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.

Tuesday, November 24, 2015

Love Trollope!

Thanks to Marc for posting about Anthony Trollope's The Warden, which is indeed a lovely novel. Trollope is one of my favorites, because his social criticism--which is definitely there--is tempered with a wryness and wide-ranging sympathy that often eluded Dickens. Trollope seems to trend every once in a while (I remember years ago when the series based on the Palliser political novels was big on Masterpiece Theatre). And according to Adam Gopnik recently in the New Yorker, he's trending again. Marc's post reminded me of Nathaniel Hawthorne's great assessment (which Gopnik quotes) of Trollope's novels:

“Just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business, and not suspecting that they were made a show of.”

Colorado School Choice Case: Cert Petitions and Supporting Amici

Three cert petitions were recently filed in the U.S. Supreme Court in an important case involving school choice and religious rights in Colorado. The local school district in Douglas County adopted a neutral program of scholarships for families to use for sending their children to any private school, religious or nonreligious. But the Colorado Supreme Court held that religious schools and families must be singled out for exclusion from this program; 3 of the 4 justices in the majority relied on Colorado's Blaine Amendment, the constitutional provision that prohibits aid to "sectarian" schools. The petitions argue that the Colorado court's ruling requiring this exclusion (1) ignores the 19th-century animus and prejudice against Catholics that motivated Colorado's and other states' anti-aid provisions, and (2) independent of this historical taint, violates the First Amendment by singling out religious choices for discriminatory denial of aid. (Here is one of the petitions, the school district's, with links to petitions by the state and by intervening parents.)

There's now an amicus brief from the Christian Legal Society, the Becket Fund, and others supporting the cert petitions. We expand on the argument about the prejudice-tainted background of state Blaine Amendments. We also show why the passage of time since their enactment does not immunize them from constitutional review based on their discriminatory motivation and the discrimination they are accomplishing today.

Finally, we explain why the Court ought to take this case: (1) among other things, state judges and other officials have (wrongly) come to think they have carte blanche to exclude people choosing religious options from generally available state benefits, and (2) the federal government bears partial responsibility for these discriminatory provisions because it pressured states joining the Union in the late 1800s and early 1900s to include such provisions as a condition of admission.

The University of St. Thomas Religious Liberty Appellate Clinic, which I direct, wrote the amicus brief. Thanks to my student Dan Burns for doing a significant amount of the drafting.

Fingers crossed on this case! It's obviously always difficult to get cert; and school choice cases are hard to bring before the Supreme Court. But the historical evidence of anti-Catholic animus in Colorado is as strong as that in any state. This may be the case that gets the Court's attention on how state constitutional provisions are being used to require insupportable discrimination against religiously grounded schooling.

Monday, November 23, 2015

Are you following Mirror of Justice on Twitter?

Please do!  (Go here.)

A gloomy thought . . .

From James Kalb, in his recent First Things essay, "Technocracy Now":  "It is of limited use to push specific causes when the entire basis of public life is so radically defective."

Sigh.

 

 

Stith on "Facing the Unborn"

A few months ago, Richard Stith had a really thoughtful essay in First Things called "Facing the Unborn."   This really jumped out at me:

Michael Kinsley, writing in 2006 in theWashington Post, expressed his utter bewilderment at opposition to embryonic stem cell research. “I cannot share, or even fathom, [the anti-research] conviction that a microscopic dot—as oblivious as a rock, more primitive than a worm—has the same human rights as anyone reading this article. . . . Moral sincerity is not impressive if it depends on willful ignorance and indifference to logic.”

What's so, so wrong with Kinsley's statement is that it simply is not the case that we are talking, in this context, about something that is "a microscopic dot -- as oblivious as a rock, more primitive than a worm"; that's not what even the smallest and youngest human person is.  (For a smarter elaboration of this point, check out Robby George's and Chris Tollefsen's Embryo:  A Defense of Human Life.)

 

Notre Dame Center for Ethics and Culture Fall Conference Recap—and a Model for Catholic Universities

The annual fall conference of the Notre Dame Center for Ethics and Culture was this past weekend, and, as Rick and I previewed last week, featured a blockbuster lineup of presentations. Nowhere in the Catholic world, I’d submit, is there a more robust annual academic event of such intellectual breadth and depth, and the Center’s Director, Carter Snead, and his staff should be commended for their hard work that results in such success.

Particular highlights for me were the opening address by Remi Brague on freedom and creation, a paper by Alasdair MacIntyre on justifications for coercion, Jonathan Lear (long one of my intellectual heroes) on Aristotle and Freud, Elizabeth Lev and John Haldane on modern art, a debate between Father Martin Rhonheimer and Thomas Pink on the interpretation of Vatican II’s Dignitatis Humanae, and a panel on vowed religious life and freedom with two good friends, Sister Maria Evangelista Fernandez, OSB and Brother Bryan Kerns, OSA. Rick, Father Thomas Joseph White, OP, and I participated in a panel on religious freedom—its natural law basis (White), the conditions for it in civil society (Garnett), and problems in defining what counts as a religious institution for purposes of legal exemptions (Moreland). Of course, there are also the joys of sharing meals and time together with hundreds of scholars and students from around the world.

