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, July 2, 2021

Bill Cosby's release and the rule of law

As we begin the 4th of July weekend, we should not celebrate the fact that serial rapist Bill Cosby has been released from prison. His freedom is yet another trauma inflicted on his victims. We should, however, be grateful that we live in a country where the rule of law is followed, even when it results in wrongdoers going free.

Back in 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand reported that Bill Cosby had sexually assaulted her in 2004. After investigating, Castor concluded that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against [him] . . . could be proven beyond a reasonable doubt.” Castor decided that the Commonwealth of Pennsylvania would refrain from prosecuting Cosby, thus allowing him to be forced to testify in a civil suit brought by Constand.

This decision meant that the Fifth Amendment’s privilege against self-incrimination would not be available to Cosby – i.e., there was no possibility of criminal charges being brought based on Constand’s allegations. So Cosby provided four sworn depositions in Constand’s civil suit – not once invoking the Fifth Amendment – and ended up settling the suit for $3.38 million.

After the records of the civil suit were released in 2015, Castor’s successor as District Attorney reopened the criminal investigation of the Constand case despite being warned by Castor that “I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” The criminal case nevertheless proceeded, and the deposition testimony Cosby provided in the earlier civil suit was crucial to the prosecution.

In this week's ruling, the Pennsylvania Supreme Court observed that courts are obligated “to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Society “holds a strong interest in the prosecution of crimes,” but “no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” Accordingly, the Court ruled, Cosby’s convictions and sentence must be vacated.

My favorite explanation of why the rule of law matters is offered by Robert Bolt in “A Man for All Seasons” when he depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law:

William Roper: “So, now you give the Devil the benefit of law!"

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?"


William Roper: “Yes, I'd cut down every law in England to do that!”


Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

American courts must take seriously the rights extended by our Constitution, even when – especially when – the person seeking their protection deserves no public sympathy or solace. I’m not glad that Bill Cosby is free, but I’m glad I live in a country where judges decide his freedom based on what the law requires, not on what they think he – or any of us – deserve.

July 2, 2021 in Vischer, Rob | Permalink

Bruce Frohnen's introduction to Rommen's "The State in Catholic Thought"

After year's of hoarding the Notre Dame Law School library's, I recently bought my own copy of Henrich Rommen's classic The State in Catholic Thought:  A Treatise on Political Philosophy.  The 2016 edition I purchased (published by Cluny Media) comes with an excellent introduction by Prof. Bruce Frohnen, whose work is probably familiar to MOJ readers.  With his permission, I'm posting a little excerpt from that introduction:

Rommen’s task in The State in Catholic Thought is to explain the role the state plays in facilitating ordered pursuit of common goods. The modern nation state in particular too often asserts control over other associations, portraying itself as a single, national "good."  This is the path followed by the tyrannies of the twentieth century against which Rommen struggled.  Those tyrannies included the totalitarian regimes of Hitler, Stalin, and their ilk.  They also included the seemingly more humane regimes of the social democrats, with their utilitarian ethics and hostility toward the higher, more permanent good of the human person. . . . 

In opposition to [social democrats’] false vision of a neutral state, Rommen offers the just social order.  Too often confused with statism and even pursued as a kind of social democracy with confessional window-dressing, the state envisioned by Rommen is, in accordance with Catholic teaching, an accommodating structure serving man’s natural ends.  The state, on this view, works to bring together society’s various communities to reason together and seek common understanding and pursue common ends. It promotes rules ordering their relations with justice, respect for self-government, and attention to the common good.

Get your copy today!

July 2, 2021 in Garnett, Rick | Permalink

Monday, June 28, 2021

Ron DeSantis and the GOP's (literal) demonization of the Left

I've written a new op-ed for Religion News Service:

Earlier this month, Florida Governor Ron DeSantis — viewed as a leading candidate for the 2024 GOP presidential nomination — received several standing ovations during his speech to the Faith and Freedom Coalition’s “Road to Majority” conference. He told the audience that “you got to put on the full armor of God” to “take a stand against the left’s schemes,” for “you will face flaming arrows but take up the shield of faith and fight on.”

