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.

Monday, July 3, 2023

Is the Supreme Court's decision to reverse Roe v. Wade unpopular with the voting public?

The rightness or wrongness of judicial decisions depends not in the slightest on public opinion, and it is wrong--and indeed would be scandalous--for judges to consider polling data in deciding a case. Still, polling about such decisions can be interesting. Here's an example. My understanding had been that Roe v. Wade, though widely misunderstood, was popular with the American people and that Dobbs v. Jackson Women's Health Organization, the 2022 case that overruled Roe, was extremely unpopular. According to the most recent Rasmussen survey of likely voters, however, that's not true. A majority actually support what the Supreme Court did in Dobbs. Of course, the Rasmussen poll could be an outlier. I don't follow this area closely and don't know what other survey firms are finding.



July 3, 2023 | Permalink

Sunday, July 2, 2023

The New York Times' Distortion of Two Major Supreme Court Rulings

Saturday's New York Times headlines include:

1) "Justices Say No to Student Debt Relief"


2) "Web Designer Wins Right to Turn Away Gay People"

Both headlines are grotesque distortions if not outright falsehoods. My question is what accounts for them? Are the Times' reporters (or headline writers) ignorant/incompetent? Or are they dishonest? (It's noteworthy that the mistakes, like bank errors, always go in a certain--in the case of the Times, a certain ideological--direction.)

As for 1) the Supreme Court did not "say no to student loan relief." What the justices said "no" to was plenary unilateral executive (i.e. presidential) action to forgive student loans. This is actually made clear to anybody who makes it to the sixth paragraph of the story, where the reporter (Adam Liptak) correctly characterizes the decision as "the latest in a series of rulings curbing presidential power in the absence of clear congressional authorization."

So, you see, this was not a ruling about whether the federal government could provide student loan relief; it was a ruling about whether congressional authorization was required for the President to act. The Court ruled, in effect, that something Nancy Pelosi (of all people) said some time back is correct (which, in truth, it is): student loan relief is a legislative matter on which the executive cannot act unilaterally (i.e., without legislative authorization). The President is not supposed to be legislating. He is supposed to be faithfully executing the laws enacted by the Congress. The very first word of the first sentence of the first Article in the Constitution is the word "all": "ALL legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Let me let you in on a little secret: By the word "all" the framers and ratifiers of the Constitution meant ... all. Not some. Not most. Not almost all. The legislative power is not shared between Congress and the President. The President doesn't get to legislate. If he wants a piece of legislation (or a whole legislative program) to be enacted, he's got to go to Congress and persuade the people's representatives to enact it.

How about 2)?

Here the misrepresentation is even more egregious (and difficult to explain without reference to ideological partisanship).

The Court in 303 Creative did not confer on the web designer whose First Amendment freedom of speech rights were upheld the right to refuse to do business with ... anyone. The justices in the 6-3 majority did not give her "the right to turn away gay people." What they upheld was her right--and everyone's right--not to be compelled to participate in the crafting or construction of messages that run contrary to one's conscientious beliefs.

Under the ruling (which concerned a devout Christian website designer), an orthodox Jewish calligrapher, doing business with the general public, could not, for example, refuse to do business with a "Jews for Jesus" messianic Jewish person who asked for a card for his friend that simply said "Happy Birthday Shmuley!" He couldn't say, in other words, "I don't agree with your religion, or your interpretation of Judaism, and therefore will not do business with you. Get out of my shop! I'm turning you away." What he could do, however, despite civil rights prohibitions of discrimination based on religion, is refuse the customer's request that he make a poster that says, "Jesus Christ is the messiah long promised to the Jewish people. He is the Son of the living God; the one and only way to salvation. Embrace him, Jewish brethren, or damnation awaits you!" Similarly, he could refuse to make a ketubah (written marriage contract) for a Jews for Jesus Christian-Jewish wedding purporting to be licit under Jewish religious law.

To repeat, the ruling forbids governments from forcing people to participate in the crafting of messages that contradict their conscientious convictions (like the calligrapher's orthodox Jewish religious beliefs). It is an anti-compelled speech case. Its roots are in the Supreme Court's 1943 decision in West Virginia v. Barnette striking down a law compelling Jehovah's Witnesses school children to salute the flag and say the Pledge of Allegiance in violation of their religious convictions. (The Witnesses felt that the ceremony amounted to bowing down before a graven image in defiance of the biblical prohibition of idol worship.)

I believe 303 Creative is an impeccably correct decision. But even if I'm wrong about that--even if the case should have come out the other way--it's not because it created "a right to turn away gay people" or to turn away anybody. It didn't. And, in truth, the website designer hadn't turned away, and doesn't turn, away anybody. In fact, her willingness to serve people irrespective of, among other things, sexual orientation was stipulated to by the parties.
As my friend Richard Doerflinger observes:

"Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is 'willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender' and 'will gladly create custom graphics and websites' for clients of any sexual orientation; she will not produce content that 'contradicts biblical truth' regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are 'expressive' and her 'original, customized' creations 'contribut[e] to the overall message' her business conveys “'through the websites' it creates; the wedding websites she plans to create 'will be expressive in nature', will be 'customized and tailored' through close collaboration with individual couples, and will 'express Ms. Smith’s and 303 Creative’s message celebrating and promoting' her view of marriage; viewers of Ms. Smith’s websites 'will know that the websites are her original artwork'; and '[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services'.”

