Mirror of Justice

As I mentioned a few days ago, the Typepad platform (which has long hosted the Mirror of Justice blog) is shutting down. I am working on "exporting" -- and trying to save in a searchable and readable form -- our two-decades-worth of posts and conversations, and I will spare readers the gory details of my efforts to deal with those managing Typepad's disappearance. Please keep an eye on my Twitter/X account, or on the webpage of the Notre Dame Program on Church, State & Society, for updates and more information.

I am very grateful to the many colleagues and friends who have participated in this effort along the way. And, I'm grateful to the many tens of thousands of readers who have checked in, or followed us closely.  I'd like to "sign off" with just three quick items:

First, here is a short essay, called "The Sign of the Cross and Jurisprudence," which I've made available to my students in every class I've taught at Notre Dame since 1999. 

Second, here are three quotes, which I include on the front page of all my syllabi:

There are no ordinary people.

You have never talked to a mere mortal.

Nations, cultures, arts, civilizations - these are mortal,

and their life is to ours as the life of a gnat.

But it is immortals whom we joke with, work with, marry, snub and exploit –

immortal horrors or everlasting splendors. 

            C.S. Lewis

 Abandonment of the rules produces monsters; so does neglect of persons.

            Judge John T. Noonan           

Gradually it was disclosed to me 

that the line separating good and evil passes not through states, 

nor between classes, nor between political parties either – 

but right through every human heart[.]

            Aleksandr Solzhenitsyn

Third, here is one of my very first MOJ posts, on a theme that, I fear, I came back to with irritating regularity:

One of our shared goals for this blog is to . . . "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

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).

In one short article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?

Our Lady, Mirror of Justice, pray for us!

September 15, 2025 in Garnett, Rick | Permalink | Comments (0)

A few days ago, I received a notice from Typepad (the platform that has long hosted MOJ) that informed me it is shutting down. Gremlins, no doubt.  I am working on trying to save the 21 years of Mirror of Justice content, and move it someplace else where it will be accessible.  Stay tuned.  And, in case this site is not accessible, look for me on Twitter, @rickgarnett, or MOJ's own Twitter account, @mirrorjustice, for updates. You can also email me at Notre Dame Law School, or check out the website of the Notre Dame Program on Church, State & Society.

A long, long time ago, then-Dean Mark Sargent approached me with the idea of a blog (at the time, it was an edgy and exotic thing!) dedicated to "Catholic legal theory".  Millions of page visits, and many thousands of posts, and a wide range of bloggers,  six presidential elections, and three popes later . . . here we are.  I am very grateful to all those who have contributed, commented, and shared over the years. I encourage all our readers to continue following the work, writing, and thought of the many MOJ contributors, in all their many venues.

Holy Mary, Mirror of Justice, you reflect Jesus even more beautifully than the moon reflects the rays of the sun, pray for us that we too may be a mirror of your Son.

September 6, 2025 in Garnett, Rick | Permalink | Comments (0)

I have a new paper that considers the problem of essences in the law. It uses the concepts of "person" and "religion" to make a case that legal essences are crucial if the law is to cohere. But it is not so easy to come up with such essences today, in part because of what the paper calls "the downward spiral of inessential legal concepts." Here's the abstract:

While American law continues to use the terms "person" and "religion," their meanings in different legal contexts suffer from a growing incoherence whose source is similar: a lack of essential attributes. An essential legal attribute is a characteristic without which something cannot be a member of a given legal category-in this case, the category of "person" or "religion." Essential attributes are valuable because they make sense of the law and give coherence to its rules. They tell us what is centrally salient or decisive in the concepts the law employs, giving those concepts form, limits, and intelligibility. Concepts with no essences can become unstable over time and are perhaps even bound at some point to collapse. 

 

I take one example from the law of torts and another from the law of religious freedom to illustrate that confusion about essential attributes in our legal concepts, and so the problem of potential incoherence, cuts across divides of both scholarship/doctrine and private/public law. I tentatively suggest some essential attributes of persons and religion that the law of torts and religious liberty, respectively, might adopt—the relational attribute of being able to inflict and suffer wrongs for the concept of a person in tort law, and the attribute of collective or group worship of a transcendent deity or force for the concept of religion in the law of religious freedom. Though there will be marginal cases that generate line-drawing debates, the mere existence of margins does not vitiate the need for legal essences.

 

But a problem is lurking. It turns out that the lack of essences in the legal concepts of person and religion is connected to the lack of essences in still other legal categories within these domains—for example, the concepts of “wrongdoing” in torts, or “worship” (or perhaps even “church” or “deity”) in the law of religious freedom, and probably more. This problem--the downward spiral of inessential legal concepts--together with broader resistance to essentialism in the law, may be so intractable as to render the prospects for re-introducing any legal essences into the law unlikely.

