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.

Friday, September 30, 2016

Religiously Affiliated Law Schools: Potential Accreditation Issues after Obergefell

By Rob Vischer

The second panel at RALS features Bill Piatt (St. Mary's), Rena Linevaldsen (Liberty), Johnny Rex Buckles (Houston), Hon. Stuart Adams (Utah Senate), and Robin Wilson (Illinois).

Prof. Piatt spoke about his struggles to have a Christian Legal Perspectives CLE program approved by the Texas state bar. The CLE board denied approval on the ground that the programs pertained to individual moral or religious responsibilities, rather than the duties of an attorney.  Bill and his colleagues filed a formal challenge, and many rallied to their cause.  The state bar agreed to grant credit for training on moral and religious topics in the context of legal ethics training, but these challenges will continue.

Prof. Linevaldsen discussed ABA Standard 205 (non-discrimination and equality of opportunity) in light of Obergefell.  She emphasized the need for schools to articulate a strong religious mission in terms that will justify honor code policies. The student experience must be tied to the mission.  Imposition of non-discrimination norms must be shown to impair the mission-centered community.  Standard 205 provides a safe harbor for law schools that is coextensive with First Amendment protections.

Prof. Buckles spoke about the public policy doctrine and the Bob Jones case, arguing that religious institutions should maintain their tax-exempt status despite Obergefell. Even if 501(c)(3)'s restraint of Free Exercise rights is constitutional, it should not be applied in these cases -- the public policy doctrine should be applied narrowly.  There is nothing that attributes a lack of dignity to a person excluded from a faith community on the basis of holding a contrary faith perspective. 

Sen. Adams and Prof. Wilson spoke about the Utah compromise on religious liberty and LGBT rights.  The Supreme Court decided a case between litigants, but the Court does not have the responsibility or ability to decide what that decision means for everyone else.  We will need to help state legislatures reach prudent compromises on this issue, as Utah has done.  Fairness for all means that firing a judge who won't perform same-sex marriages is wrong, and firing an employee for being gay is also wrong.  They addressed the need to recognize gradations of the contexts in which religious liberty interests are implicated -- e.g., discrimination in the use of church property is not the same as discrimination by large commercial corporations, with different degrees of concern represented by the cases in between.

Religiously Affiliated Law Schools: Ethical Formation in Law School

By Rob Vischer

I'm at Regent Law School today for the RALS conference.  The opening panel features Neil Hamilton (St. Thomas), Benjamin Madison (Regent), and David Grenardo (St. Mary's).  The topic is ethical formation in law school.

Neil presented data regarding the ethical professional identity competencies that students need, discussing the shift to competency-based legal education.  Of the 55 law schools posting learning outcomes on their websites (as required by the ABA), 42 have adopted an ethical professional identity learning outcome that goes beyond what is required by ABA Standard 302(c).  Two foundational professional identity learning outcomes: 1) proactive professional development toward excellence; 2) an internalized deep responsibility to clients and the legal system.  The key is not that law schools agree on learning outcomes; the key is that law faculty engage students in light of chosen learning outcomes.  The research shows that we need to take into account that students are at different stages of development, provide repeated opportunities for student reflection, build into the student's existing narrative by linking future growth to their past experience and current goals, and remember that the process of experience / feedback / reflection is a very effective impetus for growth. 

Ben asked if there is a paradox between ethics and happiness.  Research shows that lawyers who live by intrinsic values -- integrity, compassion, respect, unselfishness, commitment to service -- display greater contentment and health.  Law schools can influence this process by encouraging knowledge of self, knowledge of God, and an attitude of reflectiveness and willingness to grow.

David presented the results of his survey on the use of prayer in law school classrooms.  Of the students at religiously affiliated law schools who responded, 78% liked the fact that their professor prayed at the beginning of class.  Students used words such as "calm, refreshes, tranquility, peace, serenity" to describe the effect of prayer on them.  Other students commented on classroom prayer bringing a sense of unity, regardless of the faith traditions represented in the room.

Front Porch Republic conference -- "Populism, Power, and Place" -- coming up at Notre Dame

By Rick Garnett

More information here.  Phil Bess, Patrick Deneen, Rod Dreher, and others will be presenting.

Law and Religion Moot Court at Touro

By Rick Garnett

The Fourth Annual Law and Religion Moot Court at Touro is coming up in April.  More information is available here.

