Richard Garnett

Professor of Law
Concurrent Professor of Political Science


Office: 3164 Eck Hall of Law
Phone: 574.631.6981
Fax: 574.631.8078
Email: rgarnett@nd.edu
Staff Assistant: Sharon Loftus

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Professor Richard Garnett teaches and writes about the freedoms of speech, association, and religion, and also about constitutional law more generally. He is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society. He has published widely on these matters, and is the author of dozens of law-review articles and book chapters. His current research project, Two There Are: Understanding the Separation of Church and State, will be published by Cambridge University Press. Professor Garnett is regularly invited to share analysis and commentary in national print and broadcast media, and he contributes to several law-related blogs, including Mirror of Justice and PrawfsBlawg. He is the founding director of Notre Dame Law School’s new Program in Church, State, and Society, an interdisciplinary project that focuses on the role of religious institutions, communities, and authorities in the social order.

Professor Garnett clerked for the late Chief Justice of the United States William H. Rehnquist during the Court’s 1996 term and also for the late Chief Judge of the United States Court of Appeals for the Eighth Circuit, Richard S. Arnold.

Professor Garnett is closely involved with a number of efforts to improve and strengthen Catholic schools and to reform education policy more generally. He served on the Notre Dame Task Force on Catholic Education, is a Fellow of the University’s Institute for Educational Initiatives, is a founding Associate of the American Center for School Choice, and consults regularly with the Alliance for Catholic Education. He is also serves on the school board of St. Joseph Grade School in South Bend, Indiana.


Courses Taught

LAW60307, Constitutional Law
LAW60302, Criminal Law
LAW70304, Freedom of Religion
LAW70306, The Death Penalty
LAW70307, Freedom of Speech/The First Amendment
LAW70359, Constitutional Criminal Procedure
LAW73836, Catholic Social Thought

Scholarship

Works in Progress

TWO THERE ARE: UNDERSTANDING THE SEPARATION OF CHURCH AND STATE (manuscript proposal).


Articles and Review Essays

The Political (and Other) Safeguards of Religious Freedom, 32 CARDOZO L. REV. 1815 (2011).

Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience, 54 VILL. L. REV. 655 (2009).

A Hand's-Off Approach to Religious Doctrine: What Are We Talking About?, 8 NOTRE DAME L. REV. 837 (2009).

Religious Freedom, Church Autonomy, and Constitutionalism, 57 DRAKE L. REV. 901 (2009).

Judicial Review, Local Values, and Pluralism, in The People & The Courts: The 27th Annual National Federalist Society Student Symposium on Law and Public Policy, 32 HARV. J. L. & PUB. POL’Y 5 (2009).

Can There Really Be "Free Speech" in Public Schools?, 12 LEWIS & CLARK L. REV. 45-59 (2008).

Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILLANOVA L. REV. 273-96 (2008).

Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?, 22 ST. JOHN'S J. LEG. COMMENT. 515 (2007).

Pluralism, Dialogue, and Freedom: Professor Robert Rodes and the Church-State Nexus, 22 J. L. & RELIGION 503 (2007).

Church, State, and the Practice of Love, 52 VILLANOVA L. REV. 281 (2007).

Civic Unity and Religious Pluralism, 23 CONST. COMMENT. 241 (2006) (reviewing NOAH FELDMAN, DIVIDED BY GOD: AMERICA’S CHURCH-STATE PROBLEM—AND WHAT WE SHOULD DO ABOUT IT (2005) and KEVIN SEAMUS HASSON, THE RIGHT TO BE WRONG: ENDING THE CULTURE WAR OVER RELIGION IN AMERICA (2005)).

Taking Accommodation Seriously: Religious Freedom and the O Centro Case, 2006 CATO SUP. CT. REV. 257 (2006) (with Joshua D. Dunlap).

Religion, Division, and the First Amendment, 94 GEO. L.J. 1666 (2006).

The Freedom of the Church, 4 J. CATH. SOCIAL THOUGHT 59 (2006).