August 25, 2025 in DeGirolami, Marc | Permalink

Prof. David Opderbeck (Seton Hall) has shared with me a Conference Call for Papers for an event he is organizing on "Faith, Values, and the Rule of Law."  Here is an excerpt:

The Program on Faith, Values, and the Rule of Law at Seton Hall University School of Law is
pleased to announce its inaugural academic conference to occur on February 4-5 at the Law
School’s Newark, New Jersey campus.

The American Bar Association defines the “rule of law” as a set of principles under which “no
one is above the law, everyone is treated equally under the law, everyone is held accountable
to the same laws, there are clear and fair processes for enforcing laws, there is an
independent judiciary, and human rights are guaranteed for all.” (ABA Rule of Law page.) In
the United States and around the world these principles are now under serious threat.

The concept of the rule of law is often considered a product of modern liberalism. Its
historical and ethical roots, however, run much deeper. The world’s great religious,
theological, and philosophical traditions have all contributed to the understanding of justice
and human dignity that underpins modern rule of law principles. Indeed, it might be that any
meaningful concept of the rule of law finally implicates theistic, or at least transcendent,
perspectives. . . . 

To submit an abstract for consideration, please use this form. The deadline for consideration
is November 1, 2025. Limited travel funding is available and can be requested through the
abstract submission form. There is no publication requirement, although we may seek a
suitable venue for publication of selected papers. If you have any questions, please contact
Brett Canaval, Administrative Director of the Program on Faith, Values, and the Rule of Law,
at brett.canaval@shu.edu.

This looks fascinating. I'm sure that Prof. Opderbeck can answer any questions!

August 24, 2025 in Garnett, Rick | Permalink | Comments (0)

I have a short piece up at SCOTUSblog on the status of the "Lemon Test" and the recent enactments in a few states requiring the display of the Ten Commandments in public-school classrooms.  Here is a bit:

Millions of American kids are returning to school this month, and to classrooms decorated with carefully curated displays, images, pictures, and posters. This décor is as much a part of teachers’ plans and aims as textbooks, worksheets, and lesson plans. It is meant to send messages – about history and values, about role models and recycling.
 
Over the past 15 months, legislatures in several states have called for particular additions to the communicative content of classroom walls. Specifically, in Louisiana, and then in Arkansas and Texas, laws have been enacted that mandate displays of the Ten Commandments. A wrinkle, though – a possible bump in the legal road for these messaging moves – is the fact that the Supreme Court, in a 1980 case called Stone v. Graham, struck down just such a requirement in Kentucky, concluding that it violated the First Amendment’s prohibition on establishments of religion because it had “no secular legislative purpose” and “serve[d] no [] educational function.”

Perhaps not surprisingly, then, a federal trial court blocked the Louisiana law, relying on Stone, and in late June a federal appeals court agreed. The Arkansas law was similarly enjoined earlier this month, and legal challenges to the Texas law are pending.

What is going on? Why did these states, in a kind of “blast from the past,” enact a demand that seems so clearly to conflict with settled and familiar court precedent? Answering these questions first takes us back to a 1971 case called Lemon v. Kurtzman and then forward to the court’s closely watched and much anticipated 2022 ruling in Kennedy v. Bremerton School District. . . .

. . . What does it mean for a law’s purpose, or for a law, or for a government action, or indeed for anything, to be “secular”? Sure, the Ten Commandments are “religious,” but they are also displayed in Spanish marble in the “secular” courtroom where the justices sit. The word is often thought to mean “anti-religious,” but that’s not right (even if anti-clericalism and hostility to religious belief and actors often travel with ideological secularism). The Catholic Church has had “secular” priests – that is, priests who do not belong to religious orders – for centuries. If we connect the term to its Latin origins, it simply denotes the things of this world, or age, as opposed to those of the next. Religion, though, is very much a part of this age, even as it concerns also and anticipates, in many cases, the next.

Government action that protects religious freedom relates to religion, and yet it still has a “secular” purpose; in our tradition, legally protected religious liberty is seen as conducive to human flourishing and healthy communities in this world. Government decisions to cooperate with, and to support financially and otherwise, the this-worldly work of religious agencies, schools, and hospitals has a “secular” purpose. Teaching children, even in state schools, what they need to know to intelligently read Augustine and Milton, Lincoln and King, has a “secular” purpose. Does posting the Ten Commandments, in one form or another, on the wall of a state-school classroom? We will find out soon.

August 21, 2025 in Garnett, Rick | Permalink

Ed Whelan has this helpful report, at National Review, on a recent ministerial-exception ruling by the Ninth Circuit.  As Whelan notes, among the welcome aspects of the ruling is the fact that it was unanimous, and that all 3 of the judges on the panel were appointed by Democratic presidents.

