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, September 9, 2015

Lee Strang to be installed as Stoepler Professor of Law and Values

By Rick Garnett

Hearty congratulations to Prof. Lee Strang for the well-deserved honor of being named the John W. Stoepler Professor of Law and Values.  Lee will be delivering his installation lecture on September 21, on "Public Universities as Places of Constrained Debate:  A Home for People of Good Will, Including Religious People."  More here:

Professor Strang is the author of more than 20 law review publications, a constitutional law casebook, as well as several book chapters and book reviews. He has published in the fields of constitutional law and interpretation, property law, and religion and the First Amendment. Among other scholarly projects, he is currently editing the second edition of his casebook for LexisNexis, writing a book titled “Originalism’s Promise and Its Limits,” and authoring a book on the history of Catholic legal education in the United States. He frequently presents at scholarly conferences and participates in debates at law schools across the country. He is also regularly quoted in the media. Professor Strang was named the College’s director of faculty research in 2014. In fall 2015 he will be a visiting scholar at the Georgetown Center for the Constitution, where he will complete his book on originalism.

Outstanding.

In Advance of the World Meeting of Families

By Erika Bachiochi

Here's an article the folks at the Cardinal Newman Society did on my upcoming talk at the World Meeting of Families: "No Strings Attached: Responses to the Hook Up Culture." My talk actually focuses less on education than this piece may indicate, but it was great to have the opportunity to express what I see to be yet another byproduct of a strong liberal arts education: sexual integrity. 

 

Tuesday, September 8, 2015

Rod Dreher on Kim Davis, religious-freedom challenges, and picking battles

By Rick Garnett

Rod Dreher's piece at The American Conservative ("What Hill Do We Die On, Then?") is worth reading and taking seriously, I think.  I do not for a moment agree with those who seem to think that Kim Davis should lose (a) because she's been divorced or (b) automatically because she's a public official, and I believe that, even in cases like hers, it should be possible to craft exemptions and extend accommodations.  That said, Dreher seems on the right track when he says:  

So, if Kim Davis isn’t a hill to die on, what is? It’s a fair question. Broadly speaking, my answer is this: when they start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology. This is a bright red line — and it’s a fight in which we might yet win  meaningful victories, given the strong precedents in constitutional jurisprudence.

But court decisions do not come from some Platonic realm; judges are shaped by the same cultural forces that shape all of us. Many, many Americans — certainly those in the media, and other opinion-shaping institutions — see our stance as motivated solely by bigotry, and therefore morally illegitimate. These judges, and the elected representatives who appoint them, will lose the ability to understand why “bigotry” should be tolerated. . . .

There's more.  

Reflections on a shared mission

By Rob Vischer

Last week St. Thomas Law School's Murphy Institute co-hosted a conference with the Von Hugel Institute at St. Edmund's College of Cambridge University.  At the conference dinner, I offered brief remarks on why such partnerships are so important:

My colleagues and I are grateful for the hospitality you’ve shown us, and for the time and effort you’ve invested in helping us organize this conference on the religious and moral dimensions of questions regarding the patentability of life products and processes. It is not often I feel almost apologetic explaining that we represent a 130-year old university, but by Cambridge standards, I feel obliged to reassure you that we are really here for the long haul and are not just a flash in the pan. This collaboration between our institutions is well-suited to the test of time for reasons that warrant at least a few moments of reflection.

 

The University of St. Thomas School of Law has a mission statement that dedicates us to “the integration of faith and reason in the search for truth through a focus on morality and social justice.”  One of the many ways we try to live out that mission is through the work of the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy.  The Murphy Institute’s work, in turn, is greatly enhanced through institutional partnerships, such as the one we are building with the Von Hugel Institute here at St. Edmund’s College at Cambridge University.  As a preface for my toast, I’d like to articulate three reasons why this partnership is so crucial to our work.

 

First, this partnership will produce a broader and richer conversation. As a gathered assembly of law professors, theologians, philosophers, practicing attorneys, and policy advocates, I hope we can agree that conversations matter; the conversation has intrinsic value that is not contingent on any particular outcome or lack thereof.  Both the Murphy and Von Hugel Institutes are committed to bringing insights from the Catholic intellectual tradition into some of our most pressing legal and policy conversations – conversations where, too often, such insights are raised only on the margins, if acknowledged at all.  By partnering, we can widen the circle of participation, expand our platform, and reach new venues.