Changing Minds: Proselytism, Freedom, and the First Amendment, 2 UNIV. OF ST. THOMAS L. J. 453 (2005).

Jaycees Reconsidered: Judge Richard S. Arnold and the Freedom of Association, 58 ARKANSAS L. REV. 587 (2005).

Assimilation, Toleration, and the State’s Interest in Religious Doctrine, 51 U.C.L.A. L. REV. 1645 (2004).

American Conversations With(in) Catholicism, 102 MICH. L. REV. 1191 (2004)(reviewing JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY (2003)).

The Theology of the Blaine Amendments, 2 FIRST. AMD. L. REV. 45 (2003).

The New Federalism, the Spending Power, and Federal Criminal Law, 89 CORNELL L.REV. 1 (2003).

Christian Witness, Moral Anthropology, and the Death Penalty, 17 NOTRE DAME J. ETHICS, L. & PUB. POL’Y 541 (2003).

The Right Questions About Schoo1 Choice: Education, Religious Freedom, and the Common Good, 23 CARDOZO L. REV. 1281 (2002).

Sectarian Reflections on Lawyers’ Ethics and Death-Row Volunteers, 77 NOTRE DAME L.REV. 795 (2002).

Common Schools and the Common Good: Reflections on the School-Choice Debate, 75 ST. JOHN’S LAW REV. 219 (2001).

A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C. L. REV. 771 (2001).

The Story of Henry Adams' Soul: Education and the Expression of Associations, 85 MINN. L. REV. 1841 (2001).

Brown'€™s Promise, Blaine's Legacy, 17 CONST. COMM. 651 (2000) (reviewing JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY (1999)).

Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 NOTRE DAME L. REV. 109 (2000).

Francis Bacon Takes On the Ghouls: The “First Principles” of Religious Freedom, 3 GREEN BAG 2D 447 (2000) (reviewing JOHN WITTE JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (2000)).

School Choice, The First Amendment, and Social Justice, 4 TEX. REV. L. & POL. 301 (2000)(with Nicole Stelle Garnett).

Once More Into the Maze: United States v. Lopez, Tribal Self-Determination, and Federal Conspiracy Jurisdiction in Indian Country, 72 N.D. L. REV. 433 (1996).

Why Informed Consent? Human Experimentation and the Ethics of Autonomy, 36 CATH. LAW. 455 (1996).

Note, Depravity Thrice Removed: Using the “Heinous, Cruel, or Depraved” Factor to Aggravate Convictions of Nontriggermen Accomplices in Capital Cases, 103 YALE L. J. 2471 (1994).


Book Chapters

The Story of Kedroff v. St. Nicholas Cathedral, 38 J. SUP. CT. HIST. 80-93 (2013).

Religious liberty, church autonomy, and the structure of freedom, in CHRISTIANITY AND HUMAN RIGHTS: AN INTRODUCTION (John Witte, Jr., & Frank S. Alexander, eds., Cambridge 2010)

Less Is More: Justice Rehnquist, the Freedom of Speech, and Democracy, in C. BRADLEY, ED., THE REHNQUIST LEGACY (2006).

"€œEverlasting Splendours"€: Death-Row Volunteers, Lawyers'€™ Ethics, and the Dignity of Creatures, in MICHAEL A. SCAPERLANDA & TERESA STANTON COLLETT, EDS., SELFEVIDENT TRUTHS: CATHOLIC PERSPECTIVES ON AMERICAN LAW (2007).

Regulatory Strings and Religious Freedom: Requiring Private Schools To Promote Public Values, in S. MACEDO, ET AL., EDS., EDUCATING CITIZENS: INTERNATIONAL PERSPECTIVES ON CIVIC VALUES AND SCHOOL CHOICE 324 (2004).

Christian Witness, Moral Anthropology, and the Death Penalty, in ERIK C. OWENS, ET AL., EDS., A CALL FOR RECKONING: RELIGION AND THE DEATH PENALTY 139 (2004).


