Commonweal is running, in its new issue, a symposium called "Abortion After Dobbs." One of the contributions, "Good Samaritans," is by my Notre Dame colleague, Meghan Sullivan. Unlike Meghan, I don't think the Judith Jarvis Thomson violinist hypothetical helps Catholics -- or others -- think clearly about abortion regulation, because it does not take account of unchosen, but still real, moral obligations between persons. Still, check it out.
Another of the pieces, "The High Price of Dobbs", by George Scialabba, is, well, really bad, and I'm surprised that Commonweal included it. As one friend put it, it reads like a mad-lib assembled from the Twitter feeds of Sheldon Whitehouse and Larry Tribe. To be sure, the author's priors are clearly set out at the outset: "the fetus—sans thoughts, sans emotions, sans experiences, sans everything—[does not] have any rights that override those of the woman of whose body it is merely an infinitesimal part during the time when more than 90 percent of abortions currently take place." This is both biologically and morally wrong, but . . . there it is. After some more ipse dixits, the author moves to what he thinks is an analysis of the Supreme Court's current (polls tells us) unpopularity. He says this unpopularity is not surprising, because "[f]ive of the six conservative justices were appointed by presidents who had not won the popular vote." So, (a) the popular vote is legally irrelevant; (b) Justices Breyer and Ginsburg were nominated by a president who did not win the popular vote (but one feels confident the author does not hold that against them); (c) Justice Scalia was nominated by a president who won one of the biggest landslides ever (but one feels confident the author does not credit the late justice with that); and (d) in fact, Justices Thomas, Alito, and Roberts were nominated by presidents who won the (again, legally irrelevant) popular vote.
The author then moves to some criticisms of partisan districting, and ignores the fact that both parties -- when they can, where they can, to the extent they can -- use districting to their own advantage. Of course it is true that, in some states, Republicans have a higher percentage of legislative seats than they have registered voters. The same is true, for Democrats, in some other states. Demography, sorting, and migration are what they are. And, in any event, none of this is relevant to the composition (or voting and reasoning) of the Court. It is also a bit much to harangue about anti-majoritarianism in the context of denouncing a judicial opinion that . . . returned a question (which the Court had implausibly removed from majoritarian resolution) to democratic decisionmaking.
Thursday, September 1, 2022
After a little bit of a hiatus, the conference of the Religiously Affiliated Law Schools is coming up, and is this year being hosted by Prof. Sam Levine and his team at Touro. I hope to see MOJ bloggers and readers there! Here's the conference info. The theme is, well, broad: "The Past, Present, and Future of Religiously Affiliated Law Schools". Come join us!
Here is the program:
Conference Program
Thursday, September 15
- 9:00 - 9:30 am - Breakfast and Welcome
Elena B. Langan, Dean and Professor of Law, Touro Law Center
Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer
- 9:30 - 10:30 am - Religion in the Intellectual Life of the Law School
Jeffrey A. Brauch, Professor, Executive Director, Center for Global Justice, Regent University School of Law --- Moderator
Rodger Citron, Associate Dean for Research and Scholarship and Professor of Law, Touro Law Center
Brad J. Lingo, Dean, Regent University School of Law
Judith A. McMorrow, Professor of Law, Boston College Law School
- 10:30 - 10:40 am - Break
- 10:40 - 11:40 am -- Religion and Faculty Hiring
Deseriee Kennedy, Professor of Law, Touro Law Center -- Moderator
John M. Breen, Georgia Reithal Professor of Law, Loyola University Chicago
Michael A. Helfand, Brenden Mann Foundation Chair in Law and Religion and Co-Director, Nootbaar Institute for Law, Religion and Ethics, Pepperdine Caruso School of Law
Lucia A. Silecchia, Professor of Law and Associate Dean for Faculty Research,
Catholic University of America, Columbus School of Law
- 11:40 - 11:50 am - Break
- 11:50 am - 12:50 pm - Religious Thought in Criminal Law Scholarship and Advocacy
Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
Melina A. Healey, Director of Clinical Programs and Assistant Clinical Professor, Touro Law Center
Marah Stith McLeod, Associate Professor of Law, Notre Dame Law School
Honorable Richard J. Sullivan, United States Circuit Court Judge for the Second Circuit
- 12:50 - 2:30 pm - Lunch/Tour of Central Islip State Hospital Cemetery
- 2:30 - 3:40 pm - Past, Present, and Future of Religiously Affiliated Law Schools (I)
Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
Marvin Krislov, President, Pace University
Tim Perrin, Senior Vice President for Strategic Implementation, Pepperdine University
D. Gordon Smith, Dean, Ira A. Fulton Chair and Professor of Law, BYU Law School
- 3:40 - 3:50 pm - Break
- 3:50 - 5:00 pm - Past, Present, and Future of Religiously Affiliated Law Schools (II)
Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
Fayneese S. Miller, President, Hamline University
Rod Smolla, President, Vermont Law and Graduate School
Michael Waterstone, Fritz B. Burns Dean, Loyola Law School, Senior Vice President, Loyola Marymount University, Professor of Law
- 5:00 pm - Tour and Reception, Judaica Room, Gould Law Library
- 6:00 pm - Dinner
Friday, September 16
