Bibliography of Catholic Legal Scholarship

J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. 1 (2022)

Originalists have often been uncomfortable making moral arguments, but the natural law critique of originalism's moral foundations has forced the issue. Those foundations, properly understood, are found in the very natural law tradition that originalism's critics (including Vermeule) embrace. It is the original meaning that preserves the people's legitimate political authority, and it is their legitimate political authority that secures the common good. The moral authority of original meaning is the justification for originalism.

Hadley Arkes, Religious Freedom and the Crisis over Conservative Jurisprudence, 10 Faulkner L. Rev. 171 (2019)

There is nothing all that difficult in adding to conservative jurisprudence the common sense of natural law, and it would draw on things so readily understood by ordinary folk that the move may hardly seem unsettling. But the law it would make would take hold at once with a resonance in the common understanding of ordinary people.

Elise Bavazzano, Judge, Juror, and the Holy Spirit, (Amen!): The Split on Religious-Based Peremptory Challenges and Juror Disqualification, 21 Rutgers J. L. & Religion 379 (2020)

The glaring issues involving religion continue to play a key role in the legal landscape of this country and it is evident that remedies are lacking-- other than the Supreme Court issuing a definitive ruling (which it is extremely reluctant to do as evidenced here). Religion is inherently enmeshed with other complex issues of race, capital punishment, and jury duty, so it is understandable that any decision related to it may be incendiary. But, with significant federal circuit splits and state courts diverging so significantly on peremptory challenges and juror disqualification, a binding precedent should be set. This is especially true in the context of capital cases where the consequences of a papal pronouncement can have a dramatic influence on the jury pool. The majority of courts declining to expand Batson cite that their primary reason for rejection, besides the lack of Supreme Court direction, is that religion has not been the object of discrimination nearly to the same degree as race or gender. But, with these new developments in the Catholic Church and the ever-evolving country we live in, perhaps it is best not to wait for that to happen.

Thomas C. Berg, Douglas Laycock, Espinoza, Government Funding, and Religious Choice, 35 J.L. & Religion 361 (2020)

The U.S. Supreme Court's decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from a state program of financial aid to private schools, is another incremental step in the Court's long-running project to reform the constitutional law of financial aid to religious institutions. There was nothing surprising about the decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down. But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choices and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses-- to minimize the government's interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.

Thomas C. Berg, Religious Freedom Amid the Tumult, 17 U. St. Thomas L.J. 735 (2022)

The US Supreme Court term ending in summer 2020, and the opening weeks of the next term, were action packed for religious freedom. The Court decided six cases pertaining to the issue in the 2019-20 term--double, even triple, the usual number--in contexts from school choice to public-health closures of churches to clashes between religious liberty and nondiscrimination laws.¹ The decisions also came at a time of extraordinary stress and turbulence in society, and they relate in striking ways to those forces of turbulence. This article discusses religious freedom in relation to three Ps of turbulence: pandemic, polarization of culture and politics, and protests over racial injustice.

In each of these areas, the article does two things. First, it explains the Court's approach to religious freedom in several, although not all, of the 2020 and 2021 cases. Second, it suggests arguments and lessons for defending religious freedom today as a vital aspect of human dignity along with other rights and interests.

Thomas C. Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, 15 U. St. Thomas L.J. 517 (2019)

Johnson identifies a significant scholarly gap: “Despite the thousands of studies documenting the benefits of religion and religious practices to individuals as well as society, only a small number of studies have examined the contributions or effectiveness of faith-based organizations.”¹¹ Noting a few controlled studies documenting the relative effectiveness of organizations attacking child poverty and prisoner recidivism, Johnson suggests that more extensive, rigorous research could show that the “impact of faith-based organizations may likely be far more consequential for the common good than people imagine.”¹² He argues that further research could attract media attention to the benefits, not just the harms, from religion; could teach how to improve faith-based organizations' work; and most relevant here, could help strengthen the case for religious freedom. “Research that accurately estimates the economic value and social contribution of the ‘faith factor’ should make it easier to advocate the case that society benefits when religion is allowed to flourish. Conversely, society will suffer when religion is restricted.”¹³

Brian Grim, president of the Religious Freedom and Business Foundation, has co-published a widely noted study, which he explains here, estimating the annual value that religious organizations and activities add to society.¹⁴ The estimate begins with the revenue of the hundreds of thousands of religious congregations, educational institutions, health-care networks, charitable social services, media entities, and food providers.¹⁵ On top of that, however, are indirect or “halo” effects--for example, “having the stable, attractive force of a congregation in a community, providing a center for education, childcare, social events, charity, and job training, ... [as well as] provid[ing] a sizeable number of jobs”¹⁶--which together amount to four times the actual direct spending by the congregations.¹⁷ Further including “halo effects” from separate charitable institutions, as well as the revenues of religiously inspired businesses and religiously themed films, produces a yearly economic value of American religion of almost $1.2 trillion¹⁸--an estimate that may be conservative but that still amounts to “the world's fifteenth largest national economy.”¹⁹ As Grim acknowledges, *521 the figure “does not account for the negative impacts that occur in some religious communities, ... [such as] the abuse of children by some clergy, cases of fraud, and the possibility of being recruitment sites for violent extremism”--but those costs, he argues, must be weighed in the light of religion's “purpose-driven institutional and economic contributions to health, education, social cohesion, social services, media, food and business itself.”²

Michael Berry & Antony Barone Kolenc, Born-Again Rfra: Will the Military Backslide on Its Religious Conversion?, 87 Mo. L. Rev. 435 (2022)

This Article details the importance of religious freedom in the United States and its armed forces, as well as the unfortunate history of non-accommodation that has plagued the Department of Defense (DoD) until recent years. It reviews the jurisprudence surrounding military service member free-exercise claims before and after the landmark Religious Freedom Restoration Act (RFRA) of 1993, and it analyzes how courts have addressed those claims within the military. It proposes an analysis for handing religious accommodation claims under RFRA in the military, and examines a series of hypotheticals that demonstrate the issues the DoD must confront and accommodate if it is to value its members' religious liberty.

Clint Bolick, The Dimming of Blaine's Legacy, Cato Sup. Ct. Rev., 2019-2020, at 287

No sooner is the ink dry on a Supreme Court decision than creative minds begin to engage over the next one. Espinoza, in a very important sense, is the culmination of a long journey meant to make America safe for school choice. But Court opinions, especially those decided by a 5-4 vote, are rarely the final word unless future courts determine they are worthy of reverence. Whether Espinoza falls into that category is left to future judgment. But, for the moment, school-choice advocates have a victory to cherish.⁶

Kathleen M. Boozang, A Light Unseen?, 58 J. Cath. Legal Stud. 5 (2019)

A Light Unseen is an incredibly important work of scholarship that has given me an opportunity to be introspective, to give order to what perhaps has been too intuitive, and to be inspired to think about how to better define, pursue, and measure progress in achieving the mission of being a Catholic law school.⁸

Gerard V. Bradley, Moral Truth and Constitutional Conservatism, 81 La. L. Rev. 1317 (2021)

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage. The reason for the methodological moral reticence is easy to see. It came into being as an understandable strategy to halt the Warren Court's judicial activism. The conservative diagnosis was simple, and largely correct: judicial philosophizing not called for by the constitutional text or by a sound interpretation of it lay at the root of these judicial excesses. The treatment that conservatives prescribed hit the mark they sighted. Where resort to moral reasoning seemed inescapable, conservatives turned to some species of conventional moral belief, usually to what some group thinks, or once thought. Conservative constitutionalists have been committed to an "objectivity" wherein facts about what some believe to be morally sound folded into a regimen of restricted legal reasoning from text, history, structure, and precedent. This conservative constitutionalism is well-suited to damage control whenever legal elites are in thrall to unsound moral and political philosophies. Conservative constitutionalism can even stymie for a time the introduction of new mistaken premises. But now, more than 50 years into the revolution, contemporary constitutional conservatism is incapable of wresting control of the law back from the regime-changing project of autonomous self-definition. We have passed a tipping point where damage control amounts to no more than a slow-walking surrender. Conservative constitutionalists need only choose originalism, which will lead them to recognize the necessity for strategic resort to critically justified metaphysical and moral truths, as the Constitution directs. In fact, the contemporary judge can be faithful to the Founders only by sometimes relying on moral and metaphysical truths that lie beyond the Constitution. These truths include, crucially, answers to such foundational questions as: When do persons begin? What is religion? Which propositions about divine matters are answerable by use of unaided human reason? What is the meaning of that "marriage" that Supreme Court cases for over a century have spoken of, when it declares that everyone has a "fundamental right to marry"? The truth about constitutional law is that, sometimes, the problem with an errant Supreme Court opinion is not that it relies on philosophy, but that it relies upon bad philosophy. Then the conscientious judge is obliged to replace bad philosophy with good philosophy. And the linchpin of that good philosophy is the "liberty," not of self-creation ex nihilo, but of self-constitution in a morally ordered universe.

