Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, November 21, 2023

Pushaw on "Defending Dobbs"

Prof. Robert Pushaw (Pepperdine) has a comprehensive and magisterial article, "Defending Dobbs", posted. A perfect gift for your irritating, Casey-loving uncle at Thanksgiving! Here is the abstract:

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s support and without widespread popular approval. Hence, its educational task will be formidable, and perhaps impossible.

The foregoing themes will be detailed in four Parts. Part II examines the Court’s discovery in 1965 of a constitutional right to marital privacy, its awkward common law extension of that right to include abortion in Roe, and attempts by Justices and scholars to bolster Roe’s shaky constitutional footing. Part III describes how the three concurring Justices in Casey concocted an unprecedented version of stare decisis that allowed them to purport to follow Roe while substantially changing its legal framework. Part IV demonstrates that the Justices applied Casey’s malleable “undue burden” approach to reach any results they desired, as illustrated in cases concerning laws that either banned late-term abortions or that mandated certain safety standards for abortion providers. Part V analyzes Dobbs and defends the decision as restoring the idea of the Constitution as law.

November 21, 2023 in Garnett, Rick | Permalink

Wednesday, November 8, 2023

Disappointing results in Ohio

In Ohio, "Issue 1" -- which adds to Ohio's state constitution an expansive (I would characterize it as radically permissive) right to abortion -- passed by a wide margin yesterday, marking yet another post-Dobbs loss for the pro-life side.  This piece, in National Review, explains well how far-reaching (and deceptive) the Issue is.

The Supreme Court was wrong -- by which I mean, the justices badly misinterpreted the Constitution's text -- in Roe; the Court was wrong to affirm (or, re-make) Roe in Casey; and the Court was right, in Dobbs, to jettison Roe and Casey as "grievously wrong" (as I and some co-authors argued here).

That said, in the wake of the Ohio vote (and of other electoral setbacks), at least two things seem, unfortunately, clear:  First, the media overwhelmingly mischaracterizes / lies about abortion, about its regulation, and about the content and implications of abortion-rights proposals.  This is not going to change, and it would seem to follow that pro-life activists simply must do better in terms of communication and education.  Second, it is, for now, a fact about the United States that -- even in many "red" states -- most voters/citizens want most abortions (i.e., "first trimester" abortions) to be legal. That these voters / citizens are mistaken about the demands of justice is, for present purposes, not relevant.  This could change (but, see the first point) -- we should pray that it does, and do what we can to bring such a change about -- but, until it does, pro-life activists can expect that, in most places, returning abortion-regulation to the democratic process is not going to result in pro-life abortion-regulation regimes (although, we should not forget, in some places it will and has).

In my view, given the two points above, it is both morally permissible and prudent to propose and support incremental measures -- not, to be clear, as principled or permanent resolutions but as the best that can be enacted -- at a particular time, and in a particular place -- until citizens' and voters' consciences are better formed.  As MOJ-er Robby George wrote, a while back, regarding Evangelium vitae,

When it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects (no. 73).

Although there are dedicated pro-life people who continue to believe otherwise, it seems clear to me that the Holy Father is saying that a person who makes manifest his commitment to continue working for the full legal protection of the unborn, may, as a matter of prudence, support and vote for laws that, though not perfectly just, are less unjust than the existing law or any currently politically attainable alternative.

At the same time, as the Pope makes clear, there is never a legitimate excuse for failing to work toward the goal of full equal protection for the unborn and other victims of the culture of death. It is not enough merely to attempt to ameliorate the extent or gravity of unjust laws. The universal and unconditional pro-life imperative demands that we work unceasingly—even if, by necessity, incrementally—toward the ultimate goal of bringing our laws fully into line with the requirements of true justice.

In the words of Fr. Richard John Neuhaus, taken from "the greatest pro-life speech ever given," 

We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along the way of life, bearing witness in word and deed to the dignity of the human person—of every human person.