 

Second, this partnership will produce insights of greater scholarly depth and real-world impact.  The concepts we explore – human dignity, the preferential option for the poor, the universal destination of goods, solidarity, and subsidiarity, among many others – can fruitfully be engaged by individual scholars on their own initiative.  But these concepts are sufficiently important to warrant sustained and serious engagement over generations of scholars – a quality of engagement that can best be facilitated by institutions.  By partnering, we can leverage our distinctive strengths, pool resources, and tap into new circles of expertise and influence.

 

Third, this partnership can be a source of mutual encouragement, support and even accountability as we work to stay faithful to our missions.  Higher education is not immune from the general pressure in our society to produce measurable outcomes in the most efficient way possible.  There’s nothing inherently wrong with assessment or efficiency, but we need to be careful that this narrowing focus does not allow technical questions of “how” to obscure deeper questions of “why.”  As we’ve already seen at this conference, our mission is the impetus for big questions.  What does it mean for law if all creation is a gift?  What is the nature of the human person, and why should the political community care?  Is human dignity an infinitely malleable concept, or does it have an unshakeable core that can shed light on our most intractable conflicts and confusions?  These are just a few of the questions that may fall out of favor within the surrounding academic and policy-making circles, but that we must continue to revisit if we are faithful to our founding visions.

 

Human beings have an infinite capacity to empower our insecurities to distract ourselves from the pursuit of truth.  For academics, the recurring temptation is to chase prestige.  We pursue cleverness for the sake of appearing clever. We strive to be the first to proclaim an idea, not because the idea is worth proclaiming, but because novelty can too often be invoked as a proxy for insight.  Our mission is too important to let this happen.  And so, if you raise your glasses with me, I’d like to toast the new partnership between the Murphy and Von Hugel Institutes; my hope is that the partnership will extend over many years and be marked by a collaborative, thoughtful, and bold stewardship of questions that may otherwise recede from view.

St. Joseph the Worker . . . pray for us!

By Rick Garnett

I'm a day late (I was still reveling -- sorry Michael S. -- in Notre Dame's crushing victory over Texas) but . . .  from St. Joseph County, by the St. Joseph River, this member of St. Joseph Parish, whose kids attend St. Joseph Grade School, St. Joseph Pre-School, and St. Joseph High School says . . . St. Joseph the Worker . . . pray for us!

P.S.:   Have you read Laborem Exercens recently?  Why not?  

Chemerinsky and Goodwin on Religion and Harm

By Rick Garnett

In this article, Profs. Erwin Chemerinsky and Michele Goodwin contend that "Religion Is Not a Basis for Harming Others."  Here's the abstract:

Increasingly, people are claiming that practicing their religion gives them a right to inflict injuries on others. Court clerks assert their religion gives them a right to refuse to give marriage licenses to same sex couples. Businesses claim that their owners’ religious beliefs are a basis for refusing to provide services at same sex weddings. Employers demand the right to deny insurance coverage to employees for contraceptives. Doctors maintain that they may refuse to provide assisted reproductive technology services to single women, lesbians, and same sex couples. Pharmacists want the right to not fill prescriptions that they see as violating their religious beliefs. Parents claim a religious right to restrict their children from receiving medical care, opting instead for prayer. 

Our thesis is that free exercise of religion – whether pursuant to the Constitution or a statute – does not provide a right to inflict injuries on others. One person’s freedom ends when another person will get hurt. As we have written about in the contexts of vaccinations, some states even provide religious exemptions for parents who wish to withhold this important, basic preventative treatment from their children, placing not only their kids, but also others at risk. The use of religion as a means to inflict harm others in these ways is not only disconcerting, but problematic for law and society. 

