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, December 19, 2019

Amicus brief in the new ministerial-exception cases

Jon Hannah already noted the good news that the Supreme Court has agreed to review the Ninth Circuit's (misguided) rulings in St. James School and Our Lady of Guadalupe school.  In each of these cases, the Ninth Circuit adopted a very narrow version of the "ministerial exception," which was unanimously confirmed to be constitutionally required by the Supreme Court in the Hosanna-Tabor case.  Here is an amicus brief, filed on behalf of a number of church-state scholars (including MOJers Michael Moreland and me), urging the Court to grant cert. (and reverse).  From the "summary of the argument":

In Hosanna-Tabor, this Court affirmed that the
ministerial exception protects the autonomy of
religious organizations to select those who perform
significant religious functions, including religion
teachers and others who help transmit the faith. Both
history and precedent show that the First
Amendment forbids the government from
“interfer[ing] with the internal governance of the
church.” Hosanna-Tabor, 565 U.S. at 188. And to
protect the right of religious autonomy, religious
organizations must have the freedom to “control . . .
the selection of those who will personify [their] beliefs”
or “teach their faith.” Id. at 188, 196. The ministerial
exception embodies this principle by prohibiting the
government from imposing sanctions on religious
organizations for the hiring and firing of key religious
personnel, including religion teachers.
In the decision below, the Ninth Circuit
misconstrued the ministerial exception in two ways.

First, it misread Hosanna-Tabor as adopting a set of
mechanical requirements that must be satisfied in
every case for the ministerial exception to apply.
Second, it failed to recognize that the core purpose of
protecting religious autonomy requires applying the
exception to all employees who have significant
religious responsibilities.

The Ninth Circuit’s decision not only departs from
this Court’s precedent and the history underpinning
the ministerial exception, but also conflicts with every
other Circuit to address this issue.

Friday, December 6, 2019

Smith's "Sacred Project of American Sociology" . . . and moral anthropology

For many (Ed.:  Many!) years, we at MOJ have highlighted the importance for law and legal theory of attention to philosophical and moral anthropology -- that is, to an understanding of what human persons really are and are for.  It's about five years old now, but my friend and colleague Christian Smith's The Sacred Project of American Sociology is a great way to enter the conversation on this crucial subject (especially his appendix on "critical realist personalism").

New poll shows strong support for school-choice

Meaningful school choice is endorsed clearly in the Church's social teachings.  And, it enjoys strong public support, according to a new poll.

Particularly striking is the fact that large numbers of Democratic voters -- indeed, pretty much the same numbers as on the Republican side -- express support for school choice.  And yet, it is a near article-of-faith among the Democrats' leadership and activists (in particular, the public-employee-union-members base) that choice-and-opportunity-enhancing measures must be opposed and resisted.  A political-market failure, it appears.

Saturday, November 30, 2019

Universalism, means-testing, the "Nordic model" . . . and school choice

A recent issue of Commonweal includes a short piece by Max Foley-Keene called "Equality Isn't Cheap."  Among other things, the author compares the "Nordic Welfare Model" to the "basic-security" model and argues that:

[a] welfare regime based on means-testing and income targeting . . . necessarily divides those who receive benefits from those who don’t. That leads non-recipients to grumble about having to subsidize an underclass of moochers, while recipients are subject to dehumanizing stigma. Such programs tend to be socially divisive and politically unstable. In contrast, universal programs promise to transcend existing economic cleavages and create broad social solidarity, because everyone benefits; this solidarity, in turn, helps protect universal programs from political attack.

He concludes by calling for "a politics that recognizes the satisfaction of social needs as a communal responsibility, that builds broad solidarity around preserving public goods, and that doesn’t fret over spending some cash."

Readers can decide for themselves whether the model Foley-Keene discusses is (in the United States) feasible or morally attractive.  I did want to note, though, that from a Catholic perspective -- and notwithstanding the common view that the model or something like it is consistent with, or even supported by, the Church's social teachings -- it cannot be that the state assumes for itself the provision, and "crowd[s] out" non-state providers, the "basic necessity" or "social benefit" of "education."  This is because parents have the moral, and in justice the legal, right to direct and control the education of their children and religious communities have the right to operate schools.  As is stated in Dignitatis humanae:

Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the right of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all.