John M. Breen, Lee J. Strang, A Light Unseen: The History of Catholic Legal Education in the United States: A Response to Our Colleagues and Critics, 59 J. Cath. Legal Stud. 1 (2020)

We are enormously grateful to the Journal of Catholic Legal Studies for hosting the conference on February 14, 2020, dedicated to a review of our book manuscript, A Light Unseen: The History of Catholic Legal Education in the United States, and for publishing the papers of the conference participants.¹ The book describes the purposes for which Catholic law schools were founded, the schools maturation and success in achieving accreditation and some measure of respectability,² and their search for meaning since the 1960s-1970s when the prior unreflective cultural Catholicism of these schools dissipated and in some cases disappeared almost entirely. A Light Unseen's last chapter provides a blueprint for the creation of authentically Catholic legal education grounded in the Catholic intellectual tradition. In particular, we argue that Catholic law schools reach their fullest expression when their teaching, scholarship, and student formation-- their intellectual hearts--employ the Catholic intellectual tradition and its moral anthropology.

Olivia Brown, Melanie Collins, Hange (Hera) Liao, Lydia Tsao, Tracey Zhang, Religious Exemptions, 20 Geo. J. Gender & L. 397 (2019)

The United States Constitution grants religious freedoms to its citizens. These religious freedoms can come into tension with the laws of the United States, in particular, public accommodation laws. The recent Masterpiece Cakeshop decision highlights the prevalence of these conflicts and the importance of these religious exemptions cases.¹ Religious exemptions are often viewed as “carve outs” *398 to laws and policies. These exemptions enable individuals, organizations, or businesses to be exempt from-- or, in other words, to not be subject to--a law or policy if they believe that the law or policy violates their religious beliefs.² Grounded in the First Amendment, the ministerial exception and statutory exemptions like the Religious Freedom Restoration Act (“RFRA”) create exemptions for organizations based on their religious beliefs to exclude certain individuals from membership (for example, members of the lesbian, gay, bisexual, and transgender (“LGBT”) community) and refuse services to certain individuals (for example, in healthcare, housing, and baked goods). This creates tension between public accommodations laws designed to ensure equal access to non-public forums and organizational policies that exclude members based on their gender or sexual orientation. To decide if a public accommodations law violates the constitutional freedom of religion, the Court evaluates whether--typically under the Religious Freedom Restoration Act (“RFRA”)--the enforcement of a religiously neutral law against an individual “substantially burdens the individual's religious exercise and is not the least restrictive way to further a compelling government interest”³ or whether the ministerial exception applies, which “precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.”⁴ This article examines how the Court resolves the tension between ensuring religious freedoms for its citizens and maintaining other guaranteed rights and protections.

Maria Cahill, Subsidiarity As the Preference for Proximity, 66 Am. J. Juris. 129 (2021)

This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber's book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber's theory provides a viable account of the preference for proximity.

llen Calhoun, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech. by Philip Hamburger. Chicago: University of Chicago Press, 2018. Pp. 432. $55.00 (Cloth); $55.00 (Digital). Isbn: 9780226521947, 36 J.L. & Religion 155 (2021)

The presenting issue in Philip Hamburger's Liberal Suppression is the internal tension within section 501(c)(3) of the US Internal Revenue Code. On the one hand, that celebrated provision exempts churches, schools, and charities (collectively, “idealistic organizations”) from federal taxation; on the other, it denies exemption to the same entities if they engage in political speech. Thus, in Hamburger's view, the section both upholds and undermines the First Amendment at the same time.

Angela C. Carmella, Reflections on Breen & Strang's A Light Unseen: A History of Catholic Legal Education in the United States, 58 J. Cath. Legal Stud. 15 (2019)

In A Light Unseen: A History of Catholic Legal Education in the United States, Professor John Breen and Professor Lee Strang have undertaken a monumental task and have produced an impressive book, particularly with respect to the fascinating history of the development of Catholic legal education. They provide a thoughtful consideration of how Catholic law schools can be more distinctively Catholic and make a strong case for the critical need for more explicit curricular and scholarly integration of the Catholic intellectual tradition. In this Essay, I make suggestions in three areas: (1) on the record regarding failed efforts to develop a distinctly Catholic approach to legal education; (2) on the inculturation of the Catholic intellectual tradition within the law school; and (3) on the virtues shaping the Catholic law school professional ethics curriculum.

Katarina I. Chavez, The Problems with the Solutions: Examining the Response from Universities, President Trump, and State Legislatures to Campus Free Speech Issues, 19 Ave Maria L. Rev. 146 (2021)

Giving state legislatures the responsibility of regulating how universities formulate their speech policies would be proper if a balance is struck between protecting free speech without “expand[ing] government oversight.”²³⁷ Universities would still be free to administer their campuses in the best way they see fit, provided that their authoritative position remains constitutional.²³⁸ Universities implementing policies based on state laws--specifically those that uphold the Constitution²³⁹--can defer the responsibility of generating such policies that firmly reflect a long-line of detailed (and nuanced) free speech case law to state legislatures.²⁴⁰ Flaws in policy language that once resulted in a FIRE “red light” or “yellow light” rating could easily be solved if the university were to rely on a fully constitutional state bill for reference.²⁴¹ If state legislatures can rely on judiciary interpretation, and higher education institutions can uniformly rely *178 on state legislation, then perhaps there is an effective solution to offer universities guidance on specific ways to formulate free speech provisions that uphold constitutional liberties.²⁴²

John Cheffers, Entrusting Foxes with the Hen House: How A Bad Law Pits Big Pharma and the Federal Government Against Vaccine-Injured Children, 18 Ave Maria L. Rev. 194 (2020)

As it stands today, the NCVIA creates a set of incentives that encourages vaccine manufacturers to be careless and HHS to deny a full remedy to many people injured by vaccines. Congress will need to substantially rewrite the law if it wishes to accomplish its goal, stated at the beginning, that *221 compensation for injuries ought to be “fair, simple, and easy to administer.”²³⁷ The story of Andrew Clements, shared by many other Americans, demonstrates how short the NCVIA has fallen. Hopefully, Congress will correct its mistake before it finds itself in a public health crisis of its own making.

Teresa Stanton Collett, Saints, Sinners, and Scoundrels: Catholic Law Faculty and A Light Unseen: A History of Catholic Legal Education in the United States, 58 J. Cath. Legal Stud. 29 (2019)

As a faculty member at a Catholic law school for the past seventeen years, I have often been frustrated with the inability of many professors and administrators at Catholic law schools to describe what makes a law school “Catholic.” As Professors Breen and Strang report in A Light Unseen: A History of Catholic Legal Education in the United States, too often the description is limited to something like “a commitment to social justice,” or “inculcating a strong sense of professional ethics.” Yet as the authors observe, “Catholic law schools do not have a monopoly on or even a special claim to caring for the poor or promoting professional virtue.”¹ Breen and Strang trace how we got to this place and propose an ambitious path to the “Light Unseen.”

Kody W. Cooper, What Happened to Natural Law in American Jurisprudence?, 22 Federalist Soc' Rev. 316 (2021)

Banner's book is a tour-de-force, chalk full of supporting evidence for its contentions and rich with more interesting insights than I could possibly do justice to here. The ultimate conclusion--that natural law's decline dovetailed with the transformation of the role of a judge as a finder into a maker of law--is substantiated. This book should be considered a major achievement and singular contribution to the literature on natural law and American constitutionalism.

Neville Cox, Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law, 35 J.L. & Religion 33 (2020)

In its General Comment No. 34 dealing with freedom of expression, the United Nations Human Rights Committee (UNHRC) rejected the idea that a blasphemy law could ever be human-rights compliant, unless its function was to prevent incitement to religious or racial hatred. This is a widely shared view that is consistently endorsed when any international blasphemy controversy (such as that involving the Danish Cartoons in 2005) arises. This article assesses the legitimacy of this view. The International Covenant on Civil and Political Rights (ICCPR) permits freedom of expression to be limited inter alia in the name of public morality, provided that the law in question is also necessary to achieve this end. This article argues that because a blasphemy law can be a response to a public moral vision; therefore a blasphemy law can serve a legitimate purpose insofar as human rights law is concerned. It is further submitted that whereas some blasphemy laws are unacceptably draconian, it is not inherently impossible for such a law to represent a proportionate response to a public morals concern. Thus, the conclusion from the UNHRC is not warranted by the text of the ICCPR. Moreover, there is a risk that, in reaching this conclusion the committee is evincing an exclusively secularist worldview in its interpretation of the ICCPR that undermines its claim to universality.