In this Review Essay we take up Dr. Paul Offit’s book, Bad Faith, where he argues that children are suffering and dying because of their parents’ religious beliefs. We place this discussion in a more explicit legal framework. Our position is not anti-religion and it does not deprive free exercise of religion of meaning. We emphasize that people can believe what they want, worship as they chose, and follow their religious precepts – until and unless this would hurt someone else. We argue that parents have no right to inflict suffering or death on their children in the name of religion.

The authors' focus is primarily on religiously motivated denials of health care to minor children.  And, generally speaking, I'm inclined to agree that parents' religiously motivated opposition to necessary health care for minor children can be overridden.  (This is a separate question, I think, from the question how parents whose religiously  motivated refusals cause harm to their children should be treated by the criminal law.)

As I wrote in my first law review article upon entering law teaching, "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children," a lot depends -- that is, a lot about Chemerinsky's and Goodwin's arguments depend -- on what counts as "harming others."  And, the invocation of a general (and admittedly attractive-sounding) principle like "religion is not a basis for harming others" does not answer this question.  Chemerinsky, I suspect (based on some things he's said and written) believes that allowing children to attend private religious schools "harms" others (both the children to attend the schools and the ones who are "left behind" in government-run schools).  I think he's greatly mistaken about this but, even if I imagined he were right, I would think that "well, I suppose 'religion' therefore sometimes must be a 'basis for harming others' after all."

It's also interesting to note that, for Chemerinsky, constitutional protections like the Freedom of Speech, or the Fourth Amendment, clearly "cause harm to others."  The question, it seems to me, is not simply whether the vindication of one person's constitutional right ever results in undesirable consequences or costs -- clearly, it sometimes will and does -- but is instead about the extent to which we believe that the commitment to constitutional rights justifies the imposition of (some of those) costs.

Brennan on Christian constitutionalism

By Rick Garnett

Here is an interesting and important piece by our own Patrick Brennan, "An Essay on Christian Constitutionalism:  Building in the Divine Style, for the Common Good(s)."  Abstract:

Theocracy is a matter of growing global concern and therefore of renewed academic interest. This paper answers the following question: "What would a Christian constitution, in a predominantly Christian nation, look like?" The paper was prepared for presentation as the Clark Lecture at Rutgers School of Law (Camden), where papers answering the same question with respect to Jewish and Islamic constitutions and cultures, respectively, were also presented.

A Christian constitution would not have as its aim the comparatively anodyne -- and ultimately futile -- business of introducing more "Judeo-Christian values" into the life of the typical nation state. The paper argues that the question presented -- "a Christian constitution" for "a predominantly Christian nation" -- cannot be answered adequately while assuming that the intended project concerns either a "state" in the usual modern sense of the term or a "constitution" in the narrow sense usually used to refer to a nation-state's foundational written document (perhaps in conjunction with its interpretive case law). Instead, the paper argues, the Catholic (not generically Christian) understanding of the demands of divine law (both natural and positive) requires the creation of constitutive documents, institutions, and practices that will have as their aim to create and sustain a commonwealth that creates, entrenches, and sustains the conditions of the common good, that is, the virtuous life of the whole. The paper argues, further, that this will require making the Catholic religion the religion of the state; tolerating practice of other religions so long as such practice does not endanger the common good; and creating lawmaking and enforcing institutions that respect that the supreme law of the land is higher law, never human positive law. 

The paper refutes the modern argument according to which "because the state can know nothing of religion, religion must be private." A Christian constitution will be born from a Christian nation's acknowledgment of its socio-political, and not merely private, obligations to honor the rights of God. As recent experience in the U.S. demonstrates, "the liberty of the Church" proves to be an insufficient juridical category for satisfying even many of the most basic obligations of Catholics (and some other Christians) to practice their faith in its fullness. A Christian constitution will ensure the proper cooperation between the two powers, Church and state, in service of the unity of the social order and of its ultimate end in God.

This is challenging stuff.  And, I think it's crucial that those of us working in American law-and-religion engage Brennan's arguments.  Too often, I fear, we don't.  It's easier, maybe, to simply rule them out of bounds, because they do not accept (or, at least, do not accept uncritically) certain premises of liberalism regarding "neutrality," etc.   (I was reminded, by the way, by Brennan's abstract of T.S. Eliot's Christianity and Culture.)  

