Mirror of Justice

A Misguided Attack on Educational Choice in Commonweal

A recent issue of Commonweal includes an unfortunate, and unsound, attack on school choice called "The Battle Against School Vouchers", by Luke Mayville.  Let's start with the fact -- and, to be clear, it is a fact -- that Catholic Social Teaching clearly supports policies that not only permit Catholic schools to operate as Catholic schools but also that make it possible for parents to choose such schools.  To put the matter differently, the standard anti-pluralism argument of school-choice opponents that, somehow, school-choice programs "take money away from public education" is unsound:  Public education, correctly understood, is the education of the public; it is not limited to education delivered by government employees in state-owned buildings.

Mayville draws on a variety of tropes in the first paragraph:  "In place of a school system that is publicly funded, democratically governed, and accessible to all, policy entrepreneurs have sought to transform American education into a commodity—something to be bought and sold in a free market."  Let's put aside that systems of state schools in the United States are not, in a meaningful sense, "democratically governed."  Let's also put aside the notion that using market mechanisms, and permitting choice, insidiously transforms education (from what?) into a "commodity." The fact is that the "policy entrepreneurs" in question have sought to expand the range of "publicly funded" educational opportunities and options and thereby to better meet the needs, reflect the values, and empower the decisions of "all".

Mayville also gets the law quite wrong:  "Meanwhile, voucher proponents were energized by landmark decisions of the United States Supreme Court, most notably Espinoza v. Montana in 2020 and Carson v. Makin in 2022, both of which appeared to remove constitutional obstacles to the use of public dollars for private religious education."  In fact, as MOJ readers probably know, "the use of public dollars for private religious education" (again, this misstates the issue:  school choice involves using "public" dollars, to which parents who choose religious rather than government schools are no less entitled, for education, provided by non-state schools) has been, in various circumstances, constitutionally permissible for decades.  Espinoza and Carson -- correctly -- affirmed that governments may not single out religious private schools, as opposed to other non-state schools, for discriminations.

The piece continues with various false political-advocacy claims, and recounts efforts to block school-choice (and preserve the interests of those who benefit from the current monopoly), and descends into various teacher-union talking points.  None of this kind of thing is new, but what does seem new, and disappointing, is that the piece -- without any engagement with Catholic Social Teaching -- ran in one the longest running Catholic journals.

Announcing The Mattone Center for Law and Religion

Some happy news for our Center for Law and Religion (press release here), which I co-direct with Mark Movsesian. The Center has been named after Denise and Michael Mattone (classes of 1990 and 1991 respectively) in recognition of their transformative, multi-million dollar gift. We are deeply grateful and look forward to exciting times ahead for the Center.

Coming up on 20 years (!) of Mirror of Justice

This blog launched a gabillion years ago -- well, on February 3, 2004 -- with this post.  My own first (substantive-ish) post was this one, on "Law and Moral Anthropology". A bit:

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).

According to the Robots, we've had going-on 7 million pages views and over 16,000 posts here.  Not all of them have been about New Urbanism, or Christ the King, or the judicial murder of Henry Garnet (even if, from my own blog-work, it might seem that way). 

We all (because of Twitter/X, Facebook, arthritis, etc.) blog less than we used to; some past contributors have moved on; the "issues" have changed . . . heck, we are on our third pope! (And, several of our original bloggers are now presidents of Catholic universities!)  Many of us have changed institutions, and jobs . . . and retired. And, of course, may eternal light shine on our former co-blogger, Fr. Araujo.

For my own part, I continue to obsess over questions having to do with Catholic institutions, and with the way these institutions are shaped, pushed, supported, thwarted, etc. by the law.  I continue to be interested in the ways that law mediates the relationships among "church," "state," and "society." Certainly, in recent years, the renewed interest in "integralism" has . . . affected the conversations about these relationships. 

The "anthropological" question still seems central, to me.  Any "Catholic legal theory" has to include, or incorporate, it seems, an account of what it means to be human, of what a "person" is.  (My friend Carter Snead's recent book on this question, in the context of public bioethics, is outstanding.) Today, even more so than in 2004, it seems as though the Catholic account is contested -- maybe even on the ropes.  Rather than being "everlasting splendours" -- created, loved, and sustained by God -- we are loosely connected, shifting, coagulations of identities, preferences, and performances.  What can law do -- how can law deal -- with such things? I'm not sure. Stay tuned! 