David A. Daigle, Daniel V. Goff, Beyond Lawyer Assistance Programs: Applying the United States Marine Corps' Concepts and Principles of Spiritual Fitness As A Means Towards Increasing the Health, Resiliency and Well-Being of Lawyers-While Restoring the, 59 J. Cath. Legal Stud. 51 (2020)

Lawyer Assistance Programs (“LAPs”) are recognized as an invaluable tool for increasing well-being by assisting lawyers to secure confidential treatment in order to overcome various addictions and mental health issues. The 2017 report by the National Task Force on Lawyer Well-Being underscores this notion by asserting that LAPs “play a pivotal role in lawyer well-being.”² While this is true, the legal profession would do well to look beyond LAPs and broaden its discussion regarding wellness. In particular, the American Bar Association (“ABA”) should more *52 robustly recognize and encourage spirituality as a means towards health, resiliency, and well-being, much like the United States Marine Corps (“USMC”) has done. Spirituality,³ as viewed by the USMC, is another valuable resource, among others, that is an important means to increase the health and resiliency of its members.⁴ Indeed, spiritual fitness is prominently referenced *53 and has its own section in the official website of the USMC maintained by Headquarters Marine Corps.⁵ Along with this, General Robert B. Neller, then Commandant of the USMC, recognizing the importance of spiritual fitness in a 2016 ALMAR⁶ message to all Marines, stated that “[r]esearch indicates that spiritual fitness plays a key role in resiliency, in our ability to grow, develop, recover, heal, and adapt. Regardless of individual *54 philosophy or beliefs, spiritual well-being makes us better warriors and people of character capable of making good choices on and off duty.”⁷

Jonathan D'Errico, Of Swords and Plowshares: The Authority for Defensive War in Jewish Law, Canon Law, and Islamic Law, 20 Rutgers J. L. & Religion 22 (2019)

Human proclivity to war remains a scourge even in the modern era--swords abound amid a want of plowshares. However, not all wars are created equal: a defensive war waged in response to external aggression has long been recognized as a justifiable state of conflict.² Under international law, a defensive war is a military response designed to ensure self-preservation in the face of an imminent threat or attack.³ A state of defensive war is, by definition, a desperate time wherein “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”⁴

Marc O. DeGirolami, Establishment's Political Priority to Free Exercise, 97 Notre Dame L. Rev. 715 (2022)

This Article contests these views. The fundamental rules and norms constituting the political regime - what the Article calls "the establishment" - have now, and have always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment's civil religion - the set of transcendent, church-state propositions that support the political regime's legitimacy and authority - has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption's contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court's Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty-first. Though today's most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime's civil religion establishment. Today's free exercise cases are the latest skirmishes in yesterday's disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Ligia De Jesús Castaldi, Derechos humanos: perspectivas de juristas iusnaturalistas: Tomo I: sustento histórico, antropológico y filosófico de los derechos humanos / coord. por Augustin Antonio Herrera Fragoso, (2022)

Actualmente nos encontramos ante una notable disrupción y desnaturalización de los Derechos Humanos,en razón de haberse distorsionado completamente sus fundamentos, fuentes, contenido e interpretación. Lo anterior está generando la existencia de unos Derechos Humanos líquidos, moldeados al tenor de ideologías que buscan la deconstrucción de la persona humana y de la familia, por medio de una Libertad individualista sin límites, que termina por dañar tanto a las personas individualmente consideradas, como a la sociedad en su conjunto, al career de la base axiológica común y perene de los Derechos Humanos auténticos y originarios, derivada de la Ley Natural. Es la anterior encrucijada la que nos ha impuesto a la tarea exponer a través de la presente obra a los académicos de gran calado intellectual con pensamiento iusnaturalista del mundo latino, para develar, fundamentar y defender los Derechos Humanos con base histórica, antropológica y axiológica.

Ligia De Jesús Castaldi, Unborn Human Life and Fundamental Rights, Leading Constitutional Cases under Scrutiny, 90 Prudentia Iuris 21 (2020)

El libro es sin duda una solida fuente de informacion sobre la legalizacion internacional del aborto en el occidente, y por la autoridad academica de sus autores, tambien una importante critica filosofica de la promocion internacional del aborto como un derecho humano. Esperamos que sea solo el primero de varios estudios filosofico-legales que revelen el deficit democrdtico del que sistemdticamente adolece la creaci6n de un derecho legal al aborto, tanto con un enfoque iusnaturalista como positivista.

John C. Eastman, "Religiously Scrupulous": Freedom of Conscience at the Founding, 17 Ave Maria L. Rev. 18 (2019)

When we think of freedom of conscience at the founding, we most often think of the degree to which our nation's constitutions and laws sought to protect an individual right to practice one's religion or to hold views contrary to the mainstream of society. And the founding era documents are rich with discussions of that sort, a small sampling of which are addressed in Part I. But there is at the founding also the view that the philosophical underpinnings of the individual right to freedom of conscience serve a broader function than the mere protection of individual rights. As I explore in Parts II and III below, the philosophical foundation for the individual right is also the “self-evident” premise on which the entire edifice of republican (small “r”) government is based, and the means for its preservation. This article aims to explore all three aspects of the Founders' views on the freedom of conscience.

Dörthe Engelcke, Establishing Filiation (Nasab) and the Placement of Destitute Children into New Families: What Role Does the State Play?, 34 J.L. & Religion 408 (2019)

The article comparatively maps state involvement in the establishment of filiation and the placement of destitute children into new families. It first reports findings from an expert survey that investigates four key areas of state involvement--the legal framework, the role of courts and ministries, guardianship regulations, and financial support and services for destitute children--across fourteen jurisdictions, twelve Muslim-majority countries, and two Muslim-minority countries. Overall, the placement of children into new families remains a sensitive issue because it is linked to different communities “claiming” the child. In principle, the states surveyed do not allow the creation of new families across religious lines. Using Jordan as a case study, the article then focuses on the implications of one particular survey finding: non-Muslims in Muslim-majority countries sometimes cannot have children placed into their homes. This finding is based on qualitative data collected in Jordan on adoption (tabannī) in the Greek Catholic community. The article argues that in settings of legal pluralism, state involvement affects different religious communities in different ways. In Jordan, due to structural factors, the state shapes Islamic family law differently than the family laws applied by Christian communities. This leads to the unequal development of different bodies of religious law and thereby to the unequal treatment of Muslim and Christian citizens.

Carl H. Esbeck, An Extended Essay on Church Autonomy, 22 Federalist Soc' Rev. 244 (2021)

The doctrine of church autonomy¹ is distinct from the two more familiar lines of cases decided under the Establishment Clause and Free Exercise Clause, respectively. Routine Establishment Clause disputes such as those over religious preferences,² government funding for religious entities,³ and government- *245 sponsored religious symbols⁴ are now resolved by a series of rules (not standards) followed over the last two decades by the High Court.⁵ Stand-alone Free Exercise Clause cases are resolved by first sorting those complaints charging that the government has intentionally imposed a burden on a claimant's religious beliefs or practices (they get Lukumi-like⁶ struct scrutiny) from complaints over laws that impose a religious burden only as a consequence of neutral and generally applicable legislation (they get a pass under Employment Division v. Smith,⁷ as narrowed by Fulton v. City of Philadelphia⁸). The threshold task of sorting the Lukumi sheep from the Smith goats often presages whether the claim prevails on the merits. Church autonomy has its own exclusive line of precedent running from Watson v. Jones,⁹ through Kedroff v. St. Nicholas Cathedral¹⁰--where the doctrine was first recognized as having First Amendment stature--and culminating with renewed vigor for religious institutional autonomy in the U.S. Supreme Court's unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.¹¹

Nathaniel M. Fouch, Erik Money, Thomas C. Berg, Credentials Not Required: Why an Employee's Significant Religious Functions Should Suffice to Trigger the Ministerial Exception, 20 Federalist Soc' Rev. 182 (2020)

An employee's significant religious functions should be sufficient to make the employee a minister for the purposes of the ministerial exception. In close cases, courts should also look to employees' title and training, but the absence of such credentials should never trump the presence of significant religious function. This function-focused inquiry avoids the evil of state-sponsored ministerial credentialism, a practice that helped motivate the adoption of the First Amendment. Focusing on function also furthers the fundamental Religion Clause principles of equality among denominations and judicial non-involvement in the ecclesiastical decision-making of religious organizations. The Supreme Court should call a halt to the recent trend of credentialism in some lower courts, which threatens to undermine the purposes of the ministerial exception.

