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.

Wednesday, August 23, 2023

"Aquinas at 800": Call for Papers

The University of Notre Dame is hosting what is shaping up to be an amazing academic conference:  "Aquinas at 800:  Ad multos annos."  Check it out!

August 23, 2023 in Garnett, Rick | Permalink | Comments (0)

Wednesday, August 2, 2023

"Life After Dobbs"

My colleague, Prof. Gerard Bradley, has a must-read essay in the latest issue of First Things, called "Life After Dobbs."  Bradley gives the Dobbs opinions very close reads, and identifies carefully what, on his reading, the case does, and does not, mean.  After canvassing the current state of play with respect to abortion regulation, he reports that "post-Dobbs developments are worse than pro-lifers expected, and far worse than most hoped. They cannot but be sobering to pro-life Americans. . . .  What, then, is to be done?," he asks.

In Bradley's view, Dobbs turns out to be not only a "neutral", "return the issue to politics", ruling but actually, in "five ways", a pro-life one, that establishes the basis of a legal strategy for protecting the unborn[.]"  Check it out!

August 2, 2023 in Garnett, Rick | Permalink

Friday, July 28, 2023

Thomas Kohler on "Graduate Student Unions and Catholic Social Thought"

Prof. Thomas Kohler (Boston College) has an essay at Public Discourse called "Graduate Student Unions and Catholic Social Thought." Kohler is, of course, prolific and expert with respect to these topics.  

Longtime readers of Mirror of Justice are, I suppose, way-past-familiar with my skepticism regarding efforts to enlist the Church's social teaching -- including its embrace of workers' associational rights and its affirmation of the dignity of labor -- in support of contemporary public-employee unionism. This is not the matter, though, that Kohler is focused on (although, I suppose, his discussion of graduate-students' unions applies to students at public universities). Check it out.   

July 28, 2023 in Garnett, Rick | Permalink | Comments (0)

Saturday, July 22, 2023

Penalver and Greenfield on the First Amendment right of (some) religious universities to use racial preferences

Profs. Kent Greenfield and (MOJ-alum) Eduardo Penalver have an op-ed, at The Hill, called "How the First Amendment Can Save Affirmative Action."  They contend that "the robust deference the court extended to the business owner in [303 Creative] may offer a pathway for certain private religious universities to continue considering race in their admissions decisions. "  (It's not quite right that the Court extended "deference" to the business owner; it took as given the facts stipulated to during the litigation below.)  In my view, the piece is not persuasive, and fails to account for the facts in both 303 Creative and the Harvard/UNC racial-preferences case

First, it is not the case that "the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination[.]"  The Court's decision does not outlaw "affirmative action", nor does it mandate strict "color-blindness."  Instead, it reviewed carefully the extensive evidence that the two institutions in question engaged in clear -- indeed, obvious and in some cases quite vulgar -- racial discrimination.  Nothing in the Court's decision prevents universities from taking "affirmative action" steps to engage in outreach to disadvantaged and marginalized students.  But, they cannot do what Harvard and UNC were doing, which was, quite obviously, not diversity-seeking holistic-review, but percentage-pursuing racial discrimination.

Second, it is misleading to write that "[t]he 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives[.]"  The Court has not granted First Amendment (RFRA is different) exemptions from "generally applicable laws" (outside the ministerial-exception context), or from non-discriminatory government action and the "string" of exemptions cases have certainly not been limited to "Christian conservatives[.]"  (See, e.g., O Centro, Lukumi, Holt v. Hobbs, etc.)    

Third, the authors state that "[t]he creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments."  But again, these institutions remain free to create "diverse communities"; but, so long as they accept public funds, they need to find methods -- and, surely, other methods are available -- other than crude racial stereotyping and race-based discrimination.  (It seems unlikely that these institutions and authors want to claim a religious justification for racial discrimination in hiring and admissions.)  The Court did not disapprove of "diversity" as a goal; it said, instead, that clear racial discrimination is not justified by a diversity-seeking goal.  What's more, it is not plausible to contend that most elite institutions' admissions programs (let's put aside, for present purposes, the two authors' institutions') are designed or implemented in ways that aim at "diversity", richly understood.   

