My friend and colleague, Dan Philpott, ran a research project called "Under Caesar's Sword", a collaborative global project that investigated how Christian communities respond when their religious freedom is severely violated. And, this Fall, he is putting on a six-week, online course on the subject, which should be great. Click the link to register!
Sunday, June 19, 2022
"Under Caesar's Sword" Online course
Tuesday, June 7, 2022
"Religion and the American Constitutional Experiment" - Order Now and Save
Saturday, May 7, 2022
The "Black Legend" (of American constitutional law) returns
Fifteen years ago (!), when I was visiting at the University of Chicago Law School (a wonderful experience), I contributed a response to a post (on the Law School's blog . . . remember those?) by Geof Stone, in which he shared what he called a "painfully awkward observation" that the justices in the majority of the Court's Gonzales v. Carhart - in which the Court upheld a ban on partial-birth abortions -- were Catholic. "It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore[,]" he said. "[T]hese justices have failed to respect the fundamental difference between religious belief and morality," he charged.
Brian Leiter recently re-upped Prof. Stone's con-law version of The Black Legend, here. He wrote (while conceding, as anyone must, the "unhappy fact is that there are clearly colorable legal arguments for overruling Roe"):
Stone's analysis generated an uproar, but it was correct then, as it would be correct now: someone with a conservative Catholic upbringing will of course regard abortion as verboten, and will thus find attractive--even without recognizing their real motivations--any colorable legal arguments that return the question of its permissibility to the legislative process (knowing full well, of course, that its availability will be restricted as a result).
As I wrote, though, in my response to Geof way-back-when, (a) there is nothing "Catholic" about the idea that the Constitution did and does not disable political majorities from enacting reasonable regulations of abortion (including, among other things, a prohibition on a procedure that involves sticking a scissor through the skull of a still-living fetus and "evacuating" his or her "cranial contents"), and (b) it is at least as likely that the non-Catholic justices' (both in Carhart and in -- it appears -- Dobbs) various commitments supplied "motivations" for disregarding what many of us think are straightforward, unremarkable analyses and arguments.
I wrote then (I still cannot get over how long ago that was!):
[I]t is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law." What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.
It is interesting, I think, that Professor Stone invokes the example of Justice Brennan. Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice. And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith. Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?
Tuesday, May 3, 2022
"Can We Be Human in Meatspace?"
This review essay, in The New Atlantis, connects nicely with the moral-anthropology theme that has been a part of the Mirror of Justice conversation for nearly two decades (!) now. Here's the opening:
In thinking about technology, three questions are fundamental. What is technology for? What are we for? And how is our answer to the first question related to our answer to the second?
Since the Enlightenment, we have come to take for granted that there really is no relation, because we cannot publicly agree on what humans are for. We can answer that question only privately. But technology is public, not private. We create it for common use, ostensibly in the service of the common good. If we cannot broadly agree on what we are for, then how can we reason together about what our technology is for?
It appears that we cannot.
It's a long piece, and I cannot do justice to it here. But again: We've often observed, and reflected on the observation, that one cannot really "do law" without engaging the question, "what are human persons?" Certainly, a "Catholic legal theory" must be one that gives priority to this question.
Henry Garnet, S.J., RIP
On this day, in 1606, Henry Garnet, S.J. was hanged near St. Paul's Cathedral in London. (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.) He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot." (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.") Ora pro nobis.
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Friday, April 29, 2022
Garnett & Graziano on the Kennedy case (and "endorsement")
I have a short piece, coauthored with my student, Joseph Graziano, up at Newsweek, on the Kennedy case (and other things). A bit:
Both Boston and Bremerton have the constitutional calculus backward. Not only do they not have to exclude religious voices from their halls; under the First Amendment, they may not. Camp Constitution and Coach Kennedy have as much right to witness to their religions as any others have to witness to their ideologies on the streets or up the flagpoles of city halls. In these two cases—Shurtleff v. Boston and Kennedy v. Bremerton School District—the justices should clarify that our Constitution demands that the religious be allowed to participate in public life on the same terms as everyone else, and that, barring actual coercion, free exercise of religious speech should be welcome in the public square.
Friday, April 1, 2022
The Congregation for Catholic Education issues new instruction on Catholic schools
The Pillar has the story, here. Read the whole thing, but it seems clear that the Congregation is rejecting a notion of Catholic schools according to which they are merely schools like others, but with a sprinkling of religiously themed art or character-focused programming. At a Catholic school, the "Catholic" must be about more than heritage, tradition, or affiliation; it is about character, charism, mission, and "identity." And, the relevance to cases in the United States involving the so-called "ministerial exception" (which is neither limited to ministers nor an exception) is clear:
As the document turns to the role of teachers, the congregation lines up behind an argument which has been advanced by several American dioceses in recent years which defines all teachers, regardless of subject, as ministers of religion, for the purposes of U.S. law:
“In a Catholic school, in fact, the service of the teacher is an ecclesiastical munus and office,” it says, which they exercise not only by teaching in the classroom but “also bearing witness through their lives, [through which] they allow the Catholic school to realize its formative project to witness.”
The extent to which teaching is described almost as an ecclesiastical vocation is further emphasized by the instruction, which says they must all be “outstanding in correct doctrine and integrity of life,” and requires the “initial and permanent formation of teachers.”
