Mirror of Justice

Lux Aeterna

 

Program on Church, State & Society essay-writing competition

The Program on Church, State & Society is hosting, again, an essay-writing contest (for law students and recent graduates) on religious-liberty topics.  There's more information here.  Consider submitting a paper!

Smarick on "How Catholic Social Teaching Can Help Today"

I am a fan of Andy Smarick's Substack, "Governing Right", and particularly appreciated this entry, from a few weeks ago, on Catholic Social Teaching.  Here is a bit:

CST is a sturdy but continuously evolving body of thought that relates to social life. It speaks to the dignity and role of individuals, how we form various associations (e.g., families, organizations, towns), who possesses different types of responsibility and authority, and much more. All of this can inform our understanding of how best to lead in public life.

CST has had a significant influence on my thinking because it is shaped by two quite different but equally valuable lines of reasoning: 1) Immutable moral principles, and 2) the practical wisdom that comes from engaging in social life.

You would, I’m sure, expect the first given that CST is a product of a 2,000-year-old faith tradition. Indeed, CST articulates firm, permanent views on a range of moral issues, like the sanctity of life, the meaning of human flourishing, and the nature of virtuous and improper action.

The second line is less obvious and far less appreciated. It also distinguishes CST from most ideologies purporting to understand and improve society. CST’s practical wisdom comes from the Catholic Church’s millennia-long parish- and diocese-based arrangements and its fundamental commitment to service, particularly of the disadvantaged.

Prof. Carl Esbeck on the Church-Autonomy Doctrine

Few have written as much -- and, more important, as well -- on church autonomy in American law as has Prof. Carl Esbeck (Missouri). He has posted this new paper, "Church Autonomy, Textualism, and Originalism:  SCOTUS's Use of History to Give Definition to Church-Autonomy Doctrine (which is forthcoming in the Missouri Law Review).  Here is the abstract:

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case of Watson v. Jones (1872), holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”

While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is identifying the full subject-matter range of the high court’s caselaw. In such a survey, church autonomy sets apart as immune five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred places; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.

The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is given definition by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical state establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely distained by American Patriots.

The final part of the article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that give definition to the domains of church autonomy. These events, most little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic.

As The Man might say, "download it while it's hot!"

 

Conedera review of Hittinger's "On The Dignity of Society"

Over at First Things, Fr. Sam Conedera has a review of Russ Hittinger's (excellent) new book, "On the Dignity of Society:  Catholic Social Teaching and Natural Law".  Russ is, of course, indispensable reading on both topics.   Here's a bit from the review:

The individual has dignity—he is made in the image of God—both because of the excellence of his rational nature and because he is able to cause good in others. The same, Hittinger argues, is true of the social order. A society is not a mere aggregate.

This understanding of what makes a society is crucial for explaining the relationships among the “three necessary societies,” namely, family, polity, and Church. Each of these societies is grounded in the natural social tendency of the human person; each has ends that are given either by nature or by grace, rather than by human will; and each has a distinctive mode of authority. According to Hittinger, one flaw of political modernity is the failure of states to recognize or respect diverse modes of authority in civil society. The modern state reduces group-persons to mere partnerships, disregarding the principle of subsidiarity, on which different societies—family, Church, and so on—have their own proper functions and their own authority. (Importantly, as Hittinger insists, subsidiarity is about doing things not at the “lowest” level, but at the “proper” level.)

 

Symposium: "In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society"

I'm looking forward (and I'm sure fellow MOJ-er Tom Berg is, too!) to this symposium, being sponsored by the Chicago-Kent Law Review: 

Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.

The public is welcome to sign-up and participate so . . . "see" you there!

Important Church-Autonomy Opinion by Judge Bumatay in the Ninth Circuit

In a Ninth Circuit en banc case called Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Judge Patrick Bumatay has (what the kids call) a "banger" of an opinion on the church-autonomy doctrine and the institutional dimension of religious freedom more broadly. It's a must-read for anyone interested in the topic.  

You can read more about the case's background and context at the Becket Fund's website.  Here's just a tiny bit:

That structural rationale persisted throughout the Middle Ages. See Roscoe Pound, A Comparison of Ideals of Law, 47 Harv. L. Rev. 1, 6 (1933) (“In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign ․ was fundamental.”); see also Carl H. Esbeck, The Establishment Clause as Structural Restraint on Government Power, 84 Iowa L. Rev. 1, 50 n.206 (1998).