Jonathan Fitzmaurice, Opioid Litigation: Welcome to the Nuisance Jungle, 19 Ave Maria L. Rev. 210 (2021)

The application of public nuisance in mass product litigation has largely escaped judicial scrutiny because of its common result--settlement.²²⁷ Insofar as it has been judicially addressed, the majority of courts have been unwilling to expand the traditional boundaries of public nuisance law,²²⁸ leaving product liability law as the “paramount basis of liability” for harm caused by products.²²⁹ Although any action or inaction taken by the legislature may be far from perfect, product regulation requires a complex cost-benefit determination giving vast considerations to fundamental notions of public policy, fairness, and overall societal benefit.²³⁰ The Constitutional framework delegates these policy-making determinations to the legislature and its regulatory agencies, and the judiciary is unfit and ill-equipped for such complexity given the small portion of issues presented in litigation.²³¹

David F. Forte, We Are Free for A Reason, 22 Federalist Soc' Rev. 98 (2021)

This is a good and valuable book because it is exactly what it aims to be: practical advice in defending religious liberty from a scriptural Christian perspective. It often does not draw clear doctrinal lines or go very deep into theology, but theology is not the work of a lawyer who has real clients amid particular circumstances. The book understands, as a good lawyer and a good Christian would, that we are bound to advance the kingdom of God, but that the City of God cannot replace in our world the City of Man, and we should not indulge our pride by thinking we can bring it about. The book also calls us back to first principles in understanding the nature of religion and liberty--that the latter is in the God-endowed nature of man, and that former is how men and women embrace as best they can, the Transcendent Good.

Shaun de Freitas, Equality and Non-Discrimination: Catholic Roots, Current Challenges. Edited by Jane F. Adolphe, Robert L. Fastiggi, and Michael A. Vacca. Eugene: Pickwick Publications, 2019. Pp 214. $50.00 (Cloth); $30.00 (Digital); $28, 36 J.L. & Religion 159 (2021)

The eleven essays that make up Equality and Non-discrimination: Catholic Roots, Current Challenges address an array of topics directly or indirectly involving equality and nondiscrimination and stem from a broad range of expertise, including philosophers, theologians, and jurists. The contemporary relevance and accompanying concerns of equality and nondiscrimination relate especially to what is stated by co-editor Robert Fastiggi in the opening chapter: “The principles of equality and non-discrimination have become more complex in recent years because they are being extended to behaviors and lifestyles and not merely to persons” (8). This naturally introduces various interpretations arising from foundational beliefs (whether religious or nonreligious), which also overlap with matters of moral importance. Bearing this in mind, differing views on the meaning of equality and nondiscrimination are inescapable, and included here are views stemming from the religious also. Editors Jane Adolphe, Fastiggi, and Michael Vacca have gathered views implicating equality and nondiscrimination that are aligned more specifically (although not exclusively so) with Catholic teachings and thought.

Bruce P. Frohnen, Constitutional Crisis and America's Lost Natural Law Mind, 19 Ave Maria L. Rev. 1 (2021)

Why are Catholic hospitals now liable to suit by “transgender men” on whom they refuse, for religious reasons, to perform hysterectomies?¹ In part, no doubt, because courts misunderstand the nature and purpose of the Religion Clause in our First Amendment and, more generally, our Constitution and rule of law. More fundamentally, however, the current attack on religion in America stems from the loss of understanding of the nature of our constitutional order and its grounding in natural law. Our current legal crisis, often presented by lawyers as a matter of interpretation,² is rooted in metaphysical confusion and so cannot be resolved through interpretive reforms alone. As John Courtney Murray, S.J., pointed out in the middle of the last century, American constitutionalism is inextricably bound up with natural law understandings of the person and the social order.³ These understandings, long maintained through a fruitful relationship between religious and secular authority, especially in the educational sphere, have been massively undermined by judicial rulings.⁴ Committed to promoting an ideology of individual autonomy supported and enforced by centralized political power, judges have enforced a policy of strict separation between “church and state” that, over time, has effectively changed general understandings of the nature of the person and society. Far advanced, the deconstruction of traditional American presuppositions has made it increasingly difficult for either judges or laymen to recognize, let alone act in *2 accordance with, the reality on which American constitutionalism relies. As Orestes Brownson argued, the written Constitution is made real by an unwritten constitution of customs, beliefs, and practices, in essence the culture of the people as they live out their understanding of the person and the requirements for a good life.⁵ Americans have lost the common culture of our constitutional order, leaving our ability to make sense of the Constitution's (and other laws') primary goals and presuppositions, highly if not fatally, limited.

Rachel Amber Frost, Esq., Pews, Sidelines, and Locker Rooms: Moment of Silence Policy Is the "Hail Mary" to Achieve Constitutionality of Prayer in Public-School Athletic Contests, 21 Rutgers J. L. & Religion 1 (2020)

A properly implemented moment of silence policy in public schools may be the ultimate “Hail Mary” that is needed to achieve constitutionality of prayer in the modern-day pews that are sidelines and locker rooms.

Kellen R. Funk, Propertied Rites: Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion. by Jack N. Rakove. Oxford: Oxford University Press, 2020. Pp. 240. $22.95 (Hardcover). Church State Corporati, 36 Const. Comment. 175 (2021)

A pious fan once asked the humorist Mark Twain if he believed in infant baptism. (To preview themes to come: Even the most liberal individual likes to know her faith is shared in community.) “Believe in it?” he exclaimed in response, “Hell, I've seen it done!”⁴

Although it may be only mildly humorous (though I confess laughing every time I hear it), there is a profound turn in the playful substitution of physical facts for theological truths in the ambiguity of “belief.” At first, the inversion looks like a dodge. A difficult and highly fraught question of Christian theology, one over which communities have been torn and blood has been shed,⁵ turns at once into a seemingly simple question of observation, like whether one can believe in the unicorn or the platypus. The *176 implicit threat behind the question--that an errant answer will sunder fellowship in the here and now, and forfeit life in the world to come--is apparently disarmed, violence exchanged for laugher, swords beaten into ploughshares.

Richard W. Garnett, Persons and the Point of the Law, 58 J. Cath. Legal Stud. 65 (2019)

Unlike Justice Breyer's assessment of Hall, Roe is not a well-reasoned decision and it has caused “serious practical problems ... since [the Court] decided it.”³⁴² It “def[ies] practical workability,” and should be overruled.³⁴³ The unworkability of Roe is one of many reasons that Roe is unsettled, and persistent adherence to unsettled decisions undermines, rather than promotes, the goals of stare decisis--predictability, consistency, stability, and reliance. As Justice Thomas has said, the Court created the abortion mess, and “it is [the Court's] job to fix it.”³⁴⁴ The Court has tried and failed to fix the problems of Roe by modifying the underlying legal rule. It is time for the Court to release its grip on the abortion issue by overruling Roe and returning the issue to the states.

Scott W. Gaylord, Neutrality Without A Tape Measure: Accommodating Religion After American Legion, 19 Ave Maria L. Rev. 25 (2021)

Neutrality also plays an important role in Establishment Clause cases, but the Court seems in the process of altering its understanding of neutrality in that context as well. In the wake of American Legion, a majority of the Court appears ready to embrace the accommodationist view of neutrality. While not adopting a specific test for religious symbols, practices, and monuments that are “newer” (i.e., not longstanding), a majority indicated in American Legion that neutrality under the Establishment Clause involves only neutrality between and among religions, not between religion and nonreligion. Accordingly, courts need not consider the spatial relationship between the religious and secular components of a display or symbol. The Lemon and endorsement tests have been retired (at least until a different majority holds sway), and the history and tradition approach from Marsh and Town of Greece likely has emerged as the dominant Establishment Clause test. And if Justice Gorsuch is correct, courts need not consult a temporal tape measure either. Instead, courts must ensure only that the government acts neutrally between and among religions, and they should do this by looking at the history and traditions of religion in the public sphere.³⁶⁰

M. Christian Green, Paths and Pedagogies in Law and Ethics: On Cathleen Kaveny, Ethics at the Edges of Law: Christian Moralists and American Legal Thought, 34 J.L. & Religion 433 (2019)

Which comes first: law or religion? Students entering the law and religion program at Emory are given a choice of whether to start their studies in law or theology. Does it make a difference whether and why people enter through either the law or the religion door? Do those who begin in law turn to religion for something beyond the law? How do minds trained to “think like a lawyer” respond to non-legal concepts, such as grace, sin, atonement, redemption, and mercy? Do those who enter through religion become disheartened when they turn from divine narratives to the dramas, discord, and generally adversarial realm of the courtroom? Does their study of law give them theoretical or practical grounding for pursuing work in religion, whether in ministry, social service, or some other capacity? How do the two groups end up relating law and religion in their lives? How does the law or religion question end up being reconciled in the diverse vocations and pedagogies of the law and religion field?