This was a reference to a passage in the New Testament in which the Apostle Paul implored the Ephesians to:

“Put on the full armor of God, so that you can take your stand against the devil’s schemes.  For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms. Therefore, put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. … (T)ake up the shield of faith, with which you can extinguish all the flaming arrows of the evil one.”

The dubious interpretive gymnastics required to apply Paul’s spiritual admonition to today’s hyperpartisan political landscape is just the latest example of Republican politicians aggressively merging their political and Christian identities. This isn’t particularly new: America’s politicians have always exploited our faith for votes. What’s different is that the tone of the political discourse has shifted as the religious landscape has changed in some pretty significant ways. 

The first change to keep in mind is that American Christianity is declining. In 2019, 65% of American adults described themselves as Christians, down 12 percentage points over the previous decade. With fewer Christians to offend and more non-Christians in the marketplace, media providers, corporations and universities are staking out positions on “culture war” issues that are in tension with traditional Christian beliefs.

This phenomenon contributes to a perception among many American Christians that they are a persecuted minority surrounded by an increasingly hostile culture. Most white evangelicals today believe that Christians are more likely to face discrimination in the United States than Muslims. If Christians believe they face an existential threat, they will tend to support candidates whose rhetoric matches the gravity of the moment.  

The second change relates to the shift in party coalitions. Today, according to Pew Research, about half of Democratic voters identify as Christian, down from 73% as recently as 2008. The percentage of Democratic voters who are religiously unaffiliated has doubled during that time, from 18% to 38%. The change among Republicans has been more modest: Christians are 79% of Republican voters, down from 87% in 2008. Only 15% of Republican voters are religiously unaffiliated, up from 9% in 2008. 

This shift means that Republican politicians have an incentive to underscore the religious beliefs that most Republican voters hold in common and that many Democratic voters do not. Ezra Klein, in his 2020 book “Why We’re Polarized,” explains that group conflict today is not primarily motivated “by zero-sum collisions over resources or power,” but by the psychological desire to increase difference between the in group and the out group.

The result, according to University of Maryland professor Lilliana Mason in her 2018 book “Uncivil Agreement,” is our current predicament in which “partisan identities fall into alignment with other social identities, stoking our intolerance of each other to levels that are unsupported by our degrees of political disagreement.”

So, it may be in the short-term self-interest of Gov. DeSantis and other GOP presidential prospects to describe policy disagreements with language traditionally reserved for spiritual battles against demonic forces. But that does not mean that such rhetoric is anything but toxic, for both democracy and the public witness of Christians.

Besides portraying the Gospel itself as a partisan proposition, this language ratchets up the perceived stakes of our debates: our political opponents are not merely separated by ideology; they are enemies engaged in spiritual warfare. 

Further, such rhetoric quickly leads to a spirit of self-righteousness. If those who reject our political views are demonic — as Eric Metaxas and Franklin Graham suggested in a 2020 interview regarding opposition to President Trump, for example — then of course we enjoy the satisfaction of knowing that God is on our side. If we refuse to recognize the possibility that our political tribe is just as capable of evil as the other side is, we are denying the reality of sin.

That’s a theological problem, but it’s also a political one. Self-righteousness obscures the mutual fallibility on which the give-and-take of democracy depends. If our tribe is on God’s side and our opponents are on Satan’s, why would we ever consider compromise?

Pushing back against this rhetoric does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.

Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so provided that the religious language is an entry point, not the entirety of the argument.

The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.  

In his 1984 State of the Union address, President Reagan explained: “We must be cautious in claiming that God is on our side, but I think it’s all right to keep asking if we’re on his side.” Though the demographics of the American electorate have changed over the ensuing decades, the underlying principle has not: When we bring our faith into politics, a little humility goes a long way.

