact that the Knights have a position on the abortion question that is held by tens of millions of Americans.

The rapidity with which mainstream (even if minority) views are being re-cast as somehow disqualifying for public service -- or even public life -- is quite something.  

December 19, 2018 in Garnett, Rick | Permalink | Comments (0)

Tuesday, December 18, 2018

A bad misstep by the Ninth Circuit in a ministerial-exception case

Opinion hereInside Higher Ed commentary here.  The ruling is, put simply, nuts.  (Or, put more gently, "entirely incompatible with Supreme Court precedent.)  The Ninth Circuit acknowledged that:

[The fifth-grade teacher's] contract stated that she would work “within [St. James’s] overriding commitment” to Church “doctrines, laws, and norms” and would “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” St. James’s mission statement provides that the school “work[s] to facilitate the development of confident, competent, and caring Catholic-Christian citizens prepared to be responsible members of their church[,] local[,] and global communities.” According to the school’s faculty handbook, teachers at St. James “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.” The faculty handbook further instructs teachers to follow not only archdiocesan curricular guidelines but also California’s public-school curricular requirements.

It is very difficult to see this ruling as anything other than an effort to ignore Hosanna-Tabor.  It's hard to be too confident that this mistake will be corrected en banc (given the Circuit), but it should be.  A fifth-grade teacher at a parochial school is a "minister", within the meaning of that decision.

December 18, 2018 in Garnett, Rick | Permalink

Monday, December 17, 2018

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblogcommenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Comments and criticism welcome!

December 17, 2018 in Garnett, Rick | Permalink | Comments (0)

Monday, December 3, 2018

Perry Dane on Corporations

MOJ readers know that I'm interested in the role and rights of religious institutions. (See, e.g., this and this.)  I also think that Prof. Perry Dane (Rutgers) is one of the most interesting law-and-religion scholars working.  So, I suppose it's a bit "overdetermined", as they say, that I'm recommending this paper of his:

This essay on Corporations is a chapter in an upcoming volume on economic theology edited by Stefan Schwarzkopf.

The secular study of corporations has long regularly focused on three sets of concerns: (1) Is the idea of corporate “personhood” only a convenient shorthand for a complex set of relationships among human beings or are corporations in some important sense “real entities” with rights, duties, interests, or even intentions of their own? (2) How do the various aspects of corporate personhood differ from the qualities of human personhood? (3) What are the proper purposes or missions of for-profit and not-for-profit corporations?

This essay examines these perennial questions through a distinctive theological lens. It considers, among other topics, doctrines in Jewish and Islamic law about the religious meaning of secular corporations, debates about the spiritual worth and moral responsibilities of for-profit corporations, and ideas in several faith traditions about the ontological status of religious communities.

The essay also discusses the role of the fraught idea of “idolatry” in conversations about corporations. And it ends by looking to Buddhist philosophy, contemporary neurological research, and secular theories of public choice and group decision-making to question the reigning assumption that there is a fundamental difference between “natural persons” such as human beings and “artificial persons” such as corporations.

December 3, 2018 in Garnett, Rick | Permalink

Sofia Carozza on Advent, neuroscience, and "Locke's Lonely Liberalism"

Sofia Carozza, a neuroscience-and-theology major at Notre Dame, has this very interesting reflection in the Church Life Journal on Advent, neuroscience, and "Locke's Lonely Liberalism."  Just a bit:

. . . Neuroscience alone shows us that our development and flourishing takes place through relationships of love. But in providing a corrective to Locke, developmental neuroscience is well supplemented by a Thomistic account of the human person. Such an account is particularly helpful when the development of the virtues is understood through the interpretive key of “second-person relatedness.”[9] This Thomistic concept, as argued by Andrew Pinset, is the idea that the “I” is formed in dialogue with the “you,” in an irreducible dialectical relationship. Second-person relatedness begins between the child and her parents, a relationship in which she starts to develop the human virtues and gain agency as a moral individual. However, Pinset argues that second-person relatedness is a continuum of relationship that extends even to the child’s connection with God. Through this divine I-Thou relationship, she experiences friendship with God and is thus bestowed the theological virtues.

This account of the human person accords well with neuroscience research. . . .

December 3, 2018 in Garnett, Rick | Permalink