“Following the doctrine of the Church, it is therefore necessary for the school itself to interpret and establish the necessary criteria for the recruitment of teachers,” the instruction says. “This principle applies to all recruitments, including that of administrative personnel. The relevant authority, therefore, is required to inform prospective recruits of the Catholic identity of the school and its implications, as well as of their responsibility to promote that identity.”
Wednesday, March 30, 2022
An Interview with CUA's New President, Peter Kilpatrick
The Catholic University of America has named (my former Notre Dame colleague) Peter Kilpatrick as its next president. (Kilpatrick will succeed my other former Notre Dame colleague, John Garvey.) Here, thanks to The Pillar, is an interesting interview with Kilpatrick about (among other things) the nature and importance of a distinctively Catholic university and the challenges that exist to the building and thriving of such an institution. Here's a bit:
For me, a Catholic university is a unique place of higher learning, where we embrace the fusion — the integration — of faith and reason, where we celebrate that there is only one truth about the world and about the human person in the world, and that’s that it all flows from God.
And it's only possible to do that at a university like a Catholic university or another religious university really authentic to its faith principle.
I think the other important thing about a Catholic university is that you integrate the disciplines because knowledge is not bite-sized pieces. Disciplines, which came about in the late 19th century at the German universities, are not intended to be in isolation. They are intended to be in context of the global society and the society in the culture that you're in.
And unfortunately, so much of what’s done at many other universities is to silo the disciplines. And that's not what a Catholic university is about. We're about integrating the disciplines and putting it all in context. So my understanding of Catholic universities is that they have this unique role to play integrating faith and reason and integrating the disciplines.
Friday, March 18, 2022
Academic Freedom (?) and Catholic character at Dayton
The Academic Freedom Alliance (AFA) recently sent a letter to the President of the University of Dayton -- a "Catholic, Marianist university" -- that criticized the university's recent decision to disinvite Dr. Tlaleng Mofokeng from participating as a keynote speaker in the Social Practice of Human Rights conference on October 28, 2021. The university administration apparently concluded that Dr. Mofokeng could not speak on campus because her “work as an abortion provider” made her presence on campus a “sharp conflict with the University’s Catholic, Marianist mission and the right to life.”
The AFA -- of which I am a member -- charged that the "disinvitation represents an egregious violation of the principles of academic freedom and an abnegation of the University of Dayton’s own stated commitment to freedom of thought." The letter also states:
We do not quarrel with the right of religiously affiliated institutions to govern themselves in line
with the precepts of their sponsoring religious bodies, and to pursue their faith-based missions.
We insist, however, that all institutions, including religiously affiliated colleges and universities,
live up to their free speech and other academic freedom commitments, and honor the formal
and informal contracts the institutions have made with their faculty and students.
I have written before about the issue of Catholic universities, honorees, and outside speakers before. Among other things, I said:
[A] Catholic university can invite someone to speak on campus and thereby facilitate the respectful consideration-and, perhaps, criticism and rejection-of that person's views and positions by the university community without "honoring" that person.' The issue, again, is not what should be said at Catholic universities'-just as it is not for whom may a faithful Catholic vote, or which actions would involve a Catholic university in culpable cooperation with evil-but what should be said by a Catholic university.
That said, I have to confess, it is not obvious to me that the AFA's letter is correct when it charges the University of Dayton not only with violating academic-freedom promises, but also (later in the letter) with violating the very nature of a university. It is not clear to me that the AAUP's 1940 Statement (which the AFA notes is included in the handbook -- and, so, the contract -- of Dayton faculty) requires that "academic freedom" include an unfettered right on the part of faculty to organize on-campus events with outside speakers, when those speakers are (for whatever reason), in the view of those with fiduciary obligations to care for the university's mission and character, inappropriate. As I understand the events at Dayton, the university did nothing to interfere with any faculty member's own expression or research.
Again: This is not to say that, in my view, a meaningfully Catholic university should always exclude outside speakers who promote (say) abortion-rights. And, the AFA's point that Catholic universities should honor the promises they make to faculty is, certainly, a strong one. But I cannot shake the impression that the letter, in both tone and substance, gives short shrift to the Catholic university project, and suggests (incorrectly, in my view) that, to the extent a Catholic university enlists its Catholic character and mission in shaping policy, it is (somehow) departing from the ideal or nature of a university. And again: I say a bit more about why this suggestion is incorrect, here.
Sunday, March 13, 2022
Mirror of Justice's 18th (!) anniversary . . . and the Velveteen Rabbit
Our first post here at Mirror of Justice went live just over 18 years ago. ("Wait, grandpa . . . they had the Internet 18 years ago?" "Yes, m'boy, and there was content besides homemade dance videos, too!") Here's the opening graf:
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
It is not clear, of course, what the future is for blogs and mid-2000's-style, blog-based conversations. There's no denying that other platforms and media (especially Twitter) have distracted some of us (me!) and made for a more crowded field of things-to-read. And yet: Nearly two decades later, we are a group of friends and colleagues who continue to be interested in "discovering how our Catholic perspective can inform our understanding of the law", and in sharing this path of discovery with our students, our fellow lawyers, and, well, anyone who is interested!
One of my first sort-of-substantive posts was about the importance and relevance of "moral anthropology" to the legal enterprise. I continue to think this is a linch-pin issue. That is, it matters -- a lot -- for law what human persons are and what they are for. Are we (in C.S. Lewis's words) "everlasting splendours" or . . . meat puppets? If we have "dignity", what makes it so that we do?
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