August 10, 2025 | Permalink | Comments (0)

I have a short opinion piece up at the SCOTUSblog site, about the Supreme Court's recent decision in Mahmoud.  It has the (admittedly provocative) title, "Is Religious Freedom Possible in State Schools."  (It's kind of a follow-up on a law-review essay I did, years ago, on the Morse v. Frederick case -- that is, the "Bong Hits for Jesus" case.)  Here is the abstract from the essay:

The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the basic educational mission of public schools, and what are the implications of this mission for officials' authority and students' free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the mission of the public schools? We all recall Justice Jackson's stirring rhetoric in the West Virginia flag-salute case: If there is any fixed star in our constitutional constellation, he proclaimed, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.] But, is this really true - could it be true? - in public schools?

From the Mahmoud piece, here's a bit:

. . . the “fit” between the nature and mission of state schooling, on the one hand, and our constitutional commitment to religious liberty, on the other, is an awkward one. Think about some of the pervasive and powerful themes in our law of religious liberty: The government is supposed to be “neutral” with respect to the content, and especially with respect to the viewpoint, of religious expression and creedal profession. It is supposed to manage “forums” in a (generally) “neutral” way. Until recently, there was an establishment clause rule that did not permit governments to “endorse” any religious teachings. As was noted earlier, it is supposed to be foundational for us that “no official, high or petty,” may prescribe what is “orthodox.” Courts regularly and closely police policies for “coercion” in religious matters. And, when it comes to the free exercise of religion, our law reflects a general openness to accommodations, exceptions, and special treatment (even when they are not required).

None of this translates very well into the context of state schooling. Public education exists precisely to be not-neutral, to promote “orthodoxy,” to shape belief, to form minds, to forge loyalties, and to mold commitments. 

July 25, 2025 in Garnett, Rick | Permalink

The Program on Church, State & Society, at Notre Dame Law School, sponsors an annual writing competition for law students and recent graduates.  It's been edifying, over the years, reading the submissions.  Here's a story about this year's winners!

July 17, 2025 in Garnett, Rick | Permalink

I am including below the text of our announcement for our symposium next spring, which will consider the theme of law and virtue. Elizabeth Kirk and I are thrilled that Professor Mary Ann Glendon will keynote the conference.

Here I want to emphasize that we are especially looking for early career scholars (with or without academic position!) to submit abstracts for this conference. If selected, we'll cover expenses and provide an honorarium. A great chance for younger scholars thinking about these questions to come and think together!

******

The Center for Law and the Human Person announces the theme for its Fourth Annual Spring Symposium: “Now We Know that the Law is Good”: On Law and Virtue. The symposium will take place March 26-27, 2026 at the Catholic University of America Columbus School of Law. We are delighted to announce that Mary Ann Glendon, the Learned Hand Professor of Law emerita at Harvard University and a former U.S. Ambassador to the Holy See, will deliver the symposium’s public keynote lecture. Past speakers have included James Hankins, Yuval Levin, Catherine Pakaluk, Carter Snead, and Carl Trueman. 

This age-old question of the relationship between law and virtue has become fresh and urgent once again in our time. Whether the issue is the new hunger for education, legal and otherwise, that centers on the classical and Christian values of truth, knowledge, and human well being; or the conditions of responsible and genuine citizenship in a fracturing polity; or the fundamental moral and political basis of our laws; or the question whether human character is formed by the law or instead shapes it – whether law is “downstream” of culture or the other way around – in these and countless other contexts, we see the reemergence of the perennial problem of the place of virtue in the law and in the world.

In addition to the public keynote lecture, the symposium will also feature several private sessions with scholars who will present their ideas and research. Our aim is to bring together a community of scholars concerned about the disintegration of law, politics, and morality, and who are committed to a rediscovery of classical virtues and a rebuilding of legal and political institutions necessary to cultivating those virtues in lawyers and citizens.

Interested scholars from a range of academic specialties are encouraged to submit an abstract about a topic germane to the symposium’s themes. We particularly encourage early career scholars to submit abstracts. Scholars whose proposals are accepted will be developed into short essays, and will be commented on at the symposium by distinguished scholars in an environment conducive to deep and candid intellectual exchange and to more intimate and collegial collaboration. 

Please submit abstracts of no more than 500 words to the Center’s co-directors, Marc DeGirolami (degirolami@cua.edu) and Elizabeth Kirk (kirke@cua.edu) by September 2, 2025. Notification of acceptance will be e-mailed by October 1, 2025. For each selected presenter, the Center for Law and the Human Person will offer an honorarium and cover reasonable travel and accommodation expenses. 

July 7, 2025 in DeGirolami, Marc | Permalink

I've posted this new paper on SSRN. Abstract:

In recent years, religious-freedom issues have become caught up in the nation’s cycle of political and social polarization. I have argued, on my own and in concert with others, that the only way forward is to protect key interests of both conflicting sides in our major religious-freedom disputes: both Muslim and evangelical Christians, both LGBTQ people and religious conservatives. In past years, the Supreme Court has taken important steps protecting both sides—for example, protecting same-sex couples and traditionalist religious objectors to same-sex relationships. But more recently it has begun reworking significant parts of its jurisprudence about religion, government, and other issues concerning cultural conflict. While continuing to protect free exercise strongly for both institutions and individuals, it has taken a new direction in Establishment Clause cases, focused predominantly on whether “history and tradition” support a government practice or category of practices. The new approach indicates that various practices once likely to be invalidated are now likely to be upheld.