Remarks at the Philos Foundation/Franciscan University conference on Catholic-Jewish Relations

Remarks at the Philos Foundation/Franciscan University of Steubenville Conference on Catholic-Jewish Relations, November 2023

Robert P. George

We are meeting in the wake of the horrific attacks by Hamas terrorists on innocent Israeli Jews and others in Israel. The brutal murders, rapes, and kidnappings have outraged the sensibilities of decent people of every faith and shade of belief. Shockingly, however, both here in the United States and abroad the tragedy unfolding in the Holy Land has brought back onto the stage open expression of the vilest forms of anti-Semitism—from academics and public figures blaming Israel itself for October 7^th, to crowds in the street chanting “gas the Jews.”

I hope it goes without saying to a Christian audience that we, as followers of Jesus, must reject anti-Semitism and, indeed, all forms of ethnic, racial, and religious bigotry. But beyond that, it is incumbent upon us to be outspoken against such bigotry and in defense of its victims.

One of the great stains on the history of Christianity is the contempt—and sometimes worse—that some Christians, including some leaders of the Church, have over the centuries expressed for Jews and Judaism. Catholics were never required as a matter of doctrine to hold anti-Jewish attitudes or support, much less participate in, the persecution of Jews. For centuries, however, the posture of the Catholic Church as an institution, and other Christian ecclesial communities, towards the Jewish faith and the Jewish people was decidedly negative—often hostile.

In the wake of the Holocaust, this began to change. No doubt part of the explanation is that Catholics and other Christians, especially those in leadership positions in the Church, rightly perceived that, though the Nazis were profoundly anti-Christian, the long history of European Christian hostility to Jews helped to shape the conditions that made the murder of Jews on an industrial scale by Hitler and his thugs possible.

To their credit, Catholics and other Christians, and many Church leaders, were represented among those who courageously protected, and in many cases rescued, Jewish victims of the Holocaust. Many of the Jews who survived attribute their survival to Christians, ranging from peasants and laborers who took in Jewish neighbors to the Pope himself, on whose orders Jews were hidden in convents and other religious houses.

The post-Holocaust period leading up to the Second Vatican Council became a time of deep reflection for the Catholic Church in particular, and the occasion for a profound examination of conscience—and the historical record. This bore fruit in the sections on Jews and Judaism of the conciliar document known as Nostra Aetate, the declaration on the Church’s understanding of, and relationship with, non-Christian religions.

Nostra Aetate once and for all repudiated the idea of Jewish collective guilt and the outrageous slander that “the Jews” killed Christ or were “accursed” or “rejected by God,” because the Jewish people as a whole did not accept Jesus as the Messiah. It condemned, categorically, all forms of anti-Semitism and discrimination against Jews. What’s more, it expressly affirmed that there is a “common patrimony” and, indeed, a “spiritual bond”—something not merely historical, though rooted in historical reality—uniting Christians (“the people of the New Covenant”) with Jews (“Abraham’s stock”). Perhaps most importantly, quoting the Jewish Christian St. Paul, it refers to the Jewish people as the “good olive branch onto which has been grafted the wild shoot, the Gentiles.”

Nostra Aetate turned out to be only the beginning of the development of Catholic teaching on Jews and Judaism. Within a decade-and-a-half of its ratification and promulgation by Pope Paul VI as the official teaching of the Church, Karol Woytila, the Archbishop of Cracow in Poland, would become Pope. As John Paul II, he would use Nostra Aetate as the foundation for further elaboration of the Church’s teaching, working out the fuller implications of the Vatican Council’s declaration.

It is important to understand that what concerned John Paul in this matter was above all theological, not sociological or political. He sought to understand, and to teach, the truth about how the Church properly understands and relates herself to Jews and Judaism. There were options on the table here—judgments to be made, if the topic was to be addressed at all. And John Paul made his judgments, exercising his full authority to declare the mind of Christ as Christ’s Vicar, Supreme Pontiff of the Universal Church.

