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.

Monday, January 28, 2013

Winters on Cardinal Wuerl and Frank Bruni

By Rick Garnett

Michael Sean Winters has a really good post up about (retired food critic) Frank Bruni's really lousy piece against priests and Cardinal Wuerl's great Washington Post op-ed about dogma and faith.  He concludes:

The church is dogmatic, and that is good — even if it means that the church is a sign of contradiction in the world and the object of animus and disdain. It is a positive, attractive feature that what we profess is unchanging and unchangeable — the good news of a love and truth that we are called to share with the world. It is good for Catholics and non-Catholics. Were the church to compromise its creed, if we were to simply go along with today’s secularized culture, not only would the church cease to be the church but the common good would suffer greatly.

I also really liked this reminder:

Catholic hospitals provide millions of dollars’ worth of uncompensated care every year to our poor and vulnerable, and Catholic schools save taxpayers hundreds of millions of dollars annually in per-pupil costs.

I hope for the day when, the next time a school-choice opponent complains about Catholics churches trying to "siphon off" "taxpayers' dollars" to subsidize "sectarian" schools, Cardinal Dolan calls a press release to present a bill to the American people for the hundreds of billions of dollars Catholic schools have saved from the American taxpayer by educating (usually better, and for less, than the government-run schools have done and do) children (of all faiths and socio-economic backgrounds).  Remember, the state is not doing us a favor by allowing us to do "government things" like feed the poor, heal the sick, and educate children.  We were doing these things first.

Justice Sotomayor's memoir . . . and the importance of Catholic schools

By Rick Garnett

As The New York Times, reports here, Justice Sotomayor is "heartbroken" over the closing of Blessed Sacrament School in the Bronx.  The school is, of course, one of many hundreds of urban-area Catholic schools that have closed in recent decades.   She writes:

“You know how important those eight years were? It’s symbolic of what it means for all our families, like my mother, who were dirt-poor. She watched what happened to my cousins in public school and worried if we went there, we might not get out. So she scrimped and saved. It was a road of opportunity for kids with no other alternative.”

Right on.  For more, see N. Garnett & M. Brinig, Catholic Schools and Broken Windows, here.

A proposal to ban abortion . . . in 40 years.

By Rick Garnett

An interesting essay, by Michael Paulsen, at Public Discourse. 

Friday, January 25, 2013

Charles Reid is mistaken about Roe, Cardinal Bernadin, and the pro-life movement

By Rick Garnett

In this HuffPo essay, to which Michael Perry linked, Charles Reid is mistaken in several respects.  First, he re-presents the frequently advanced -- but no more compelling for being frequently advanced -- argument that, because Justices O'Connor, Kennedy, and Souter declined to overrule Roe in Casey, it is "obvious" that "Republican promises on abortion were cynically motivated by partisan advantage and were not a sincere commitment to the life issues."  The suggestion, I take it, is that pro-lifers should not vote for Republicans because Roe will never be overturned. 

I suspect it probably won't -- at least not explicitly.  That said, the five Justices who have indicated a willingness to uphold reasonable restrictions on abortion were appointed by Republicans, and the four who have indicated a determination to invalidate such restrictions were appointed by Democrats.  So, if you think (as you should, if you are pro-life) it's important that (i) our laws move in a pro-life direction and (ii) that those laws survive judicial scrutiny, then you have (Casey notwithstanding) a good reason -- even if not a conclusive one -- to prefer that Republicans, rather than Democrats, nominate and confirm federal judges.

Second, Reid suggests that Cardinal Bernadin's "consistent ethic of life" emphasis provides an "alternative road map for American Catholics," according to which "the premise of the pro-life movement must be about saving lives, not winning elections or even changing laws."  Cardinal Bernadin did not think, in fact, that pro-lifers should stop at "saving lives" and disregard the important task of "changing laws."  He would have been wrong if he had.  True, there are limits -- some imposed by the Court, some imposed by political and cultural realities, some by sound judgment and prudence -- to what laws can do when it comes to creating a culture of, and a consistent ethic of, life.  But I am very confident that Cardinal Bernadin would firmly reject the suggestion that pro-lifers should settle for our current, deeply unjust legal regime.  Cardinal Bernadin never suggested Catholics should abandon the struggle for legal change; his challenge, instead -- which we should all embrace -- was to broaden that struggle, to other contexts and other ways in which the dignity of the person is threatened or disrespected.

Thursday, January 24, 2013

The Rise of Pro-Life Incrementalism

By Rick Garnett

I'm a bit late on this, but here's an interesting post, from the Legal History Blog, by Prof. Mary Ziegler, on "The Rise of Pro-Life Incrementalism."  Thoughts?

"Mounting Religious Restrictions in Europe"

By Rick Garnett

Over at the site of the (excellent) Religious Freedom Project (a project of Georgetown's Berkley Center), Roger Trigg has a very informative essay called "Canary in the Coal Mine," in which he discusses four recent decisions handed down by the European Court of Human Rights.  Here is his concluding paragraph:

Certainly, as is recognised in the case of conscientious objection in a time of war, it is the mark of civilised society to respect a conscientious stand, even if it is thought misguided. Whether freedom of religion can be simply replaced by an appeal to individual conscience is much more doubtful. Religion seems to be itself of deep importance in human life, and should be cherished. It has a social dimension, with institutional, as well as individual, aspects. What is quite clear is that once freedom of religion is not thought to be of absolutely fundamental importance in a society, but can give way to current social priorities, freedom of conscience also is challenged. Religious freedom, itself, is very hard to prise apart from the most basic freedoms that make any life worth living. It is regrettable that current European jurisprudence does not appear to take this point seriously.