Take the Investiture Conflict of the 11th century. It typified the battle for church independence. There, the Papacy fought against the Holy Roman Empire for the ability to appoint its own bishops—a power then vested in the emperor. The conflict was “jurisdictional” as the church sought “liberation of the clergy from imperial, royal, and feudal domination and their unification under papal authority.” Gregory A. Kalscheur, S.J., Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject-Matter Jurisdiction, and the Freedom of the Church, 17 Wm. & Mary Bill Rts. J. 43, 61 (2008) (simplified). The church first championed “freedom of the church” because it believed the Pope sovereign over such appointments. See Charles J. Reid, Jr., The Spirit of the Learned Laws, 1 Wash. U. Global Stud. L. Rev. 507, 529 (2002) (quoting the Dictatus Papae to show how the church advocated for “papal sovereignty”); see also Richard W. Garnett, “The Freedom of the Church”: (Towards) an Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33 (2013) (drawing on the Investiture Conflict to delineate the substantive content of libertas ecclesia—“freedom of the church”).

Thus, in both ancient and medieval times, the church's basis for autonomy rested on structural grounds. Because God committed authority over spiritual matters (like the burning of incense or appointment of clergy) exclusively to the church, the state lacked authority over such matters.

Be still, my heart . . . 

John O'Callaghan on "No Mercy From a Distance"

My friend and colleague John O'Callaghan (Notre Dame, Philosophy) gave a great talk, the other day, at Providence College, on "Aquinas on Compassion and Natural Friendship."

Mercy is often thought of in our culture as an act of forgiveness of some offense, whether civic or personal, that reduces or eliminates punishment that is due for that offense, and is dominated by questions of justice. That sense of mercy is hard to square with other uses of the term that suggest something more like assistance to those in need, as in the religious notion of “works of mercy” directed to the poor and suffering. It is also hard to square with the sense that mercy requires compassion, suffering with another, a compassion that is not necessarily required by forgiveness, and may even be at odds with the justice of punishment. Thomas Aquinas provides an account of mercy that helps us understand how it differs from forgiveness and necessarily involves compassion for those who suffer. The ground for his understanding of mercy is that such compassion is grounded in natural human friendship. But the idea of natural human friendship is perhaps even more at odds with our modern sensibilities in which we typically think that while justice binds us, we are nonetheless free to choose our friends as we like. If Aquinas is correct, we do not have such freedom, and are more bound by mercy grounded in natural friendship than we are by justice.

Check it out!

21 Years of Mirror of Justice

Well, I forgot to post yesterday, which was the 21st anniversary of the first post at Mirror of Justice. (I think I have law students who were born after that first post.) A lot has happened since then (besides 2 papal conclaves, 6 presidential elections, and two Notre Dame losses in the National Championship game). Obviously, we MOJ-ers have not been posting as much here as we did in the past. (I blame Twitter, BlueSky, Substack, etc.)  Still, after many thousands of posts and many millions of page views, I believe that it remains important for lawyers, legal scholars, law students, and -- well -- everyone to think about the implications of Christianity for law, legal practice, legal education, and the legal enterprise.

I am working on some revisions, changes, adjustments, re-presentations, etc., for MOJ, so stay tuned.  And, for old times' sake, go read our first post, here:

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

Pres. Biden commutes most federal death sentences

A report on today's announcement is here.  Here's a bit:

“Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole,” Biden announced in a statement released Monday.

Notably, the president did not commute the sentences of three people whose crimes included mass shootings or acts of terrorism: Dzhokhar Tsarnaev, one of two brothers responsible for the deadly Boston Marathon bombing in 2013; Dylann Roof, a White nationalist who massacred nine people at a historically Black church in Charleston, South Carolina, in 2015; and Robert Bowers, who killed 11 worshippers at Pittsburgh’s Tree of Life Synagogue in 2018.

“These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder,” Biden said, referring to his Justice Department’s halt on federal executions.

I would welcome legislation (federal and / or state) that abandoned capital punishment as a sanction. At the same time, I do not believe that capital punishment violates the Constitution (and so judges should not use creative interpretations to bring about abolition) and I also think it is not consistent with the role of the "executive" to, in a blanket way, effectively nullify legislative and electoral choices. It would have been, in my view, better had Pres. Biden, when he was Vice President Biden, used his influence, and large congressional majorities, and political capital, to work for a legislative repeal.

It also seems to me that the reasons the President gives for commuting most of the federal death sentences apply with equal force to the "high profile" ones he is letting stand. If anything, his decision not to commute in the cases where it would be politically controversial to do so is inconsistent with his (correct) concern that political considerations distort the application of capital punishment.

I hope, though, that this news prompts legislative actions in the states, such as this one in my own state of Indiana.