One option would have been to say that God’s covenant with the Jews had been abrogated when the Jewish people as a whole did not join the Christian Church, but we should be nice to Jews anyway, and avoid speaking disparagingly of their religion, since after all, we’ve been awfully cruel to them over the centuries, and we’d have a better chance of winning them over by being kind.

This was not the path he took or the judgment he made. This was not the mind of Christ.

Rather, he spoke of the Jews as “the people of the original Covenant.” Indeed, his exact words were “our kindred nation of the original Covenant.” To make himself even clearer, he formally declared that God’s covenant with the Jews “has never been revoked.” In 1986, speaking to leaders of the Australian Jewish community during a visit to that country, John Paul went still further, declaring the covenant to be not only still in force, but irrevocable.

“The Catholic faith is rooted in the eternal truths of the Hebrew Scriptures and in the irrevocable covenant made with Abraham. We too gratefully hold these same truths of our Jewish heritage and look upon you as our brothers and sisters.”

The references to “our Jewish heritage” and to the Jewish people as “our brothers and sisters” are particularly noteworthy.

In one of the most important acts of his long and remarkably consequential pontificate, both those concepts would again be center stage when John Paul made his historic visit, also in 1986, to the Great Synagogue of Rome—the first by any pope—where he made the following profound declaration:

“The Jewish religion is not extrinsic to us, but in a certain way is intrinsic to our own religion, With Judaism we have a relationship we do not have with any other religion. You are our dearly beloved brothers, and in a certain way our elder brothers.”

Driving the point home, John Paul greeted Jewish rabbis in a meeting in Assisi in 1993 as “our dearly beloved brothers of the ancient covenant never broken and never to be broken.”

Benedict XVI and Francis have, of course, stood by the teachings of Nostra Aetate and of John Paul II—the teachings of the Church. So will their successors. These are magisterial teachings—declarations of the mind of Christ.

Obviously, contemporary Judaism and Christianity have important differences—above all the question of whether Jesus of Nazareth is or is not the Messiah promised to Israel, the incarnate son of God who suffered and died in atonement for our sins and who by his cross and resurrection triumphs over sin and death. Neither the Second Vatican Council nor John Paul II and his successors deny these differences, paper them over, or treat them as insignificant.

They have led some Catholics to suppose that if, as Catholics of course believe, the Church is right on these questions then Judaism as such, as it is practiced today, is of no special spiritual standing or importance, that “living Judaism” has no role or mission, that God is no longer in that special form of relationship called “covenant” with the Jews, that the Jewish religion has been “superseded” by Christianity.

This is not the teaching of the Catholic Church—and faithful Catholics, by definition, want to be guided by the teaching of the Church. Faithful Catholics will therefore affirm, with the Council and with the papal magisterium, that the Jewish people are indeed “the good olive tree onto which the wild shoot of the Gentiles has been grafted,” that God’s original Covenant with his chosen people is unbroken and unbreakable, that our bond with the Jewish people is a spiritual bond, rooted in a common spiritual patrimony, and that their Jewish neighbors are indeed our brothers and sisters in faith.

What is more, no faithful Catholic, no Catholic who believes, and is loyal to, the gospel as proclaimed by the Church, will bear in his or her heart any hostility to people because they are Jewish or any contempt for the Jewish people and their religion. Nor will he or she quietly tolerate expressions of animosity or hatred for Jews and Judaism.

Obviously, this does not mean that a faithful Catholic may not criticize individuals who happen to be Jewish on the same grounds that he would criticize anyone else. Nor does it mean that Catholics must agree with, or may not criticize, policies of governments of Israel. Jews themselves, including Israeli Jews, do not refrain, from criticizing such policies when they believe criticism is merited. At the same time, a faithful Catholic will be very careful never to accept anti-Jewish animus masquerading as policy differences with governments of the Jewish state.

Once again I quote John Paul II:

“In the face of the risk of a resurgence and spread of anti-Semitic feelings, attitudes and initiatives, of which disquieting signs are to be seen today … we must teach consciences to consider anti-Semitism and all forms of racism as sins against God and humanity.”

