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, January 30, 2014

Accommodation is not establishment: Response to Michael Perry et al.

By Rick Garnett

As Michael Perry mentioned, a group of church-state scholars -- which includes, obviously, many friends and colleagues of MOJ -- filed an amicus brief in the Hobby Lobby case, arguing that "permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it."  I continue to think that this brief, which takes the position that a RFRA-mandated accommodation does not violate the Establishment Clause, has the better of the argument.

One difficulty I have with this "accommodation as establishment" argument is that, in my view, the requested (that is, the RFRA-required) accommodation does not actually shift or impose any costs to third-party non-adherents.  As we all tell our students all the time, premises about baselines do a lot of the work in many legal arguments and here, what Michael and his colleagues are framing as a "cost" or "burden" is really the loss of an employer-provided benefit that, under RFRA, is being illegally compelled.  If the employees of Hobby Lobby are being burdened by not receiving from their employer no-cost-sharing contraceptives, it is because the government did not choose a lawful means of providing those no-cost-sharing contraceptives, and not because the employees are being burdened with the "cost" of accommodating Hobby Lobby's religious exercise.

Of course, Marc DeGirolami has made the point better (here) than I just did, and I do not believe that the brief to which Michael linked can withstand the force of Marc's argument.

 

A link to all of the Hobby Lobby amicus briefs

By Rick Garnett

They are here (courtesy of the Becket Fund).

Tuesday, January 28, 2014

Amicus brief of Constitutional Law scholars in Hobby Lobby case

By Rick Garnett

A group of constitutional-law and law-and-religion scholars (including me) filed an amicus brief in the Supreme Court today, arguing that it would not violate the Establishment Clause for the Court to grant relief under RFRA to Hobby Lobby and other plaintiffs.  The brief is available here: Download Hobby Lobby brief.  The brief is a response to the arguments -- which have been mentioned here on MOJ before -- to the contrary of Fred Gedicks, Micah Schwartzman, Nelson Tebbe, and others.

Slate's misleading piece on "creationism in public schools"

By Rick Garnett

The URL for this Slate essay - which purports to be about science education but is really just a re-hashed attack on the idea of school choice -- refers to "creationism in public schools."  The headline, though, is about "publicly funded schools."  And, when one reads the article itself, it turns out that the complaint has to do with schools that are attended by students whose families are benefitting from tax-credit programs and scholarship/voucher programs.  But, of course, the premise of the Court's Zelman decision, and the many precedents on which that decision rests, is that the funds in question belong to the parents -- they and their children are the beneficiaries of a public-welfare program -- and that the funds reach religious schools (where "creationism" may or may not be taught) as a result of the parents', and not the government's choice.  

If the premise of this article were sound, then it could just as well be a piece about how "public schools are preparing children to receive the Eucharist."  But, of course, they are not.

Now, to be clear:  I imagine that the author of the piece and I agree about what should, and should not, be taught in science classes when it comes to the age of the Earth and human origins.  But, again, the title is misleading and the premise is unsound.

Bradley on Notre Dame and "institutional vocation"

By Rick Garnett

Notre Dame senior Michael Bradley has a really nice essay-and-interview up at Ethika Politica called "How (Not) to Think About Notre Dame's Catholic Character."  It it, Bradley reflects on the interesting and important idea of "institutional vocation" and provides a helpful counter-voice to the strident and usually under-informed criticisms of Notre Dame that the University's various missteps and imperfections trigger in the more "conservative" sectors of the Catholic blogosphere.  Here is a bit:

 I would like to see a more integrated institutional witness, one that unites administrators, faculty, and other staff in a vision of the Catholic Church’s mission as being truly normative for the life of the university. As things stand, it often seems as if facets of that mission are viewed as fungible, when the cost of discipleship begins to run high. Again, there are faculty and alums more ably suited to speak to this dynamic. But even a student can see that the Catholic “diamond in the rough” vibrancy at Notre Dame should be not so in-the-rough.

Notre Dame’s institutional vocation is very different from what smaller Catholic universities or colleges are called to be in and for the Church. Not better or worse, but very different. The mistake that many critics of Notre Dame make is to compare it directly to other institutions of Catholic higher education and compare and contrast, often indiscriminately in my opinion, the merits and demerits of life at Notre Dame. But such analyses bespeak a worrisome blindness to institutional vocation.

Yes, there are normative magisterial expressions that ought to govern and guide the life of the university, among which expressions Ex Corde Ecclesiae is foremost. And undeniably, Notre Dame is falling short by ECC standards; that much is obvious in a vacuum.

