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, June 30, 2022

Garnett on "Anti-Catholic Attacks After Dobbs"

By Rick Garnett

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.

Wednesday, June 29, 2022

Conference, "Liberalism's Limits: Religious Exemptions and Hate Speech"

By Marc DeGirolami

Our Center for Law and Religion (which I co-direct with Mark Movsesian) is co-sponsoring with our longtime partner institution, the Università LUMSA in Rome, a conference in Rome next week: Liberalism's Limits: Religious Exemptions and Hate Speech. We've got a wonderful group of presenters representing a broad range of perspectives. Cesare Mirabelli, the president emeritus of Italy's Constitutional Court, and the political historian Chantal Delsol, will kick things off, followed by three workshops considering the themes of the conference. More soon on the papers.

Tuesday, June 21, 2022

A long awaited win for educational pluralism and religious freedom in Carson v. Makin

By Rick Garnett

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.

Sunday, June 19, 2022

"Under Caesar's Sword" Online course

By Rick Garnett

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!

Tuesday, June 7, 2022

"Religion and the American Constitutional Experiment" - Order Now and Save

By Rick Garnett

RACE flyer

Friday, May 27, 2022

Multiple Levels in Common Good Constitutionalism

By Kevin C. Walsh

A prominent structural feature on the surface of Professor Vermeule's Common Good Constitutionalism is its two-level presentation of CGC. One reason the book has received such divergent reactions is inattention to this two-level structure. 

Level one is Generic CGC. This is in Chapter 1. This part is presented—and is to be taken—as correct, even if not entirely at face value. Vermeule deliberately leaves underdeveloped the key concept of the common good with respect to the God and religion, for example. This can be misleading even in ways that the author may not have intended. In any event, Generic CGC can more or less be taken as true except for what it explicitly disclaims addressing.

Level two is Vermeulean CGC. This in Chapters 2 and 5. The author explicitly advises the reader about the detachability of Vermeulean CGC from Generic CGC. Among other features, this insulates Generic CGC from warranting rejection just because Vermeulean CGC is shown to warrant rejection.

So far so good. As a demonstration of the intelligence and strategic foresight of the author, this structural feature has shown its utility in anticipating and enabling facile authorial responses to the divergent reactions to the book thus far.

The divergence is that devotees warmly embrace it at Level One while critics denounce it at Level Two. I'm inclined to believe that both reactions are correct. Generic CGC is to be embraced; Vermeulean CGC is to be abjured.

This inclination is unsurprising, of course, given Vermeule's inability to distinguish Generic CGC from the classical natural law grounding Jeff Pojanowski and I were advocating years ago for fidelity to the U.S. Constitution as positive law. Generic CGC is just another label for the same understanding of classical natural law we and many others rely upon for St. Thomas Aquinas's understanding of law in terms of its four causes. We took up residence on Level One a while ago and are always happy to welcome others.

Pojanowski and I have differences with Vermeulean CGC, to be sure, but then again these are exactly the kinds of differences one would expect from a correct understanding of Generic CGC. As for Generic CGC as a new label for the classical Thomistic understanding of law's essence, the problem with Vermeule's new branding is its emphasis on just one of law's four causes: the common good (final cause). This tends to efface the necessary contributions of law's other three causes: ordinance of reason (formal cause), made by one with public authority/care for the community (efficient cause), and promulgated (material cause).

My advice for people trying to make sense of Common Good Constitutionalism is to pay close attention to the multilevel presentation throughout. This includes the distinction between Generic CGC and Vermeulean CGC. But it also includes attentiveness to other features of Vermeule's arguments both in the book and elsewhere that suggest the book's intentional incompleteness. Roughly contemporaneously with the publication of Common Good Constitutionalism, for instance, Vermeule published with co-author Conor Casey an article titled Myths of Common Good Constitutionalism. At the operational level for lawyers and judges, this Myths piece is much more helpful than the book that Myths tells you how not to read.

Steve Smith, "The Church in the Twilight"

By Marc DeGirolami

While I'm at it, here's a little notice for a new paper by Professor Steven Smith that may be of interest to MOJ readers, from the same conference organized by Professor Helen Alvaré as the one for which I wrote the paper below. Steve's paper is The Church in the Twilight and the abstract is below. It's well worth your time.

Writing in the 1970s, Robert Nisbet observed that we can observe in history “twilight periods”– the late Roman Republic, the late Roman Empire, the late Middle Ages– in which one form of civilization was collapsing and another form was emerging; and Nisbet believed that the West is currently in such a period. In recent years similar assessments have proliferated, coming from various points on the political spectrum. Such assessments are inherently speculative; nonetheless, they might naturally influence our political and cultural decisions: choices that might make sense when a society is growing and vibrant might make less sense in a period of decadence or collapse. In the area of religious freedom, more specifically, institutional religious freedom has in American history been secondary to or derivative of a dominant emphasis on individual religious freedom; and these priorities have been consistent with the individualism that has been a central and celebrated feature of Western civilization. But there is reason to think that this individualism now underlies some of society’s serious ailments. In this situation, it may be that institutional religious freedom– freedom of the church– should be the priority.

Thursday, May 26, 2022

"The New Disestablishments"

By Marc DeGirolami

A new draft paper, building on some work I've done on the nature of "establishment" today, its relationship to free exercise and exemption from general law, and particularly the idea of establishment as "regime" in classical political theory. One of the more controversial claims in the paper is that inquiries about "religion" as a legal category are no longer worthwhile from a scholarly perspective (though they continue of course to be highly necessary from a practical, lawyerly perspective), except as a way to conceive the shifting dynamics of power within the regime. Here's the abstract:

The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.

Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.

Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.