It was under John Paul II that the Catholic Church established full diplomatic relations with the State of Israel, something Israel had sought from the founding of the modern state in 1948, but had not been achieved due to disputes over non-theological questions. Here is what the Pope said when interviewed by Tad Szulc for an American magazine:

“It must be understood that the Jews, who two thousand years were dispersed among the nations of the world, decided to return to the land of their ancestors. This is their right … recognized from the outset by the Holy See, and the act of establishing diplomatic relations is simply an international affirmation of that relationship.”

Does the Pope’s teaching here bind the consciences of Catholics to agree with him that the Jewish people have, strictly speaking, a right to establish a modern state in their ancestral homeland? Like John Paull II, I myself support the state of Israel. But I cannot claim that Catholics are bound by his words to agree. In this context, he was speaking as a head of state, not proclaiming theological truths. He himself would, I have no doubt, acknowledge that, and with it the right of Catholics who in good conscience see that matter differently to dissent.

Even for such Catholics, however, I reiterate the point I made a moment ago. While criticism of Israel, or any political entity, is in bounds, hostility or contempt for Jews and living Judaism masquerading as mere political differences with the Israeli government or state, is out of bounds.

I want to conclude my reflection today on a point of some pride. I’m proud of how the Catholic community of Princeton has responded to the October 7 massacre of Jews in Israel and the anti-Semitism on campuses and elsewhere that has been expressed in its wake. Fr Zachary Swantek, my university’s Catholic chaplain, issued this statement:

The Aquinas Institute, Princeton University’s center for Catholic life, stands in prayerful solidarity with the Jewish people—our “elder brothers in faith”—at this time of loss and grieving. The Catholic community was shocked and appalled by the barbaric terrorist attacks on innocent Jews, including defenseless children and elderly people, in Israel. These attacks—including murders, rapes, and kidnappings—were timed to occur on the Sabbath and on the holiday of Simchat Torah when the Jewish people, whom we Catholics recognize in our Easter liturgy as “first to hear the Word of God,” remember the giving of the Torah to their ancestors. We offer our deepest condolences to the victims and their families and we wish particularly to assure our local Jewish community here in Princeton of our fervent prayers and support.

Let this be the message of all Catholics and all Christians—everywhere—to our dear brothers and sisters of the ancient Covenant.

Book Award for "Religious Liberty in a Polarized Age"

I'm very gratified and humbled to report that my book Religious Liberty in a Polarized Age (Eerdmans Publishing 2023) has won an award in the 2024 Christianity Today Book Awards: the Award of Merit (2d place) in the Politics and Public Life category. The awards reflect, as the CT editors' subtitle puts it, "the books most likely to shape evangelical life, thought, and culture."

I also greatly appreciate the kind endorsement from one of the judges, Katie Frugé, director of the Center for Cultural Engagement for Texas Baptists:

Religious liberty is a fundamental part of the American political order. But in many current conversations, it has taken on a controversial edge, often functioning as a flash point in our culture wars. In this thorough book, Berg argues that religious liberty, rather than being a prescription of uniformity, is both a remedy for divisiveness and an essential safeguard for genuine pluralism and cultural diversity. Religious Liberty in a Polarized Age is a must-read for all who find themselves engaging in the public square, and it gives valuable insight into the current legal and ideological landscape. 

I'm grateful to the Eerdmans editorial team. to John Witte for including it in Emory's Law and Religion series, and to many colleagues including several on MOJ for reading chapters, discussing ideas, and giving encouragement. 

I very much hope that the book will in some way fulfill the editors' statement by helping evangelicals, Catholics, and many others defend strong religious liberty in a way that is persuasive in our divided society.

My Remarks on Prof. Robert George's "Making Men Moral" at 30 Years

I was delighted and honored to participate in a two-day conference marking the 30th anniversary of Professor Robert George's deeply important book, Making Men Moral: Civil Liberties and Public Morality, organized by the Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University of America, Columbus School of Law, Pepperdine University's School of Public Policy, and the American Enterprise Institute.

I was joined by my friends, Professors Joel Alicea and Steven Smith, with Judge Thomas Griffith moderating, on the final panel concerning constitutional theory. The recording, which I've posted below, begins at 6:49:29 and my own presentation starts at 7:06:35. But I very highly recommend all of the panel presentations and discussions. Every one is worth it.