Andrew Hocott, The Partisan Samaritan: The Communications Decency Act and the Modern Internet, 19 Ave Maria L. Rev. 238 (2021)

With the rise of massive ICSs that control the places where speech actually occurs, the public has returned to a fear of despotism by private individuals.²³⁹ With its language in Packingham, the Court reaffirmed the fundamental right to speak on the Internet but spoke so broadly as to invite analogy to the principles espoused by Marsh and Logan Valley.²⁴⁰ The Court invited, intentionally or otherwise, the return of the corporate town analogy,²⁴¹ and the public's response provides an opportunity to analyze how it expresses their fear of despotism. Even recognizing the value of such an interest, the Court should not, and would be unlikely to, return to the principles of Marsh. Doing so would be to overturn not only the state actor doctrine and blur the line between private actors and the government but would fail to respect the legislative character of the issue. The public does have a means of redressing private abuses of its authority: through its representatives in the legislature. That is where the people have the capacity to address ICS responsibility and protect themselves.

Theresa Holt, A Question of Coercion: When Does Legislator-Led Prayer Cross the Constitutional Line?, 18 Ave Maria L. Rev. 168 (2020)

Although a prayer policy that restricts prayer-givers to the members of the legislative body may not be the “best practice,” unless the prayer policy coerces dissenting legislators and members of the public into participating in religious exercises, it should be upheld under the Establishment Clause according to the precedents set in Marsh v. Chambers and Town of Greece v. Galloway. By applying a test that evaluates whether the particular practice is consistent with the historical tradition of legislative prayer and whether the opportunity has been exploited to coerce dissenters, courts allow a tolerable acknowledgement of beliefs and values held by its citizens and individual lawmakers while preventing the evils the Establishment Clause protects against: government entanglement with religion and de facto establishment of a state church.

Paul Horwitz, A Few Grains of Incense: Law, Religion, and Politics from the Perspective of the "Christian" and "Pagan" Dispensations, 58 J. Cath. Legal Stud. 125 (2019)

In this Essay, I expand on a key aspect of Pagans and Christians in the City, which features most prominently in the chapter on the “[l]ogic” of pagan and Christian persecution⁴ and is applied in subsequent chapters on modern America. The question Smith focuses on--with an eye fixed as firmly on the present as on the past--is the possibility of compromise under “Christian” or “pagan” regimes during the Roman Empire. Smith argues that from within each perspective, “peaceful and mutually respectful coexistence should have been possible, if only the other side would be less unreasonable.”⁵

Thomas D. Howes, Religion As A Basic Human Good, 66 Am. J. Juris. 239 (2021)

or the sake of defending the political-ethical legitimacy of religious exemptions, this article analyzes what contemporary natural law theorists call the good of religion--harmony with the transcendent source of existence and meaning. This good serves as a principle in practical judgments, not as a premise in a deductive argument, but as an end of action. Practical familiarity and explicit understanding of this good can differ among individuals, and variations of such familiarity and understanding lead to differing practical judgments concerning what constitute reasonable choices in its pursuit. This in turn affects judgments of fairness concerning burdens on that same pursuit. It is optimal for judgments about religious exemptions to presuppose a more paradigmatic understanding of this good so that one can better assess what is really at stake in the minds of religious believers when their religious liberty is burdened. In making a case for a more paradigmatic understanding of religion, this article draws attention to existential data from which practical insight into the good of religion arises.

Steven Andrew Jacobs, The Future of Roe v. Wade: Do Abortion Rights End when a Human Life Begins?, 87 Tenn. L. Rev. 769 (2020)

While legal scholars and Supreme Court Justices on both sides of the national abortion controversy argue that Roe v. Wade was incorrectly decided, this Article accepts the Court's decision as a provisional holding that was based on the relevant societal, scientific, and legal records available to the Court in 1973. However, the stare decisis analysis outlined by the Court in Planned Parenthood v. Casey dictates that precedent can be overturned when a change in relevant facts robs a ruling of its original justification. If the Court agrees to hear a challenge to Roe, it will likely assess whether the relevant factual records relied upon by the Court in Roe are still responsive to present realities.

Tabitha M. Kempf, Administrative Apparition: Resurrecting the Modern Administrative State's Legitimacy Crisis with Agency Law Analysis, 71 Cath. U. L. Rev. 277 (2022)

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the "administrative state," has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though some contest it, the administrative state faces a crisis of legitimacy. This article addresses what is described here as the "Approval Defense," an argument that justifies the administrative state on grounds that, even if unconstitutional, all three branches of federal government and the public have subsequently approved of our modern form of government, so it is legitimate on that basis. In essence, the Approval Defense's claim of legitimacy is one of ratification. Using similar agency law principles, this article seeks to demonstrate the flaws with a justification based on ratification and show that until there has been an adequate explanation of its lawful basis, the administrative state's legitimacy crisis will simply not go to its grave.

Antony Barone Kolenc, "23 and Plea": Limiting Police Use of Genealogy Sites After Carpenter v. United States, 122 W. Va. L. Rev. 53 (2019)

The police pulled up to the Oregon nursing home with a search warrant signed by a county judge. Their suspect: a bed-ridden, 73-year-old man who also might be the elusive Golden State Killer who murdered 13 women and raped dozens more in the 1970s and 1980s. Without getting a warrant, law enforcement officers had narrowed their search for the killer using a public genealogy website with DNA² test results uploaded by hundreds of thousands of people. Their final clue had been that this suspect--along with the Killer--had a genetic mutation *55 possessed by less than 3% of Caucasians in the genealogy database. Without asking the man's permission as he lay in bed, the police swabbed a DNA sample from his mouth and sent it for lab testing, comparing it to the DNA of the Golden State Killer found at a crime scene decades earlier. The result: no match; the man was innocent. The police tested a second suspect--also no match. Finally, on the third try, they got their man: Joseph De Angelo, an ex-cop now facing rape and murder charges and whose DNA matched the real killer.

This story of mistaken identity, breath-taking DNA testing technology, and hard-boiled police work has become the first chapter in a series of increasingly common criminal investigations that rely on genetic samples tested by genealogy companies such as 23andMe and Ancestry, two of the most popular services, and loaded on public websites such as Ysearch or GEDmatch, the site that led police to the Golden State Killer.³ Law enforcement officers all over the United States are now using similar tactics in hundreds of cases to catch alleged killers and have logged their first jury verdict conviction in one such case in 2019.⁴ While some commercial genealogy sites, like Ancestry and 23andMe, have a policy that requires a warrant from the police before disclosing genetic data, sites like GEDmatch have less stringent policies.

But some privacy advocates believe warrantless searches of DNA databases could violate the Fourth Amendment and other privacy interests and lead to police abuses. They suggest the U.S. Supreme Court's 2018 decision, Carpenter v. United States,⁵ provides a constitutional basis for ending these law enforcement tactics.⁶

*56 Part II of this Article briefly examines the Carpenter decision and the privacy interests implicated by DNA testing and private genealogy websites. Part III discusses whether, after Carpenter, police searches of genealogy websites trigger Fourth Amendment protection. Part IV explores the third-party doctrine, assessing its post-Carpenter viability in the DNA context. Concluding the Fourth Amendment provides limited protection, Part V seeks alternative solutions to the noted privacy concerns.

Antony Barone Kolenc, A Practitioner's Guide to Police Use of Genealogy Sites and the Fourth Amendment, Crim. Just., Summer 2020, at 19

Law enforcement agents in California caught the alleged Golden State Killer-- the serial murderer and rapist who eluded capture for over 40 years after terrifying Californians in the 1970s and 80s. Despite intense public scrutiny, traditional investigation techniques hadn't broken that cold case for decades. But in 2018, the police ingeniously found a suspect by creating a profile on GEDmatch, a free, publicly available genealogy website. Officers uploaded to the site DNA results obtained from the killer's crime scenes, finding a distant relative to the killer and developing a family tree. After mistakenly homing in on two other suspects, police eventually obtained a sample of discarded DNA from a third suspect (Joseph De Angelo), an ex-cop whose DNA matched that of the killer. See Antony Barone Kolenc, ‘‘23 and Plea”: Limiting Police Use of Genealogy Sites After Carpenter v. United States, 122 W. Va. L. Rev. 53, 54-55, 96 (2019).

Since the highly publicized breakthrough with the Golden State Killer, law enforcement agents across the nation--with the help of private companies set up to assist with these investigations--have mimicked this technique hundreds of times, reheating cold cases and tracking down suspects. In June 2019 (even though De Angelo still hadn't had a preliminary hearing in California), a jury in Everett, Washington, delivered the first conviction in one of these genealogy cases, finding William Talbott II guilty of the double-murder of a young Canadian couple in 1987. As with De Angelo, police solved that cold case by uploading DNA evidence from the killer's semen to GEDmatch, uncovering two cousins and developing a family tree that led them to Talbott. See Caleb Hutton, Jurors Share Why They Found Talbott Guilty of Double Murder, HeraldNet.com (July 7, 2019), https://bit.ly/2HdFAQ2.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” So how does that guarantee apply to the police using private genealogy websites to go on warrantless expeditions without probable cause to fish for the families of criminal suspects? *20 Some practitioners believe the reasoning of the U.S. Supreme Court's decision in Carpenter v. United States, 138 S. Ct. 2206 (2018), will eventually force police to comply with the Fourth Amendment before going on any well-intentioned genealogy hunts. This article will discuss the potential impact of the Carpenter case on this burgeoning area of criminal law and focus on what practitioners need to understand police genealogy investigatory techniques in light of the Fourth Amendment.