Wednesday, January 23, 2013

Associate Justice Antonia Clarentia Ligouri: A(nother) response to Cathy Kaveny

By Rick Garnett

In this post -- continuing her discussion of the HHS mandate and the RFRA and constitutional challenges to it -- Cathy reminds us of some important questions that arise in the deployment of First Amendment doctrine and in the enforcement of RFRA, namely, that (a) courts have to confirm that the challenged government action does place a "substantial" burden on religious practice (this does not, in the caselaw, mean "huge" or "crushing", but I agree with Cathy that it would exclude trifles and trivia) and that (b) courts have to decide whether the government interest purportedly justifying that burden is "compelling" (or some other evaluative word).  And, as she discusses, it is an interesting and important the extent to which courts should defer to the claimant (on (a)) and the government (on (b)).

In practice -- in order to avoid, probably, the risk of conflating judges' views of a policy's merits with the "compellingness" (for doctrinal purposes) of the government's interest -- what courts often (and, I think, reasonably) do is to assume for the sake of argument that the interest the government holds out as "compelling" really *is* compelling (unless it's obviously illegitimate or impermissible), and then inquire about the "fit" -- the "tailoring" -- between the burdensome regulation and the asserted state interest.  And, when laws are invalidated via the application of this method, it is very rarely because the interest is identified by the court as not-compelling.  It is, instead, because the "fit" is poor -- it's "underinclusive", say.  This poor fit serves as a signal that (i) the *government* doesn't *really* think the interest is all that important (because it has pursued it so half-heartedly, perhaps in a way that fails to spread the burdens of the policy fairly), or (ii) that the asserted interest isn't *really* the government's aim (i.e., the bad fit exposes a bad motive).

I think that those of us who think the mandate RFRA think so not so much because we think a court will and should hold that "increasing access to contraception is not, in fact, a compelling public interest, because contraception is immoral", but instead think that "the burden on religious practice is unnecessary, because the government's interest could have been achieved by less burdensome means and because the government's willingness to exempt so many employers from the mandate calls into question the claim that the *government* believes the interest is really compelling."

Tuesday, January 22, 2013

Lumen Christi seminar: "Catholic Social Thought: A Critical Investigation"

By Rick Garnett

This seminar, with Russ Hittinger, for graduate students, looks great.  (I wish I could enroll!)  Five days in Berkeley, in August . . . what are you waiting for?

This seminar is an intensive five-day course for graduate students in how to read, analyze, and discern continuities and discontinuities in Catholic Social Thought from the late 19th century to the present.  Lectures, seminar reports, and discussion will focus upon original sources (encyclicals and other magisterial documents), beginning with Rerum novarum (1892) and concluding with Caritas in veritate (2009). These documents are more often referred to thanactually read and studied. This intensive course is multi-disciplinary, for this tradition of social thought overlaps several disciplines in the contemporary university:  political science, political philosophy, law, economics, theology, and history.  The goal of the seminar is to provide a sufficient introduction to the tradition of Catholic Social Thought to enable graduate students to teach it as a course and integrate it into their own research

"The Competing Claims of Law and Religion"

By Rick Garnett

As my friend and former student, Prof. Derek Muller, reports at Prawfsblawg, the various papers presented last winter at Pepperdine at an outstanding law-and-religion conference have been published by the Pepperdine Law Review.  (Go to Derek's post for a list of all the presenters, and links to the papers.)  My own, "Neutrality and the Good of Religious Freedom:  An Appreciative Response to Prof. Koppelman," is here:

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality
in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The
Competing Claims of Law and Religion: Who Should Influence Whom?”, which was
held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the
ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because
the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.

On the anniversary of Roe v. Wade

By Rick Garnett

Forty years.  I started going to March-for-Life-type events in the late 1970s, and I remember the pro-life movement in my hometown as having more of a crunchy, Berrigan-brothers-meet-Mother-Theresa vibe than it came to have later.  On the one hand, the right conjured by the (all-male, as Charlie Camosy points out in this nice post) Court in an opinion from which even most abortion-rights supporters feel a need to avert their case, seems deeply entrenched:  judicial nominees are carefully instructed how to speak out it, Planned Parenthood raises millions to support its campaign in support of it by warning of ever-present threats (some, I hope, real; many imagined) against it, its dehumanizing premises are aggressively exported from rich countries to poorer ones; and even substantial numbers of Catholics profess to embrace (what they take to be) its teaching. 

On the other hand, though, it does seem like progress has been made:  The March-for-Life culture is young, enthusiastic, and happy.  (Hundreds of Notre Dame students, God bless them, will take long bus trips to DC this week to carry the "March for Life" banner.)  The public -- even those who identify as "pro-choice" -- seems more open to reasonable regulations, as do reasonable judges; and fewer people than before preach the "it's just a clump of cells" line.

It's probably unfortunate, but also (I think) unavoidable, that the most-discussed-issue here at MOJ, over the years, has been (in one way or another) abortion.  And yet, if (as I am inclined to think is the case) the most important contribution that "Catholic" can make to "legal theory" is a correct understanding of the person, then there is no way that a blog dedicated to the development of Catholic Legal Theory could avoid addressing, and criticizing, our deeply unjust and profoundly anti-human abortion-law regime.  "A person is a person, no matter how small."  Don't give up. 

UPDATE:     Here's a similar post I did, on the same subject, at Prawfsblawg.

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