But, fidelity to the Church qua the Catholic university that Notre Dame is—not as a quasi-institutional “parish,” or “youth group,” or catechesis program, or retreat, or even a smaller Catholic college or less prominent Catholic university—is what should inform analyses of Notre Dame’s Catholicism. Not comparisons with other institutions, the missions of which we really can’t pretend are all equal in either scope or even intent. . . .

Well said.

Monday, January 27, 2014

Jeb Bush: "We Need School Choice Now"

By Rick Garnett

Yes, we do.  Happy Catholic Schools Week!  As fmr. Gov. Jeb Bush writes:

The Ma Bell model of public education has failed.

Parents want better options. That is why more than 6,000 charter schools are serving about 2.3 million students. More than a half-million children are on waiting lists. In our urban centers, there is a glut of space in schools that parents don’t want and a dire shortage of space in schools they do want.

And there’s a reason for that. The children who benefit most from choice are disadvantaged students who are losing out in traditional public schools.

As I wrote, at Public Discourse a little while back, this is a matter of "simple justice."

Archbishop Chaput on Catholic Schools Week

By Rick Garnett

From 2012:  A punchy essay by Archbishop Chaput.  A bit:

We can honor Catholic Schools Week this year by actually doing something about the fiscal problems hurting our schools. We need to press our lawmakers, respectfully but vigorously, to pass school choice.

First, we need some clarity: School vouchers do not mean “government support for religious schools.” That argument is flatly false. No vouchers go to any school, religious or otherwise. Vouchers do, however, return the power of educational choice to parents, where it belongs. In doing so, vouchers make all schools more accountable for the quality of education they deliver. Parents get the voucher. Parents choose the school. This makes perfect sense. And if a school offers a poor education for young people, parents will rightly vote with their feet — and their vouchers. Of course, most Catholic schools do the opposite: They offer a strong education, in a safe environment, with a focus on developing good moral character. That’s why parents are so upset when they close.

 

Happy Catholic Schools Week!

By Rick Garnett

From 2008:

First Lady's "Catholic Schools Week" remarks

I am a big fan of Catholic schools.  Every parish should have one, every Catholic kid should be in one.  I also love Notre Dame's "Alliance for Catholic Education" program.  So, maybe it's no surprise that I liked this, First Lady Laura Bush's recent remarks at Holy Redeemer Catholic School, in Washington, D.C.:

. . . This is Catholic Schools Week, and that's one of the reasons why I'm here today.  It's the perfect time to recognize the contributions that Catholic schools make to students all across our country.  Students here at Holy Redeemer are among the 2,300,000 students in the United States who are currently attending Catholic schools.  The education you're receiving builds on a tradition of academic excellence older than the United States itself, dating back nearly four centuries.

Today, 99 percent of Catholic-school students graduate from high school -- and 97 percent go on to college.  That's an unbelievable record, so congratulations to everyone.  (Applause.)  But just as Archbishop Wuerl said, not only do Catholic educators develop young minds, but they also prepare children for lives of compassion and service.

The Catholic-school tradition is based on the belief that every child is blessed with unique gifts, and every child has unlimited potential -- regardless of that child's status or race or even faith.  In fact, 27 percent of the children attending Catholic schools in Washington aren't Catholic.  As the legendary Cardinal Hickey, Washington's Cardinal Hickey once explained:  "We don't educate children because they're Catholic, but because we're Catholic." 

Catholic schools can offer a choice to parents who want a good education for their children.  In 2004, President Bush signed the D.C. Choice Incentive Act, which established Washington's Opportunity Scholarships for children.  Over the last four years -- with the support of Congress and leaders in local government -- Opportunity Scholarships have helped more than 2,600 children attend private or parochial schools.  More than 80 of these children on Opportunity Scholarships are here at Holy Redeemer.  (Applause.)

With these scholarships, Washington students can transfer from underperforming public schools to a private or faith-based school of their choice.  Parents of children in the scholarship program report being more satisfied and involved with their child's education.  And studies show that the students who receive Opportunity Scholarships improve their own attitude toward learning.

On Monday, in his State of the Union address, President Bush announced two new ways to increase educational options for parents and children.  The $300 million Pell Grants for Kids program will offer scholarships to low-income children in underperforming elementary and secondary schools.  Children can use these scholarships to attend out-of-district public schools, or nearby private or parochial schools.

