Mirror of Justice

Jim Stoner on "Catholicism and Constitutionalism: An American Perspective"

You can watch, here, an engaging and interesting lecture that Prof. Stoner delivered at Notre Dame today, thanks to the Center on Citizenship and Constitutional Government and Prof. Phillip Munoz.

Garnett & Garnett on Religious Charter Schools in Oklahoma

Along with Prof. Nicole Stelle Garnett (Notre Dame), I have a short piece up at the First Things website, discussing the recent application of a Catholic program for status as a charter school in Oklahoma.  Big doings are afoot!  Here's a bit:

The premises of St. Isidore’s application are clear and straightforward. The First Amendment to the Constitution guarantees the “free exercise” of religion and so prohibits anti-religious discrimination by governments. As Chief Justice John Roberts put it in last summer’s Carson v. Makin decision, “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Accordingly, the justices ruled, it was unconstitutional for Maine to exclude “sectarian” schools from a program that helped pay the private school tuition of kids who live in rural areas without government-run schools. By the same token, the Oklahoma attorney general’s letter correctly reasons, a state may not open up a charter school program—one that permits private entities to accredit and operate a wide variety of schools—but exclude otherwise qualified schools simply because of their religious character or affiliation. 

Note that St. Isidore’s argument is not that secular, civil governments in the United States may or should operate religious enterprises. After all, the First Amendment also protects religious freedom by outlawing religious establishments. Under our Constitution, religious and political institutions and authorities are distinct. They may and often do cooperate, to be sure: Governments have long funded religious agencies’ healthcare and social welfare services, asylum resettlement and anti-human trafficking efforts, and schooling and research. What our “separation” of church and state means, though, is that secular governments do not decide matters of religious doctrine or interfere with churches’ religious affairs. 

In practice and on the ground, however, charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really “state actors.” And so the conclusion follows neatly from Carson: Once a state decides to engage and cooperate with non-governmental actors to educate its residents, it cannot single out for exclusion actors whose motives or methods are “religious.”

Waldstein on "The Liberty of the Church"

Edmund Waldstein, O. Cist., has a piece at Church Life Journal called "The Liberty of the Church." (If you are not a regular reader/subscriber to the Journal, stop reading, go sign up, and then come back.) This is a topic that has been of interest to me for a while.

I suppose it's not news to Mirror of Justice readers that some church-state matters appear differently to me than they do to Pater Waldstein. He writes, in the piece, that "[b]rought to its ultimate conclusion, the demand for libertas ecclesiae is the demand for the stance known as 'integralism.'" In my view, it is not, for (inter alia) reasons set out in Dignitatis humanae.  As a friend put it to me in correspondence, "the issue is not whether the [Roman Catholic] Church is the true church. It is. The issue is the limited competence of pastors (of the true church) and the corresponding autonomy of temporal affairs."

In any event, check it out . . . 

Pope Benedict XVI on "Church, State & the Practice of Love"

Here is a short essay I wrote, for a conference at Villanova, a million (well, 15) years ago, on Pope Benedict's encyclical Deus caritas est and church-state relations:

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order. The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and - at present - the most pressing challenge in church-state law, namely, the preservation of the Church's moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope's work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups - and of the freedom of the Church?

Pope Benedict and the Law: From the MOJ archives

In addition to Marc's two recent and helpful posts, here are a few items from the MOJ archives that might be worth (re!)reading, as we reflect on the gift of the late Pope's life and work:

"Pope Benedict and the New Evangelization" (here)

"Another Garnett on Solidarity and Suffering" (here)

"'The Pope Is a Liberal'" (here)

"Pope Benedict on 'Following the Prevailing Winds'" (here)

"Benedict XVI, Deus Caritas Est, and the Role of the Church in Public Life" (here)

"Benedict XVI on Martin Luther" (here)

"A Mortgage on the Church" (here)

