Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, August 13, 2019

Cert Petition Urging Overruling of Smith

The Becket Fund has filed a certiorari petition in a case called Ricks v. Idaho Board of Contractors. Ricks, who applied for an Idaho license to be able to practice his livelihood as a construction contractor, objected to the requirement of providing his social security number (he believes, as a small but non-negligible number of people have regularly believed, that it’s the “mark of the beast” in Revelation 13:16-18). The petition urges the Court to overrule Employment Division v. Smith and subject even “neutral and generally applicable laws” to meaningful scrutiny under the Free Exercise Clause.

Ten religious liberty scholars, including yours truly, have signed an amicus brief supporting the petition. Tom Hungar and others at Gibson Dunn drafted and filed the brief on our behalf. From the summary of argument:

Smith is ripe for reconsideration, and this case presents an excellent opportunity for the Court to engage in that endeavor. Smith itself was a departure from this Court’s previously settled requirement that the government demonstrate a compelling interest before imposing a substantial burden on the free exercise of religion. The question of the proper interpretation of the Free Exercise Clause was not briefed in Smith, but it has been substantially elucidated by subsequent academic work. That scholarship reveals that the Framers understood the Clause not merely as embodying an equal protection principle that prohibits targeting or discriminating against religion, but also as a substantive protection granted to religious practices even in some circumstances where similar secular conduct can be prohibited. The Smith Court’s undue contraction of the protections afforded by the Free Exercise Clause inevitably falls hardest on adherents of minority religions—the very individuals that the Clause was adopted to protect.

August 13, 2019 in Berg, Thomas , Current Affairs , Religion | Permalink

Religious Leaders in Cuba are Bravely Confronting the Regime’s Oppression

This recent opinion in the Miami Herald gives a great summary of recent events in Cuba related to religious liberty. Cuba's Office of Religious Affairs continuously denies Cuban citizens the right to worship freely. 

Despite claims that it respects freedom of religion and belief, the Cuban government views religious advocates as problematic “counter-revolutionaries.” Through its Office of Religious Affairs — the main perpetrator of religious repression in Cuba — the government treats religious activists like common criminals. It divides the faith community by including a few in its tightly controlled Cuba Council of Churches, while treating others as troublemakers.


Last year, Catholic and Protestant religious leaders and followers called for stronger protections for freedom of religion and freedom of conscience to be included in the new constitution before it went to public referendum. Church leaders bravely united to expose the Cuban government’s efforts to water down previous constitutional guarantees of freedom by initiating two petitions, one signed by 180,000 Cuban citizens.


The Cuban government is retaliating. Last week, the Office of Religious Affairs canceled the National Catholic Youth Day, even though all permits were granted. Catholic priest Jorge Luis Perez said the arbitrary cancellation affected more than 3,000 young people’s spiritual retreat.

August 13, 2019 | Permalink

Monday, August 12, 2019

Garnett on "Why the Lawsuits Against Catholic Schools Should Fail"

I have an op-ed in the Indianapolis Star about the recent round of lawsuits that have been filed by former teachers against Catholic high schools and dioceses.   Here's a bit:

Every summer, the Supreme Court closes its work-year with a flurry of high-profile opinions dealing with controversial questions. The commentary and headlines about these decisions tends to focus on disagreement, division, and dissent. We should remember, though, that there are important, bedrock principles that unite the Court. 

One such principle, the justices unanimously reminded us just a few years ago, is that our country’s constitutional commitment to religious freedom does not allow the government to interfere with a church’s decision about its teachings or its teachers. The Court’s liberals and conservatives agree: If church-state separation means anything, it means this. . . .

If we value real diversity and meaningful pluralism in that sector, it is essential to respect both the freedom of religious schools to be distinctive and the decisions of religious schools about how to carry out, and who should carry out, their mission. 