July 2, 2023 | Permalink

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

2009 Letter to Ugandan Christian Leaders

The following letter from Charles Colson, Robert George, and Timothy George was sent to Christian leaders in Uganda in 2009 in response to the introduction in parliament of legislation harshly punishing homosexual conduct. Such legislation has now, according to news reports, been enacted. It is being criticized by some American Christian leaders and defended by others. I continue to think that what the late Mr. Colson, Dr. Timothy George, and I said nearly a decade-and-a-half ago is correct.


Letter to Uganda Christian Leaders (December 5, 2009)

Beloved Christian Brothers and Sisters of Uganda,

We greet you in the name of our Lord Jesus Christ, and embrace you in the spirit of his love.  As we seek to follow his path, we are inspired by your fidelity to the Gospel and by the example you provide the world of courageous discipleship.

We especially commend your witness to the timeless moral truths that are of the essence of man’s dignity as a creature fashioned by God in his own image and likeness. In the West, many of these truths are under severe attack from those who believe them to be unwarranted impositions on the freedom of the individual to seek his own satisfactions and fulfillment in his own way.  Nowhere is this clearer than in the domain of sexual morality, where actions condemned by divine authority and natural law as contrary to the dignity of the human person are celebrated as expressions of individual autonomy and even personal identity.

We know that it is with dismay that you have observed these attacks and with them a cultural erosion of moral understanding, and we are grateful to you for standing in solidarity with us as we have sought to bear witness to the truths of the Gospel and the dignity of man.  We especially appreciate your support for our work to protect and defend marriage as the life-long, exclusive, and faithful covenant uniting husband and wife.

Brothers and Sisters, we approach you today about a development in your country that is a source of grave concern for us.   We have learned that a bill has been introduced in your parliament that would penalize even a single act of homosexual conduct with life in prison.   Repeated homosexual acts and certain other specified behaviors would be punishable by death.  The harshness of these proposals is, we believe, inconsistent with a Christian spirit of love and mercy.  We urge our brothers and sisters in Uganda to follow the example of Jesus when he was presented with the woman caught in the very act of adultery.   He did not hesitate to call the woman’s offense what it was, namely, a sin; but by his powerful words our Lord prevented her life from being taken by the men who were preparing to stone her to death.  “Go,” he said to her “and sin no more.”

In a spirit of Christ-like love, let us recall that many men and women who experience same-sex attraction struggle to live chaste and holy lives.  Many succeed; yet many sometimes falter.  Is the same not true of all of us?  We are all tempted by the lure of sin, be it in the domain of sexuality or in other areas of our lives.  And none of us is perfect in resisting temptation.  All of us from time to time fall short of fulfilling God’s intention for us, and we therefore stand in need of the Lord’s mercy and forgiveness.  Surely, no one guilty of a single act of homosexual conduct (or fornication, adultery, or other sexual offense) should spend the remainder of his life in prison as a consequence of his sin.  Such harshness, such lack of mercy, is manifestly contrary to the example of our Lord and cannot be given the support of those who seek to follow Christ.  In response to a proposal to punish consensual sexual crimes with such extreme penalties the Christian must surely echo the words of Jesus:  “Let the one who is without sin cast the first stone.”

We recognize that the scourge of AIDS has been devastating to the people of Uganda.   Measures must be taken to encourage faithful marital love and to discourage sexual immorality of every type.   It is critical, however, that these measures be shaped in a just and Christian manner, and not in a punitive spirit.  Harshness and excess must be avoided.  Those who experience homosexual desire and yield to it should not be singled out for extreme measures or for revulsion.  Persons who experience same-sex attraction, whether they struggle to live chastely or, alas, do not, are human beings.  They are children of God made in His very image and likeness.  They are our brothers and sisters.   Christ loves them as he loves all of us.  We must love them, too, even as we encourage them and all men and women—precisely because of our love for them and concern for their well-being—to avoid sexual sins and lead lives of virtue and dignity.

Brothers and sisters, we do not reproach you or hold ourselves out as your teachers.  In so many ways today, you are our teachers.  We recognize that in view of the moral crisis of the West, we are scarcely in a position to lecture to people in Africa and other parts of the world.  We are ashamed of the pornography, promiscuity, and other manifestations of licentiousness that you (and we) find shocking and appalling.  We applaud your desire to prevent such unrighteousness from gaining a foothold in your culture.  You are right to care about the protection of public morals.  You are right to call sin by its name, just as Jesus did.  Our message is simply that the Lord’s example of gentleness and love, of mercy and forgiveness, must be followed, too.  Let all of us, as his disciples strive to be Christ-like in all things.

