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.

Thursday, June 11, 2020

A Bit of Unbidden Advice for Biden

As politicos speculate about Joe Biden's pick for VP, I'll just put my suggestion out there: Katrina Jackson of Louisiana, smart, courageous, "whole life" African American Democrat and chief sponsor of the law that is now before the Court in June Medical. She took down the house at the March for Life this year, singing the praises of the pro-life legislature of her state: "Every day that I walk into the state capitol, I am greeted by pro-lifers regardless of whether they’re black, white, Republican, Democrat, male, female.” 

The Advocate reports

Throughout her eight years in the state Legislature, the Monroe Democrat has been a leader in the Legislative Women's Caucus and Legislative Black Caucus. She's made impassioned pleas for restoring voting rights to convicted felons. She has sided with gun restrictions. She's joined efforts to abolish the death penalty. And she supports increasing the state’s minimum wage -- just to name a few of the positions she shares with the more liberal wing of her party.

But when it comes to abortion, she’s established herself as a leading voice —not just on the state level but on a national stage — in the fight to bring an end to what she has said she considers "a modern-day genocide."

The state senator "sees no conflict between her opposition to abortion and the core values of her party since she sees abortion as a tool of racial and economic oppression."

It's just that Biden seemed to understood all this himself back when. Testifying in favor of the Pregnancy Discrimination Act in 1977, Biden said, "In a very real-world-sense what this denial of freedom [because of discrimination] means is that many women, especially low income women, may be discouraged from carrying their pregnancy to term. To put it bluntly they will be encouraged to choose abortion as a means of surviving economically." 

But I suppose abortion can't be a tool of oppression any more because, well, it's "health care." Hogwash. 

 

Wednesday, June 10, 2020

Executive order could jump-start the cause of global religious freedom

Notre Dame’s Daniel Philpott authored an article in America that addresses a recent executive order and its connection to the persecution of Uighur Muslims in China. Philpott is correct when he says that this executive order has received little attention.

Has anyone read the executive order? Religious freedom advocates might well be frustrated that tear gas and controversy occluded a measure whose very purpose is to lift the cause of religious freedom out of the shadows. The second sentence of the order contains words that these advocates have been waiting for years to hear a president utter: “Religious freedom for all people worldwide is a foreign policy priority of the United States, and the United States will respect and vigorously promote this freedom.”

Full article here.

Tuesday, June 9, 2020

Some advice for my students, myself, and everyone ...

My advice to my students is the same as my advice to myself--and to everyone: Seek the truth. Speak the truth as best you understand it. Do not permit yourself to be bullied into silence. Do not allow yourself to be shamed into saying things you don't believe or expressing yourself inauthentically--by, for example, embracing movements or endorsing slogans about which you have reservations. Do not let fear of the mob or lust for acceptance or applause--or the desire to get ahead--dictate what you say and don't say.

When you feel the temptation to "go along to get along," resist it. (You may find the words "get thee behind me, Satan" helpful.)

Do what you think is right, with (as Lincoln said) "firmness in the right, as God gives us to see the right." But do not immunize your views and actions from criticism. Remind yourself--often--of your own fallibility. Engage those who do not share your views and be open to their questions and challenges. Respect others and do not let disagreement destroy friendships or prevent them from being formed.

Do not demonize thoughtful people--you will find there are many--who arrive at conclusions different from yours on important questions. It is possible that they are right, or partially right, and your view should be abandoned or revised. Avoid wrapping your emotions so tightly around your convictions that you become a dogmatist. Try your best to avoid looking at things through an ideological lens or some particular narrative. Otherwise you will interpret everything you "see" as reinforcing what you already believe. Examine things from different angles and perspectives. Don't allow yourself to grow so deeply attached to your opinions that you favor them over truth itself. Falling in love with your opinions will blind you to truth. Contrary to popular belief, a self-critical spirit does not induce paralysis. Strive to be your own best critic.

