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.

Friday, August 21, 2020

Program on Church, State & Society 2020 fellows share summer experiences

One of the things our Program on Church, State & Society is best known for on campus is our Summer Fellowship opportunity, which provides outstanding NDLS students with stipends to work at religious organizations or law firms that serve religiously affiliated organizations.

We have been providing these fellowships for six years now, and have sent Notre Dame law students to numerous placements around the nation. We are especially grateful to the organizations that hosted our students this past summer: the Office of the General Counsel at the Catholic University of America, Catholic Charities Legal Assistance in Chicago, and Napa Legal Institute. We are also especially thankful to the donors that provide the funding to make these fellowships possible.

You can read about the 2020 summer fellows here.

August 21, 2020 | Permalink

Wednesday, August 19, 2020

Revivifying Catholic Education in the Era of School Choice

Long before coronavirus was a household name, our country’s Catholic school system was already in a state of emergency. Fifty years past its peak size, Catholic education was suffering an enrollment crisis and school closures en masse. Meanwhile, paradoxically, our country’s need for vibrant and engaged Catholic schools had never seemed greater. Parents were growing wary of traditional public and charter schools for a variety of reasons—some cultural, some academic—and the sentiment was reaching critical mass.

And then, disaster struck. The Covid-19 pandemic has, in many ways, exacerbated the crisis Catholic schools were facing before coronavirus reached our shores; to date, 98 Catholic schools in the U.S. have announced permanent closure in response to enrollment and tuition declines driven by Covid-19’s economic toll. But at the same time, it has also deepened our nation’s need for Catholic schools—perhaps even serving as a Hail Mary pass for the sector’s revitalization, right at the pivotal moment.

Full article at Church Life Journal.

August 19, 2020 | Permalink

Tuesday, August 18, 2020

Religious Freedom in the Tumult, and in a Polarized Age

I've posted two pieces on SSRN discussing religious freedom and its connection with my current interest, political and cultural polarization. 

The first is "'Christian Bigots' and 'Muslim Terrorists': Religious Liberty in a Polarized Age," forthcoming as a chapter in a new book from Routledge Publishers. Unfortunately, the publisher locks up chapters and won't allow free posting of drafts. But any reader interested in a draft is welcome to write me at tcberg at stthomas dot edu.

[R]eligious liberty has joined the list of issues that most sharply divide partisans. By now it is well established that America is deeply, increasingly polarized between competing political-cultural outlooks. After briefly summarizing the processes of ideological “sorting,” negative polarization, and political feedback loops that intensify the polarization, this paper identifies the damage when religious liberty becomes a contributing factor in polarization. Religious liberty protection is designed to reduce people’s fear and resentment of others—which in turn fuel polarization—by making room, as much as possible, for people of fundamentally differing commitments to live consistently with those commitments. This key purpose of religious liberty will fail, however, if debate over that protection simply replicates the underlying polarization of views. If anything, current religious-liberty disputes intensify the underlying fights.

Although the religious-liberty circumstances of Muslims and conservative Christians differ, the two share important features—including the fact that others view them with hostility, as “Christian bigots” or “Muslim terrorists.” I identify parallels between the two groups and argue that these parallels support recognizing substantial protection for both.

The second article is "Religious Freedom Amid the Tumult," discussing the recent important Supreme Court decisions on religious liberty, issued amid--and connecting in various ways with--pandemic, polarization, and racial-justice protests. A bit from the abstract:

Among many lessons from today’s crises is that religion, freely chosen and exercised, is a vital aspect of human identity. Religious exercise provides individuals with strength and comfort in the stresses of a pandemic. Religious belief motivates service to others in schools and social-service agencies; credible legal threats to those organizations aggravate our already dangerous polarization. Now as much as ever, it is vital to defend religious freedom for all. Despite some mixed signals, the current Supreme Court seems willing to shoulder that task.

But to defend religious freedom credibly means recognizing rights for others too. Christian conservatives must support religious liberty and equality for Muslims as well. A credible defense of religious freedom also calls for confronting rather than denying the problems of racial inequality. And it calls for drawing careful lines so that LGBT people can participate in economic life and traditionalist religious organizations can follow their religious identity.

August 18, 2020 in Berg, Thomas , Current Affairs , Religion | Permalink

Call for proposals for participation in Blog Webinar on October 2, 2020

Call for proposals for participation in Blog Webinar on October 2, 2020

Law, Religion, and Coronavirus in the United States: A Six-Month Assessment


Co-organized by:

International Center for Law and Religion Studies, Brigham Young University Law School

Center for the Study of Law and Religion, Emory University Law School

Notre Dame Program on Church, State & Society, Notre Dame Law School

Center for Law and Religion, St. Johns University School of Law

Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law


Proposals for participation in a blog conference on Law, Religion, and Coronavirus in the United States: A Six-Month Assessment, are being accepted until August 31st, 2020. An online webinar open to the public will be held on Friday October 2, 2020, at 11:00 a.m. EDT where brief 3-5 minute summaries of blog posts of approximately 1500 words will be presented. The blog posts will then be simultaneously published on the blogs of the five co-organizing institutions.

The purpose of the blog conference and webinar is to provide an opportunity for thoughtful reflection on the implications for law and religion in the United States of the coronavirus pandemic, as well as the economic and racial justice crises, from our current perspectives approximately six months into the crisis. The content and format of the webinar will in part be determined by the proposals for participation, but we anticipate grouping presentations under several topical areas:

  • Public Health and Free Exercise: What is the scope of legitimate limitations on religious activities based on public health, including discriminatory or differential treatment of religious gatherings versus other types of gatherings? What can we learn from cases that have already been decided, including in the Federal Courts of Appeals, and in the emergency Supreme Court rulings in cases involving religious organizations challenging state regulation? Are there important differences between what religious organizations should be permitted to do and what they should do? Do legal developments during the coronavirus pandemic make it more or less likely that the Supreme Court will revisit the compelling state interest in its Free Exercise Clause jurisprudence?