The danger is that key elements of bipartisan protection will be reversed under the auspices of the “history and tradition” approach. The new decisions have already approved some measures  exposing nonbelievers and members of minority faiths to majoritarian official religious expression and even some kinds of official coercion. Those decisions, however, might have limited effects. This Article discusses those limits and explains why the Court should not go further. It should not extend its approval of official religious expression into the public-school classroom—the issue posed by Louisiana’s recent law requiring the posting of the Ten Commandments in all classrooms. The tradition-based approach to unenumerated constitutional rights would probably would not have generated the same-sex marriage right of Obergefell; but the Court should not overturn that decision. And overall, the Court should apply “history and tradition” under the Religion Clauses with sufficient flexibility and generality to achieve the clauses’ key purposes, which include protecting people from suffering for living according to their deepest commitments and preventing the cycles of fear, resentment, and conflict that such suffering brings on. Some such flexibility in analyzing history and tradition provides the best account of the Court’s doctrine strongly protecting free exercise. Similar flexibility should apply in the doctrine protecting against establishments.

June 25, 2025 in Berg, Thomas , Current Affairs , Religion | Permalink

Here is a short piece I did, for the Law & Liberty website, on the recent non-decision in the St. Isidore case.  It's called "Educational Pluralism Delayed".  Here is a bit:

The longstanding American constitutional experiment in religious freedom is not, and never has been, anti-religious. Our governments are “secular,” but they need not and should not be “secularist” in the sense of being hostile to religious institutions and their work and witness in the public square. To be sure, we wisely distinguish between religious and political authorities. We don’t let governors pick bishops, and we don’t let bishops set tax rates. This is what the “separation of church and state,” correctly understood, means. This distinction does not preclude cooperative arrangements between authentically religious schools and governments in the service of opportunity and pluralism.

Although the justices did not reach the merits in the St. Isidore case, their “tie goes to the lower court” order should not be seen as a retreat from settled and sound constitutional principles or as closing the door to innovative policies and programs that expand kids’ access to educational options. There is nothing about public education, properly conceived, that limits it to the work of public employees in government-owned buildings. Children and families benefit, and communities do, too, from pluralism in education. Despite the delay caused by the St. Isidore split, it is increasingly clear that this pluralism is precisely what Americans want.

May 28, 2025 in Garnett, Rick | Permalink

Submissions and nominations of articles are being accepted for the sixteenth 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 2025.  The prize will be awarded at the 2026 AALS Annual Meeting in New Orleans.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu.  The deadline for submissions and nominations is September 1, 2025.

May 27, 2025 in Garnett, Rick | Permalink | Comments (0)

We had the honor, last Fall, of hosting Prof. Steven Smith (University of San Diego) for the annual Rice-Hasson Lecture at Notre Dame Law School.  His talk has been published in the (excellent) Church Life Journal, and you can read it here.  It's called "The American Proposition:  Whose Truths? Which Strategies" and is, obviously, inspired by John Courtney Murray's famous 1960 book, We Hold These Truths.  Here's a bit:

Murray’s interpretation of America reflected . . . a confidence that there is such a thing as truth, including moral and political truth. That humans have some capacity to discern such truth—and to reason about it. That one of those truths—the primary truth, actually—is the reality of a God who takes an interest in the affairs of human beings, including their political affairs. That even under conditions of pluralism, a human community should be based on truth—or on the community’s best efforts to discern and articulate truth. And that the relevant truth would itself prescribe not an imposed orthodoxy but rather freedom—freedom especially in matters of thought, speech, and religion. (This last point, by the way—namely, that the truth prescribes freedom—is central to a very different and important current debate that I will allude to later.)

In a condition of freedom, fallible human beings will disagree about the truth. But they can debate such questions in civil fashion. Or so Murray contended. And civilly engaging your neighbor about fundamental matters on which you disagree is not an affront or an insult; on the contrary, it is a manifestation of respect for your neighbor’s beliefs, cognitive capacities, and character. And this kind of civil engagement about truth is the basis of the American Republic. As Murray put it: “Civilization is formed by men locked together in argument.”

At the time his book appeared, there was nothing especially heterodox about his position. . . . 

May 26, 2025 in Garnett, Rick | Permalink | Comments (0)

Our own Prof. Mary Leary (CUA) has posted a fascinating paper, "Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law."  Here is the abstract:

This year marks the 100^th birthday of one of America’s most influential writers in history – Flannery O’Connor.  Much has been written about the violence in Flannery O’Connor’s work, but relatively little about the criminal and legal aspects of the violence.  This is rather surprising given the author’s documented influence from actual crimes in stories such as A Good Man is Hard to Find and The Partridge Festival.  It is also surprising given her use of crimes (including homicide, fraud, human trafficking) in her work, as well as her particular focus on the marginalized and vulnerable.  O’Connor herself noted that she often used violence to capture her audience’s attention in an effort to ultimately bring them to her point.  This paper explores that influence on her work through original research at the Flannery O’Connor Archives.