Think for yourself. Never outsource that job. Shun conformism and groupthink. In fact, learn to shudder when you see them. They are the road to Hell. Don't be a knee-jerk contrarian. Don't be a knee-jerk anything. But remember that the crowd is often wrong. History is replete with examples--tragic ones.

Bear constantly in mind that though misfortune or evildoers can take nearly everything else from you, they cannot take something inestimably precious: your integrity. That is something entirely in your hands and under your control. If it is lost, it is because you gave it up. Hold onto it tightly; never yield it.

Teach your children well.

Monday, June 8, 2020

China makes preaching patriotism compulsory to reopen churches

Catholics are upset about a directive from China’s communist government asking priests to “preach on patriotism” as a condition for reopening liturgical services, suspended earlier this year because of the COVID-19 pandemic.

Full article at Crux.

Friday, June 5, 2020

Dean Marcus Cole, "I am George Floyd. Except, I can breathe. And I can do something."

My friend (and now, my boss at Notre Dame Law School) Marcus Cole has written an essay reflecting on the killing of George Floyd and on his own personal experiences with violent racism.  Apologies for the long post, but I'm just pasting it (with his permission):

I am George Floyd. Except, I can breathe. And I can do something.
G. Marcus Cole


Over the past several days, I have received numerous messages of care and support from
friends, neighbors, and acquaintances, each of whom simply wanted to express their concern for
how I might be feeling in the wake of the murder of George Floyd. For many, I am perhaps one of
the only African-American men in their social or business circles. Others, especially those who
know me well, are cognizant of my own personal experiences with racial violence. Their
expressions of love and support are rooted in the fact that the circumstances surrounding the deaths
of George Floyd and Ahmaud Arbery are strikingly similar to my own accounts of an attack on
my father over fifty years ago, one I witnessed as a little boy. What my friends may not know, but
surely suspect, is that each report of racial violence at the hands of a police officer or group of men
brings to the surface the vivid memories of that terrible night.

On a hot summer Friday evening, my little sister asked my parents for strawberries. We
lived in a predominantly Orthodox Jewish neighborhood in Pittsburgh, Pennsylvania, and so all of
the stores were closed. But my sister wanted strawberries, and my father wanted to get them for
her. So, he loaded me, my sister, and my baby brother into the back seat of our car, and drove to
another neighborhood to get strawberries. As we returned home, my father noticed that we were
being followed by another car. Suddenly, that other car swerved in front of us and stopped, forcing
our car to halt at the curb. In an instant, three white men, all in their twenties, jumped out of their
car and rushed to ours. They dragged my father out of the car, and began to beat him with tire
irons, a crow bar, and a baseball bat. They did this in full view of his three little children. When
neighbors came out, the three men jumped back into their car and sped off, leaving my father for
dead on the hood of our car. I can still see his hand reaching for me against the windshield covered
with his blood.

While my father survived that night, he lived the rest of his life with a surgically
reconstructed eye socket, complete with a plate in his face that set off metal detectors. But his were
not the only scars that those men left. If it were not for our neighbors, I often wonder whether my
little sister, baby brother and I would have survived that night. I often think about my failure to
remember the license plate number when asked by the police. And while I can still see the taillights
of the car through that bloody windshield, I know that those men will never have to answer for
what they did to us. At least not in this life.

It would be one thing if I could have been assured then, or even now, that such a thing
could never happen again. My own experience proves that it can.
As an African-American man, I have had the experience of being pulled over by a police
officer, with no apparent or expressed reason for the stop. I have been berated and verbally abused,
without receiving a ticket or a warning. The most scarring of these events occurred in front of my
two little boys, who are now grown, African-American men themselves. The police officer was
intent on nothing more than humiliating and emasculating me in front of my small children, hoping
to provoke me to respond. At that moment, I remember thinking that the most important thing I
could do for my sons was to survive the encounter. Still, I have often thought about what lasting
scars may have cut into their psyche by watching what that officer did to me that night. I often
wonder what my sons think of me, as a man, and as their protector, knowing that I could not fight
back.

