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, October 7, 2011

A Dialogue with Russell Moore

By Robert George

Russell Moore of Southern Baptist Theological Seminary is, in my opinion, one of the most brilliant and insightful theologians working in any Christian tradition today. He is an Evangelical Protestant brother from whom Catholics can, I believe, learn a lot. I would very much like his work to become better known in the Catholic community. Earlier this week, I had the pleasure of conducting a public dialogue with him, during his visit to Princeton, where he also spoke at our campus interfaith Respect Life Sunday service. (Another speaker was the exceptionally gifted young Muslim writer Suzy Ismail.) The focus of our discussion was on Evangelicals in contemporary American culture and politics.

Here is a video: http://web.princeton.edu/sites/jmadison/calendar/flash/Moore_Discussion.html

Thursday, October 6, 2011

"Ducking challenges to naturalism"

By Rick Garnett

I liked this piece, by Timothy Williamson, from the New York Times, "On Ducking Challenges to Naturalism."  Among other things, Williamson observes that:

. . .  If it is true that all truths are discoverable by hard science, then it is discoverable by hard science that all truths are discoverable by hard science. But it is not discoverable by hard science that all truths are discoverable by hard science. “Are all truths discoverable by hard science?” is not a question of hard science. Therefore the extreme naturalist claim is not true.

. . .  [W]e should not take for granted that reality contains only the kinds of things that science even in the broad sense recognizes. My caution comes not from any sympathy for mysterious kinds of cognition alien to science in the broad sense, but simply from the difficulty of establishing in any remotely scientific way that reality contains only the kinds of thing that we are capable of recognizing at all. . .

An important anniversary

By Rick Garnett

Here is information about an event commemorating the 500th (!!) anniversary of Antonio de Montesinos, the Dominican who famously denounced the enslavement and oppression of indigenous people in the New World and whose preaching influenced Bartolome de las Casas.  Here's a bit from the conference web site:

While concerned with the history of human rights, the conference will have as its primary focus assessing current institutional and legal approaches to move forward in protection of human right.   The 500th anniversary is the ‘rationale’ for the conference. Given many contemporary experiences with problems in the global human rights regime, a review of universal definitions and protections of human rights would be justified even without the 500th anniversary.

While we have created in the last century many formal human rights statements and enforcement institutions, from the ILO to the Universal Declaration of Human Rights and various courts built on the Nuremberg model, egregious violations of defined standards continue. For example, despite great progress in defining indigenous rights, there are many cases where specific native communities are being displaced or forced to adapt to norms imposed by outside dominant societies. The movement of millions of migrants as a companion to economic globalization has spawned numerous failures to protect labor and other human rights. Imbedded in this migration is the smaller but more appalling abuses arising from involuntary human trafficking. While many religious institutions and traditions provide models for justifying and defending human rights, of which Montesinos is a stellar example, movements linked to many religious traditions have been tempted to approve suppression of rights in the name of conformity.

"The Political Pulpit"?

By Rick Garnett

The New York Times reported (or, more accurately, alleged) the other day that "[t]his weekend, hundreds of pastors, including some of the nation’s evangelical leaders, will climb into their pulpits to preach about American politics, flouting a decades-old law that prohibits tax-exempt churches and other charities from campaigning on election issues."  Of course, it is not against the "decades-old law" in question for pastors to "preach about American politics."  For a more accurate and insightful account of the provisions regarding political activities by tax-exempt entities, check out this article by my colleague, Prof. Lloyd Mayer.

I addressed the issue a few years ago, in a USA Today op-ed:

It is the regulation of the churches' expression, and not their expression itself, that should raise constitutional red flags. Religious institutions are not above the law, but a government that respects the separation of church and state should be extremely wary of telling churches and religious believers whether they are being appropriately "religious" or excessively "political" or partisan. Churches and congregants, not bureaucrats and courts, must define the perimeter of religion's challenges. It should not be for the state to label as electioneering, endorsement, or lobbying what a religious community considers evangelism, worship or witness.Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.

Wednesday, October 5, 2011

From Finnis to +Chaput

By Patrick McKinley Brennan

As Michael Moreland recently observed here, we at Villanova did a great job last Friday of celebrating and exploring the work of rockstar jurisprude John Finnis.  The conference was extraordinarily well attended, and, as one speaker commented to me afterwards, he learned more on that day than on any other single day of his life.  There was a lot going on!  The further good news is that, thanks to the speakers' generosity, nearly all of the papers delivered at the conference, including Prof. Finnis's keynote address, will be published in the Villanova Law Review.  That keynote address was a breathtakingly penetrating response to the eight papers and several formal comments delivered earlier in the day.  

Moving from strength to strength, I am delighted to announce that the Most Reverend Charles Chaput, O.F.M. Cap., the recently installed Archbishop of Philadelphia, will deliver the keynote address at Seventh Annual Scarpa Conference on Law, Politics, and Culture to be held at Villanova early next fall. Archbishop Chaput requires no introduction here, of course, and I'll only add that the pre-election season will be an ideal time to hear from Archbishop Chaput on how Catholics can serve the nation by living their Catholic beliefs in political life.

Transcript of Oral Argument in H-T, and Some Thoughts

By Marc DeGirolami

For those who may be interested, here is the transcript of the oral argument in H-T.  After the jump, some rapid thoughts and/or questions.