And there is a larger point to be made about this moment at Notre Dame and in Catholic higher education generally. As I mentioned last week, I am spending this academic year on leave at Notre Dame as the Mary Ann Remick Senior Visiting Fellow at the Center for Ethics for Ethics and Culture (and my wife, Anna Bonta Moreland, is the Myser Fellow in the Center this year). The Center for Ethics and Culture is a model for Catholic intellectual engagement with undergraduates, graduate students, and faculty at Notre Dame that other universities would be wise to explore and emulate. The Center’s Sorin Fellows program integrates undergraduates into the work of the Center and places them in contact with faculty (as an example, Anna and I hosted a dinner with four Sorin Fellows at our home last month). A Mission Hiring initiative identifies graduate fellows and faculty who can make vital contributions to Notre Dame’s Catholic identity.

There is a well-worn tendency to despair about the future of Catholic higher education, even at those schools such as Notre Dame where the commitment to Catholic identity seems to me exceptionally strong. Since I was an undergraduate at Notre Dame and then through graduate school at Boston College and in faculty and administrative roles at Villanova, I have seen more than 20 years of debate over curriculum, faculty hiring, and student life at Catholic universities. Those who would despair should light a candle rather than curse the darkness by creating and supporting initiatives such as the Center for Ethics and Culture—if such initiatives continue, then the future of Catholic universities in the United States is bright indeed.

Sunday, November 22, 2015

On the Feast of Christ the King

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."

This one-page bulletin insert, "That He Would Reign in Our Hearts," put out this year by the USCCB, does a good job, I think, of tying together the "public" and "private" dimensions of the Feast. 

Viva Cristo Rey!

And, on that note, some great resources from Fr. Barron are available here.  I particularly liked this one, about the Cristero War.

Saturday, November 21, 2015

Syrian Refugees, National Security, and Catholic Legal Theory

A few correspondents have asked me (paraphrasing) "why haven't you blogged about the boiling debate over whether or not the United States should exclude Syrian refugees in the wake of the attacks on Paris and why haven't you written in response to the controversial things being said, done, and proposed by some politicians and candidates?"  Some of these correspondents seemed curious; some others seemed to be leveling an accusation of some kind.

I do not know as much as I should about the law and policy relating to immigration and asylum.  I'd welcome my fellow MOJ-ers who do to weigh in.  My own view is that the "debate" that's been happening in my Twitter feed, on Facebook, on op-ed pages, and in the public square has been, for the most part, frustrating, unedifying, and simplistic.  

It seems pretty clear to me that (a) ISIS (etc.) pose a serious national-security threat, one that our government and other governments should take very seriously and respond to with both prudence and resolve; (b) the United States should -- the attacks in Paris notwithstanding -- welcome refugees (of all faiths and none) from conflicts in Syria and elsewhere, after appropriately careful screening and investigation, in appropriately managed numbers, and state governors and other politicians should not grandstand or engage in demagoguery about excluding (or worse!) refugees; (c) that it is not xenophobic or racist, but rather entirely reasonable, to take seriously and to respond intelligently to the possibility that some people will exploit the refugee crisis and attempt to use refugee status for bad purposes; and (d) that it is not an "un-American" "religious test" to place special (again, not exclusive) emphasis on providing a safe refuge for religious minorities who are the victims and targets of persecution because of their religion.  (One more:  It also seems clear to me that arguments that take the form of "If you/we do [something about which I wish to express disapproval] then you/we will be doing exactly what ISIS wants you/we to do" are overused.)

I'd welcome, as always, others' perspectives.  I'm reminded of the careful and balanced approaches to the immigration issue that folks like Mary Ann Glendon and Michael Scaperlanda have proposed over the years.

"For Freedom Set Free" Conference at Notre Dame Center for Ethics & Culture

One of the highlights of the academic year at Notre Dame is the Center for Ethics & Culture's annual Fall Conference, which is going on now in snowy South Bend.   Ably led by my good friend and colleague Carter Snead, the Center's contributions to Notre Dame's mission are incalculable.   To pick out just one highlight, last night featured a pointed and provocative back-and-forth between Fr. Martin Rhonheimer and Dr. Thomas Pink on Dignitatis Humanae, coercive authority, doctrinal development, and other good stuff.  (Watch it here.)

Later this afternoon, MOJ-er Michael Moreland and I are participating in this panel:

Religious Liberty: Theory and Freedom of the Church
"The Infrastructure of Religious Freedom," Richard Garnett (University of Notre Dame)
"When Is a Religious Institution a Religious Institution?" Michael Moreland (Villanova University)
"Religious Freedom and the Secular State: Natural Law and Natural Ends," Rev. Thomas Joseph White, O.P. (Dominican House of Studies)
Conference Center Lower Level

Come say hello!

Friday, November 20, 2015

Arkes, Franck, natural law, the Constitution, and judging . . . again

Returning to a subject that has often been addressed here at Mirror of Justice:  There's a lively exchange going on, in various places, between Prof. Hadley Arkes and Matthew Franck on (among other things) the extent to which federal judges, in the course of interpreting the particular legal text that is the Constitution of the United States, may, should, or inevitably must interpret and apply the natural law.   

As I've written here many times (here, for instance), I do not agree with Prof. Arkes's position on this question.