Finally, the authors write that "the Department of Education should announce that it will not enforce any colorblindness requirement against mission-driven schools where doing so would violate their foundational values, particularly when those values are rooted in religious faith.  This carve-out would not cover all (or even most) colleges and universities, but it would protect the expressive and religious freedoms of an important and vibrant segment of American higher education."  But again, the Court did not impose a "colorblindness requirement".  Also, outside the ministerial-exception context, there is no doctrinal basis for limiting this call to "religious" institutions.  And, the authors suggest no reason for the assurance that the proposed "carve-out" would not "cover all (or even most) colleges and universities[.]"

I am, of course, deeply committed to (a) the importance of Catholic educational institutions identifying, embracing, and attending carefully to their meaningfully distinctive Catholic characters and missions and to (b) enhancing educational opportunities and freedom for disadvantaged people.  Catholic universities need to do (much) better on both of these fronts.  But the particular practices invalidated in the FAIR case are not necessary to pursue schools' Catholic mission and, in my view, should not be embraced or justified as expresions of that mission.  

July 22, 2023 in Garnett, Rick | Permalink | Comments (0)

Thursday, July 20, 2023

Garnett on 2023 SCOTUS

It's become a tradition (HT: Marc DeGirolami!) to join my friend, Prof. Lenny DeLorenzo, of Notre Dame's McGrath Institute for Church Life, for an end-of-SCOTUS-term podcast.  Here, if you are interested, in this year's.  We discuss (inter alia) the Groff and 303 Creative cases.

July 20, 2023 in Garnett, Rick | Permalink

Tuesday, July 4, 2023

Comments on Groff v. DeJoy

I have a short piece up at Law and Liberty today (Happy Fourth!), "Refreshing Unity on Religious Liberty", about the Court's recent religious-accommodations case.  Here's a bit:

The high-profile Supreme Court decisions announced each year in late June tend to reinforce a narrative—one that, to be clear, is false—that the Court’s justices are merely partisan actors and that all significant cases divide them into strictly political camps. The term-closing rulings on racial preferences in college admissions, the president’s move to cancel many student-loan obligations, and the free-speech rights of a Colorado website designer fit the press’s favored “liberals versus conservatives” narrative, but most of the Court’s decisions do not. And, significantly, neither did this year’s most important religious-freedom case, which was decided unanimously. . . . 

To be sure, there have been plenty of religious-freedom cases that have divided the justices and, certainly, there will be more. (Should there be exemptions for religious objectors from vaccine requirements? From public-health-related restrictions on gatherings? From abortion regulations? Stay tuned.) Still, it is important for commentators and citizens alike to remember that religious freedom is, and has long been, notwithstanding our divisions and disagreements, at the heart of the American experiment. We disagree today, as we did at the Founding and as we have ever since, over what, precisely, our Constitution’s promise of religious liberty under and through law means, but we know that the promise matters. . . . 

July 4, 2023 in Garnett, Rick | Permalink | Comments (0)

Wednesday, June 14, 2023

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fourteenth 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 2023.  The prize will be awarded at the 2024 AALS Annual Meeting in Washington, DC.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2023.

June 14, 2023 in Garnett, Rick | Permalink | Comments (0)

Wednesday, June 7, 2023

Smith on "Christians and/as Liberals?"

Friend of the Show Prof. Steve Smith (San Diego) has posted the article-version of a talk he gave at a Notre Dame conference last fall on "Liberalism, Christianity, and Constitutionalism." (Here is an op-ed version of the remarks I delivered at the same event.)  Here is Steve's abstract:

Recently, as part of a more general examination and criticism of liberalism, the relation between Christianity and liberalism has been much discussed. Some critics, sometimes associated with the label “integralism,” argue that Christianity and liberalism are fundamentally incompatible. Examining both consistencies and inconsistencies, this article argues to the contrary that liberalism may be, for now, for us, in our historical circumstances, the alternative that prudent Christians should prefer.

