Tuesday, March 5, 2024
"The Death and New Life of Law and Religion"
I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.
The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.
These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.
This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.
March 5, 2024 in DeGirolami, Marc | Permalink
Friday, March 1, 2024
"Sub Deo et Lege": A New Podcast About Law and Learning Under God
Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.
For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!
March 1, 2024 in DeGirolami, Marc | Permalink
Friday, February 16, 2024
Duncan on School Choice and Religious Freedom
Prof. Rick Duncan (Nebraska) has a new paper up called "Why School Choice Is Necessary for Religious Liberty and Freedom of Belief." Amen! Here's a bit:
Education is not value-free; indeed, it is value-laden. And in a country as divided as ours, we no longer share common values and common truths. We have competing versions of what is good, what is true, what is fair, what is just, what is morally good, and what is beautiful. Moreover, we are at odds over the most important question in life—whether God exists and whether His Word is relevant to a quality education. And a one-size-fits-all K–12 curriculum cannot possibly serve all these competing versions of the good life. Although I think competition is always good for the quality and efficiency of any product or service, my argument in this Article is not about higher standardized test scores or better mastery of subjects and skills. My perspective is based on First Amendment values of freedom of religion, thought, and belief formation. In other words, I believe that school choice is necessary for religious liberty and for freedom of thought and belief. If religious and intellectual autonomy are to survive and thrive in a deeply divided, pluralistic nation such as ours, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools.
I tried to make a similar argument, a (long!) while back, in this paper, "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good." Time flies!
February 16, 2024 in Garnett, Rick | Permalink
Thursday, February 15, 2024
Mirror of Justice -- Twenty Years Ago
As Rick Garnett said in his post, we've reached the age of 20 for the Mirror of Justice. The anniversary provoked me to look back on some of the early messages from that period and reminded me that the hottest topic and source of strongest rhetoric of disagreement on posts in the initial months involved the forthcoming 2004 presidential election. Catholics troubled by the strong pro-abortion advocacy of Democratic Senator John Kerry argued he was disqualified from Catholic support. Others were troubled about the ongoing war in Iraq and contended that Catholics should withdraw support from President Bush based on the debacle about never-found weapons of mass destruction while thousands of innocent lives were lost.
In sum, as one writer put it to Mirror of Justice posters at the time, people were feeling rather "anguished" about the upcoming presidential election. Oh, how things change!
February 15, 2024 in Sisk, Greg | Permalink
Sunday, February 4, 2024
20 Years of Mirror of Justice
This weekend, the Mirror of Justice blog turned 20 years old. Here is a link to our first post (authored not by me, as the link suggests, but by Mark Sargent):
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
A few things about this blog and us:
1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.
2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.
3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.
4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.
5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)
6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!
It is, I suppose, cringe-inducingly obvious to note that a lot has changed since February of 2004. (There were a lot of back-and-forth postings about the Bush v. Kerry election!) A fair bit of the conversation among law-types has migrated to Twitter, Substack, etc. And yet, blogs survive (and, in some well-known cases, continue to thrive).
It continues to be my view -- as I tried to express in this very early post of mine, and in a lot of posts since -- that at the heart of any "Catholic legal theory" has to be the Christian proposal about moral anthropology, that is, about what it means and why it matters to be human. As I said in this short essay, "persons" are "the point of the law."
Ad multos annos!
February 4, 2024 in Garnett, Rick | Permalink
Thursday, February 1, 2024
"Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn"
The Center for Law and the Human Person is delighted to host Professor Daniel Mahoney this coming Wednesday, February 7, from 5:15-6:15 in the Slowinski Courtroom of the Columbus School of Law. Professor Mahoney is the author most recently of "The Statesman as Thinker" and "The Idol of Our Age," as well as other insightful work in the history of political ideas. He is one of the world's foremost experts on the thought of Aleksandr Solzhenitsyn and what it has to tell us today.
Please join us for his lecture, Freedom, Moral Purpose, and Self-Limitation: The Enduring Wisdom of Aleksandr Solzhenitsyn.
February 1, 2024 in DeGirolami, Marc | Permalink
Sunday, January 28, 2024
"The Servant Lawyer"
One of the legal academy's true treasures, Bob Cochran, has a new book out, called The Servant Lawyer: Facing the Challenges of Christian Faith in Everyday Law Practice. Cochran draws not only on his own crucial body of work on religious lawyering, but also on the thought and legacy of our mutual friend and mentor, Tom Shaffer.