June 28, 2021 in Vischer, Rob | Permalink

Closure on the 2020 election

In the past week, three news stories that may have escaped widespread attention are nevertheless crucial to bringing closure to the 2020 presidential election.

First, a Michigan senate committee led by Republicans issued a 35-page report on its investigation of claims made regarding election improprieties and irregularities. The committee found “no evidence of widespread or systematic fraud in Michigan’s prosecution of the 2020 election.” Regarding Antrim County (the county at the center of many claims), the committee found that “all compelling theories that sprang forth from the rumors surrounding Antrim County are diminished so significantly as for it to be a complete waste of time to consider them further.” In conclusion, the committee urged citizens to “be confident the results represent the true results of the ballots cast by the people of Michigan,” and to “use a critical eye and ear toward those who have pushed demonstrably false theories for their own personal gain.”

Second, a New York court suspended Rudy Giuliani from practicing law based on falsehoods he knowingly spread while representing President Trump. Giuliani’s defense was not that his statements were true, but that he did not know they were false at the time he made them. For example, he claimed repeatedly that Pennsylvania sent out 1.8 million absentee ballots before the election, but nearly 2.6 million absentee ballots came in during the election. In reality, 3.08 million absentee ballots were sent out by Pennsylvania. In his disciplinary proceeding, Giuliani said that he relied on an unidentified member of his team who took the information from the Pennsylvania website, which allegedly posted the incorrect information. The court observed that there was no evidence to support Giuliani’s explanation, no screen shot of the website with the mistaken information, no affidavit or other information from the unidentified team member. Giuliani did not bother to contest the court’s observation that his earlier statements were false. There were similar inquiries about his other statements regarding election fraud and irregularities. No one disputed that his statements were false; the only dispute was whether he knew they were false when he made them.

Third, former Attorney General William Barr, one of President Trump’s core loyalists, told reporter Jonathan Karl, regarding the stolen election claims, “It was all bullsh*t.”

Just as President Trump was legitimately elected in 2016, President Biden was legitimately elected in 2020. You may love him, you may hate him, or you may be somewhere in between. But let’s ground our criticisms in reality. We already have plenty of issues to disagree about. The outcome of the 2020 election should not be one of them.

June 28, 2021 in Vischer, Rob | Permalink

Saturday, June 26, 2021

Acker on Fulton, Justice Kavanaugh, and the "Most Favored Organization" Argument

My former student and research assistant, Caleb Acker, has written up some comments on the recent Fulton case, and graciously permitted me to share them:

Fulton Paves the Way for “Most-Favored-Organization” Approach to Free Exercise

In his dissenting opinion to the Court’s denial of the application for injunctive relief in Calvary Chapel Dayton Valley v. Sisolak, Justice Kavanaugh explicitly endorsed Doug Laycock’s “most-favored nation status” approach to Free Exercise. See Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50. In international multilateral treaty-making, a most-favored-nation clause requires one WTO member to accord to every other member the privileges that the member grants to its most-favored nation. Even though each nation retains discretion to favor certain nations as it pleases, it is required by law not to disfavor other nations concerning the same privileges.

Justice Kavanaugh based this First Amendment framework in the “system of individual exemptions” exception to Smith (“the Exception”) established in that case, where a law that requires a decisionmaker to make an “evaluation of the particular justification” for religious conduct triggers strict scrutiny. See Lukumi, 508 U.S. at 537. In cases that “divvy up organizations into a favored or exempt category and a disfavored or non-exempt category,” Justice Kavanaugh argues, Sherbert-Smith requires judges to ask if the law creates a favored or exempt class of organizations and, if so, if religious organizations fall outside that class. In SherbertThomas, and Hobbie, regimes that required government bodies to determine on an individual basis whether religious reasons constituted “no fault” or “good cause” faced strict scrutiny. In other words, the decisionmaker should be required to treat any religious exemption-seeker as favorably as the secular exemption-seeker under Smith.