Antony Kolenc, Religious Liberty in the Age of COVID, UNT Dallas College of Law, (2021)

In the age of COVID-19, two pressing questions arise: What limits does the U.S. Constitution place on the government suppression of religious liberty during a global health emergency, and what can believers do to secure their right to religious worship?

Andras Koltay, The Protection of Freedom of Expression from Social Media Platforms, 73 Mercer L. Rev. 523 (2022)

The impact of social media platforms on freedom of speech is extremely wide-ranging. Social and legacy media are similar in terms of editorial activity, but there are also significant differences between them. Accordingly, media regulation cannot be applied to platforms without any change. The approach used in Europe, according to which, in certain cases, the lawfulness of content must be decided by platforms, raises concerns in terms of freedom of speech. At the same time, it is also clear that the judicial system or a public authority would not be able to handle the workload associated with the operation of the platforms, so the notice-and-takedown system remains the basis for the liability of the platforms as a kind of emergency measure.

David B. Kopel and George A. Mocsary, Errors of Omission: Words Missing From the Ninth Circuit's Young V. Hawaii, U. Ill. Rev. Online 172 (2021)

The Young v. Hawaii majority claims that total prohibition of the right to bear a handgun in public is consistent with "overwhelming" American legal history. The claim is refuted by the very sources on which the majority relies, once their full context is revealed.

Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, Cato Sup. Ct. Rev., 2020-2021, at 33

Smith's protective rule can do much to shield free exercise of religion, but its unprotective rule still weakens that shield. In answer to Justice Barrett, we think that the logic and purposes of free exercise can generate a protective but workable doctrine for challenges to generally applicable laws.

Paul Benjamin Linton, Esq., The Pro-Life Movement at (Almost) Fifty: Where Do We Go from Here?, 18 Ave Maria L. Rev. 15 (2020)

Almost fifty years after Roe was decided, where does the pro-life movement go from here? The answer to that question, in turn, depends on the answers to five other questions. First, is the Supreme Court, as presently constituted, likely to reconsider Roe? Second, what is the “lay of the land” on pending direct challenges to Roe? Third, are direct challenges to Roe necessary to obtain an overruling decision? Fourth, what alternatives might be considered to direct challenges to Roe? Fifth, how does the interpretation of state constitutions affect the legal status of abortion?

Luca Martino Levi, Early Traces of Karl Polanyi's "Discovery of Society": A Study of Sixteenth-Century Spirituality and Charity Through Caravaggio's Paintings, 31 Yale J.L. & Human. 123 (2020)

Such a reliance on individual acts of solidarity in the context of a withdrawing State strikes me as evocative of Caravaggio's approach to need, as expressed in the Seven Works of Mercy. Caravaggio's art is beautiful and, in his time, it even delivered a socially-progressive message. But for us--women and men of the twenty-first century--the resemblance between our society and a four-centuries-old painting should be a matter of concern.

Paul J. Larkin, Wholesale-Level Clemency: Reconciling the Pardon and Take Care Clauses, 19 U. St. Thomas L.J. 534 (2023)

The Article II Pardon Clause authorizes the President to grant clemency with few restrictions on who may receive relief. Throughout our history, Presidents have believed that they may grant amnesties to broadly defined categories of offenders, and the Supreme Court has blessed that practice. A slew of contemporary scholarship, however, has re-examined the meaning of the Article II Take Care Clause, and many scholars have read it to function, not principally as a grant of authority, but as the imposition of a duty on the President to enforce the law. The question arises whether a category-wide grant of clemency would violate that obligation. The answer is, “No.” Neither the text of the Pardon Clause nor that of the *568 Take Care Clause imposes any such limitation, and the history of their adoption does not suggest that the latter limits the former in a way that forbids large-scale amnesties or commutations. Whatever individual Presidents may think of the utility or desirability of wholesale-level clemency, the law does not forbid them from granting it.

Stephen L. Mikochik, Pope Francis and Civil Unions, 20 Ave Maria L. Rev. 96 (2022)

Admittedly, St. Thomas concludes the Natural Law and Civil Law are not co-extensive, so that conduct which the former considered vicious the latter was not necessarily required to prohibit.³⁶ Civil law, however, cannot sanction what the Eternal Law (and thus the Natural Law) condemned since it would be unjust and thus no longer a law.³⁷ If “sanctioning” vice is the same as formally cooperating with it, it would appear again that laws recognizing civil unions simply are not legitimate.

Of course, an offhand statement during an interview does not constitute official Church teaching, even if made by the Pope himself and especially if not intended to be made public. Yet, the Pontiff's words are an invitation to rethink the Church's position on civil unions. Even if the same conclusion is ultimately reached, the process enables us better to understand the grounds for that teaching and better to distinguish just from unjust discrimination. In words Pope Francis did assent to have published, “[t]he Christian community and its Pastors are called to welcome with respect and sensitivity persons with homosexual inclinations, and will know how to find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel in its fullness.”³⁸

Veryl Victoria Miles, Looking Beyond the Profit and into the Light: Consumer Financial Protection and the Common Good, 35 Notre Dame J.L. Ethics & Pub. Pol'y 93 (2021)

Looking at secular laws through faith-based perspectives on justice can be worthwhile when assessing whether we are a just and fair society for all citizens. That is, do our laws and institutions reflect a concern for the common good as defined by the notions of justice that have a faith-based foundation? Catholic Social Teaching, with its concern for the welfare of individuals and their families, provides a rich body of doctrine addressing a wide spectrum of social and economic concerns that touch upon every aspect of the daily needs of individuals and families in our communities. This doctrine offers different and special perspectives of what we as a society, framed by secular laws and institutions, might consider when faced with a critical need to address unfair and abusive activities or practices that impact all citizens, with particular concern for the most vulnerable members of society.

Melissa Moschella, Symposium: Liberalism, Christianity & Constitutionalism: Natural Law, Parental Rights, and the Defense of "Liberal" Limits on Government: An Analysis of the Mortara Case and its Contemporary Parallels, 98 Notre Dame L. Rev. 1559 (2023)

This Article explores parallels between integralists' defense of the Mortara case (in which Pius IX removed a child from his parents' care in order to provide him with a Catholic education) and contemporary progressive arguments for overriding the authority of parents who do not want their gender-dysphoric children to undergo social or medical gender transition. In Part I, I offer an overview of the natural law case for limited government, then in Part II I turn more specifically to a natural law defense of parental rights as an essential aspect of limited government. In the following Part, I return to the Mortara case, analyzing it in light of the principles presented in the previous sections to show why the Pope's actions (however well-intentioned) were contrary to natural law. Finally, in Part IV I argue that the Mortara case has troubling parallels in the attempts of contemporary progressives (also presumably well-intentioned) to allow gender-dysphoric children to undergo social transition and begin hormone therapies without parental knowledge or consent, and to justify the removal of such children from the homes of loving parents who persist in opposing such interventions. I thus attempt to show, through these concrete examples related to parental rights, how natural law principles can save liberal political institutions not only from their integralist critics, but also from liberalism's own contemporary progressive excesses.

Jeffrie G. Murphy, Punishment, Forgiveness, and Mercy, 35 J.L. & Religion 5 (2020)

Forgiveness and mercy are often thought of as acts that we perform or gifts that we bestow. In this essay the author focuses on character and explores the implications for punishment if one focuses on having a character that is merciful and forgiving in disposition. He argues that the tension that is often thought to exist between justice, on the one hand, and forgiveness and mercy, on the other, is lessened by focusing on the virtue of having a forgiving and merciful character.

Richard S. Myers, American Legion v. American Humanist Association and the Future of the Establishment Clause, 19 Ave Maria L. Rev. 91 (2021)

The Court's opinion in American Legion reached a result that did not surprise many observers.¹⁰⁹ The Court concluded that the Bladensburg Cross did not violate the Establishment Clause. The Court's ruling was modest. The Court made it clear that Establishment Clause challenges to longstanding displays containing religious symbols will likely fail. Unfortunately, the Court did not settle the continuing debate about the proper approach or test to use in Establishment Clause cases. The Court did, though, continue to move Establishment Clause doctrine in a positive direction. The Court continues to reject the privatization thesis and is moving closer to adopting a coercion test.