Here's the blurb from that huge Bezos website:
Most lawyers, from Wall Street to the county seat, spend their days drafting documents, negotiating with other attorneys, trying cases, researching the law, and counseling clients. How does this everyday law practice relate to Jesus' call to follow him in servanthood?
With decades of experience in the law office, courtroom, and classroom, Robert F. Cochran Jr. explores Jesus' call on lawyers to serve both individual clients and the common good. Cochran pulls back the curtain with stories from his own career and from the legal community to address a wide range of challenges posed by law practice, including counseling clients, planning trial tactics, navigating tensions with coworkers, and handling temptations toward cynicism and greed. This honest and accessible book
- shares wisdom from an experienced practitioner and master teacher
- addresses real-world situations and relationships experienced by most lawyers
- charts the way toward a truly Christian practice of everyday law
For students considering a career in law as well as for seasoned attorneys, The Servant Lawyer casts an encouraging vision for how lawyers can love and serve their neighbor in every facet of their work.
Check it out!
January 28, 2024 in Garnett, Rick | Permalink
Friday, January 26, 2024
Preziosi on Biden (and Trump) on the Federal Death Penalty
Dominic Preziosi has a piece in Commonweal called "Executioner in Chief" in which, inter alia, he criticizes the decision by the Biden Administration's Department of Justice to seek the death penalty for Payton Gendron, shot and killed ten black people at a Buffalo supermarket. As Preziosi observes, this decision seems inconsistent with Biden's stated (although not always consistent) opposition to capital punishment and his promises to do what is within his power to abolish the federal death penalty (or, at least, to restore the effective moratorium that had been in place on federal executions until 2020.
Like Preziosi, I would welcome legislation that repealed the death penalty at the federal level. (I would be less enthusiastic about a judicial decision that purported to invalidate the federal death penalty, because I am confident that the Constitution, correctly understood, permits the use of capital punishment for at least some federal crimes. And, while prosecutorial discretion is, appropriately, a fact of life, I am not entirely comfortable with executively-annouced moratoria that amount to non-enforcement of duly enacted federal law. But, put these reservations aside.)
There was a time, during the early years of the Obama administration, when abolition of the federal death penalty was politically possible, and that administration failed to take advantage of that opportunity. At present, abolition is probably not politically feasible. And, in any event, it seems that -- given all the political givens -- the administration has decided (perhaps, for reasons like those that motivated then-Governor Bill Clinton in the Rector case) to shelve, at least for now, its earlier professed abolitionism.
January 26, 2024 in Garnett, Rick | Permalink | Comments (0)
Wednesday, January 17, 2024
USCCB releases report on threats to religious freedom
Thanks to my local bishop, Kevin Rhoades, for his leadership on this new report from the USCCB. As he said, "Catholics have a vital role to play in defending religious freedom and promoting the common good”.
Here is a bit from "The State of Religious Liberty in the United States":
This report identifies the top five threats to religious liberty in 2024 as follows:
- attacks against houses of worship, especially in relation to the Israel-Hamas conflict
- the Section 1557 regulation from the U.S. Department of Health and Human Services, which will likely impose a mandate on doctors to perform gender transition procedures and possibly abortions
- threats to religious charities serving newcomers, which will likely increase as the issue of immigration gains prominence in the election
- suppression of religious speech on marriage and sexual difference
- the EEOC’s Pregnant Workers Fairness Act regulations, which aim to require religious employers to be complicit in abortion in an unprecedented way
January 17, 2024 in Garnett, Rick | Permalink
Tuesday, January 16, 2024
"Tolle et Lege": Our Reading Group at the CLHP at Catholic
I'm delighted to announce "Tolle et Lege," an initiative of the Center for Law and the Human Person at Catholic University. This is a reading group that invites (gently urges?) students to "pick up and read" classic literature in the Catholic intellectual tradition. We'll meet on selected evenings for discussion and fellowship. We have an edifying slate of reading this semester.
First, on January 29, and in preparation for Professor Daniel Mahoney's lecture on Aleksandr Solzhenitsyn, we'll be discussing two of Solzhenitsyn's essays, "Live Not By Lies" (1974) and his Harvard University address, rather timely again, "A World Split Apart" (1978).
Second, on March 25, we'll consider C.S. Lewis's wonderful tale of heaven and hell, The Great Divorce (1945).
All readings not otherwise available on the web are provided for free to students. Join us!
January 16, 2024 in DeGirolami, Marc | Permalink