"Pope Benedict XVI on Religious Communities' Freedom and 'Equality Legislation'" (here)

"Pope Benedict XVI's Visit with Youth with Disabilities" (here)

"Forgiveness:  Pope Benedict's Legacy?" (here)

"Ambassador Glendon's Address to Pope Benedict XVI" (here)

"Catholic Legal Thought:  Live at the Dubliner!" (here)

"'Patricipation in the Eternal Reason of God'" (here)

Pope Benedict XVI's Legal Thought

Like all MOJ readers and bloggers, I am sure, I am reflecting on the life, work, example, thought, and witness of the late Pope Benedict XVI.  Of course, I am not qualified to provide anything resembling a worth-reading reflection on these matters -- I suggest reading a lot of Cyril O'Regan, for starters -- but I did want to remind readers of a very helpful volume, edited by my friends Prof. Marta Cartabia and Prof. Andrea Simoncini, called Pope Benedict's XVI Legal Thought:  A Dialogue on the Foundation of Law.  Contributors include (in addition to the editors) Mary Ann Glendon, Andrea Pin, Joseph Weiler, John Witte, and many others.  

Here is the blurb from That Web Site:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

"Constitutional Thomism: A Modest Proposal"

Over at The European Conservative, my friend Fr. S. Hendrianto, S.J., has posted an essay called "Constitutional Thomism:  A Modest Proposal", which -- among other things -- engages Adrian Vermeule's Common Good Constitutionalism project.  Here's a bit:

Constitutional Thomism is not concerned with governmental structures or constitutional interpretation so much as with the arrangement and distribution of offices. It focuses on examining the concept of a “best regime” ruled by a philosopher-king who holds office with practical wisdom while not devolving into a tyranny. Constitutional Thomism is compatible with modern constitutional democracy because both are centered on the art of statesmanship. Under Constitutional Thomism, statesmen rule through wisdom but do not force the citizenry to obey them. These statesmen must understand the instability, impatience, inattention, envy, and ignorance that plague the souls of their citizens, and counteract the restlessness of the soul. At the same time, the statesmen must also be able to lead their citizens to an understanding of the common good, not only in the temporal sense, but fullest sense—the seeking of God. By promoting the common good to their people, the statesmen will also foster statesmanship among the multitude. 

More "culture warrior" sloganeering, on religious exemptions

Paul Moses has a piece up at Commonweal, "Conscience, Contracts, & Covenants", about the recently argued 303 Creative case at the Supreme Court and about the more general question of religious-freedom-related exemptions from public-accommodations laws.  Obviously, the question is tricky, because it is implausible either that (a) justice requires that anyone who invokes "conscience" as a reason for violating a public-accommodations law should be exempted or (b) public-accommodations laws should be applied entirely without regard to the religious commitments of those who are affected.

Disagreeing with the U.S. Bishops' reservations about the recently passed Respect for Marriage Act, Mr. Moses quotes Pope Francis's Amoris laetitia, and then writes, "Francis wasn’t urging the bishops to be culture warriors. He was calling on the Church to do more to realize and express the beauty of a sacramental marriage, rather than to impose rules on others."  Again:  Far too often, the "culture warrior" epithet is directed at anyone who observes that unjust laws are being enacted or that various regrettable culture trends are in motion.  It is not "culture warrior"-ing for the bishops to defend religious exemptions, and it is a misreading of the Holy Father -- who, obviously, understands that Christians today cannot expect positive law alone to communicate persuasively the soundness of the Christian understanding of marriage -- to read him as ruling out such a defense.

Gehring's (and Kaveny's) "Culture Warrior" Canard

John Gehring has published, in NCR, a long piece describing the career and views of Leonard Leo.  (I am quoted in the piece.)  Leo, it turns out, is both a practicing Catholic and a political conservative, and he has been successful as an institution builder and fundraiser.  He's connected, in various ways, with the Becket Fund, the Federalist Society, Catholic University's business school, etc.  Some, including Gehring and several sources, are troubled by the fact that Leo's causes tend to be on the conservative side of various debates, and also by the possibility that he is "reshaping" Catholic University.  Such a reshaping would run counter, it appears, to what some regard as the natural order of things, namely, that higher education -- including Catholic higher education -- is and must be homogenously progressive.