Richard S. Myers, Lower Court "Dissent" from Roe and Casey, 18 Ave Maria L. Rev. 1 (2020)

There has been much recent speculation¹ about the fate of Roe v. Wade² and Planned Parenthood v. Casey.³ Supporters of Roe and Casey contend that the decisions are “settled law” that the Supreme Court should not overrule.⁴ But, in reality, Roe and Casey are not settled, as the frequent and varied opposition to these decisions reflects. One intriguing source of opposition has been from lower court judges. While still following these precedents, an increasing number of these judges have expressed disagreement with the Court's decisions.⁵ This paper examines these lower court opinions, which may serve to make the overruling of Roe and Casey more likely.

Richard S. Myers, The Significance of Trinity Lutheran, 17 Ave Maria L. Rev. 1 (2019)

The long-awaited¹ decision in Trinity Lutheran Church of Columbia, Inc. v. Comer² is a significant development. The Court (by a 7-2 margin) held that it violated the free exercise clause for the state of Missouri to discriminate against a religious entity in the administration of a public grant program. The decision may well have important ramifications in a number of areas, including school choice. The decision, though, was written in narrow terms and so many issues remain unsettled. This paper comments on the significance of the Trinity Lutheran decision.

Anthony Nania & Matt Dean, Introduction, 58 J. Cath. Legal Stud. 1 (2019)

What does it mean to be a Catholic law school? Where did the idea of Catholic legal education begin, where does it currently stand, and where is it heading? Professors John M. Breen and Lee J. Strang have worked to answer these questions, among many others, in their forthcoming book A Light Unseen: A History of Catholic Legal Education in the United States.¹ In their book, the professors argue persuasively that Catholicism is “a set of ideas” that has informed, sculpted, and birthed numerous social structures, institutions, and teachings.² If this is so--if Catholicism is a wide-ranging, far-reaching system of ideas that touches upon nearly all aspects of humanity³--it makes sense to imagine that a law school claiming to be Catholic would keep and follow these ideas, the Catholic intellectual tradition, at the core of its existence.

Jeffrey A. Pojanowski, Teaching Jurisprudence in A Catholic Law School, 58 J. Cath. Legal Stud. 75 (2019)

Jurisprudence plays an important role in John Breen and Lee Strang's history of Catholic legal education and in their prescription for its future. Legal philosophy in general, and the natural law tradition in particular, provide a central justification for the existence of distinctive Catholic law schools. They are right to argue so. As part of the broader Catholic intellectual tradition, which emphasizes the unity of knowledge and the eternal significance of mundane practice, natural law philosophy rejects mere vocationalism. It can provide the animating form and direction of a legal education that is more than one damn thing after another in preparation for the bar.

Jeffrey A. Pojanowski, Book Review: Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory Common Good Constitutionalism: Recovering  the Classical Legal Tradition. By Adrian Vermeule. Polity Press. 2022., 98 Notre Dame L. Rev. 403 (2022)

Having considered both areas of agreement and disagreement with Vermeule, it is fitting to consider where to go from here. Vermeule addresses this question in Common Good Constitutionalism by forcing a choice among three alternatives: "positivist originalism"; "progressive living constitutionalism"; and "common good constitutionalism." Having exposed the limits of this false trilemma, we believe we have also revealed the staying power of Enduring Originalism. That said, we do not wish to repeat in reverse one of the least attractive aspects of Vermeule's constitutional dialectic. That is simply to privilege one essential element of legality above all others and assert "the game is up" once one's interlocutor acknowledges the essential role of that element. 285Rather, we encourage jurists to aim to understand constitutional law (and all human positive law, for that matter) in the light of all four of law's four causes. 286

Patrick E. Reidy, C.S.C., Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L. J. 226 (2020)

Recent eminent-domain actions against houses of worship ("church takings") along the Mexico-U.S. border have inspired new questions about religious liberty and land use. This Note explores how courts interpret constitutional and statutory religious liberty protections when the government seeks to condemn property owned by faith communities, revealing how courts discriminate between types of religious property. While protecting those structures in which faith communities gather for worship, courts allow condemning authorities to take other properties integral to communities' religious missions. Courts thus transform houses of worship into paradigmatic property for the free exercise of religion.

Nicholas Rollo, "Blessing-In-Disguise": A Hopeful Ending To Uncertainty For Religious Institutions' Rights Under COVID-19 Governments Acts, 22 Rutgers J. Law & Relig. 394 (2021)

In considering whether to accept a petition by a religious institution for the alleged violation of the RLUIPA by a government through a COVID-19 executive order or requirement, the Court will place great emphasis on the specific facts alleged and assess all of the factors. As the Court is currently configured, there is a greater likelihood than before that it would find that the government imposed a substantial burden upon the religious institution if the right set of facts accompanies the petition. A decision to accept a petition by the Court does not mean that the Court would rule in favor of the religious institution on its RLUIPA claim. Regardless of the decision on the merits by the Court, however, if the Court accepts such a petition, religious institutions will receive clarity as to the lawful or unlawful impacts of government acts on their operations. This is important to religious institutions as COVID-19 and its variants continue to exist and affect regular activities in this country

Vincent Rougeau, Reflections on A Light Unseen, 58 J. Cath. Legal Stud. 89 (2019)

I am very pleased to have an opportunity to offer some reflections on the manuscript for A Light Unseen by Professors John Breen and Lee Strang. It is an extraordinarily comprehensive look at the history of Catholic law schools in the United States. That aspect of the work alone makes it an important contribution to the scholarship on Catholic higher education in this country, and I am sure it will become an essential resource for scholars and educators across a wide range of fields. Nevertheless, A Light Unseen is much more than a history. It also raises a critical question: What does it mean to be a Catholic law school? It is a query that has generated much controversy in recent decades, particularly in the United States, and it has been answered in different ways across time and place. Professors Breen and Strang determine that past attempts to establish meaningful Catholic identity in American law schools have been wanting, and they propose a thought-provoking solution for the future.

Nicholas Shrubsole, Ekklesia: Three Inquiries in Church and State. by Paul Christopher Johnson, Pamela E. Klassen, and Winnifred Fallers Sullivan. Chicago: University of Chicago Press, 2018. Pp. 262. $27.50 (Paper). Isbn: 9780226545585, 35 J.L. & Religion 345 (2020)

The word ekklesia, at different times, has referred to both the polis of the Greek city state and the early Christian church. As a construct denoting an exclusive assembly of peoples convened under a transcendent sovereignty, reified by ritual, and legitimated through law, Ekklesia is a fitting title for this book on the important relationship between church and state. The title challenges readers to conceive of church and state not as a binary of competitive or complementary powers in a zero-sum game, but as analytically distinct, historically and conceptual entangled constructs that are both interlocking with and translating from each other. It is in those fuzzy spaces of interlocking and translating in which this book is situated. Paul Christopher Johnson, Pamela Klassen, and Winnifred Fallers Sullivan introduce this conceptual framework as “churchstateness,” which is “composed of the interpenetrating and mutually constitutive forces of religion, law, and politics” (3).

Lee J. Strang, An Evaluation of Evidence for Constitutional Construction from "The Decision of 1789" Debate in the First Congress, 46 Ohio N.U. L. Rev. 437 (2020)

In this brief Essay, I made three moves. First, I briefly described constitutional construction. Second, I summarized the debate over the President's power to remove executive officers. Third, I summarized the evidence of the House debate on this issue. From this debate, I drew two *457 tentative conclusions: (1) the debate participants believed that, at first blush, the Constitution's meaning was not patent; and (2), the debate participants believed that the Constitution provided determinate answers following a series of arguments drawing-out the Constitution's meaning.

Lee J. Strang, Originalism Is A Successful Theory (in Part) Because of Its Complexity: A Response to Professor Telman: Originalism's Promise: A Natural Law Account of the American Constitution. by Lee J. Strang. New York, Ny: Cambridge, 35 Const. Comment. 141 (2020)

Professor Telman's review of Originalism's Promise: A Natural Law Account of the American Constitution¹ is thoughtful--it identifies positive contributions made by Originalism's Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman's review is also an excellent example of the genre because it goes further and argues that Originalism's Promise is itself a manifestation of originalism's dire predicament, in Professor Telman's view, its “crisis.”² Professor Telman's review continues his scholarly engagement with originalism,³ and originalism is the better for it.

