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.

Wednesday, July 15, 2015

An erroneous allegation of an "erroneous claim of anti-Catholic discrimination"

Prof. Robert Goldstein (UCLA) has posted a paper, "The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination."  In my view, there is a lot in the paper that is valuable and insightful.  For example, Prof. Goldstein emphasizes the "structural" dimension of our no-establishment rule and also the importance of broadening the religious-freedom narrative to include 19th century church-state conflicts in Europe.   Where the piece goes wrong, in my view -- that is, its "erroneous claim" -- is in endorsing the argument that it is wrong to emphasize the importance of anti-Catholicism in the development of Establishment Clause doctrine, or in the school-funding and Blaine Amendment controversies, because what some of us (me, for example:  here and here) call anti-Catholicism is really just a manifestation of "a popular constitutional commitment to liberal democracy; that commitment involved opposition to the goals of the ultramontane Church, which linked its establishment and authority as the one true church to its anti-liberal and anti-democratic politics."  But, anti-Catholicism preceded, by a lot, Mirari Vos, and pre-dated, by a lot, 19th century American reactions to, say, the 19th century popes' struggles during the Risorgimento (or the Lateran Accords with Mussolini).  And, the efforts in the piece to defend Justice Hugo Black and author Paul Blanshard's American Freedom and Catholic Power from anti-Catholicism charges strike me as strange and, certainly, unsuccessful.  

All that said, the closing section includes a long discussion of Dignitatis Humanae (happy birthday!) and John Courtney Murray, which is always a nice thing to see in a law review!

https://mirrorofjustice.blogs.com/mirrorofjustice/2015/07/an-erroneous-allegation-of-an-erroneous-claim-of-anti-catholic-discrimination.html

Garnett, Rick | Permalink