  • Church Finances and State Funding of Religion: What have been the financial implications of coronavirus for religious institutions, religious schools, and faith-based charities, including participation in government bailout and aid programs? Will the pandemic and its aftermath have lasting effects on how state funding of religion is viewed in the United States and by the Supreme Court?


  • Law and Society: How will the pandemic affect religious practice? Will it act as an accelerant for social trends including the “rise of the nones?” Will it result in a religious recession, renaissance, or something else? Will there be different implications for institutions and individuals?


  • Church Liability and Clergy Malpractice: Will religious organizations, or religious leaders, face personal liability for harm to parishioners who attend services, or follow advice and counsel of religious leaders, and later contract coronavirus? Will we see an increase in liability in tort or based on theories such as clergy malpractice?


  • Science and vaccines: What can we expect from the role of religious organizations and religious people in the debates that will emerge about vaccines and exemptions from vaccines? Are there other implications for religious freedom that will arise from a scientific consensus on public health matters?


  • Long-term implications: From our limited vantage point, what will be the long-term implications of the coronavirus and related crises for law and religion in the United States?


Please submit brief proposals for your participation of approximately 100 words (not completed blog posts) through the “Submissions” page on the Emory’s Canopy Forum by August 31st, 2020, (https://canopyforum.org/submit/). Please indicate in your submission that you are responding to this call for proposals, either in the subject line of the submission form, or in the document you submit.  We anticipate informing participants during the first week of September whether their proposal has been accepted for inclusion. Blog posts will be due one week before the webinar so they can be edited and ready for posting upon completion of the webinar. We are pleased to offer an honorarium of $200 for the blog post of each participant in the webinar.

If you have any questions, please contact Brett G. Scharffs, [email protected] or Jane Wise, [email protected], at BYU; John Bernau, [email protected], Shlomo Pill, [email protected], or Justin Latterell, [email protected], at Emory; Stephanie Barclay, [email protected] or Rich Garnett, [email protected], at Notre Dame; Mark Movsesian, [email protected], or Marc DeGirolami, [email protected]; or Michael Moreland, [email protected], at Villanova.

August 18, 2020 | Permalink

Friday, August 14, 2020

Program on Church, State & Society Announces Student Writing Competition

The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.

Competition eligibility and deadlines.

August 14, 2020 | Permalink

Wednesday, August 12, 2020

Cardinals, World Religious Leaders: ‘We Stand With the Uyghurs’

The Chinese government’s treatment of Uyghurs is “one of the most egregious human tragedies since the Holocaust,” two Asian cardinals and 74 other religious leaders wrote in a statement released Aug. 8.

Cardinal Charles Maung Bo, archbishop of Yangon and president of the Federation of Asian Bishops’ Conferences, and Cardinal Ignatius Suharyo, archbishop of Jakarta, Indonesia, were among the 76 signatories calling for “prayer, solidarity and action to end these mass atrocities” against the Muslim minority in China.

Full article at the National Catholic Register.

August 12, 2020 | Permalink

Friday, August 7, 2020

Religious freedom and the Roberts court’s doctrinal clean-up

Those who think and write about the Supreme Court, including many of the justices themselves, tend to collect and deploy colorful adjectives and epithets to describe the state of its religion clauses doctrine and case law. It is not necessary to go full-thesaurus or to march out the entire parade of pejoratives here. A “hot mess” was the recent pronouncement of one federal court of appeals. And my own favorite is still Justice Antonin Scalia’s 1993 portrayal of the so-called “Lemon test” as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”

An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion. Chief Justice John Roberts, following in several ways the example and path of his predecessor, William Rehnquist (for whom he and – full disclosure – I clerked), has directed, not merely endorsed or observed, these changes. The standard, habitual denunciations no longer seem to apply. As Larry David might put it, the law of the religion clauses is actually “pretty, pretty good.”

Full article by Richard Garnett at SCOTUSblog.

August 7, 2020 | Permalink

Tuesday, August 4, 2020

Scenes From a Revolution? After Bostock

Many people worry that the Supreme Court’s decision last month in Bostock v. Clayton County heralds a social revolution. In three cases decided together on June 15, the Court held that the Title VII ban on “sex” discrimination in employment includes discrimination on account of homosexuality and “transgender” status. Because our legal culture already adjusted to same-sex relationships (including civil marriage, per the Court’s 2015 decision in Obergefell v. Hodges), the worry now is mainly about the “transgender” half of Bostock. Will it lead straightaway to coed restrooms? What does Bostock portend for girls’ and women’s athletic competitions? For doctors and hospitals who refuse to mutilate healthy tissue in alleged “sex-change” operations? For mandatory use of a worker’s preferred pronoun? 

Full essay by Gerard Bradley at the National Catholic Register.

August 4, 2020 | Permalink

Thursday, July 30, 2020

Catholic Schools, Charters, and Choice

Nicole Stelle Garnett joins Brian Anderson to discuss the importance of Catholic schools, their struggle to compete with charter schools, and what the Supreme Court's recent Espinoza decision will mean for private-school choice—the subjects of her story, "Why We Still Need Catholic Schools," in City Journal's new summer issue.


July 30, 2020 | Permalink

Wednesday, July 29, 2020

Mexico Supreme Court rejects state's bid to decriminalise abortion

Mexico's Supreme Court has rejected a landmark injunction on abortion rights across the country.

The case revolved around an injunction granted in the eastern state of Veracruz, which would have effectively decriminalised termination in the first 12 weeks of pregnancy.

Full story at BBC.

July 29, 2020 | Permalink