 

November 8, 2023 in Garnett, Rick | Permalink | Comments (0)

Monday, November 6, 2023

Misguided Moral Equivalence from the Kroc Institute

A few days ago, Notre Dame's Kroc Institute's published an"Open Letter for Peace" in the student newspaper, The Observer (October 30, 2023), stating that "[w]e are horrified by Hamas’ recent attack on Israel and the taking of hostages. We are appalled by Israel’s bombing of Gaza, which is killing, injuring, and displacing Palestinian civilians[.]" The Letter also noted, correctly, that "[i]nternational law prohibits the targeting of civilians."
 
More clarity and care were needed in the open letter.  No comparison can plausibly be drawn between, on the one hand, the gruesome October 7 terror-murders, rapes, and kidnappings by Hamas and, and on the other, Israel's lawful actions against the leaders and assets of a genocidal terrorist organization. Nothing -- nothing -- can justify or excuse the former. Hamas illegally and immorally targets civilians and uses human shields for propaganda purposes; Israel does not. The responsibility for the suffering of civilians in Gaza, and for the rape and torture of civilians in Israel, lies with Hamas, its sponsors, and its supporters.  It is very troubling to see -- especially on our campuses -- expressions not only of solidarity with Gazan civilians who are victimized by Hamas -- Hamas snipers are shooting civilians who try to evacuate -- but of support for Hamas itself, and its genocidal ambitions.
 
I was pleased, though, that the University's president, Fr. Jenkins, was a "founding supporter" of this strong letter about "moral clarity" in the war against Hamas.
 

November 6, 2023 in Garnett, Rick | Permalink | Comments (0)

Thursday, November 2, 2023

Garnett on 303 Creative and Public Accommodations Laws

I have an essay up -- "Protecting Equality or Correcting Thoughts?" -- at Law & Liberty on the 303 Creative case and some broader questions about the reach and aims of public-accommodations laws.  Here is a bit:

This is not the place for a detailed history of public-accommodations laws (a task which has been ably undertaken by Law & Liberty contributor, Prof. Adam MacLeod). It is worth emphasizing, though, that, over time, the aims and justifications of these rules have also evolved and expanded. At first, these laws’ focus and concern seemed to have been monopoly power, or the obligations that were thought to accompany a publicly conferred license, or business operations that occupied a kind of choke-point in the marketplace. When the availability of a room at the inn could make the difference between life and death, or cold and warmth, the right of the innkeeper to arbitrarily choose his clientele was expected, reasonably, to give way. Later, the Heart of Atlanta Court built on, and above, these earlier foundations, and emphasized that these laws, in addition to ensuring Black citizens’ access to interstate commerce and ability to travel freely throughout the country, “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

Given the pervasive, persistent, and systemic nature of racial prejudice and discrimination, and the demeaning, insistent efforts of so many to resist the equality guarantees of the Civil War amendments, the Heart of Atlanta justices’ invocation of “personal dignity,” as well as market access, was welcome and warranted. In cases like Masterpiece Cakeshop and 303 Creative, though, the public-accommodations-enforcement project seems less about combatting monopoly, ensuring meaningful access to the commercial sphere, or vindicating equal-citizenship rights than about marginalizing, punishing, and re-educating those with at-present disfavored views on a few currently controversial questions.

Justice John Paul Stevens, dissenting in Boy Scouts v. Dale, a case where the Court concluded that it would violate the First Amendment to use a public-accommodations law to require the Scouts to take on a “gay rights activist” as a scoutmaster, did not focus on Mr. Dale’s ability to access volunteer opportunities. Instead, he warned of the “atavistic opinions,” “nourished by sectarian doctrine,” that the Scouts’ policy was thought to reflect. He was confident that such opinions, which cause “serious and tangible harm,” could and should be changed through assiduous application of the state’s public-accommodation regulation. The assertedly reformative, rehabilitative effects of vigorous enforcement have also been invoked by Jack Phillips’s current opponents, who have as a stated aim “correct[ing] the errors of his thinking.”

This way of thinking about the ends of and warrant for public-accommodations laws is both deformed and dangerous. It is a dramatic overreach, and an unwelcome departure, for these laws to be used not to facilitate equal access to commerce and civil society but to punitively re-educate those with traditional, or now-disfavored, views about controversial questions.