Reasonable people in good faith can and will disagree about particular employment decisions, and it is appropriate to criticize what one regards as unfair, unjust, or uncharitable discrimination. In the United States, though, just as no one is forced to embrace a particular faith, no one is entitled to teach, lead, and minister in a particular religious school. The Constitution protects the right to reject a church’s teachings but does not permit the government to reshape them

August 12, 2019 in Garnett, Rick | Permalink

Friday, August 9, 2019

"Human Dignity, Law, and Religious Diversity": International Conference

Here is a call for proposals for both panels and papers for the 6th conference of the International Consortium for Law and Religion Studies (ICLARS), to be held in Cordoba, Spain, September 2020. The theme is "Human Dignity, Law, and Religious Diversity: Designing the Future of Inter-Cultural Societies.” Which makes room for a wide variety of topics, all in the orbit of this blog, its writers, and its readers.

And southern Spain in September? Yes indeed. (The organizers promise to show participants something of beautiful Cordoba.)

As the call explains, institutions and research groups, as well as individuals, can make proposals for panels. "[T]he proposing institution or research group —subject to the organizing committee’s approval— will design the subject of the panel and appoint the speakers. The proposing institution or research group will be mentioned as one of the conference sponsors provided it takes care of the registration fees and attendance of the speakers."


WHILE WE'RE ON THE SUBJECT: The Punta del Este Declaration (December 2018) reaffirms the centrality of human dignity to human rights, on the 70th anniversary of the Universal Declaration on Human Rights. A couple of bits from the new declaration:

3. Defining and Specifying Human Rights.
Dignity is an essential part of what it means to be human. Respect for human dignity for everyone everywhere
helps us define and understand the meaning and scope of all human rights. Focusing concretely and in actual
situations on human dignity and its implications for particular human rights claims can help identify the specific
content of these rights as well as how we understand human dignity itself....
6. Seeking Common Ground.
Focusing on human dignity for everyone everywhere encourages people to search for ways to find common ground
regarding competing claims and to move beyond exclusively legal mechanisms for harmonizing, implementing,
and mutually vindicating human rights and finding solutions to conflicts.

August 9, 2019 in Berg, Thomas | Permalink

Tuesday, August 6, 2019

Sharonell Fulton v. City of Philadelphia

Will Philadelphia’s Catholic Social Services soon have to close its foster care program – a program or ministry that has operated for a century in a city that desperately needs more foster homes to take in its most vulnerable kids?

Philadelphia’s Catholic Social Services and two of its certified foster parents have asked the high court to review the city’s impossible demand that the agency endorse or certify same-sex married couples as foster parents. Catholic Social Services wanted to continue the work it is so good at – finding loving foster homes for vulnerable children – while adhering to long-standing Church teaching on the nature of marriage.

Full article: https://www.nationalreview.com/bench-memos/the-supreme-court-review-of-sharonell-fulton-et-al-v-city-of-philadelphia/

August 6, 2019 | Permalink

Wednesday, July 31, 2019

My appearance in an essay in Sojourners

I make an appearance in this article from the left-wing religious magazine Sojourners. To provide greater context for the things I'm quoted as saying in the piece, here is what I said to the author in response to his request for my comments:

Dear Mr. Strong:

Thank you for your message.

I am a Catholic. I believe what the Catholic Church holds and teaches. So I believe the following, from the Declaration “Nostra Aetate” of the Second Vatican Council:

“The Church has also esteem for the Muslims. They worship God, who is one, living and subsistent, merciful and almighty, the Creator of heaven and earth, who has also spoken to men. They strive to submit themselves without reserve to the decrees of God, just as Abraham submitted himself to God's plan, to whose faith Muslims link their own. Although not acknowledging Jesus as God, they revere him as a prophet; his virgin Mother they also honor, and even at times devoutly invoke. Further, they await the Day of Judgment and the reward of God following the resurrection of the dead. For this reason they highly esteem an upright life and worship God, especially by way of prayer, almsgiving, and fasting. Over the centuries many quarrels and dissensions have arisen between Christians and Muslims. The sacred Council now pleads with all to forget the past, and urges that a sincere effort be made to achieve mutual understanding; for the benefit of all men, let them together preserve and promote peace, liberty, social justice and moral values.”