Tuesday, May 24, 2022

Mary, Help of Christians, Pray for Us -- World Day of Prayer for the Church in China -- Prayer to Our Lady of Sheshan

By Kevin C. Walsh

Today is the feast of Mary, Help of Christians. This is one of my favorite titles for Mary, a product of my Salesian high school education. 

Today is also the World Day of Prayer for the Church in China. In 2007, on Pentecost, Pope Benedict XVI released a letter to the Church in China. He asked that May 24 be kept as a day of prayer for the Church in China. He wrote that on that day, "the Catholics of the whole world – in particular those who are of Chinese origin – will demonstrate their fraternal solidarity and solicitude for you, asking the Lord of history for the gift of perseverance in witness, in the certainty that your sufferings past and present for the Holy Name of Jesus and your intrepid loyalty to his Vicar on earth will be rewarded, even if at times everything can seem a failure." Longer excerpt:

19. Dear Pastors and all the faithful, the date 24 May could in the future become an occasion for the Catholics of the whole world to be united in prayer with the Church which is in China. This day is dedicated to the liturgical memorial of Our Lady, Help of Christians, who is venerated with great devotion at the Marian Shrine of Sheshan in Shanghai.

I would like that date to be kept by you as a day of prayer for the Church in China. I encourage you to celebrate it by renewing your communion of faith in Jesus our Lord and of faithfulness to the Pope, and by praying that the unity among you may become ever deeper and more visible. I remind you, moreover, of the commandment that Jesus gave us, to love our enemies and to pray for those who persecute us, as well as the invitation of the Apostle Saint Paul: "First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all men, for kings and all who are in high positions, that we may lead a quiet and peaceable life, godly and respectful in every way. This is good, and it is acceptable in the sight of God our Saviour, who desires all men to be saved and to come to the knowledge of the truth" (1 Tim 2:1-4).

On that same day, the Catholics of the whole world – in particular those who are of Chinese origin – will demonstrate their fraternal solidarity and solicitude for you, asking the Lord of history for the gift of perseverance in witness, in the certainty that your sufferings past and present for the Holy Name of Jesus and your intrepid loyalty to his Vicar on earth will be rewarded, even if at times everything can seem a failure.

 In 2008, Pope Benedict XVI published a Prayer to Our Lady of Sheshan to be prayed by the Universal Church on this day, May 24, each year.

Prayer to Our Lady of Sheshan

Virgin Most Holy, Mother of the Incarnate Word and our Mother,
venerated in the Shrine of Sheshan under the title "Help of Christians",
the entire Church in China looks to you with devout affection.
We come before you today to implore your protection.
Look upon the People of God and, with a mother’s care, guide them
along the paths of truth and love, so that they may always be
a leaven of harmonious coexistence among all citizens.

When you obediently said "yes" in the house of Nazareth,
you allowed God’s eternal Son to take flesh in your virginal womb
and thus to begin in history the work of our redemption.
You willingly and generously cooperated in that work,
allowing the sword of pain to pierce your soul,
until the supreme hour of the Cross, when you kept watch on Calvary,
standing beside your Son, who died that we might live.

From that moment, you became, in a new way,
the Mother of all those who receive your Son Jesus in faith
and choose to follow in his footsteps by taking up his Cross.
Mother of hope, in the darkness of Holy Saturday you journeyed
with unfailing trust towards the dawn of Easter.
Grant that your children may discern at all times,
even those that are darkest, the signs of God’s loving presence.

Our Lady of Sheshan, sustain all those in China,
who, amid their daily trials, continue to believe, to hope, to love.
May they never be afraid to speak of Jesus to the world,
and of the world to Jesus.
In the statue overlooking the Shrine you lift your Son on high,
offering him to the world with open arms in a gesture of love.
Help Catholics always to be credible witnesses to this love,
ever clinging to the rock of Peter on which the Church is built.
Mother of China and all Asia, pray for us, now and for ever. Amen!

Monday, May 23, 2022

"Punishment among Friends"

By Patrick McKinley Brennan

Some people think that punishment of criminals is justified by what Jeffrie Murphy called "retributive hatred," where that hatred, as Murphy underscored, is hatred of criminal persons, not just of their crimes.  Christians, however, can never rightly hate persons, and eventually Murphy, who was a Christian, disowned retributive hatred and defended instead a justification of punishment on the basis of agape or charity.  Murphy's account of punishment on the basis of Christian love provides the starting point in my new paper, "Punishment among Friends," defending legal punishment of persons except when mercy, properly understood, precludes it.  The thrust of my argument in the paper is that because, as Aquinas contends, "all law aims at establishing friendship," sometimes law must redress violations of commutative justice by punishing justly convicted malefactors.  Sometimes what the love of friendship requires is punishment for the good of the malefactor and his or her restoration to a rightful place in the community.  Friendship can easily seem irrelevant as a norm for our common life in the civil order as we know it especially today, but Aquinas teaches us that friendship is always to be the governing norm where people live together because charity itself, from the reach of which no one is excluded, is itself a certain kind of friendship.  Bringing together law, love, friendship, mercy, and punishment, this paper aims to show how criminal justice reform animated and disciplined by Christian love would be neither squishy nor vengeful.  A Christian regime of criminal punishment would punish, proportionately, out of the love of friendship except where the judge judged that mercy should instead be employed to restore malefactors to the order of the virtuous.  John Noonan long ago ventured that "the central problem of the legal enterprise is the relation of love to power," and the love of friendship is precisely what Christians can bring to the public square today as the right ultimate criterion for necessary reform of the criminal justice system with its mighty power.  In all of this, Christians but especially Catholics need not be shy about the need for the supernatural to correct and transform the natural, for this is precisely what charity does (cf. Rom. 5:5).    

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