Yours faithfully,

Charles Colson

Robert P. George

Timothy George 

June 6, 2023 | Permalink

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, June 1, 2023

Steve Shiffrin, Rest in Peace

I'm very sorry to note that Professor Steve Shiffrin has died. Steve was the author of some wonderful work in law and religion and the freedom of speech, well known to many of us at Mirror of Justice and from which I learned a great deal. He was also a kind and generous man. He was, as my colleague Mark Movsesian writes, "a scholar of the first rank who remained humble and helpful to everyone. A rare combination of virtues. May he rest in peace."

June 1, 2023 in DeGirolami, Marc | Permalink

Sunday, May 28, 2023

My intro to "When Professions Go Woke, Can Dissenters Survive?"

As its contribution to Princeton University's 2023 reunions, the James Madison Program in American Ideals and Institutions hosted a panel discussion entitled "When professions go Woke, can dissenters survive?" Our panelists were Kristen Collier of the University of Michigan Medical School; J. Joel Alicea of the Columbus School of Law of the Catholic University of America; Ramesh Ponnuru of National Review magazine, the American Enterprise Institute, and the Washington Post; and Ryan T. Anderson of the Ethics and Public Policy Center.

In my introduction to the discussion, I addressed the origins and meaning of the word "Woke."  



Is there a word to describe the attitude of a person who regards his or her opinions as so obviously correct—and so profoundly enlightened—that they may not legitimately be challenged or questioned, and that only hate or bigotry can explain others' holding different beliefs?

Sure there is. That word is “woke”?

Of course, it’s a contested word. And the word, even as a slang term, didn’t always have those connotations. These days the connotations of the term are mainly negative; it is now mostly used pejoratively. But it didn’t begin that way. The word began with people who believed in racial justice and prioritizing the elimination of racial discrimination and other forms of injustice applying it to themselves and those who shared their beliefs and priorities. It was broadened, however, to be a term that applied to those who held ultraprogressive and, especially, identitarian ideas about race and, especially, sexuality and gender.

For the Woke, “anti-racism” is not the philosophy of Dr. Martin Luther King. It is the ideology of Professor Ibrahim X. Kendi. And gender ideology of the sort that constructs and sacralizes innumerable gender identities is unquestionable dogma. Those holding these beliefs themselves embraced the term “woke” until their critics—a coalition of conservatives like me and old school liberals like the comedian Bill Mahr—began following their linguistic practice and referring to them and their ideology as “woke.” Soon the term had become almost an epithet—and nobody wanted to be “labeled” as “woke.” Mind you, their views didn’t change, nor their aggressiveness in asserting them and in labeling people who don’t share them as “racists,” “homophobes,” “bigots,” etc., etc., etc. But they no longer accepted the term, and began charging anyone who used it in referring to them as … yes, you guessed it:  “racists,” “homophobes,” “bigots,” etc.

Now it’s a free country. You’re free not to use the term "woke." But others are free to use it. You’re free to criticize those who use it. But they’re free to criticize you. We’re using it for this panel—it’s right there in the title—because we’re interested in the phenomenon for which it has become the label: an ideology, a set of beliefs, that its partisans regard as so enlightened that it may not legitimately be questioned, and as so obviously correct that dissent from it can only be explained as a manifestation of hatred and bigotry.

What do you do if you are a dissenter, and your profession or institution has gone woke? In the face of intolerance of your opinions, is it possible to survive without either capitulating or going silent? That is the question we’ve asked our distinguished panelists to address.

May 28, 2023 | 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

Friday, May 19, 2023

Moreland on Liberalism and Christianity

Our own Michael Moreland has posted on SSRN a new paper, which discusses (among other things) the presentations at a conference last fall at Notre Dame Law School on Liberalism and Christianity.  Here's Michael's abstract:

The essays in this Symposium engage in recurring sets of issues, and here I wish to highlight four of them: (1) the relationship between liberalism and theological traditions; (2) the historically contingent and contested accounts of how liberalism and Christianity have developed over centuries in a relationship that has varied from conciliatory to hostile and what implications that account has for the history of ideas; (3) debates in legal scholarship that are illuminated by posing broader questions about liberalism, Christianity, and constitutionalism, and in particular the relationship of liberalism to different social forms, including religious institutions; (4) the renewed interest in the relationship between liberalism and Christianity in light of a new generation of critics of liberalism, whether Catholic integralists or other types of anti-liberalism, and the question—posed forcefully at the end of Steven Smith’s paper—of if not liberalism, then what else?

I presented at the symposium, but didn't (mea culpa!) produce a law-review article.  Here is a short version of my presentation, "Why Liberalism and Constitutionalism Need Christianity."

May 19, 2023 in Garnett, Rick | Permalink | Comments (0)