November 2, 2023 in Garnett, Rick | Permalink | Comments (0)

Saturday, October 7, 2023

Lepanto

 

 

October 7, 2023 in Garnett, Rick | Permalink

Thursday, October 5, 2023

Some good news in a sacred-sites case

The Becket Fund has the news, here, that the federal government has agreed to settle a sacred-sites case and "make efforts to restore the site by replanting trees, allowing the tribal members to rebuild a centuries-old stone altar, and recognizing historic Native American use of the site." Some church-state law professors filed an amicus brief in support of the tribes' position, which you can read here.

October 5, 2023 in Garnett, Rick | Permalink | Comments (0)

Tuesday, October 3, 2023

Garnett on Baylor, Title IX, institutional pluralism, and religious freedom

Along with Nathan Berkeley, I have a short piece up at National Review, about the ongoing campaign of some members of Congress against Baylor University.  Here, in a nutshell, is what's going on:

In a September 5 letter to the U.S. Department of Education, five members of Congress led by Representative Adam Schiff (along with Representatives Greg Casar, Joaquin Castro, Mark Takano, and Veronica Escobar) objected to “Baylor University’s claim to an exemption from Title IX’s regulations prohibiting sexual harassment . . .” and urged “the Department to clarify the narrow scope of this exemption.” Title IX prohibits discrimination based on sex in education programs that receive federal financial assistance.

In addition to calling for greater scrutiny of the scope of Baylor’s religious exemption, they also challenged the school’s fundamental eligibility for a Title IX exemption in light of allegations that “[Baylor] is no longer controlled by a religious organization.” The ideology driving this inquiry threatens Baylor’s religious freedom and that of many other religious institutions in America.

And, here is a bit of our take:

While showing genuine respect across differences must be a commitment we all make in our pluralistic society, people should not be able to use their identity to impose moral demands on the religious institutions they voluntarily enter into. And yet, that is precisely what Congressman Schiff and his colleagues are demanding on behalf of dissenting students.

Like so many American elites, these congressional representatives are so preoccupied with ensuring diversity within institutions that they fail to see the immense value in safeguarding diversity among institutions. Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity in this vital sector. In numerous ways, as one of us argued recently, our highly diverse society needs a diverse array of colleges and universities.

The mission of Baylor University is “to educate men and women for worldwide leadership and service by integrating academic excellence and Christian commitment within a caring community.” In a world increasingly awash with identity claims, Baylor’s identity matters, too.

October 3, 2023 in Garnett, Rick | Permalink | Comments (0)

Thursday, September 21, 2023

Political Catholicism Reborn? A symposium on Kevin Vallier's new book

Law and Liberty is hosting a collection of reviews of Prof. Kevin Vallier's new bookAll the Kingdoms of the World.  Although I think -- and have, I confess, imposed this view on Prof. Vallier more times than is polite -- that the "Catholic Integralism" phenomenon is being treated, in some quarters of the legal academy, as more of a "thing" than, I think, it actually is, I think Vallier's book is excellent and also appreciated the collected reviews.  As the man says, "highly recommended"!

September 21, 2023 in Books, Garnett, Rick | Permalink

Thursday, September 7, 2023

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 bookLaw's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

September 7, 2023 in Garnett, Rick | Permalink

Steve Smith on Legal Education's "Bleak" Future

Prof. Steven Smith (San Diego) posted, a few days ago, a short essay at the Law and Liberty site called "A Bleak Future for Legal Education." Like everything Steve writes, the piece is engaging, learned, and provocative.  In this essay, Steve returns to a number of the themes developed in his great 2007 bookLaw's Quandary, including the "malaise" that attends the fact that our legal arguments, premises, and practices presuppose an "ontology" that, really, "we" don't believe anymore.  He opens with Holmes's quote:

The remoter and more general aspects of the law are those which give it a universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

Then, he outlines what he sees as two contemporary threats -- I'll shorthand them "cynicism" and "consumerism" - to the way of thinking the quote reflects, or presupposes. (A third threat, which purports to be a solution, is alluded to at the end.)  Stuart Banner, Aquinas, Chesterton, Darwin, Freud, "the Crits", The Demons, and Thrasymachus (et al.) appear along the way.

Like the man says, "highly recommended"!

September 7, 2023 in Garnett, Rick | Permalink