However, as these original documents demonstrate,  with all things that involve Flannery O’Connor, there is much more to this examination than simply how she was influenced by criminal events.  With many of these criminal events, the law played a critical role in the violence, often acting as its catalyst.  Furthermore, as with many criminal events, the poor and vulnerable suffered at the hands of an uncaring society.  O’Connor saw this and utilized the criminal law to comment upon this societal reality.  This law played a critical role in her literature not simply as a historical fact or inspiration, but as a silent character.  More to the point, this silent character’s frequent failure to protect the vulnerable is a repeated theme in O’Connor’s fiction. 

This symbiotic relationship between the criminal law, violence, and O’Connor’s fiction is not only one where O’Connor was influenced by and utilized actual crime and violence in her writing.  But it is also one where she can be a profound inspiration and influence on the modern criminal justice system’s advocates.

O’Connor’s vocational approach to her writing has much to offer the modern justice system’s advocates.  Drafts of her talks in the O’Connor Archives demonstrate that she was challenged to write for an audience whose values and modern sensibilities were hostile to her messages of what she called the “prophetic vision” of truth, judgment, grace, and mercy.  The modern criminal justice advocate finds herself similarly challenged.  Tasked with protecting the most vulnerable – often the unseen or undervalued in society – she must convince a jury to see and value such people and to understand the truth of what has occurred enough to do something unpopular in today’s culture: render a judgment.  Presented with unspeakable violence, this advocate must convey it to her audience, the jury, who often is resistant to believing it occurred.  O’Connor frequently wrote about the writer’s “sense of frustration [being] great because [the writer] has to force by whatever means he can this vision on a resisting or a blank audience.” (Catholic Writer in the Protestant South – draft talk for Southern Literary Festival, April 20, 1962) How O’Connor navigated that vocation to bring an audience to a place of understanding people and truth can operate as a significant influence on those today forged with that task.

This paper examines the synergistic relationship between Flannery O’Connor’s fiction, crime, violence, and the criminal law and what it can offer the modern criminal justice system – a system characterized by a search for truth and justice.  It will also suggest that O'Connor offers an inspirational framework for those who participate in the system as advocates for the vulnerable.

May 20, 2025 in Garnett, Rick | Permalink

My friend and colleague Prof. Gerry Bradley has a great review in the latest First Things of a book about a fascinating and crucially important character in U.S. Catholic history -- about whom I didn't know much before the review, I have to admit -- Fr. John Burke.  Here's a bit:

Walter Lippmann, one of the founders of the New Republic and for sixty years a journalistic man-about-the-globe, judged him to be the “most impressive man I have ever met.” Castle confided to his diary that “I should like him and at the same time be afraid of him.” The man was “so adroit and persuasive” that Castle feared “he would make me promise something that I did not want to promise.” This from America’s number two diplomat during the Hoover administration.

The man of whom these notables spoke was not a politician or a bishop or a titan of industry. He never had any money or held an academic position. He was by all accounts—including his own—an introvert, a lover of solitude. He suffered from perennially poor health and endured long periods of rest at doctor’s orders. Born in Manhattan to working-class Irish immigrant parents and educated in local public and parochial schools, he longed throughout his public career to return to his native New York City, to the editorship of the Catholic World magazine, and to his “spiritual family,” comprising devout Catholic women with whom this unmarried man worked and with whom he maintained deep—and transparently chaste—friendships. He tried several times to leave the post that made him collaborator and confidant of Presidents Coolidge and Roosevelt. His episcopal employers refused to accept his resignation. “They said he could come and go to the office as he pleased and take whatever vacations he needed,” writes Douglas Slawson in his magisterial new biography of Fr. John J. Burke. The bishops “simply wanted benefit of his judgment."

Read the whole thing!

May 15, 2025 in Garnett, Rick | Permalink | Comments (0)

The Supreme Court’s decision and opinions in Students for Fair Admissions (2023) got me thinking hard again about questions of basic human equality that I first explored (with Jack Coons) back in By Nature Equal: The Anatomy of a Western Insight (Princeton Univ. Press, 1999).  The result is a new paper, A Constitution for Equals? Building Better than Students for Fair Admissions, which is now available here.  What I have come to understand is the extent to which Enlightenment political philosophers’ claims about our being (in Jeremy Waldron’s phrase) “one another’s equals” were custom-made to fit the lowered purposes of modern political ordering.  Aiming to build better, the paper begins by working dialectically through the contributions of Hobbes, Locke, Montesquieu, the Declaration of Independence, Tocqueville, Lincoln, Harry Jaffa, Michael Zuckert, Anne Phillips, and many others in order to show that human equality properly understood is not, as Harvey Mansfield has warned, a dangerous “half truth.”  Properly understood, basic human equality is, rather, a higher truth — a higher truth that does not require us to be blind to the lesser facts of our important differences and diversity that have their own social purposes in God’s providence.  That higher truth, as Tocqueville saw, is that we are equals because we are all created in the image and likeness of God.  