Since the year 2000, more than 1,000 Catholic schools have been closed or consolidated -- most of them in urban areas.  To help reverse this trend, President Bush also announced the White House Summit on Inner-City Children and Faith-Based Schools, which will take place in the spring.  The summit will bring together educators, community leaders, philanthropists, and business leaders.  Together, they'll work to raise awareness of the service that non-public schools provide to urban students.  And they'll work to find ways to keep schools open, so that parents in the inner cities can have educational options for their children. 

Members of the Catholic family, too, are coming together to help children in need.  Here in Washington, the archdiocese has formed educational partnerships with companies, community groups, and other Catholic schools.  One of these partnerships is the Magnificat program here at Holy Redeemer.

Just last year, financial shortages had placed Holy Redeemer on a list of imminent school closings.  But through the Magnificat program's partnership with Notre Dame, over the next five years, Notre Dame University will work with Holy Redeemer faculty, staff, and students to improve the school.  Notre Dame is providing technology, textbooks, and supplies.  The University will help Holy Redeemer improve its financial planning, and increase its parental involvement.

Enthusiastic educators from Notre Dame's Alliance for Catholic Education will join Holy Redeemer's outstanding teacher corps.  The Alliance for Catholic Education prepares talented college graduates to teach in rural or inner-city Catholic schools.  Through two years of teaching, and by attending summer sessions at Notre Dame, these teachers also earn their master's degrees in education.

After they receive their city assignments, ACE teachers often share apartments or homes.  They establish a strong community with each other, and then they bring this sense of community into their schools.  ACE teachers coach sports teams.  They direct choirs and school plays.  They run marathons to raise money for Catholic schools.  As they help their students build a superb academic foundation, ACE teachers are answering God's call to share their talents with those who need them. . . .

Through the Magnificat program, ACErs and the entire Holy Redeemer community are transforming your school.  Observers say that students' behavior has improved, and that you're able to focus more on learning.  Notre Dame alumni have rallied around the school.  One alumnus took the 8th-grade class on a field trip to a local book festival.  This summer, 40 Notre Dame alumni cleaned classrooms, painted hallways, and planted in the yard.  Notre Dame alumni host events to raise money for the Holy Redeemer scholarship fund. . .

Congratulations on Holy Redeemer's new partnership with Notre Dame.  I wish you the very best for Catholic Schools Week and for many, many more years of success at Holy Redeemer.  Thank you all, and God bless you.  (Applause.)

Friday, January 24, 2014

Paulsen reviews Leiter's "Why Tolerate Religion?"

By Rick Garnett

Prof. Michael Stokes Paulsen's review of Prof. Brian Leiter's Why Tolerate Religion is available here.  Here is the abstract:

Is it irrational specially to protect specifically religious conscience and free exercise? Professor Brian Leiter is half right: From a secularist or even anti-religious perspective – the stance Leiter assumes to be the correct one – special solicitude for religious conscience and free exercise makes little or no sense. On Leiter’s understanding of what defines religion – religion consists of intrinsically “irrational” belief systems, “unhinged” from reason, issuing in categorical demands on action – special accommodation is indeed hard to justify. 

. . .  This review essay contends that religious belief, at least in certain forms, is entirely rational and reasonable and that the decision of the framing generation to protect specifically religious conscience and exercise is likewise entirely rational. 

This difference in philosophical perspectives goes a long way toward explaining the content as well as the premises of American constitutional religious liberty – and why they are hard for postmodern secularists to grasp. Religious freedom only makes full, rational sense on the premise that God exists (or well may); that God’s nature and character is such (or may well be) as to give rise to obligations with respect to human conduct; that the true commands of God, whenever knowable, are, in principle, prior to and superior in obligation to the commands of men; and that human civil society, acknowledging the priority of God’s true commands yet conceding the inability of human institutions to know them perfectly, must accommodate the broadest possible sphere of religious liberty, often including conduct in conflict with society’s usual rules.

And, in the spirit of things, here is a link to Micah Schwartzman's article, "What if Religion Isn't Special" and to Andy Koppelman's response, "Religion's Specialized Specialness."

UPDATE:  And, just to add to the fun, let's not forget Tom Berg's nice response to Micah, "Secular Purpose, Accommodations, and Why Religion is Special (Enough)."

Steven Smith's "The Rise and Decline of American Religious Freedom"

By Rick Garnett

Oh, happy day . . . my copy of Prof. Steven Smith's latest book, The Rise and Decline of American Religious Freedom arrived yesterday.  It's a must read for anyone interested in the law-politics-society-faith-religion nexus.  Here's a bit from the Amazon blurb:

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.

As Andy Koppelman puts it, on the back cover, this is "one ofthe most important books on religious liberty in years."

Related articles
Smith, "The Rise and Decline of American Religious Freedom"
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