Wednesday, March 13, 2024
Mark Rienzi (CUA and Becket) has shared with Mirror of Justice the following report and analysis:
Transgender cases hit SCOTUS
This week, the Supreme Court is set to consider several cases dealing with the hot-button topic of gender transitions for minors. Although this has been a major political firestorm for the last couple of years, SCOTUS has largely stayed out of the fray. The Bostock decision established the right for transgender employees to be free from certain types of discrimination on the job. The Court has so far avoided ruling on Title IX’s application to transgender students, dismissing one case as moot and waiting to weigh in on state laws requiring students to play on sports teams aligned to their natal sex, not current gender identity.
But sooner or later, the Court will have to weigh in on the limits of Bostock, as well as the national controversies over how far parents, schools, and doctors should go in supporting gender transitions for minors.
A trio of cases at Friday’s conference presents a surprising contrast in how state officials handle these issues.
First, the Solicitor General and a group of parents, represented by the ACLU, have asked the Court to consider challenges to laws banning medical transition procedures for minors. Tennessee and Kentucky (along with numerous other states) have banned such procedures, and the challenges to their laws have now reached the court. The ACLU has asked the Court to consider its parental rights argument. The SG has taken a different tack, asking the Court to focus on whether the bans violate the Equal Protection Clause as an impermissible sex-based classification. The states have argued there is not yet a circuit split, citing the Eight Circuit’s pending en banc decision on a similar law in Arkansas. Whether the Court takes this set of cases or waits for a later opportunity, it seems inevitable that the nationwide controversy will eventually end up at SCOTUS.
A third petition raises a troubling question of parental rights in Indiana. Indiana is among the states that have banned such medical procedures for minors, but state officials nonetheless removed a teenager from his parents’ custody because they refused to use his preferred pronouns and agree to treat him as a girl. In M.C. and J.C. v. Indiana Dep’t of Child Services, Mary and Jeremy Cox have appealed the state’s decision to remove their teenage son from their home and place him in a home where “she is [ac]cepted for who she is.” The state refused to return the teen to his parents, even after an investigation showed that all allegations of abuse and neglect were unsubstantiated. The court pointed to an eating disorder and reasoned that, if the child were returned to his legally fit parents, he would experience distress due to the disagreement over gender. That was grounds to keep him out of his parents’ home until he turned 18.
The Coxes kept appealing, hoping their son might come home, but Indiana and its courts refused to return the child. Now they have asked the Supreme Court to review their case, hoping to overturn a decision that could continue to have dire consequences for their family and put them at risk of further state intervention for their younger children. Our team at Becket is proud to represent them. But Indiana, confoundingly, continues to defend the decision. The state reasons that because it succeeded in keeping A.C. from his parents until he turned 18, his case is now moot. It’s a dangerous argument that would set a dangerous precedent nationwide: parents lose their legal recourse against state officials who take a teen away, since teens will soon reach the age of majority and their cases will be moot, too.
It’s not just Indiana. California and Minnesota have passed laws which allow state courts to take jurisdiction over minors for the purpose of allowing them to receive medical interventions for their transitions. Maine is considering a similar law. Washington state has passed a law that allows teens to effectively emancipate themselves by going to shelters which will help facilitate social and medical transitions—it’s then up to the state, not the parents, how long the teens can stay. The state doesn’t even have to notify the parents of the child’s whereabouts.
The Supreme Court will soon have to decide the rights of loving parents who don’t support a child’s desire to engage in a social or medical transition. It should do so now, not years from now, when more families have been torn apart. And the Coxes’ case presents an unusually strong scenario: the state admits the parents are fit, so there are no overlapping issues about state law on abuse. The fact that A.C. has turned 18 makes the case an especially clean vehicle—there is no danger of changed circumstances once the Court grants cert.
These disturbing cases will only continue to multiply until, and unless, parental rights are established. Loving families should not have their children removed because the parents disagree with state officials about gender.
Friday, March 8, 2024
The Program on Church, State & Society at Notre Dame Law School is pleased to announce its annual writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersections of church, state & society and, in particular, how the law structures and governs them.
More info here.
Tuesday, March 5, 2024
That colleague is Prof. Elizabeth Kirk, a family law expert. Kevin, Elizabeth, and I tackle statutory interpretation, tort law, family law, and law and religion (this was recorded before the Alabama state legislature took action in proposing new legislation, but don't miss Kevin's smart prognostication on this front). Have a listen!
I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.
The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.
These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.
This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.
Friday, March 1, 2024
Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.
For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!
Friday, February 16, 2024
Prof. Rick Duncan (Nebraska) has a new paper up called "Why School Choice Is Necessary for Religious Liberty and Freedom of Belief." Amen! Here's a bit:
Education is not value-free; indeed, it is value-laden. And in a country as divided as ours, we no longer share common values and common truths. We have competing versions of what is good, what is true, what is fair, what is just, what is morally good, and what is beautiful. Moreover, we are at odds over the most important question in life—whether God exists and whether His Word is relevant to a quality education. And a one-size-fits-all K–12 curriculum cannot possibly serve all these competing versions of the good life. Although I think competition is always good for the quality and efficiency of any product or service, my argument in this Article is not about higher standardized test scores or better mastery of subjects and skills. My perspective is based on First Amendment values of freedom of religion, thought, and belief formation. In other words, I believe that school choice is necessary for religious liberty and for freedom of thought and belief. If religious and intellectual autonomy are to survive and thrive in a deeply divided, pluralistic nation such as ours, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools.
I tried to make a similar argument, a (long!) while back, in this paper, "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good." Time flies!
Thursday, February 15, 2024
As Rick Garnett said in his post, we've reached the age of 20 for the Mirror of Justice. The anniversary provoked me to look back on some of the early messages from that period and reminded me that the hottest topic and source of strongest rhetoric of disagreement on posts in the initial months involved the forthcoming 2004 presidential election. Catholics troubled by the strong pro-abortion advocacy of Democratic Senator John Kerry argued he was disqualified from Catholic support. Others were troubled about the ongoing war in Iraq and contended that Catholics should withdraw support from President Bush based on the debacle about never-found weapons of mass destruction while thousands of innocent lives were lost.
In sum, as one writer put it to Mirror of Justice posters at the time, people were feeling rather "anguished" about the upcoming presidential election. Oh, how things change!
Sunday, February 4, 2024
This weekend, the Mirror of Justice blog turned 20 years old. Here is a link to our first post (authored not by me, as the link suggests, but by Mark Sargent):
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.
A few things about this blog and us:
1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.
2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.
3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.
4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.
5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)
6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!
It is, I suppose, cringe-inducingly obvious to note that a lot has changed since February of 2004. (There were a lot of back-and-forth postings about the Bush v. Kerry election!) A fair bit of the conversation among law-types has migrated to Twitter, Substack, etc. And yet, blogs survive (and, in some well-known cases, continue to thrive).
It continues to be my view -- as I tried to express in this very early post of mine, and in a lot of posts since -- that at the heart of any "Catholic legal theory" has to be the Christian proposal about moral anthropology, that is, about what it means and why it matters to be human. As I said in this short essay, "persons" are "the point of the law."
Ad multos annos!