Sunday, September 6, 2015

Now Comes the "Museum of the Bible"

By Marc DeGirolami

This story reports on the arrival in Washington, D.C. of a new museum, the "Museum of the Bible," whose collection will include "pieces of the Dead Sea Scrolls, a Gilgamesh tablet, Elvis Presley’s Bible and about 850 manuscripts, 12 of which are in Hebrew and come from China’s Jewish population. A third of the material may be considered Judaica, related to Judaism and the Old Testament, including torahs that survived the Spanish inquisition and the Nazis."

Notwithstanding this scattershot miscellany, the story seems determined to find a controversial separationist church-state angle. It reports that the museum is the creature of Hobby Lobby President Steve Green and that its proposed location near the Mall might well overshadow a downtown skyline that is "dominated by monuments to men." Objections to the museum appear to combine the aesthetic, the religious, and the ideological: e.g., "To many in the scholarly community, the museum seems like an oversize piece of evangelical claptrap"; "The museum will be a living, breathing testament to how American evangelicalism can at once claim it is under siege from secularists, the LGBT rights movement, or feminism — yet also boast of acquiring a prime private perch, strategically located at the nation’s epicenter of law and politics.”

But perhaps all of this is too much fuss over a development that secular critics of the museum might Creation Museum
welcome. Artifacts that get their own museums are often on their way out culturally. Museums generally involve subjects and events that are in some way closed affairs--affairs to be studied and reflected on retrospectively. Proust recognized as much when he spoke of the movement to turn French cathedrals into museums in the early 20th century, which he pronounced "the death of the Cathedral." "Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum."

As for the American religion that needs defending against the assaults of the likes of the museum, that's nearly perfectly summarized in the first paragraph of the story (though the final word "instead" seems out of place):

In Washington, separation of church and state isn’t just a principle of governance, it’s an architectural and geographic rule as well. Pierre L’Enfant envisioned a national church on Eighth Street. A patent office was built on the site instead.

FURTHER NOTE: My colleague, Mark Movsesian, had this comment: "The Museum of Biblical Art, a lovely, small museum in New York, sponsored by the American Bible Society, was forced to close this summer, notwithstanding some excellent exhibits, including one on Donatello. One big problem the museum had, according to Slate, was the “pesky aroma of Christianity,” which apparently put off New York art lovers." 

Saturday, September 5, 2015

God's authority, religious freedom, and civil & natural law

By Rick Garnett

Following up on Howard's and others' posts on the Kim Davis matter:  About 25 years ago, I remember being disappointed that some of then-Judge Clarence Thomas's critics insisted they were nervous about -- or, in some cases, were simply snarky about -- statements and writings of his regarding the importance and relevance of the natural law.  It seemed to me at the time (and still does) that there was nothing particularly remarkable or weird about these views, considered in the broad context of the American legal and political traditions.  But, again, for some of Thomas's critics -- including, interestingly, some of the same people who had, a few years before, professed concern about Judge Bork's statements against the relevance of the natural law -- the fact that Judge Thomas (like Dr. King, etc., etc.) believed that the natural law is real and relevant was thought to be worrisome.

It is similarly disappointing, to me, that some of those (not here!) criticizing Kim Davis's refusal to issue marriage licenses are doing so on the ground that she is not only required by her job description but also -- again, to hear some argue it -- by foundational principles of political morality to comply with every duty imposed on her by the positive law, regardless of any conscientious or religious objections to compliance she might have.  This seems too strong.  I think we can all think of fairly recent instances in which officials have declined to comply with what seemed to be the positive law duties attached to their offices and avoided the kind of condemnation that Davis has been attracting.  

This piece, by Robert Barnes, provides a helpful overview of at least one aspect of the debate ("Legally, 'God's Authority' Is a Tough Issue.")  I spoke with Mr. Barnes -- who is, I think, an excellent reporter on legal and constitutional matters -- for a little while yesterday.  At one point in the piece, I'm cited in the following way:

. . .  Such compromises can be difficult to find. Appeals to “natural law,” and morality, as Davis and Bunning discussed Thursday, are difficult for a judge to assess, said Richard Garnett, a Notre Dame law professor who specializes in religion and the law. . . .