Yes, I am alive, and George Floyd is dead. I can breathe; he cannot. But just because a
police officer did not murder me or my children does not mean that he did not harm us.
Like many African-American men, my experiences are far too common. While they have
never left me, these memories are all too frequently brought back to the surface by watching the
videos that have become routine on American televisions and mobile telephones. The callous
murders of unarmed men like Ahmaud Arbery and George Floyd are real for me. That could have
been my father. That could have been me. That could be either one of my sons. And in a very real
sense, like many other African-American men, I am George Floyd. Except, I can breathe. And I
can do something. I must do something.

While my education and position do not grant me immunity from racial violence, they do
place me in a position to do something about it.

I am a lawyer, a law professor, and Dean of one of the nation’s leading law schools. As the
Dean of Notre Dame Law School, I have a special allegiance to the legacy of Father Theodore
Hesburgh. In addition to his role as the longtime President of the University of Notre Dame, Father
Hesburgh was the Chair of the United States Commission on Civil Rights. When his stance for
social justice caused President Richard Nixon to demand his resignation from the Commission,
Father Hesburgh continued his efforts by founding the Center for Civil Rights at Notre Dame Law
School. Early in its existence, the Center broadened its advocacy to International Human Rights.

Today, Notre Dame Law School equips lawyers from all around the world with the training and
tools they need to fight for human rights. The murder of George Floyd has shown us that we must
also cast our gaze closer to home.

It is urgent that we recognize that human rights are under threat all around the world,
including here in the United States. This reality must be acknowledged, and addressed. To do so,
I want to restore Father Hesburgh’s original vision for Notre Dame Law School by taking three
steps.

First, I will work with my faculty colleagues at Notre Dame to restore Father Hesburgh’s
vision for our Master of Laws in Human Rights. This program will continue to train lawyers from
around the world, and also lawyers interested in advancing the fight for human rights here in the
United States. We will fully fund students selected to train at Notre Dame Law School for a career
defending civil and human rights in the United States, in the same way that we do for those training
to defend human rights in other countries.

Second, I will work with Notre Dame faculty, alumni, and benefactors to fully fund
fellowships for, and actively recruit, exceptional applicants for our Juris Doctor program
committed to the cause of civil rights. Our goal will be to provide Notre Dame lawyers for every
community in this country to stand vigilant against violations of civil and human rights, wherever
those threats might arise.

Third, I will ask the Notre Dame Law School faculty to establish a new Exoneration Law
Clinic, aimed at releasing from the criminal justice system those who are victims of prosecutorial
or police misconduct. We will return fathers and mothers to their sons and daughters, particularly
when their only “crime” was to be born the wrong color.

These are things that I, in my position, can do. But it is not enough. I cannot do this alone.

Each of us must do what we can, wherever we are.

One thing that each and every one of us can do is to end the cycle of hate by ending the
separation that leads to it. This racial separation and violence will not end until we stop waiting
for African-Americans to enter our circles. Each of us needs to get to know people who differ from
us. We must all make a conscious decision and effort to expand our circles.

The Rev. Dr. Martin Luther King, Jr. spoke in King Chapel at Cornell College, Mount
Vernon, Iowa, on Oct. 15, 1962. He said,

I am convinced that men hate each other because they fear each other. They fear each
other because they don’t know each other, and they don’t know each other because they
don’t communicate with each other, and they don’t communicate with each other because
they are separated from each other.

Each one of us can choose to finally end hate, by ending this separation. We must do
something. This is something each one of us can do.

I am committed to doing three things to change this world for the better. Please join me.
What three things can you do to make this world a better place? How can I help you?

Cloutier on experts, prudence, science, and uncertainty

I appreciated David Cloutier's piece in the current issue of Commonweal, "What the Experts Can't Tell Us."  (In several respects, Cloutier's piece is consonant with the recent New York Times op-ed by the President of the University of Notre Dame, John Jenkins.)  Here's a bit, from Cloutier:

. . . “What should we do?” is never just a scientific question; it’s also a moral one. The misleading identification of prudent public policy with attention to empirical data is deeply problematic in our present situation, for two reasons.