Other Legal Publications

Brief of Richard W. Garnett, Michael Stokes Paulsen, & Eugene Volokh as Amici Curiae in Support of Petitioners, McCullen v. Coakley, No. 12-1168, (U.S. April 24, 2013), 2013 WL 1770863.

Drop "€œCoffers",€ 10 GREEN BAG 2d 299 (2007) (with Benjamin P. Carr).

Free To Believe, FIRST THINGS (May 2007) (reviewing CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION (2007)).

Individuals First, COMMONWEAL (April 6, 2007) (reviewing CHARLES FRIED, MODERN LIBERTY AND THE LIMITS OF GOVERNMENT (2006)).

Law, Lawyers, the Court, and Catholicism, American Catholic Studies Newsletter, Cushwa Center for the Study of American Catholicism, Vol. 33, No. 2 (Fall 2006).

Debate, Judicial Activism and its Critics, 155 U. PENN. L. REV. PENNUMBRA 112 (2006), http://www.pennumbra.com/debates/debate.php?did=3 (with Kermit Roosevelt).

Personal Reflections on the Chief, 10 TEX. REV. L. & POL. 283 (2006).

Chief Justice Rehnquist’s Enduring, Democratic Constitution,29 HARV. J. L. & PUB. POL’Y 395 (2006).

William H. Rehnquist: A Life Lived Greatly, and Well, 115 YALE L. J. 1847 (2006).

Introduction: Religion, Division, and the Constitution, 15 WM. & MARY BILL OF RIGHTS J. 1 (2006).

Chief Justice Rehnquist and the Freedom of Speech, ENGAGE (Vol. 7, Issue 1) (2006).

Bush v. Holmes: School Vouchers, Religious Freedom, and State Constitutions, 17 EDUC. & THE LAW 173 (2005) (with Christopher S. Pearsall).

Permanent Conflict, COMMONWEAL (Nov. 18, 2005) (reviewing NOAH FELDMAN, DIVIDED BY GOD (2005), MARCI A. HAMILTON, GOD VS. THE GAVEL (2005), and WINNIFRED FALLERS SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS FREEDOM (2005)).

Good News Club v. Milford Central School, in K. HALL, ED., THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (2005).

Public Trial, in MATTHEW SPALDING & DAVID FORTE, EDS, THE HERITAGE GUIDE TO THE CONSTITUTION (2005).

Hail to the Chief?, LEGAL AFFAIRS (March 2005).

Citizens, Not Outlaws, NATIONAL REVIEW (Aug. 11, 2003) (reviewing MICHAEL J. PERRY, UNDER GOD? RELIGIOUS FAITH AND LIBERAL DEMOCRACY (2003)).

Final Justice, AMERICA (Oct. 27, 2003) (reviewing S. BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY (2002) & F. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT (2003)).

The Rehnquist Choice, TRIAL (June 2002) (reviewing JOHN DEAN, THE REHNQUIST CHOICE (2002)).

Section 666, The Spending Power, and the Federalization of Criminal Law: Salinas, Fischer, and the Way Ahead, THE CHAMPION (May 2001) (with John P. Elwood).

Education Reform at the Crossroads: Politics, The Constitution, and the Battle Over School Choice, 10 GEO. MASON CIV. R. L. J. 107 (2000).

What Are the Limits on Warrantless Drug Testing of Pregnant Women?, 1 A.B.A. PREVIEW 31 (September 13, 2000).

Does the Constitution Permit Federal Prosecution for the Arson of a Private Residence?, 6 A.B.A. PREVIEW 331 (March 8, 2000).

Are Payments to a Hospital for Services Provided Medicare Beneficiaries “Benefits” Under the Federal-Program Bribery Statute?, 5 A.B.A. PREVIEW 251 (February 5, 2000).

Tribute to the Honorable Richard S. Arnold, 1 J. APP. PRAC. & PROC. 204 (1999).

The Justice of School Choice, THE WEEKLY STANDARD (December 13, 1999) (reviewing JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY (1999)).