The aim of the latter portion of my paper is to reground our written Constitution in our unwritten constitution’s commitment to the higher truth of  Christian understanding of our basic human equality amid our important differences.  This effort in regrounding is assisted by the work of Orestes Brownson as well as more recent work by Wilson Carey McWilliams, Peter Lawler, Richard Reinsch, and others.  By reclaiming for our written Constitution a premodern understanding of basic human equality already lodged in our unwritten constitution, we will be better able to solve some of the problems presented in a case like Students for Fair Admissions.  Specifically, questions about university admissions will be answered on the basis of doing justice among human equals who may have very different relevant capacities and, therefore, on the basis of an applicant’s capacity to contribute to the common good of the university community — not on the basis of race.   

May 8, 2025 in Brennan, Patrick | Permalink

Rick, thanks for keeping some content flowing on the blog during this time when others of us have been sporadic!

MOJ readers might be interested in one forthcoming scholarly paper of mine on religious liberty, and three briefs filed recent by the St. Thomas Religious Liberty Appellate Clinic in important current cases.

The paper is for a festschrift in the Journal of Law and Religion on Doug Laycock's monumental body of religious-liberty scholarship and advocacy. It continues my focus on religious liberty and polarization as laid out in my book Religious Liberty in a Polarized Age (Eerdmans). The paper notes that from the 1980s to the mid-2000s  (roughly the first two to three decades of Doug's career), the key Religion Clause question was defining (or critiquing) "neutrality toward religion" and its relation to other prominent values like religious voluntarism or church-state separation; but in the last 15 years or so, the key question has been how religious-liberty questions have become enmeshed in the broader dynamics of political-cultural conflict and polarization. So, from the abstract:

The Article shows how Laycock’s work on Religion Clause neutrality [period I] supports the effective defense of religious liberty in a polarized age [period II]. Substantive neutrality (voluntarism) provides several resources for addressing and mitigating religiously grounded polarization. Perhaps even more important, Laycock called for "aggregating" neutrality: recognizing that any policy can have differing effects on the religious choices of different relevant actors and comparing those effects with the goal of minimizing burdensome effects on religious choices overall. This approach, done with care, can take account of the effect on competing sides. And it can be extended beyond religion to take account of the comparative effects on other choices: for example, on the freedom of both same-sex couples and religious objectors. Thus the approach can be an effective means of addressing polarized conflicts by protecting the core interests of both sides.

The Article concludes with a brief discussion of whether the current Court's increasingly tradition-based approach can allow for this project of considering conflicting interests in a way that protects both sides.

 The briefs are in the following cases (great work on them by clinic students Hayden Cole and Nazeefa Nezami):

     1. Catholic Charities v. Wisconsin Labor & Industry Review Comm. (SCOTUS): This case has multiple issues pitting principles of nondiscrimination among religions and non-entanglement in religious decisions against the state's discretion to draw lines on legislative exemptions. In our brief for Christian Legal Society, InterVarsity, and other student religious groups, we connect the principles of church autonomy and denominational equality to the restrictions and discrimination that such groups face on public university and high-school campuses.  

    2. Owens v. Schuette (6th Circuit): The issue is whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) authorizes money damages as relief against state or local prison officials in their individual capacities. This is an en banc petition in a case where Notre Dame's Religious Liberty Clinic represents the inmate; SCOTUS is considering a cert petition on the issue in another case called Landor.  It's an important issue because damages are sometimes the only effective relief, either because the inmate has suffered primarily a past loss (as when prison guards destroy their religious property) or because (as here) the inmate has been transferred to another facility (or released) and thus injunctive/declaratory claims are moot. The Supreme Court has unanimously held that RFRA authorizes individual-capacity damages suits against federal officials (Tanzin v. Tanvir); our brief, for Asma Uddin and me as amici, runs through the history and context of RFRA and RLUIPA to emphasize how much these two statutes are joined at the hip, meaning that it makes no sense to reach a different result against state/local officials under RLUIPA. 

    3. Fellowship of Christian Athletes v. District of Columbia (D.D.C.): This is another brief about individual-capacity damages suits, this time opposing qualified immunity for DC public-school officials who denied FCA equal status and benefits as a student group despite a wealth of precedent holding that singling out religious student groups violates free exercise, RFRA, free speech, and the Equal Access Act. Again writing on behalf of CLS, InterVarsity, and other student religious groups, we trace the burdens that such groups, and their leaders and members, have faced around the nation and explain why holding individual officials liable provides an important deterrent to violating these rights.