First, it obscures the uncertainty and provisionality of the data itself. Scientific research is a long, messy process of conjecture and refutation. . . .

Even if we had perfect data, however, governing would still require more than just public-health predictions. Some leaders confuse political prudence with what we might call “bureaucratic prudence,” or what Thomas Aquinas calls partial prudence: its error, Aquinas says, is to “take for an end not the common end of all human life, but of some particular affair.” The good bureaucrat is an expert narrowly concerned with his or her own area of expertise. We need good experts—good economists and doctors and statisticians. But such expertise, however necessary, is insufficient to answer questions that are properly political, questions that affect the whole community. For that, you also need political prudence.

To call it “political” is to say it is “for the polis,” which Aristotle defines as the “complete” community. What distinguishes the polis is that it is not a group or society aimed at some specific end, but includes all ends needed for human flourishing.

Thursday, June 4, 2020

Amicus Brief for Overruling Employment Division v. Smith

In Fulton v. Philadelphia, the case about foster care, religious liberty, and LGBT nondiscrimination, the Supreme Court is (among other things) reconsidering Employment Division v. Smith. As most MOJ readers will know, for 30 years Smith has served as a precedent limiting the fundamental civil liberty of religious exercise, for everyone but particularly for a wide range of minority and unpopular faiths (which can include familiar religious minorities but also larger groups whose views are deeply unpopular in particular locations and institutional settings).

Doug Laycock and I have written, with co-counsel Kim Colby, an amicus brief arguing for overruling Smith. We filed on behalf of the Christian Legal Society and other groups Christian and Jewish. From the beginning of the summary of argument:

       I. Smith’s unprotective rule conflicts with constitutional text. When a law as applied makes a religious practice illegal, it is a law “prohibiting the free exercise [of religion],” whether or not it also has other applications.

       II. If the Free Exercise Clause doesn’t apply to neutral and generally applicable laws, it cannot serve its original purposes. Those purposes include protecting individual conscience and preventing human suffering, social conflict, and persecution.

         A. In the eighteenth century, every colony found that free exercise required exempting dissenters from oaths, military service, and other requirements that burdened their religious practices. Those laws, although neutral and generally applicable, overrode conscience, caused psychological suffering and loss of liberty or property, inflamed social conflict, and discouraged people from settling or remaining in the colony.

         B. Free-exercise exemptions are still needed today. Generally applicable laws without exemptions coerce conscience and cause Americans to suffer for their faith. In today’s atmosphere of cultural and political polarization, exemptions are needed to calm fear and resentment and reduce social conflict.

We then summarize other sections of the brief. But on the final quoted sentence above, let me quote a little from the full argument (below; cites in footnotes omitted). America's commitment to religious liberty was a response to the coercion and violence stemming from the fear- and resentment-based polarization of the 16th to 18th centuries.

Resentment and fear certainly operate in today’s political and cultural environment. Americans of different political parties now distrust each other more than at any time in the last fifty years. “[P]oliticians need only incite fear and anger toward the opposing party to win and maintain power.” “Confrontational politics” causes “voters to develop increasingly negative views of the opposing party.” Religious disagreements are an important component of this polarization.

       These developments make strong constitutional protections for religious liberty as important as ever. First, in an atmosphere of fear and distrust, people are especially likely to perceive threats to their religious practices as threats to their overall identity. Historic religious minorities fear that laws restricting their practices reflect the growing hostility of the majority. Conservative Christians fear that some applications of antidiscrimination laws pose existential threats to their institutions and to individuals in business and the professions.

       Vigorous protection of religious liberty calms polarization by reducing people’s “existential fear that a hostile majority will successfully attack their core commitments.” Protecting religious practice gives people space in civil society, not just to hold beliefs but to live by them.