A theme in the piece is the charge that Leo and others are "culture warriors", using organizations like The Federalist Society and "originalist" constitutional arguments in their partisan efforts.  Near the end, Prof. Cathleen Kaveny, who was on the faculty at Notre Dame Law School for about 15 years, is quoted:

"It's an approach that is far more evangelical and fundamentalist than Catholic," Kaveny said. "If Catholics approached the Bible the way these originalists view the Constitution, we would be fundamentalists."

A former law professor at the University of Notre Dame, Kaveny watched as the school transformed and she glimpses a potential similar effort at Catholic University with Leo's influence.

"At Notre Dame Law School, they narrowed the notion of Catholic hiring to mean hiring a certain kind of Catholic who is committed to the culture wars," Kaveny said. "They hired very committed and talented people, and the money followed. It took 30 years, but they played the long game. And it was successful."

Prof. Kaveny should know better than to make the familiar, but inapposite, comparison between originalism as an approach to the interpretation of a written piece of positive law and "fundamentalism" as an approach to Scripture.  She is certainly correct, though, that, during her tenure at Notre Dame Law School and mine, the institution hired a great many "committed and talented people", from the best programs and firms in the country, in no small part because the school, unlike nearly every other, declined to discriminate against practicing Catholics or people who might have clerked for Republican-appointed judges.  Indeed, Kaveny herself was brought to the faculty, and promoted, as part of the John Garvey-led (and successful) effort to use Notre Dame's Catholic character as a brand-enhancer and program-strengthener.  Of course, the claim that the "notion of Catholic hiring" was "narrowed" in the way she suggests is false -- the law faculty is easily the most balanced in the United States (and also in the University) -- as even a casual review of faculty hires over the last 25 years will confirm.

It's common, in publications like NCR, for "culture warrior" to used as a discussion-blocking epithet (though never against enthusiasts and activists on the political left).  It appears to mean little more than "someone who thinks that Roe v. Wade was wrongly decided and that religious freedom is an important human good", or "someone who takes notice of various cultural developments and trends."  Or, in a piece like Gehring's, it simply denotes "someone who is pursuing an understanding of the common good that does not align with my political team's."

"Religious Charter Schools are Legal in Oklahoma"

Excellent news out of Oklahoma:

In an official legal opinion, Oklahoma Attorney General John O’Connor says a state law that prohibits religious entities from operating a public charter school likely violates the First Amendment to the U.S. Constitution and “therefore should not be enforced,” based on rulings from both the U.S. Supreme Court and the Oklahoma Supreme Court.

AG O'Connor's opinion is sound, and rock-solid (and not simply because he has the good judgment to cite Nicole Stelle Garnett)

The opinion concludes:

Based on state court rulings, the attorney general’s opinion declared that allowing religiously affiliated participants to provide educational services to children by entering into a written agreement with a charter school “would not violate the Oklahoma Constitution” because “charter schools are entirely optional for parents” and “allowing the religious or religiously affiliated to participate would make the system neutral rather than hostile to religion.”

“The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ … and then decide that any and every kind of religion is the wrong kind of diversity,” the opinion stated. “This is not how the First Amendment works.”

It has taken many years, but the correction in the Supreme Court's First Amendment doctrine relating to cooperation between governments and religious schools is both striking and welcome.  Contrary to what one reads in the typical Court-watching-journalist's commentary, the version of "strict separation" that is so often treated as canonical was a weird, ahistorical, and unwise blip, that distorted education-reform policy for a few decades but that has no basis in American history and practice and that -- thankfully -- has been, step-by-step, dismantled since the mid-1980s.