It has been my privilege and joy to work with dear Muslim friends, such as Shaykh Hamza Yusuf, Suzy Ismail, and Ismail Royer to promote justice and moral values in standing up for the sanctity of human life in all stages and conditions, beginning with the life of the precious and vulnerable child in the womb; in defending religious freedom for people of all faiths and shades of belief; in arguing for a generous and compassionate policy of accepting refugees from persecution and terror; in fighting against the evils of pornography and human trafficking; and in standing up for marriage as the conjugal union of husband and wife. Devout Christians would do well to remember that we do share much with our faithful Muslim brothers and sisters—the majority of whom, certainly here in the United States, want for their children what we want for ours: a peaceful society, a decent culture, a fair and flourishing economy, an excellent system of education, the freedom to worship and to bring our religiously-inspired convictions concerning justice and the common good into the public square and make our case, in freedom and peace, to our fellow citizens.

I do not know anything about these YouTube people you mention, nor did I bother to watch the video—which, from your description, sounds disgusting. There are all kinds of people out there claiming that they are true Catholics while utterly rejecting central, foundational Catholic moral teachings. Consider, for example, people like Joe Biden and Nancy Pelosi, who support the killing of unborn children and would even force their fellow citizens to fund the slaughter with tax dollars. Just as the Catholic Church solemnly demands respect for the life of the child in the womb, the Church solemnly demands respect for the religious freedom of all—certainly including Muslims. The idea of forced conversion is antithetical to Catholicism. As the Church teaches in the declaration “Dignitatis Humane” of the Second Vatican Council, faith must be free and uncoerced. A compelled faith is no faith at all. Compulsion can produce only the outward forms of religious observance. It cannot produce the interior acts of intellect and will that are the substance of faith. Coercion in matters of faith is deeply opposed to the dignity of the human person.

Yours sincerely,

Robert George


July 31, 2019 | Permalink

Legal Spirits Podcast: Is Satanism a Religion?

In this podcast, the scholars at Saint John’s discuss several recent law and religion controversies concerning the “Satanic Temple.”

July 31, 2019 | Permalink

Monday, July 29, 2019

Celebrating Seneca Falls on the National Constitution Center's Podcast

Jeffery Rosen invited Tracy Thomas of Akron Law and me on the National Constitution's Center's podcast, We the People, to discuss the Constitutional Legacy of Seneca Falls. It's a wide-ranging discussion of the Declaration of Sentiments of 1848 -- and whether that remarkable document's legacy can be claimed by those who favor Roe v Wade.  I think not. 

July 29, 2019 in Bachiochi, Erika | Permalink

Tuesday, July 23, 2019

U.S. State Department announces new religious freedom initiative at second annual Ministerial

Last week, the U.S. State Department held its second annual Ministerial to Advance Religious Freedom. Secretary Pompeo, in his keynote address, made news by announcing the creation of an International Religious Freedom Alliance:

We hope that this new vehicle – the first ever international body devoted to this specific topic – will build on efforts to date and bring likeminded countries together to confront challenges of international religious freedom.

It will provide a space for the work that we do here to flourish throughout the year. And importantly, it will defend the unalienable rights for all human beings to believe – or not to believe – whatever it is they choose. We’re eager to discuss this new initiative with you and to work with you and to build it out.




July 23, 2019 | Permalink

Sunday, July 21, 2019

Immigration and American Exceptionalism

Immigration and American Exceptionalism

Robert P. George


    That the United States of America is an exceptional nation seems to me to be a proposition whose truth is too obvious to debate.  What other nation in the history of the world was, quite literally, “conceived in liberty and dedicated to the proposition that all men are created equal”?  There is no other nation.  And our nation was not only, “so conceived, and so dedicated,” it has proven to the world that “a nation so conceived and so dedicated can [indeed] long endure.”  The history of our nation is the story of “We the people”—the American people—struggling (sometimes struggling against each other) to protect, and honor, and live up to the exceptional principles around which we have integrated ourselves and constituted ourselves as a people.  And while our record is far from unblemished, we have not been left unblessed with success.         