Thursday, September 29, 2016

Richard Epstein on the USCCR "Peaceful Coexistence" Report

By Rick Garnett

I agree entirely with Marc DeGirolami's shredding of the recent and really lousy USCCR report on religious freedom and antidiscrimination law.  Another helpful take-down has been posted by Prof. Richard Epstein, here.  A taste:

[Baronelle] Stutzman has thought long and hard about her position. She draws subtle distinctions key to her faith. She works hard to respect the beliefs of those who disagree with her. She understands that she risks the loss of their business and that of others by living according to her beliefs. But she draws a line on principle. Her conduct bears no relationship to a “prejudiced or closed-minded person, especially one who is intolerant or hostile towards different social groups.” Her actions are not borne of some irrational fear.

But the words “bigotry” and “phobia” clearly do apply to the five commissioners who happily denounce people like Stutzman. They show no tolerance, let alone respect, for people with whom they disagree. They exhibit an irrational fear of those people’s influence. They show deep prejudice and hostility to all people of faith. They indulge in vicious overgeneralizations that make it harder to live in peace in a country with people of fundamentally different views. And they seem to take pleasure in bullying little people who can’t fight back. . . .

Wednesday, September 28, 2016

How Do Religion's Societal Contributions Support Religious Freedom?

By Thomas Berg

The Berkley Center at Georgetown is a leader in supporting and publicizing the growing body of empirical research that catalogs and quantifies the contributions religious organizations make to society: serving those in need, employing workers, mobilizing volunteers and donors, etc. On the Berkley Center blog, I have a piece exploring how these findings are relevant to religious freedom for these organizations. It starts off:

       A new study by the Religious Freedom and Business Foundation quantifies the socio-economic value that religious organizations contribute to America: nearly $1.2 trillion yearly in economic activity and in services to others. The analysis reinforces evidence previously amassed by scholars like Ram Cnaan, John DiIulio, Steven Monsma, and Robert Putnam and David Campbell.

       Such evidence is relevant to the questions about religious freedom that currently vex American society—in particular, the rights of religious organizations, both churches and nonprofits, to adhere to their religious tenets and identity in hiring employees and serving clients. Countering the one-sided view that freedom of religion is simply a cover for irrationality and bigotry will open minds to considering religious freedom arguments rather than dismissing them out of hand.

       More specifically, this argument that religion benefits society reflects an important strain in America’s religious freedom tradition. One reason we protect voluntary religious organizations is that they are important means by which individuals develop and exercise “civic virtue.” ...

I go on to address some important challenges to the idea that religious organizations' societal contributions are a ground for protecting their religious freedom--for example, "If religious organizations are so important and pervasive, doesn’t society have to regulate them heavily to limit their harms to others?"

In an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make. This piece is a brief exercise in refining the arguments. (I have longer versions of my thoughts here, at pp. 113-26, and here, at pp. 307-18.) 

Tuesday, September 27, 2016

On the Egregious USCCR Report, "Peaceful Coexistence"

By Marc DeGirolami

I have an extremely critical post on it over at Liberty Law. From the end:

[T]he crown jewel in this disaster is Commission Chairman Martin Castro’s one-paragraph statement at page 29. It has to be read to be appreciated, and so let me only discuss the chairman’s choice of epigraph. The words are attributed to John Adams, but they are actually a provision in the Treaty of Tripoli passed in large part in order to negotiate with Muslim national powers in Africa for protection against pirates.

They are: “The government of the United States is not, in any sense, founded on the Christian religion.”

There are at least two problems in beginning this way. The first is that it shows Mr. Castro to be ignorant of Adams’s actual views when it came to, for example, Christian establishments of religion in the early republic. Of all the platitudes he could have chosen, he landed on a spectacularly inapt one.

The second, and larger, difficulty is that it suggests that for all the commission’s talk of  nondiscrimination, it harbors hostility to one religion specifically: Christianity. The commission should be upfront about it, and simply state that its real object is to repudiate the country’s Christian heritage and to target Christianity for special legal disability. It would have saved all of us a lot of time and frustration.

Indeed, it is especially irritating for me to write this post because I wasted my time traveling to Washington, D.C., three years ago to testify before the U.S. Commission on Civil Rights. My testimony is at page 213 of the report and following, and I’m grateful at least to see the statements of Commissioners Peter Kirsanow and Gail Heriot. But I repent of my decision to testify. I’ll think twice and three times before ever doing it again.