Selected Commentary and Opinion Pieces

When Catholicism was the Target, USA TODAY (Jan. 28, 2008).

Our Real National Pastime, USA TODAY (Sept. 10, 2007).

Carhart, Casey, and the Court’s Catholics, JURIST (April 25, 2007).

China'€™s Lesson on Freedom of Religion, USA TODAY (March 26, 2007).

What Would Lincoln Do? A Test for the Roberts Court, THE WEEKLY STANDARD (Oct. 16, 2006) (with Michael Stokes Paulsen).

Don'€™t Use First Amendment To Erase Divisions, LOS ANGELES DAILY JOURNAL (October 9, 2006).

Downsizing and the Catholic Church, USA TODAY (July 16, 2006).

Campaigning from the Pulpit: Why Not, USA TODAY (April 16, 2006).

An Unassuming Decision, NATIONAL REVIEW ONLINE (Feb. 23, 2006).

Two Justices Who "Get" Religion, USA TODAY (Jan. 23, 2006).

Religious Expression Should Be Welcomed, Indianapolis Star (July 17, 2005).

Unanimous!, National Review Online (June 1, 2005).

How High a Wall?, Commonweal (May 2005).

Debate Club, Legal Affairs (Feb. 2005). Hail to the Chief?"

Law Schools and the Military, Commonweal (Jan. 2005).

Keep it to Yourself, Commonweal (Aug. 2004).

Crime Victims'€™ Rights Law Riddled With Pitfalls, Chicago Sun-Times (May 3, 2004).

Confine and Conquer: The California Supreme Court and Religious Freedom, National Review Online (March 3, 2004).

Let Off With a Warning,":http://findarticles.com/p/articles/mi_qn4155/is_20040503/ai_n12546923 Legal Affairs (Jan./Feb. 2004).

Conservatives, Federalism, and Consistency, National Review Online (Dec. 1, 2003).

Yes to Vouchers, Commonweal (Aug. 16, 2002).

Future Church-State Battles Loom, The Wall Street Journal (July 1, 2002).

Choice Win: In the Spirit of Brown, National Review Online (June 27, 2002).

Different Views on School Choice, South Bend Tribune (Feb. 5, 2002).

Disrobed! Actually, They Think for Themselves The Washington Post (July 1, 2001).

A Supreme Court Ruling Bodes Well for School Vouchers, The Wall Street Journal (June 13, 2001).

Misguided Voucher Verdict, The Washington Times (Dec. 14, 2000).

Lieberman Talks the Talk, The Los Angeles Times (Oct. 29, 2000).

Establishment Clause Housecleaning, National Review Online (June 28, 2000).

The Courts and Abortion, The Weekly Standard (June 12, 2000).

A Victory for the Family, The Wall Street Journal (June 6, 2000).

Free the States, or Free the People?, The Legal Times (April 10, 2000).

Why Kiryas Joel Matters, Jewish World Review (May 25, 1999).

After 200 Years, School Choice Loses in Maine, The Wall Street Journal (May 3, 1999).

Areas of Expertise

  • Church / State Relations
  • Constitutional Law
  • Criminal Law & Procedure
  • Death Penalty
  • Education Reform & Policy
  • Federalism & Criminal Law
  • Free Exercise of Religion
  • Free Speech & Expressive Association
  • Law & Religion
  • Religion in the Public Square
  • School Choice

In the News

A New Plot to Change the Pledge - (Quotes: Richard Garnett) The American Prospect, September 9, 2013
Worth Worrying About? Same-Sex Marriage & Religious Freedom (Opinion: by Richard Garnett) Commonweal, July 17, 2013
‘Every person, because he or she is a person, has the right to religious liberty’ - (Quotes: Richard Garnett) Today's Catholic News, July 11, 2013
Is Anthony Kennedy 'the first gay justice'? (Quotes: Richard Garnett) CNN, June 28, 2013
A conservative Supreme Court swerves to avoid easy definition (Quotes: Richard Garnett) Washington Post, June 27, 2013
Supreme Court Extends Gay-Marriage Rights With Two Rulings (Quotes: Richard Garnett) NPR, June 26, 2013

Watch What does separation of church and state mean? on PBS. See more from Constitution USA with Peter Sagal.