Sunday, November 24, 2019

Christ the King and "Quas Primas"

Re-upping this, from 8 years ago:

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King[.]  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

Wednesday, November 13, 2019

Sen. Rubio's Catholic University of America speech

A little while ago, Sen. Marco Rubio gave a speech at the Catholic University of America, which -- among other things -- held up the Social Teaching tradition of the Catholic Church (including Pope Leo XIII's Rerum novarum) as a helpful guide to thinking about economic and social policy in the United States.  (Here is a report on the speech, from America magazine.)  Because it was a public address by a politician, it had its share of slogans and bumper-sticker lines, and of high-sounding quotations from the quotable.  In my view, though, it was welcome and should be charitably engaged by those of us who think that tradition has something to say to the project of ordering our lives together and is not the sole property or platform of either of our two major political parties.  There's no need, as I see it, for churlishness or condescension, simply because (a) the Senator is not a trained theologian or (b) he's a Republican who is clearly thinking about a path to higher office.  I thought, for example, the (different) reactions of Stephen Schneck and Chad Pecknold were helpful.  More like this, please. 

UPDATE:  And, less like this (more churlish and partisan) one.

Monday, November 11, 2019

Announcing the winners for the Zacharias Prize in Professional Responsibility

From MOJ-friend Prof. Sam Levine (Touro) comes this news:

The winners have been selected for the tenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  This year's co-winners are Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019), and Jessica A. Roth, The "New" District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019). The award will be presented at the AALS Annual Meeting in Washington, D.C., in January.

Congrats!

Thursday, October 31, 2019

Remembering the English Martyrs on "Reformation Day"

Martyrs

St. Margaret Clitherow, pray for us!

Thursday, October 10, 2019

Happy Charles Martel / Battle of Tours Day

On this day, in 732 A.D. . . .

Martel

Wednesday, October 9, 2019

Tocqueville, Leo XIII, associations, and China's "Great Firewall."

I highly recommend this book(s) review, by John Lancaster, in the London Review of Books, called "Document Number Nine."  Among other things, it discusses the striking developments in AI/machine learning and the ways that the PRC's dictatorship is using them for policing, surveillance, rewards, and punishment.  Along the way, though, there was this, which reminded me of the crucial role that both the Catholic Social Tradition and the various instances of Tocqueville-inspired political theory have assigned to mediating institutions:

The point of the state apparatus is not to silence all debate, but to prevent organisation and co-ordination; the ultimate no-no is the formation of any kind of non-party group. The CCP’s goal is not silence but isolation: you can say things, but you can’t organise. That is why the party has cracked down with such ferocity on the apparently harmless organisation Falun Gong, whose emphasis on collective breathing exercises wouldn’t normally, you would think, represent much of a challenge to CCP control of China. But Falun Gong grew popular, too popular – seventy million by 1999, as many as the CCP itself – and had an unacceptable level of collective organisation. So the party set out to destroy it. Two thousand members of Falun Gong have died in custody since the crackdown began.

Given all this, it is frequently the case that outsiders are surprised by the apparent freedom of the Chinese internet. People do feel able to complain, especially about pollution and food scandals. As Strittmatter puts it, ‘a wide range of competing ideologies continues to circulate on the Chinese internet, despite the blows struck by the censors: Maoists, the New Left, patriots, fanatical nationalists, traditionalists, humanists, liberals, democrats, neoliberals, fans of the USA and various others are launching debates on forums.’ The ultimate goal of this apparatus is to make people internalise the controls, to develop limits to their curiosity and appetite for non-party information. Unfortunately, there is evidence that this approach works: Chinese internet users are measurably less likely to use technology designed to circumvent censorship and access overseas sources of information than they used to be.

For my own take (now quite a few years old), check out this article:

In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­ - that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.