 

 

Gun Ownership for Self-Defense: Murphy Institute Program on "Hot Topics, Cool Talk"

One of the hats that I wear is that of co-director of the Murphy Institute for Catholic Thought, Law & Public Policy at the University of St. Thomas. A key mission of our institute is to encourage civil discussion of controversial topics modeled by those who disagree on a "hot topic." Last month, I spoke at one of our programs, along with my colleague Julie Jonas, on whether it is right to own a gun for self-defense. The program is now available on video at this link.

 

 

Panel event TODAY at Notre Dame: "The Rising Tide of Antisemitism on American Campuses and Beyond"

Notre Dame Law School and our Religious Liberty Initiative are hosting TODAY an important, if distressingly timely, event on "the rising tide of antisemitism on American Campuses and Beyond."  (I should note that, unlike far too many University presidents, our own president, Fr. John Jenkins, was a lead signatory on a strong statement condemning the 10/7 terror-murders by Hamas and supporting Israel's right to exist and to defend itself.) (The event will be live-streamed.)

n November 30, Notre Dame Law School Professors Avishalom Tor and Stephanie Barclay will host the event, "The Rising Tide of Antisemitism on American Campuses and Beyond" at the McCartan Courtroom in Eck Hall of Law.

The panel discussion includes a keynote address delivered by Professor Ruth Wisse, Martin Peretz Professor of Yiddish Literature and Comparative Literature Emerita at Harvard University.

The panelists include:

Ken Marcus, Esq., Chairman of the Louis D. Brandeis Center for Human Rights Under Law
Most Reverend Robert J. McClory, Bishop of the Diocese of Gary
Professor Jeffrey Veidlinger, Joseph Brodsky Collegiate Professor of History and Judaic Studies at the University of Michigan

The event will begin with an introduction from Professor Avishalom Tor, Professor of Law and Director of the Notre Dame Program on Law and Market Behavior (ND LAMB) at Notre Dame Law School.

The opening remarks will be delivered by Dean G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

The panel discussion will be moderated by Professor Stephanie Barclay, Professor of Law at Notre Dame Law School and Faculty Director of the Notre Dame Religious Liberty Initiative.

Attendees will be asked to present their Notre Dame ID card. Backpacks and bags will not be allowed in the courtroom.

1140 Eck Hall will be reserved as the overflow room where the livestream of the event will be playing.

Viva Cristo Rey!

In my experience, homilists in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

Pushaw on "Defending Dobbs"

Prof. Robert Pushaw (Pepperdine) has a comprehensive and magisterial article, "Defending Dobbs", posted. A perfect gift for your irritating, Casey-loving uncle at Thanksgiving! Here is the abstract:

In short, the Court is on the right track in cases like Dobbs by retreating from eccentric, unreviewable, common law policymaking and instead focusing on the Constitution itself.

Alas, average Americans, politicians, pundits, and even lawyers rarely read Court opinions but instead care only about whether they personally agree with the outcome, as the reaction to Dobbs illustrates. One can hardly blame them, as the Court’s constitutional opinions have often featured legal window dressing for results already reached on political or ideological grounds. Therefore, the current majority of Justices must illuminate the public about the Court’s proper role in interpreting the Constitution as law. The Court tried to do so in Dobbs, without the Chief Justice’s support and without widespread popular approval. Hence, its educational task will be formidable, and perhaps impossible.

The foregoing themes will be detailed in four Parts. Part II examines the Court’s discovery in 1965 of a constitutional right to marital privacy, its awkward common law extension of that right to include abortion in Roe, and attempts by Justices and scholars to bolster Roe’s shaky constitutional footing. Part III describes how the three concurring Justices in Casey concocted an unprecedented version of stare decisis that allowed them to purport to follow Roe while substantially changing its legal framework. Part IV demonstrates that the Justices applied Casey’s malleable “undue burden” approach to reach any results they desired, as illustrated in cases concerning laws that either banned late-term abortions or that mandated certain safety standards for abortion providers. Part V analyzes Dobbs and defends the decision as restoring the idea of the Constitution as law.