- 9:00 - 9:30 am - Breakfast
- 9:30 - 10:30 am Religion and the Practice of Law (I)
Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
Jeanne Bishop, Assistant Public Defender at Cook County Public Defender's Office
Allen Fagin, Former Chairman, Proskauer Rose, LLP; Board Member & Senior Advisor, Validity Finance
Joel A. Nichols, Interim Dean and Mengler Chair in Law, Univ. of St. Thomas (MN)
- 10:30 - 10:45 am - Break
- 10:45 - 11:45 am - Religion and the Practice of Law (II)
Tiffany C. Graham, Associate Dean for Diversity and Inclusion and Associate Professor of Law, Touro Law Center -- Moderator
Honorable Joseph F. Bianco, United States Circuit Court Judge for the Second Circuit
Jordi Goodman, Visiting Clinical Assistant Professor, BU/MIT Technology Law Clinic,
Boston University School of Law
Randy Lee, Professor of Law, Widener Law Commonwealth
- 12:00 - 1:00 pm - Lunch and Keynote Address
Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion
Fordham University School of Law
- 1:00 - 2:15 pm - Religious Liberty Advocacy
John Linarelli, Associate Dean for Academic Affairs and Professor of Law, Touro Law Center -- Moderator
Nathan J. Diament, Executive Director, Orthodox Union Advocacy Center
Josh McDaniel, Visiting Assistant Clinical Professor of Law, Director, Religious Freedom Clinic, Harvard Law School
John Meiser, Supervising Attorney, Religious Liberty Clinic, Notre Dame Law School
Lori Windham, Senior Counsel, Becket
- 2:15 - 2:30 pm - Closing Remarks
Elena B. Langan, Dean and Professor of Law, Touro Law Center
Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer
Sunday, July 17, 2022
Prof. David Smolin (Samford) has a new paper out, which will be of interest to many MOJ readers. Here is the abstract:
This article addresses, from religious liberty and theological perspectives, two sets of serious errors in the treatment of mothers and children, in which the Catholic Church (and other churches) participated. These serious errors have created credibility gaps regarding the Church’s mission and societal role in assisting vulnerable children and families.
Hence, much of this article is a theological examination of what went wrong in regard to two now prominent wrongs: the residential schools for indigenous children in Canada, the United States, and Australia, and the treatment of single mothers and their children in Canada, the United States, Ireland, the United Kingdom, and Belgium. The theological journey is necessary to the religious liberty claims for internal reasons---fidelity to the faith---and for external reasons---credibility to society so that society can see and understand that the church has and is learning from its own mistakes.
The theological examination of these wrongs is framed by a discussion of the 9-0 victory of Catholic Social Services (CSS) in the Fulton v. City of Philadelphia case. This religious liberty victory upon examination is based on the Supreme Court’s very positive view of the work of CSS in the foster care system. Religious liberty in the context of cooperative work between the government and religious agencies ultimately does require that the work of the Church is viewed as fulfilling secular goals of government.
Thursday, June 30, 2022
I have a short piece up at First Things, here, about the predictable but still tiresome charges that the Supreme Court's Catholic justices are somehow imposing their religious beliefs, or ushering in a theocracy, by voting to (e.g.) undo the Roe and Casey decisions. I write:
Duly enacted laws do not become unconstitutional religious edicts simply because they are consonant with religious communities’ teachings. The fact that citizens are motivated or inspired by faith does not taint their political activism and participation. A jurist who concludes that the relevant constitutional text permits a controversial question to be decided politically is not issuing an encyclical or reporting a revelation.
The foundational premise of the pro-life position—that is, that every human being should be “protected in law and cared for in life”—is no more “theological” than the commitments behind laws mandating environmental stewardship and prohibiting unjust discrimination or exploitation. The facts about the human person and about human development, not secret knowledge or gnostic mysteries, are the basis of the pro-life case and the warrant for pro-life legislation. Neither bigoted attacks on Catholic justices nor superficial invocations of church-state separation change these facts.
Also, in the piece, I reference a detailed study of the deployment of these charges in the abortion context by our own Prof. John Breen. Check it out.
Tuesday, June 21, 2022
Way back in 1996, my wife Nicole Stelle Garnett was a young lawyer with the scrappy crew at the Institute for Justice, and participated in a challenge to the Maine tuitioning program that the Supreme Court just (finally) ruled against today in Carson v. Makin. (I filed an amicus brief in the case, for Agudath Israel, if I recall.) I usually don't buy claims about the "arc of history" but, this time, the long journey ended in a good place. The repair of the Court's education-funding doctrine over the last 20 years has been striking.
I was sorry to see Justice Breyer, in dissent, still beating his drum about the judicial obligation to evaluate state policies with an eye toward managing "strife" and "division." As I explained (at great length!) here, the "political divisiveness along religious lines" argument in church-state law has always been wrong:
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