Josh Blackman has noted the major weakness of Justice Kavanaugh’s approach: its seeming travel beyond the boundaries of Smith’s language. See the extremely helpful Blackman, The ‘Essential’ Free Exercise Clause, 44 Harv. J.L. & Pub. Pol’y 637, 692–95. Blackman understands Justice Scalia to be making no “broad pronouncement about Free Exercise Clause jurisprudence” and to be speaking “about a specific aspect of unemployment compensation.” Id. at 693. By Blackman’s writing earlier this year, the Supreme Court had not expanded the Exception to other contexts, but lower courts (Third, Sixth, and Tenth Circuits) had. Put simply, to Blackman, Justice Kavanaugh’s Most-Favored-Organization approach sounds good, but it is limited to unemployment compensation.

That is, it was limited, until Fulton, where the Court completely unbounded Sherbert-Smith’s Exception, endorsing the expansion to all contexts already undertaken by the lower courts. Just read the Court’s unlimited language: “The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it invites the government to decide which reasons for not complying with the policy are worthy of solicitude.” Fulton, slip op., at 10 (cleaned up). That’s any government mechanism (whatever exactly that will mean), not just an unemployment benefits system. The main holding of Fulton simply made this expansion. “Like the good cause provision in Sherbert, [the Philadelphia policy] incorporates a system of individual exemptions.” Id. at 7.

Going forward, lower courts should completely adopt Justice Kavanaugh’s suggested Calvary Chapel approach through the language of Fulton. That is, if lower courts are confused at how exactly to apply Fulton to their own cases, Justice Kavanaugh’s dissent may be a guiding light of specificity. As he is wont to do, the Justice was certainly trying to give that very kind of guidance in his opinion, equipping judges with a two-step approach. Lower courts should ask whether a policy separates organizations into favored and disfavored categories for exemptions. If so, that obviously creates a “formal mechanism for granting exceptions,” rendering any such policy not generally applicable under Fulton. State governments would then need a compelling interest to refuse to treat religious organizations as Most-Favored Organizations under that policy.

For example, let’s apply Fulton to the Nevada regulations at issue in Calvary Chapel. The governor’s orders divvied up organizations into favored and disfavored organizations through differing population caps. The policy is a formal mechanism allowing higher caps for certain secular organizations while forcing lower caps for certain religious organizations. Governor Sisolak certainly decided which reasons for less regulation were “worthy of solicitude”: economic ones. (Religious reasons were not considered so worthy). Secular organizations were, essentially, given exemptions from the strict 50-person attendance cap levied against churches. Favored = Exempt. The policy was a system of individualized exemptions under Fulton.

As administrative states grow at all levels of government, religious organizations will continue to face state and local governments that place them in disfavored categories (including in ways devised explicitly to get around Fulton). Future claimants, in my view, would be wise to use Justice Kavanaugh’s Most-Favored-Organization approach through Fulton’s language. Favored means exempt, and any formal mechanism for granting exemptions—categorizing organizations as favored—triggers strict scrutiny.

June 26, 2021 in Garnett, Rick | Permalink

Friday, June 25, 2021

ND Religious Liberty Summit

A reminder that the ND Religious Liberty Summit will take place June 28-29. Many of the sessions will be streamed live on the NDLS YouTube channel.

The Notre Dame Religious Liberty Summit will be an annual gathering of the foremost thought leaders on religious liberty. The summit will stimulate engaging conversations between scholars, advocates, and religious leaders about the future of religious liberty in the United States and around the world.


June 25, 2021 | Permalink

Thursday, June 24, 2021

The Tablet's mistake about church-state "separation"

In this editorial ("Bishops must not bar Biden"), the editors of The Tablet say the following:

[The American bishops] want Mr Biden, a practising Catholic, to commit to the repeal of federal laws that allow women access to legal abortion, which he has said he will not do, though he is personally opposed to abortion. The pressure they hope to apply to him by denying his access to Communion is a brazen infringement of the separation of Church and State, guaranteed by the Constitution of the US.