    No one needs me to remind him that part of what is unique about the United States is that our common bonds are not in blood or even soil, but are in a shared moral-political creed.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness.”  This is clearest in the fact that people really can, in the richest and fullest possible sense, become Americans.  And millions upon millions of people have done so.  Of course, one can become a citizen of Greece or France or China, but can one really become a Greek, or a Frenchman, or Chinese?  An immigrant who becomes a citizen of the United States becomes, or at least can become, not merely an American citizen, but an American.  He is as American as the fellow whose ancestors arrived on the Mayflower.    

    Now, how do immigrants become Americans?  In practice, it goes beyond becoming an American citizen, and even formally signing on with the American creed.  The additional key ingredient, I believe, is gratitude.  It is, typically, an immigrant’s feelings of gratitude to America for the liberty, security, and opportunity our nation affords him and his family that leads to his appreciation of the ideals and institutions of American cultural, economic, and civic life.  From this appreciation comes his belief in the goodness of American ideals, as articulated above all in the Declaration of Independence, and the value of the constitutional structures and institutions by which they are effectuated.  And from this belief arises his aspiration to become an American citizen together with his willingness to shoulder the responsibilities of citizenship and even to make great sacrifices for the nation, should it come to that.

    My own immigrant grandfathers came to the United States about a hundred and twenty years ago.  Like most immigrants then and now, they were not drawn by any abstract belief in the superiority of the American political system.  My father’s father came from Syria fleeing oppression visited upon him and his family as members of a relatively small ethnic and religious minority group in that troubled country.  My mother’s father came to escape the poverty of southern Italy.  They both worked on the railroads and in the mines.  My maternal grandfather settled in West Virginia, where there was a small Italian immigrant community in Clarksburg, Fairmont, and Morgantown—a trio of cities along the Monongahela River a little south of the Pennsylvania border.  He was able to save enough money to start a little grocery store, which soon became a flourishing business.  My paternal grandfather spent his entire life as a miner and laborer.  He died of emphysema, no doubt as a result of the pulmonary health hazards of coal mining in those days.  Both men were exceedingly grateful for what America made possible for them and their families.  Their gratitude was not diminished when times got hard—as they did for all Americans—in the Great Depression.

    Although both my grandfathers encountered ethnic prejudice, they viewed this as an aberration—a failure of some Americans to live up to the nation’s ideals.  It did not dawn on them to blame the bad behavior of some Americans on America itself.  On the contrary, America in their eyes was a land of unsurpassed blessing.  It was a nation of which they were proud and happy to become citizens.  And even before they became citizens they had become patriots—men who deeply appreciated what America is and what she stands for.

    Like so many other immigrants, my immigrant grandparents particularly appreciated the opportunities that America made available to their children.  My father’s father had a sister—she too an immigrant—who had a son named John Solomon who wanted to be a lawyer.  He finished college and then completed law school at West Virginia University.  The law school in those days was located on University Avenue in Morgantown near the center of the campus.  It was a grand building that one entered by walking up a broad set of stairs.  When my cousin John’s mother—we knew her as Halte Gemile—came to attend her son’s graduation ceremony, she stopped to kiss each step as she ascended those stairs.  Such was her gratitude.  Of course, her son was thoroughly embarrassed by this display.  My father, who was there, tells me that his cousin John turned to his mother at about the fourth step and pleaded: “Please mom, you’re acting like an immigrant.”  Indeed, she was.

    I talked a moment ago about how gratitude for liberty, security, and opportunity leads immigrants to an appreciation of American ideals and institutions, and in turn gives rise to an aspiration to American citizenship and a willingness to bear its responsibilities and even to make great sacrifices.  Four of my paternal grandparents’ five sons were drafted into the U.S. military to serve in the Second World War.  My maternal grandparents’ only son was also drafted.  All of these men served in combat and returned with decorations.  Their immigrant parents were immensely proud of them—proud of them precisely because they fought for America and for what America stands for.  They considered that their sons were fighting for their country—not for a country in which they were resident aliens or guests.  They were fighting for a country that was not only great, but good.  A country whose ideals were noble.  A country to whom they were immensely grateful—and not merely because it provided a haven from poverty and oppression.  A country whose principles they had come to believe in.