April 23, 2025 in Berg, Thomas , Current Affairs , Religion | Permalink

April 21, 2025 in Garnett, Rick | Permalink | Comments (0)

The Program on Church, State & Society is hosting, again, an essay-writing contest (for law students and recent graduates) on religious-liberty topics.  There's more information here.  Consider submitting a paper!

April 4, 2025 in Garnett, Rick | Permalink

I am a fan of Andy Smarick's Substack, "Governing Right", and particularly appreciated this entry, from a few weeks ago, on Catholic Social Teaching.  Here is a bit:

CST is a sturdy but continuously evolving body of thought that relates to social life. It speaks to the dignity and role of individuals, how we form various associations (e.g., families, organizations, towns), who possesses different types of responsibility and authority, and much more. All of this can inform our understanding of how best to lead in public life.

CST has had a significant influence on my thinking because it is shaped by two quite different but equally valuable lines of reasoning: 1) Immutable moral principles, and 2) the practical wisdom that comes from engaging in social life.

You would, I’m sure, expect the first given that CST is a product of a 2,000-year-old faith tradition. Indeed, CST articulates firm, permanent views on a range of moral issues, like the sanctity of life, the meaning of human flourishing, and the nature of virtuous and improper action.

The second line is less obvious and far less appreciated. It also distinguishes CST from most ideologies purporting to understand and improve society. CST’s practical wisdom comes from the Catholic Church’s millennia-long parish- and diocese-based arrangements and its fundamental commitment to service, particularly of the disadvantaged.

March 26, 2025 in Garnett, Rick | Permalink

Few have written as much -- and, more important, as well -- on church autonomy in American law as has Prof. Carl Esbeck (Missouri). He has posted this new paper, "Church Autonomy, Textualism, and Originalism:  SCOTUS's Use of History to Give Definition to Church-Autonomy Doctrine (which is forthcoming in the Missouri Law Review).  Here is the abstract:

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case of Watson v. Jones (1872), holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the theory of church autonomy took on its most fully developed form as a constitutional immunity from government regulation where it “interferes with the internal governance of the church.”

While the Supreme Court’s general language concerning the scope of this immunity provides helpful starting points, more systemization is needed to solve the inevitable disputes over fine points and close cases. The place to begin is identifying the full subject-matter range of the high court’s caselaw. In such a survey, church autonomy sets apart as immune five individual domains: the resolution of religious questions or disputes; a church’s choice of polity; the administration of rituals and access to sacred places; the terms of employment of clergy and other ministers; and the admission, discipline, and dismissal of church members.

The Hosanna-Tabor Court went on to hold that further refinements concerning the package of lawsuits that fall into one of these zones of church autonomy are to be found by reference to the nation’s founding. In following this interpretive rule, the scope of church autonomy is given definition by events where the founders spurned federal authority by refusing to become engaged with the internal operations of a church. This makes sense because all thirteen states in rebellion had been British colonies, and the Church of England was the archetypical state establishment. As a loyal arm of the Crown, the Church of England’s establishmentarian model was widely distained by American Patriots.

The final part of the article follows the interpretive rule in Hosanna-Tabor by cataloguing events in which prominent individuals, in their roles as continental and later federal officials, declined to exercise authority in circumstances that give definition to the domains of church autonomy. These events, most little known, include a request by New York delegates to have the Continental Congress alter the Anglican Book of Common Prayer; a French proposal forwarded to the Confederation Congress to sanction a Catholic bishopric in America; a request—later waylaid—to that same Congress to approve the opening of a Catholic seminary; and multiple refusals by the Jefferson Administration to get involved in ecclesial appointments and other quarrels internal to the Catholic church in the Louisiana Territory. These examples and others give historical underwriting to church autonomy theory as grounded in the actions of federal officials in the early republic.

As The Man might say, "download it while it's hot!"

March 6, 2025 in Garnett, Rick | Permalink | Comments (0)

Over at First Things, Fr. Sam Conedera has a review of Russ Hittinger's (excellent) new book, "On the Dignity of Society:  Catholic Social Teaching and Natural Law".  Russ is, of course, indispensable reading on both topics.   Here's a bit from the review:

The individual has dignity—he is made in the image of God—both because of the excellence of his rational nature and because he is able to cause good in others. The same, Hittinger argues, is true of the social order. A society is not a mere aggregate.

This understanding of what makes a society is crucial for explaining the relationships among the “three necessary societies,” namely, family, polity, and Church. Each of these societies is grounded in the natural social tendency of the human person; each has ends that are given either by nature or by grace, rather than by human will; and each has a distinctive mode of authority. According to Hittinger, one flaw of political modernity is the failure of states to recognize or respect diverse modes of authority in civil society. The modern state reduces group-persons to mere partnerships, disregarding the principle of subsidiarity, on which different societies—family, Church, and so on—have their own proper functions and their own authority. (Importantly, as Hittinger insists, subsidiarity is about doing things not at the “lowest” level, but at the “proper” level.)