The citation is accurate. It seems to me that, generally speaking, an official who objects on moral grounds to carrying out a positive-law duty should recuse herself or resign (and not refuse to comply with a court order or injunction).  That said, my observation about the difficulty any secular/civil judge faces in dealing directly with a claimant's invocation of natural law came in the context of a broader (and fun) conversation in which, among other things, I said that I see nothing spooky or innovative, in the American tradition -- nothing requiring scare-quotes -- about invoking higher-law standards in the course of morally evaluating the positive law.  As I discussed with Mr. Barnes, it seems to me that a large part of the human-rights enterprise has involved precisely (even if not always overtly) this kind of evaluation.  I believe that the natural law is real and morally binding and that it is entirely appropriate for citizens to do what we reasonably can to make it the case that positive law and policy are consonant with (which, of course, does not mean they should fully capture) the natural law.  In other words, to criticize Davis simply for invoking a higher-law standard is, I think, misguided, even if, in the end, we think that Judge Bunning's rulings are correct. 

Prof. Mark Rienzi, who is also quoted, put things pretty well: 

It is better to base legal arguments on constitutional protections and statutes such as the Religious Freedom Restoration Act, said Mark Rienzi, a Catholic University law professor who is fighting the contraceptive mandate but is not involved in the Davis case.

Judges may have their own ideas of morality, he said, “but I don’t think any of them have the authority to enforce their own moral preferences.”

Patents on Life: the future of life-patenting

By Rob Vischer

As the conference draws to a close, there was a roundtable discussion looking to the future of life-patenting:

Martin Gouldstone, Head of Lifesciences Advisory for BDO, reflected on industry concerns over gene patenting. Government funding of medical research has declined in many countries, and regulatory obstacles to approval have increased (for understandable reasons).  Estimates of the average cost of bringing a drug to market range from $800M to $1.4B and chances of any particular drug making it to market are very small. Industry is under enormous pressure to replace lost revenue as some big-revenue drugs are going off patent. Companies are beginning to pool resources on research and development and are doing swap deals where companies trade inventories to leverage strengths. Genomics revolution is also driving innovation, and it's just beginning. Challenge is keeping up with speed of technological advances. There is also real danger with the innovation --presented with a future in which 3D printing permits individuals to download and create the bubonic plague, for example, the need for strong regulation is obvious.

Dr. Thana Campos, Van Hugel Institute Research Associate, discussed the phenomenon of universities securing patents for the fruit of its research. She explored the tension between the university mission of disseminating/extending knowledge and the premises of the patent regime.  University patents boost university revenue, facilitate more transfer of technology from universities to business partners, and support further innovation and economic development. However, knowledge sharing and spillover are key paths of intellectual development in a university; this is hindered by patents. 

Dr. Calum MacKellar, Director of Research at the Scottish Council on Human Bioethics, served as facilitator, and he prompted discussion by asking whether Dr. Frankenstein should have been permitted to patent his creation.  Paul Heald pointed out that a patent doesn't give him the right to make the monster or let the monster run amok; it only empowers Dr. Frankenstein to prevent others from making his monster. The problem is not patentability.

A former patent judge asked why churches don't participate in the patent process itself, raising moral concerns as part of the process.  A bioethicist speculated that the issues are sufficiently murky morally and technically complicated that churches don't feel comfortable jumping into the process in any particular case.  A bishop in the audience observed that, at least in the U.K., people will listen to lay experts more than they will listen to bishops.  Another representative of the Church pointed out that the Church is heavily engaged at the level of principle, and he was met with a response that engagement at that level is not sufficient.

Bishop John Sherrington recognized the need for the Church to translate its usual concepts (e.g., common good) into terms that resonate more broadly in these debates. He also reminded participants of Pope Francis's admonition to recognize the real persons before us as the starting point in addressing social issues.

The conversation was robust and relevant. As MoJ's Tom Berg observed in his closing remarks, the Church's rich history of reflection on the meaning of property and economic life, its interest in rigorous and empirical argument, and its global dimension make the Church an essential partner in these conversations. 

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