The first sentence inaccurately characterizes the policy matters in question:  President Biden has committed (that is, he has changed his mind about) to change federal policy and to provide public funding for abortions and supports a federal move to displace regulations, in state law, of abortion.  (It is the Supreme Court's interpretation of the Constitution, and not any particular federal laws, that "allow women access" to legal abortion.)  It also reports that the President is "personally opposed to abortion" and while I do not purport to know all that the President believes, it is not clear to me that it is plausible, given his policy positions and his public statements and campaigning on the matter, to describe his view that way.  

The second quoted sentence is entirely mistaken about the "separation of Church and State" which is "guaranteed by the Constitution of the US."  (See Robby George's earlier post, here.)  The Constitution's no-establishment rule has nothing, at all, do to with what religious leaders say to their co-religionists about their moral obligations, including their obligations as public officials.  Although I welcome a concerted and focused effort by the bishops to better teach American Catholics about the Eucharist, I am, as I have said elsewhere, skeptical about the prudence of calls or attempts to deny, publicly, the Eucharist to Catholic political figures who support abortion rights (although these figures are wrong to do so) or who take other policy positions that are clearly immoral.  I am certain, though, that it would not (somehow) violate the Constitution to do so.   

June 24, 2021 in Garnett, Rick | Permalink | Comments (0)

Garnett on the Fulton case

Here is a short piece of mine, at the First Things site, on the Court's recent Fulton decision.  A bit:

[T]here is no getting around the fact that—not always, but sometimes—a “win” in a religious-accommodations case is also a kind of loss. Although most religious-exemption requests do not involve moral challenges to the law in question, some do, and CSS’s does. That is, CSS needs an exemption in order to do its important and generous work because its understanding of marriage and family has been rejected officially.

Most religious exemptions requests do not involve hot-button moral questions or “social issues.” They seem easier to navigate, because the political authority is being asked to incur some cost or inconvenience, or to sacrifice a bit in terms of efficiency and uniformity, but not to abandon an orthodoxy. Increasingly, though, as the understanding of the public interest in preventing invidious discrimination has expanded—for example, to requiring Catholic health-care institutions to perform abortions—exemptions requests are taking on a different character, and are seen as threatening to progressive commitments. Fulton is hardly the end of the matter.

June 24, 2021 in Garnett, Rick | Permalink

Tuesday, June 22, 2021

Amicus Brief on Title IX Exemption

In Maxon v. Fuller Theological Seminary (9th Circuit), two plaintiffs who had been studying for the ministry at Fuller have sued the Seminary under Title IX for dismissing them for entering into same-sex marriages in violation of the institution's student covenant. Fuller has multiple defenses, including the ministerial exception, but one is the Title IX exemption for schools "controlled by a religious organization." The plaintiffs claim that phrase means the school must be controlled by a separate organization in order to qualify for the exemption. The district court said no, holding that the controlling religious organization can be the school's own governing board. That statutory interpretation can stand on its own. But it's also supported by the doctrine of constitutional avoidance, because reading the exception to exclude a seminary or other deeply religious institution merely because it's organizationally independent or nondenominational would create an impermissible denominational preference under decisions like Larson v. Valente--and at the very least would raise "serious, grave" constitutional questions.

That's the argument of the amicus brief that the St. Thomas religious liberty appellate clinic filed on behalf of a host of colleges, K-12 schools, associations of such institutions, and the Christian Legal Society. Becket's pages on the case are here

June 22, 2021 in Berg, Thomas , Current Affairs , Religion | Permalink

Sunday, June 20, 2021

Berg and Laycock on Fulton on SCOTUS Blog

Doug Laycock and I have commentary up about Fulton. The lion's share is some initial thoughts on some of the questions raised in Justice Barrett's concurrence, which obviously lots of people will be aiming to answer.

(FWIW, I've been inactive on the blog because I've been preoccupied with finishing my manuscript, Religious Liberty in a Polarized Age, forthcoming from Eerdmans.)




June 20, 2021 in Berg, Thomas , Current Affairs , Religion | Permalink