Who Gets Religious Exemptions And Why - (Guest) NPR Talk of the Nation - February 21, 2013
Simple Justice: Kids Deserve School Choice – (Opinion: by Richard Garnett) Public Discourse – February 4, 2013
Individuals Institutions religious freedom poster
Individuals, Institutions and Religious Freedom, November 29, 2012


Is Religious Freedom in America at Risk?" - Panelist at Institute for Law and Religion Debate by USD School of Law - October 31, 2012 (iTunes video)
The Conscience of a Judicial Conservative – (Opinion: by Richard Garnett) The Wall Street Journal – October 23, 2012

Religious Freedom and the Constitution (Constitution Week Lecture) from CreMedia on Vimeo.



Obamacare: US judge lets Catholic-owned firm cut contraception from coverage (Quotes: Richard Garnett) Christian Science Monitor – July 27, 2012
Judge Backs Catholic Owners of Firm on Health-Law Rule‎ (Quotes: Richard Garnett) Wall Street Journal – July 27, 2012
Constitutional basics after the ruling – (Opinion: by Richard Garnett) Chicago Tribune – July 1, 2012
Conservatives Misguided Criticism of Roberts (Opinion: by Richard Garnett) National Review – June 28, 2012
Beyond the mandate: Court’s ruling on another ACA provision could have sweeping implications (Quotes: Richard Garnett) MSNBC – June 28, 2012
Legal Scholars React: ‘Many People Were Stunned’ – NPR – June 28, 2012
Following Supreme Court health-care ruling, House GOP will again try to repeal the law (Quotes: Richard Garnett) Washington Post – June 28, 2012
Liberals’ threats to Supreme Court over ObamaCare are a bad (and dumb) idea (Opinion: by Richard Garnett) Fox News.com – May 29, 2012
43 Catholic institutions file suit against the Obama administration, MSNBC TV – May 22, 2012
Contraception Controversy, Fox News (On the Record with Greta van Susteren) – May 22, 2012
Catholic groups sue over federal contraception mandate (affiliate reprints), CNN.com – May 22, 2012
Catholic organizations across the country file suit against contraception mandate, Fox News.com – May 22, 2012
Catholics Sue Over Health Mandate, Wall Street Journal – May 22, 2012
Do Lawsuits over Contraception Requirement Have a Shot?, Wall Street Journal – May 22, 2012
Catholic groups take fight against Obama birth-control rules to court, Yahoo! News – May 22, 2012
Local Catholic groups join fight against Obama birth control mandate, Chicago Tribune – May 22, 2012
Catholic Church Attacks Birth-Control Mandate in Court, Bloomberg – May 22, 2012
Businessweek – May 21, 2012 Catholic Church Attacks Birth-Control Mandate in Court‎
Catholic groups take fight against Obama birth-control rules to court‎, Christian Science Monitor – May 22, 2012
Birth-control goes to court, again, Alaska Dispatch – May 22, 2012
Unprecedented Legal Action Takes HHS Mandate Battle to the Courts, National Catholic Register – May 22, 2012
Lawsuits Seek to Vindicate Religious Freedom, National Review Online – May 22, 2012
Catholics orgs sue to block contraception mandate in healthcare law, WLS – May 22, 2012
HHS mandate still undermines religious freedom (Opinion: by Richard Garnett) USA Today, February 15, 2012
Landmark Supreme Court ruling a ‘resounding win’ for religious groups (Quotes: Richard Garnett) Christian Science Monitor, January 11, 2012
Supreme Court: Church-state separation extends to religious schools (Quotes: Richard Garnett) LA Times, January 11, 2012
Supreme Court: Religious Workers Can’t Sue for Job Discrimination (Quotes: Richard Garnett) US News & World Report, January 11, 2012