February 26, 2025 in Garnett, Rick | Permalink

This review, at the "Front Porch Republic" blog, by Jon Schaff, of Andrew Willard Jones's new book, The Church Against the State: On Subsidiarity and Solidarity, might be of interest. A bit:

The Church Against the State attempts to lay out a comprehensive Christian political theory that stands in stark contrast to the liberalism that has dominated the Western world for nearly four centuries. In doing so, Jones juxtaposes the commitment to subsidiarity, most thoroughly fleshed out in the Catholic social thought of Pope Pius XI, with the notion of sovereignty, undergirded by the Peace of Westphalia in 1648. What emerges is a stunningly broad and detailed analysis of both liberal and Christian politics. . . . 

Those concerned with the aggressive liberalism of our day while pondering what a Christian politics might look like will benefit from Jones’s expansive knowledge. This book serves as a warning to those Christians who wish to “heighten the contradictions,” to use the tactics of the hostile Left against the Left, who see politics as an “us against them” fight to the death. Jones’s work should caution us against the temptation to use the power of the state to further apparent Christian ends. The politics Jones advocates seems to be one of decentralization married to a hearty evangelization. As Augustine noted, the Christian citizen is actually the best citizen as he has virtue and the common good as his goals. . . .

February 19, 2025 in Books , Garnett, Rick | Permalink | Comments (0)

I'm looking forward (and I'm sure fellow MOJ-er Tom Berg is, too!) to this symposium, being sponsored by the Chicago-Kent Law Review: 

Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.

The public is welcome to sign-up and participate so . . . "see" you there!

February 12, 2025 in Garnett, Rick | Permalink | Comments (0)

In a Ninth Circuit en banc case called Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Judge Patrick Bumatay has (what the kids call) a "banger" of an opinion on the church-autonomy doctrine and the institutional dimension of religious freedom more broadly. It's a must-read for anyone interested in the topic.  

You can read more about the case's background and context at the Becket Fund's website.  Here's just a tiny bit:

That structural rationale persisted throughout the Middle Ages. See Roscoe Pound, A Comparison of Ideals of Law, 47 Harv. L. Rev. 1, 6 (1933) (“In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign ․ was fundamental.”); see also Carl H. Esbeck, The Establishment Clause as Structural Restraint on Government Power, 84 Iowa L. Rev. 1, 50 n.206 (1998).

Take the Investiture Conflict of the 11th century. It typified the battle for church independence. There, the Papacy fought against the Holy Roman Empire for the ability to appoint its own bishops—a power then vested in the emperor. The conflict was “jurisdictional” as the church sought “liberation of the clergy from imperial, royal, and feudal domination and their unification under papal authority.” Gregory A. Kalscheur, S.J., Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject-Matter Jurisdiction, and the Freedom of the Church, 17 Wm. & Mary Bill Rts. J. 43, 61 (2008) (simplified). The church first championed “freedom of the church” because it believed the Pope sovereign over such appointments. See Charles J. Reid, Jr., The Spirit of the Learned Laws, 1 Wash. U. Global Stud. L. Rev. 507, 529 (2002) (quoting the Dictatus Papae to show how the church advocated for “papal sovereignty”); see also Richard W. Garnett, “The Freedom of the Church”: (Towards) an Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33 (2013) (drawing on the Investiture Conflict to delineate the substantive content of libertas ecclesia—“freedom of the church”).

Thus, in both ancient and medieval times, the church's basis for autonomy rested on structural grounds. Because God committed authority over spiritual matters (like the burning of incense or appointment of clergy) exclusively to the church, the state lacked authority over such matters.

Be still, my heart . . . 

February 11, 2025 in Garnett, Rick | Permalink

My friend and colleague John O'Callaghan (Notre Dame, Philosophy) gave a great talk, the other day, at Providence College, on "Aquinas on Compassion and Natural Friendship."

Mercy is often thought of in our culture as an act of forgiveness of some offense, whether civic or personal, that reduces or eliminates punishment that is due for that offense, and is dominated by questions of justice. That sense of mercy is hard to square with other uses of the term that suggest something more like assistance to those in need, as in the religious notion of “works of mercy” directed to the poor and suffering. It is also hard to square with the sense that mercy requires compassion, suffering with another, a compassion that is not necessarily required by forgiveness, and may even be at odds with the justice of punishment. Thomas Aquinas provides an account of mercy that helps us understand how it differs from forgiveness and necessarily involves compassion for those who suffer. The ground for his understanding of mercy is that such compassion is grounded in natural human friendship. But the idea of natural human friendship is perhaps even more at odds with our modern sensibilities in which we typically think that while justice binds us, we are nonetheless free to choose our friends as we like. If Aquinas is correct, we do not have such freedom, and are more bound by mercy grounded in natural friendship than we are by justice.

Check it out!

February 10, 2025 in Garnett, Rick | Permalink | Comments (0)