In the paper, Smith engages, inter alia, the versions of liberalism-criticism offered in recent years by Adrian Vermeule, Patrick Deneen, etc.  Here's something from the concluding pages (which, FWIW, seems right to me):

From this point of view, a properly governed and genuinely liberal regime might indeed be the best that a Christian should hope for, short of the end time when (Christians believe) the true King and Prince of Peace will rule. Liberalism might be, to borrow from Winston Churchill, the worst form of government except for all the others. In a genuinely liberal regime, people would be governed by ideals that at least derive from basic Christian beliefs, and by a regime that adopts as its central purpose protecting and promoting the ability of people (including Christians) to live and even to proselytize in accordance with their beliefs. At the same time, such a regime would not adopt the un-Christian and self-defeating tactics of using force and violence to enforce Christian beliefs that are efficacious only if sincerely and voluntarily embraced. The novelist Walker Percy, when asked why he was a Catholic, used to answer “What else is there?” Asked why he or she is a liberal, a Christian today might respond with the same question.

June 7, 2023 in Garnett, Rick | Permalink | Comments (0)

Tuesday, June 6, 2023

Higher Education and Institutional Pluralism

Here are some thoughts of mine ("True Campus Diversity") on higher education and institutional pluralism, which might have some relevance to conversations about Catholic higher education in particular.  A bit:

Arguments about diversity in higher education are, of course, both unavoidable and highly charged. Generally, these debates have to do with the use of race in the admissions practices of elite institutions or with the dramatically one-sided make-up of these institutions’ faculty, administration, and leadership. A crucial dimension of the diversity problem, however, is less noticed: In a nutshell, we should be concerned about not only intellectual diversity within institutions, but also meaningful diversity among institutions, that is, what John Garvey, the President Emeritus of the Catholic University of America, called “institutional pluralism.”

June 6, 2023 in Garnett, Rick | Permalink

Thursday, May 25, 2023

"Justice Breyer and the Establishment Clause"

Here is a (short) paper of mine, "Justice Breyer and the Establishment Clause:  Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness'":

Stephen G. Breyer served as an Associate Justice of the Supreme Court of the United States
for nearly three decades. And yet, during his long career and
notwithstanding his wide-ranging interests, he never authored a majority
opinion resolving a dispute about the meaning of that Amendment’s
Establishment Clause. Nevertheless, Justice Breyer’s writings and record
regarding the no-establishment rule are distinctive in at least three ways.

First, there is the fact that he did not vote uniformly with his more
secularist colleagues in divided Establishment Clause cases. That is, he
often resisted the stricter applications of the no-establishment rule
endorsed by some of his colleagues. Next, he regularly rejected the
argument that such cases could or should be resolved by applying a
particular “test” and was unmoved by the lure of any grand unified theories
about the provision. His approach was consciously particularistic and
case-by-case; he saw church-state controversies as highly, inevitably
fact-bound, solvable only through a judicial-balancing exercise akin to the
proportionality review that is practiced in some other jurisdictions. And,
more often than any other justice in the Court’s history, he identified the
Clause’s primary purpose as the avoidance of “religiously based
divisiveness” and insisted that law-and-religion disputes should be decided
in the way most likely to promote this purpose.

This emphasis on the judicial management of strife, and his view that
judges charged with interpreting and applying the First Amendment are
authorized to invalidate those actions of political actors that are
determined or predicted to have excessive potential for conflict-creation,
are Justice Breyer’s signature Establishment Clause contributions. This
view, though, is mistaken and these contributions are regrettable.

Like the man says, "download it while it's hot"!


May 25, 2023 in Garnett, Rick | Permalink