    When their boys were fighting, they knew that it was entirely possible—all-too-possible—that ultimately they would be called upon to give what Lincoln at Gettysburg described as the “last full measure of devotion.”  You can imagine the anxiety this would cause in an Italian family whose one and only son had been sent into the brutal combat of the Pacific theatre.  But however much sleep was lost as a result of fear and even dread, they remained proud that their son was fighting for his country, for their country, for America.  Nor did the fact that Italy under fascist rule was on the other side of the conflict give them so much as a moment’s pause.  The gratitude, leading to appreciation, leading to the conviction and commitment at the heart of true American patriotism left them in no doubt as to where their loyalty belonged.

    I have the sense that my uncles’ service to the nation at a time of peril was not only an expression of their Americanism, and the Americanism of their immigrant parents, it was a profound confirmation and ratification of it.  If they had any doubts in their own minds about whether they were truly and fully Americans—as American as their fellow citizens whose ancestors really had arrived here on the Mayflower—military service erased those doubts.  I dare say that the same was true, as has always been true, just in case any native-born citizens had any doubts about whether their immigrant neighbors were, in truth, good, loyal Americans.  The willingness of immigrants and their children to take the risks and, in many, many, many cases to be counted among the fallen, leaves the question of allegiance and American identity in no doubt.

    Of course, some Protestant Americans wondered whether non-Protestants—and especially Catholics—could truly become Americans.  They were concerned that hierarchical and non-democratic forms of church governance would hinder the ability of non-Protestant immigrants to appreciate and fully give their allegiance to democratic institutions and principles of civic life.  Some even believed that Catholic immigrants would have to be de-Catholicized by the public school system and other mechanisms in order to become patriotic Americans.  The natural and understandable Catholic reaction to this—the establishment of Catholic parochial schools across the country—only heightened Protestant worries.  But part of what eventually made these worries go away was the record of service and heroism of Catholic and other non-Protestant soldiers (including countless products of parochial schools) fighting for democracy and against authoritarian regimes and totalitarian ideologies in the First and especially the Second World War.  Catholics saw no contradiction between their faith and their allegiance to the United States of America.  On the contrary, religious commitment tended to support patriotic conviction.  Faithful Catholics wanted to be, and not merely to be seen to be—though that, too—the very best of good American citizens.  And as they saw and see it, that doesn’t require the slightest dilution of their Catholic faith.

    Now, I have been talking about how gratitude launches immigrants on the path to becoming Americans.  It has happened to millions. There are countless permutations of the story, but they are permutations of the same story.  I suspect that as you hear me tell the stories of my grandparents, many of you are thinking of stories, not at all dissimilar, of your grandparents, or great grandparents, or great great grandparents, and how they became Americans.  The amazing and wonderful thing is that a family story like mine of immigrant ancestors becoming Americans, sharing in the blessings of American life, and taking upon themselves their share of the nation’s burdens, is not the exception; it is the norm.  (Of course, the story of Africans brought to America as slaves and then subjected to segregation and discrimination even after slavery was abolished is a radically different one—a story of injustice and a stain upon our nation’s history.  Yet the great efforts to right these wrongs and live up to our national ideals of liberty and justice for all are also part of our American heritage.)

    But now let me turn to the other side of the coin.  As we know all-too-well, today not all immigrants become Americans or even want to become Americans. Identity politics of the sort that is fiercely promoted by opinion-shaping elites in many sectors of our society—has been embraced by some immigrants and may be embraced by more.  This is not simply a matter of hanging onto customs, traditions, and ethnic or religious identities and passing them on to the next generation.  Immigrants have always done this, and it is fine and good—a source of strength for our nation. Rather, it is a matter of rejecting the idea of a primary and central political allegiance to the United States and its ideals and institutions.  Often this rejection is rooted in a denial of the goodness of America and even an assertion of America’s wickedness.  Sometimes it manifests itself in a view of American history as a history of nothing but racism, exploitation, chauvinism, abuse, imperialism, and other injustices.  For people who view things this way, the United States is hardly an object of gratitude.  On the contrary, it is the sinner, the debtor, who must abase itself before the world, make amends, and give recompense.  It is not owed gratitude or allegiance, it owes.  Putative victims of its oppression and their descendants are entitled to feast from its bounty with no gratitude or loyalty required in return.