       Second, negative polarization reduces the likelihood that the political process will accommodate the
needs of religious minorities. The side of the political divide that holds power often has no sympathy for the
predicament the other side faces. Culturally conservative places have little sympathy for Muslims, Native Americans, or other historic religious minorities. Culturally progressive places have little sympathy for conservative Christians. Thus, even when balanced solutions to  religious-liberty conflicts exist, the political process doesn’t reach them. In recent years, even state versions of RFRA—laws that once passed with near unanimity—have been blocked by the polarization over LGBT rights and religious liberty.

Wednesday, June 3, 2020

Judge John Noonan on Development of Moral Doctrine and Capital Punishment

Berkeley Law held a marvelous conference last Fall in honor of Judge John T. Noonan, Jr. (1926-2017),  for whom I clerked 1993-1994.  The clerkship with John Noonan was one of the great experiences of my life, and so I considered it a singular honor to be invited to deliver a paper about the man from whom I learned so much first as a student of his many studies, then as his law clerk, and finally as a conversation partner about the widest range of things.  Noonan was a great judge, a polymath, an original thinker,  a fine and gentle man, and a faithful Catholic.  I am forever grateful for all of the time I had with him.   The abstract of the paper, "John Noonan on Development of Moral Doctrine and Capital Punishment: A Cautionary Tribute from the Time of Pope Francis," follows:

John Noonan (1926-2017) was a giant in American Law. A distinguished judge of the U.S. Court of Appeals for the Ninth Circuit for three decades, he was also a scholar of the first rank. From his Holmes Lectures at Harvard in 1972 to his capstone book A Church That Can and Cannot Change (2005), Noonan famously defended the thesis that "the central problem of the legal enterprise is the relation of love to power." This paper explores Noonan's understanding of how the moral demands of love both emerge from and drive the development of moral doctrine in the tradition that was his own, the Catholic tradition. The paper begins by laying out Noonan's account of how moral doctrine ought to develop and then applies that normative account to Pope Francis's recent teaching, in apparent contradiction of all previous popes and many saints and doctors of the Church, that capital punishment is now "inadmissible." The question addressed is what Catholics are to do, according to Noonan, with a papal judgment that capital punishment is "inadmissible" yet not, apparently, malum in se. Reaching the conclusion that Noonan's norms for development in morals are radical in their implications for change in the Catholic Church, the paper concludes by asking whether Noonan has not unintentionally approved a papacy unbounded. 

The paper is available here.  

Vita Institute 2020

Notre Dame's Vita Institute will offer a special 5-part webinar series on the fundamental life issues, presented by premier Notre Dame Vita Institute faculty! This free series of lectures accompanied by live Q&A will explore the philosophical, biological, legal, theological, and sociological foundations of the pro-life issues with a focus on the beginning of life. Each evening's session will last 75 minutes.

Registration (available soon) is necessary to join in the webinar – you can attend one or all of the sessions as your schedule allows. Those who register will also enjoy access to the entire series after the presentations are complete (for a limited time).

Link here: https://ethicscenter.nd.edu/events/2020/06/15/vita-institute-2020-night-1/

 

Schedule of Presentations:

Monday, June 15:
"Abortion: The Philosophical Arguments" by Francis Beckwith, Baylor University

Tuesday, June 16:
"When Does Human Life Begin? The Scientific Evidence" by Rev. Nicanor Austriaco, O.P., Providence College

Wednesday, June 17:
"U.S. Abortion Law and Policy" by O. Carter Snead, Notre Dame Law School

Thursday, June 18:
"Feminism and Abortion" by Jessica Keating, Notre Dame Office of Life and Human Dignity

Friday, June 19:
"Resisting A Throw-Away Culture" by Rev. John Paul Kimes, Notre Dame Law School

Tuesday, June 2, 2020

Call for Papers: Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the eleventh 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 2020.  The prize will be awarded at the 2021 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2020.