Kimberly D. Swanson, Amended Rule 37(e): Problem Solver or Problem Maker?, 17 Ave Maria L. Rev. 81 (2019)

Sadly, the Rule's goal of providing clear guidance to the courts in spoliation matters has only made the courts' job more difficult. In actuality, a less restrictive rule that permits the courts to exercise their discretion and inherent powers would provide the flexibility needed to adjust to this increasingly complicated area of law. Only then will the goal of a “just, speedy, and inexpensive determination of every action and proceeding” ever be achieved.¹⁶⁹

Michael A. Taylor, S.T.D., Abortion and Public Policy: Review of U.S. Catholic Bishops' Teaching and the Future, 37 Issues L. & Med. 129 (2022)

The U.S. Roman Catholic bishops have been earnest participants in the contemporary public policy debate on abortion. This article reviews the bishops' main policy documents in which the Church's teaching on abortion is applied, first, within the context of the debate on abortion policy that was underway in the states before Roe v. Wade, and, second, within the grave and challenging situation thereafter when a right to abortion was made the law of the land. Whether discussing court cases, statutory law, human life bills, or various proposals to amend the Constitution, the bishops raised up a broad vision *130 of full protection in law for all human beings, born and unborn, and promoted a comprehensive program of education, pastoral care, public policy, and prayer. Building off this review the article concludes with some initial reflections on the Dobbs world in which the Court has returned the abortion issue to the people and their elected representatives.

Christopher Tollefsen, Acknowledging the Body: The Challenge for Public Bioethics, 66 Am. J. Juris. 163 (2021)

What It Means to be Human: The Case for the Body in Public Bioethics, Cambridge, MA: Harvard University Press, 2020

At the outset of his illuminating and challenging book What It Means to be Human: The Case for the Body in Public Bioethics, O. Carter Snead identifies the nature of “public bioethics:” it is the domain of ethics concerned with “the governance of science, medicine, and biotechnology in the name of ethical goods.”¹ Put slightly differently a page later, public bioethics seeks the “normative foundation for law and policy” in science, medicine, and biotechnology. Snead is especially concerned here with what he calls areas of “vital conflict,” namely abortion, assisted reproductive technology, and end of life care. How is the law to be brought to bear on the dilemmas that emerge at the intersection of the beginning and ending of life, modern technology, and human relationships, aspirations, and desires?

Timothy J. Tracey, Deal, No Deal: Bostock, Our Lady of Guadalupe, and the Fate of Religious Hiring Rights at the U.S. Supreme Court, 19 Ave Maria L. Rev. 105 (2021)

This past term, the Court stepped in and finally extended workplace nondiscrimination protections to LGBTQ Americans. Such protections were long overdue. No one should be prevented from making a living simply because of their sexual orientation or preferred gender identity. But the Court dismissed the implications of its decision for religious employers far too easily. Its broadening of the ministerial exception gives religious employers a bit more breathing room to continue hiring and firing consistent with their religious beliefs. However, it does not offset their now increased exposure to liability for employment discrimination claims brought under Title VII. The vast increase in potential liability without a concomitant expansion of religious liberty safeguards belies the claim that the Court is orchestrating a settlement of the longstanding clash between LGBTQ rights and religious liberty. The Justices' track records in religious freedom cases and the uncertain state of religious liberty law reinforce just how dubious the claim of a compromise really is. After this past Court term, religious employers have whiplash. But, better buckle up. The ride is still in motion.

William Michael Treanor, Reflections on A More "Catholic" Catholic Legal Education, 58 J. Cath. Legal Stud. 99 (2019)

When I was in college, I wrote a junior year thesis on Cardinal Newman and his conversion. In thinking about Newman, I was very struck by the title of his book, The Idea of a University.⁸ Not “The Idea of the University,” but “The Idea of a University.” Cardinal Newman acknowledged that there were other models--other visions of a university. And the same is true of Catholic *104 legal education. For the project going forward, my suggestion would be to devote a little bit more space for diverse models and paths to arrive to a similar goal. In their effort to describe “the” Catholic Law School, Professors Breen and Strang end up missing much of what is happening on the ground that does in fact advance the aims that they hold dear.

Adrian Vermeule, Echoes of the Ius Commune, 66 Am. J. Juris. 85 (2021)

Professor Nicholas (Nick) Barber's learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book's implicitly classical approach, it would have benefited, at a number of key junctures, from drawing upon the rich and enduring tradition of the ius commune. Barber often speaks in the register of the classical law, perhaps without knowing it. Doing so more often, and more explicitly, would have improved an already impressive work.

Robert K. Vischer, How Distinctive Should Catholic Law Schools Be?, 58 J. Cath. Legal Stud. 117 (2019)

As the dean of a Catholic law school, I assuredly do not want to lose sight of the true, the good, and the beautiful. Our Catholic identity has to be meaningful, and Breen and Strang's exploration of this issue is enormously important to the extent that it brings these questions to the surface. But I want to be careful and gracious in my exploration of these questions, and I do not want to unduly limit the worthy manifestations of Catholic identity to those manifestations that are not exhibited by non-Catholic law schools. Not everything going on in legal education should be emulated by Catholic law schools, to be sure, but sometimes our commitment to core values will lead us to sound more like Metallica, less like Stryper. And I think that's okay.

Lael Weinberger, The Limits of Church Autonomy, 98 Notre Dame L. Rev. 1253 (2023)

This Article makes the case that, contrary to the critics, church autonomy is limited by an accountability principle, itself resting on the same bases that have been used to defend the most robust version of church autonomy. First, the social pluralist theory of sphere sovereignty does not just defend a place for religious institutions to exercise their own self-governance over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harms. Second, the deep history of church-state relations that has shaped the pro-church autonomy caselaw and scholarship alike also has rich resources to defend a principle of accountability.

John Witte, Jr., A Tribute to Frank S. Alexander, 35 J.L. & Religion 194 (2020)

“A time of troubles,” in Toynbee's words, is a period of crisis in law and values--a loss of faith in law and in the presence of principles underlying the law. Today is just such a time - the authority of law has disintegrated into lawless authority .... Cries for the protection of human life are heard in our hospitals, and in our prayers, but we are confused as to when life begins, or when it ends. Demands for stiffer, mandatory sentences [without pardons] for those convicted of crimes abound in Congressional bills, while in our synagogues and churches we wrestle with the meaning of acceptance, reconciliation, and forgiveness. Whispers of despair and anguish are heard on the lips of children caught in the midst of divorce fights and custody battles, and on the lips of parents as children are sentenced to institutional life, while we wonder about the values of the nuclear family. Religious structures and perspectives have lost the prophetic ability to critically evaluate these laws and to speak truth to power, and legal structures have lost the interest and ability to discern underlying values of law which have now begun vague and confused.

Lori A. Young, One Journey Toward Racial Justice: The Power of Me, the Power of We, 24 J. Gender Race & Just. 5 (2021)

The Racial Justice Team at Iowa-CCI is determined to monitor and hold the DMPD accountable for obeying the ordinance while we continue to press for its expansion. We don't give up. I've learned that there is something *9 productive I can do with my rage over racially-biased policing. I've learned that community organizing is a powerful and effective strategy to make social change. I've learned that we, the people, are empowered to make positive and justified change in Iowa and in America. History proves it, and now I've seen it.

James J. Zumpano, Jr., Abortion in the United States: A Cry for Human Dignity, 15 Intercultural Hum. Rts. L. Rev. 285 (2020)

In recent years, the debate surrounding abortion has taken flight. It has been one of the most discussed and most controversial topics in the history of the United States as well as around the world. This article undertakes a critical analysis of whether mothers in the United States should maintain their exclusive privacy right to choose to terminate a pregnancy or whether unborn babies also have substantive due process rights, in particular a right to life. The gestational process of human development as well as pregnancy from the mother's perspective shall first be addressed. The various types of abortion procedures, most reported reasons for attaining an abortion, as well as a mother's experiences post abortion and its interaction with the institution of family will also be explored. Conflicting claims from the mother, the unborn child, and the father will be examined as well as the varying doctrines of religious institutions, ideas of philosophy, and the viewpoints of activist organizations from both the pro-life and the pro-choice movements. The legal responses in form of the treatment of abortion in various societies and the United States' history of abortion legislation as well as the jurisprudence of the Supreme Court will also be discussed. Lastly, current and changing conditioning factors in government and politics as well as appraisals of intervention will be *286 explored via critical legal analysis and a solution proposed with a view toward contributing to an order of human dignity, using the framework of the New Haven School of Jurisprudence.

Creating Opportunities for Law Students with Disabilities in the 21st Century: Inclusivity on Campus and in the Workplace, 28 Am. U. J. Gender Soc. Pol'y & L. 271 (2020)

The following is a transcript from the Journal of Gender, Social Policy & Law's Disabilities Symposium in partnership with the ABA Commission on Disability Rights and the Law Student Admission Council held in the Fall of 2019. Featuring the story of, Catholic, Tony Coehlo and Judy Perry Martinez sponsor of the Americans with *273 Disabilities Act signed into law nearly three decades ago, extending civil rights and protections to millions of individuals across the country. Despite the current protections in place, however, a significant gap between our aspirations, and our reality persists.