    If, as I have argued, it is gratitude that launches immigrants on the path to becoming Americans, it is attitude that impedes and prevents immigrants from embarking on the journey.  Grateful immigrants become Americans; immigrants with attitude do not.  What do I mean by attitude?  I mean what the kids mean:  a bad attitude—an attitude of hostility to America and to her principles; an attitude of superiority; an attitude of entitlement; an attitude of unrelenting grievance.  An attitude promoted, as I say, by influential people in education, journalism, and even government.  An attitude abetted by misguided policies, such as forms of bilingualism that have the effect—though I am not claiming they all do (“bilingualism” means different things)—of discouraging mainly Latino young people from fully mastering the English language; policies that turn the ideal of pluralism into an attack on national unity and common bonds.  Policies that foster a culture of entitlement—one where all the emphasis on is on rights, and none is on responsibilities; one in which assistance provided by states or the federal government to those in need is perceived not as a manifestation of the generosity of the American people, but as payment (inevitably said to be meager and inadequate) on a debt created by the allegedly predatory and exploitative acts of previous generations of Americans.

    Now, where a culture of opportunity flourishes, immigrants will feel, as my grandparents felt, gratitude for the opportunities they are afforded to lift themselves up, and make a better life for their children, by dint of hard work and determination to succeed.  However, it appears to be a brute fact of human psychology that where a culture of entitlement prevails, gratitude even for charitable assistance will not emerge.  In part, of course, this is to be explained by the fact that upward social mobility is dampened in circumstances of a culture of entitlement.  This is the phenomenon known as welfare dependency.  I observed its soul-destroying effects on many non-immigrant families in West Virginia as I was growing up.  You see, dependency is an equal opportunity soul destroyer.  And this, in turn, leads to resentment as people persuade themselves that the reason they are not getting ahead is that those who are already better off are cheating or manipulating the system to hold down people at the bottom of the ladder (who are dependent on entitlements).  So the culture of entitlement ends up reinforcing the attitude that impedes the gratitude that enables immigrants to become Americans.

    I want immigrants to become Americans.  I want them to believe in American ideals and institutions.  I want them to “hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness.”  I want them to believe, as I believe, in the dignity of the human being, in all stages and conditions of life; in limited government, republican democracy, equality of opportunity, morally ordered liberty, private property, economic freedom, and the rule of law.  I want them to believe in these ideals and principles not merely because they are ours, but because they are noble and good and true.  They honor the profound, inherent, and equal dignity of all members of the human family.  They call forth from us the best that we are capable of.  They ennoble us.  Our efforts to live up to them, despite our failures and imperfections, have made us a great people, a force for freedom and justice in the world, and, of course, an astonishingly prosperous nation.  It is little wonder that America is, as it always has been, a magnet for people from every land who seek a better life.  It is no wonder that in America barriers are proposed to keep people from entering our nation illegally; not for preventing people who are here from fleeing.

    But the transmission of American ideals to immigrants and, indeed, to anyone, including new generations of native-born Americans, depends on the maintenance of a culture in which these ideals flourish.  The maintenance of such a culture is a complicated business—one with many dimensions.  I have already talked about how social welfare and other policies, if unsound, can undermine these ideals.  I have also mentioned the emergence of ideologies, flourishing today in elite sectors of American culture, which weaken them.  These ideologies--above all the toxic ideology of identitarianism (which one finds among extremists of all types, including white nationalists)--must be taken seriously and confronted.  This is the great intellectual and pedagogical mission before us.  The task is thrust upon us by what can only be described as a massive loss of faith in the goodness of America and her traditional beliefs among opinion-leaders in key positions of influence.  This loss of faith discourages patriotism and national unity--often provoking a reaction that amounts to little more than a disgraceful parody of these noble ideals.


July 21, 2019 | Permalink