Continue reading

Ministerial Exemption Miscellany

By Marc DeGirolami

I was pleased to take part last night in an event at St. John's Law School dealing with the ministerial exemption and the Hosanna-Tabor case.  The case and the doctrine have been discussed a good deal already, but for those who can't get enough, here are some additional scattered thoughts.

1.  A perhaps somewhat pedantic point about names first.  I prefer "ministerial exemption" to "ministerial exception."  From what I have seen in the briefing of the case, I am in the great minority.  My reasons are historical and linguistic.  The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act.  At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner.  The idea was that "exemptions" from generally applicable laws are constitutionally required in certain circumstances, and the ministerial "exemption" was part of the general doctrinal geist.  

One might say, well, "exception" really means the same thing as "exemption," but I do not think that's right.  An exemption is an immunity, and so conveys the sense of being set apart or in an entirely different category.  An exception conveys none of these things: that which is excepted is ordinarily, as a matter of course, in the single, unified category.  Title VII and other anti-discrimination laws contain "exceptions" for religious discrimination by religious entities; they do not contain exemptions for those entities, because their fundamental point of departure is that religious institutions are generally in the same category as any other organization.  The fact that one is in the exempted -- and therefore (conceptually, jurisdictionally, institutionally) distinct -- category does not necessarily mean that one is untouchable by the state.  In fact, I tend to take a somewhat less absolute view of the ministerial exemption than do some folks (folks whom I greatly respect).  But it does suggest something of substance that is different from an exception.  

I also recognize that as of Employment Division v. Smith, free exercise took a different turn.  There were no longer any constitutionally required exemptions from generally applicable laws.  But this only underlines the point that the historical soil in which the ministerial exemption took root was the 1960s-70s Sherbert framework, not the Smith framework.  It's true that people have made interesting, though somewhat problematic, arguments that Smith only dealt with individual claims of religious exemption, and that it therefore did not address institutional exemption (and here I think Caroline Corbin's sharp arguments against this position are well worth considering).  But the bottom line for me is that the notion of an exemption is a much easier fit with the doctrinal history that preceded Smith.  And it is better -- more historically and linguistically precise -- to reserve the idea of an "exemption" for something like the ministerial exemption, while using "exception" for something like a statutory carve-out (assuming, of course, that one believes that there ought to be a ministerial exemption at all).

Continue reading

Tuesday, October 4, 2011

Berg et al. on "Religious Freedom, Church-State Separation, and the Ministerial Exception"

By Rick Garnett

Tom Berg, Carl Esbeck, Kim Colby, and I co-authored an amicus brief in support of the Hosanna-Tabor school, whose case is being argued in the Supreme Court tomorrow.  We also contributed a streamlined version of the brief to the Northwestern University Law Review Colloquy; the paper is not available yet at Colloquy, but it is available here, on SSRN.  Here's the abstract:

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism – the project of protecting political freedom by marking boundaries to the power of government – has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects – as ours does – both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.

The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority – that is, the authority of a constitutional government – lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.

Institutional pluralism in Tuscaloosa

By Rob Vischer

Paul Horwitz flags a fascinating story from his university regarding the continuing racial segregation of most fraternities and sororities on campus.  The university president does not seem to be too bothered by this fact.  This is a good case for testing the limits of our commitment to institutional pluralism.  My own quick reaction is that, even though the university (apparently) owns the land on which the fraternities and sororities are located, it would be too damaging to associational autonomy to compel certain membership decisions.  At the same time, I would think that university leadership would want to take a much more proactive and assertive stance in persuading students that integrated membership is both the morally right thing to do and an essential step for ensuring the continued vitality of the associations themselves.

Monday, October 3, 2011

What Should Be in a Course on Moral and Political Theory for Law Students?

By Michael Moreland

When Villanova reformed its 1L curriculum a few years ago, we introduced a series of 1L electives that includes international law, statutory interpretation, the regulatory state, and criminal procedure. Patrick Brennan and I designed (and co-taught the first time it was offered) a course entitled "Justice and Rights" that we hoped would serve as an introduction to some major themes in moral and political philosophy tailored for law students (and not duplicate what they might get in an upper-level elective in jurisprudence).

In its initial incarnation, we read, in order, chunks of Thomas Hobbes's Leviathan, John Locke's Second Treatise, John Stuart Mill's On Liberty, John Rawls's A Theory of Justice, and Aristotle's Nicomachean Ethics and Politics, along with a series of Supreme Court cases that pose, however imperfectly, a set of issues about, well, justice and rights (Heller v. DC, Grutter v. Bollinger, Lawrence v. Texas, Plyler v. Doe, San Antonio v. Rodriguez, and Kelo v. New London). I know that law students won't need to know, say, the difference between Hobbes's and Locke's social contract theories in order to pass the bar exam, but I do think that reading these texts, thinking about them, and writing a series of papers on the issues they raise is a distinctive way for a Catholic law school to provide a humanistic legal education that can improve students' reading and writing skills while also providing the opportunity to reflect on some larger questions. And, so far, many students have responded with enthusiasm.

I'm wondering what MOJ readers think a good course of this kind would look like. I've thought about reading more Rawls, not so much because I'm a committed Rawlsian but because A Theory of Justice and Political Liberalism have such a significant bearing on the way that justice and rights are understood in contemporary law. Or I know there are rich texts in the tradition that we neglect entirely--Plato's Republic, Augustine's City of God, selections from Aquinas, Bentham's Principles of Morals and Legislation, Kant's Doctrine of Right, etc., along with a whole host of potential contemporary authors. I'd be grateful for any suggestions.

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