 

Friday, September 23, 2016

David Upham on Meyer versus Pierce

By Erika Bachiochi

I've just happened upon an intriguing comparison of the Lochner-era cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) in Rutgers Journal of Law and Religion, published in 2012. The piece, entitled Pope Pius XI's Extraordinary -- But Undeserved-- Praise of the American Supreme Court is authored by David Upham, Director of Legal Studies and Associate Professor in the Politics Department at University of Dallas.  

Though Meyer and Pierce are generally cited together for the proposition that the 14th amendment protects the right of parents to direct the upbringing of their children, Upham shows that the manner in which the Court reasons to that right is distinctive in Meyer and Pierce, though they deal with similar questions and were decided within two years of one another. According to Upham, in Meyer, the Court uses expressly natural law reasoning to depict the integral relationship between marriage, procreation, and educational authority: the parent had a "natural duty to give his children education suitable to their station in life..." to which a corresponding "right of control" in the parent was secured by the common law and 14th amendment. Upham argues that, unbeknownst to Pope Pius XI who praised the Court's opinion in Pierce, its authors were actually no friends of natural law theory (whether of the Thomistic or Lochnerean variety). 

Note that in Meyer, unlike Pierce, one reads an express statement that the common law and the Constitution served merely to recognize and guarantee, respectively, these natural familial rights, but not to establish or create them....Furthermore, unlike Pierce, which defined parental authority to include even the power to determine the child’s “destiny,” the Meyer opinion indicated that natural (and common law) rights are ordered to a pre-established natural end or destiny; that is, these rights are all essential to the pursuit of happiness.

 

Substantive Due Process to be Debated at Georgetown

By Erika Bachiochi

The Center for the Constitution at Georgetown Law Center and the James Wilson Institute (aka Hadley Arkes' outfit in DC) are co-sponsoring a day-long conference on substantive due process on October 6th. Hadley Arkes and Matthew Franck will open the event with a long-anticipated debate of their now well-known opposing views of the subject.

Michael Stokes Paulsen and Justin Dyer will then take the floor to discuss what might be called the jurisprudential book ends of the doctrine:  Dred Scott and Roe v. Wade. Dyer, of course, has written a book length treatment of the similarities between the two cases, and Paulsen treats the comparison repeatedly in his masterful The Constitution: An Introduction. 

Randy Barnett, the director of the Center and hero of libertarians everywhere, concludes the day with with the keynote, proposing a "good faith theory of due process of law." Barnett's "presumption of liberty" is sure to make a central appearance--as will, one expects, that other substantive due process case, unmentioned in the day's schedule: Lochner. 

I am hoping to make the event and promise to blog if I do. 

 

Call for Papers: "The Common Good as a Common Project"

By Rick Garnett

Some graduate students at Notre Dame are putting together what looks to be an outstanding conference, which might well be of interest to MOJ readers:

Keynote speakers:

  • Alasdair MacINTYRE, University of Notre Dame
  • Jean-Luc MARION, University of Chicago and the Sorbonne
  • Jean PORTER, University of Notre Dame
  • Emilie TARDIVEL-SCHICK, Institut Catholique de Paris

The common good enjoys a central place in classical and Christian social thought. Although the concept is frequently invoked in both theological and political discourse, its rhetorical use is rarely connected to a more satisfying theory of its form or content. When rigorously conceived, however, the common good has ramifications for nearly all social inquiry, both empirical and theoretical. The resurgence of interest in the principle of the common good demands a two-fold conversation: one part building a conception of the common good that moves beyond vague or platitudinous gestures and the other applying the principle to social questions in a rigorous and intelligent way. This conference aims to embody that conversation across the many disciplines which can view the common good as their common project.

We invite both theoretical and applied papers that address key questions about the common good:  Is the common good still relevant today? Which conception of the common good best illuminates our understanding of politics, ethics, economics, and other social institutions? What arrangements in family life, civil society, and politics will best foster the common good? Submissions are welcome from the perspective of any discipline of social inquiry, including but not limited to: philosophy, theology, political science, sociology, economics, history, and law. The conference will be structured to foster exchange among competing theoretical conceptions of the common good as well as debate about the application of these conceptions to particular disciplines and moral/social/political problems.

Please submit an abstract of no more than 300 words by November 15, 2016 to [email protected]. Notices of acceptance will be sent by December 6, 2016.

All presenters at the conference will receive a private hotel room for two nights during the conference as well as a small stipend of up to $150 to help defray documented transportation expenses. There is also a limited fund to further assist those who may be traveling from abroad; such funds will be awarded upon request, based on availability. For more information, please email us at the above address or visit the conference website at nanovic.nd.edu/cg2017.

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