Mirror of Justice

Mitt Romney, Conscience, and the Boston Globe's Mistakes

The Boston Globe is apparently so intent on impugning Mitt Romney and defending the Obama Administration's attack on religious freedom in the HHS mandate that it isn't letting facts get in the way. Today's Globe has a story about Governor Romney's support in 2005 of a requirement that all hospitals, including Catholic hospitals, provide sexual assault victims in an emergency room with Plan B contraception, which the Globe says is "similar" to the Obama Administration's current policy under the HHS mandate. The only problem with that charge of hypocrisy against Governor Romney is that the two policies are about entirely different things. When a number of states enacted requirements that all hospitals provide Plan B to sexual assault victims in the ER, the Catholic response was somewhat divided (summary article here), with the bishops of New York and Connecticut issuing statements agreeing to permit Catholic hospitals to follow the requirement. The USCCB Ethical and Religious Directives clearly permit administration of drugs to sexual assault victims to prevent pregnancy ("A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred," no. 36), though there has been considerable debate about whether hospitals should administer both an ovulation and a pregnancy test and whether Plan B acts as an abortifacient. See Daniel P. Sulmasy, “Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovulation, or Is Testing for Pregnancy Morally Sufficient?” Kennedy Institute of Ethics Journal 16, no. 4 (December 2006): 305-31, and Nicanor P. G. Austriaco, OP, “Is Plan B an Abortifacient? A Critical Look at the Scientific Evidence,” National Catholic Bioethics Quarterly 7.4 (Winter 2007): 703–707. What is clear is that the HHS mandate isn't about emergency care of sexual assault victims in Catholic hospitals but is instead a requirement that a range of Catholic institutions cover contraceptives (including Ella, a drug with undisputed abortifacient properties) and sterilization procedures in their health insurance plans. The underlying issues in disputes about conscience protection are important, and obfuscating the facts in different cases doesn't help.

Liz Lev in Zenit on Down Syndrome

The brilliant Liz Lev has written a great piece in Zenit about modern schizophrenic attitudes towards people with Down Syndrome.  On the one hand, "we" want to eradicate them.  Liz writes:

The subject of Down syndrome has appeared many times in this column, much to do with the fact my son has Trisomy 21. The stories have rarely been cheerful, mostly because the prognosis for the future of people with Trisomy 21 is poor. With an 80% abortion rate for children detected with the condition in the womb, it seems that the modern world believes it can eradicate Down syndrome as if it were small pox or the bubonic plague.

My own experience in Italy is that doctors and institutions keep poor records of how people with Trisomy 21 develop. They seem uninterested in learning how to help future generations, and I fear that this is because they believe there won't be future generations.

ZENIT published a very worrisome interview last week with Jean-Marie Le Méné, president of the Jérôme Lejeune Foundation. Mr. Le Méné participated in the March for Life in order to draw attention to the plight of the unborn with Trisomy 21 in France, which now has a 96% abortion rate for children with Down syndrome.

On the other hand, though, "we" increasingly accept and embrace the physical beauty and charisma of kids with Down Syndrome in our cultural icons -- as fashion models and T.V. stars.  Liz discusses a number of examples, writing:  "But over the last few months I have heard several stories that bring promising news, perhaps a sign that Down is not out yet." She talks about the adorable six-year old star of Target & Nordstrom's ads, Ryan Langston; the Glee star Lauren Potter; and movie projects involving actors with Down Syndrome and celebrities such as Martin Scorsese, Roberto Benigni, Vanessa Paradis and Eva Longoria.

In my forthcoming article in Duke's Journal of Law and Contemporary Problems:  Exposing the Cracks in the Foundations of Disability Law, I explore these sorts of "puzzling inconsistencies in contemporary society's attitudes towards the disabled," as diagnosed by Stanley Hauerwas:  revealing "the pretensions of the humanism that shapes the practices of modernity."

FCC v. Fox -- the "fleeting expletives" case

The Supreme Court recently heard oral argument in FCC v. Fox, for the second time.  The first time the Court heard the case, it denied relief on administrative law grounds: the agency's changing a rule (regarding the censorship of expletives and nudity on public broadcasts) did not require that the agency *explain* why it considered the new rule to be better than the former rule.  This time the First Amendment issue in the case seems unavoidable: what is the constitutional authority of the FCC to regulate indecency on broadcast media?  Some of my thoughts on that question are on this recent podcast.

Catholic Government Officials and Same Sex Unions

I've a good deal of sympathy with the concerns to which Robby gives characteristically eloquent voice in his 'Which Side Are You On' post yesterday.  I've also no doubt that he is right about at least some, perhaps even many Catholic politicians, in surmising that their views and voting behavior might be shaped and guided by some form of expressive individualism. Finally, I've also little doubt that some if not most forms of the latter are, at a minimum, in tension with the Catholic and natural law traditions, as well as with what are probably the most widely accepted understandings of the Jewish and Christian, not to mention Islamic, ethical traditions. I wonder, though, whether a somewhat more charitable interpretation - in a 'giving the benefit of interpretive doubt' understanding of 'charity' here - might not be available to us in the case of some Catholic or otherwise religiously committed government functionaries or political figures.

What I have in mind here is this: Perhaps some religiously committed functionaries or political figures attempt in good faith, how ever successfully or otherwise as an analytic or conceptual matter, to draw a sharp distinction between matters of church (or temple or mosque or ...) on the one hand, and matters of state on the other hand. (Perhaps they've not yet read, or not yet read and found persuasive, Robby's own acute writings on the subject, or any of the other great scholarly work plying the natural law or even 'communitarian' traditions in querying the ultimate tenability of the distinction as a conceptual or as a practical matter.)  Marriage these people might in turn find to constitute a strictly sacramental or ecclesial category, while finding something like dyadic 'domestic partnership' to constitute all that there is by way of analogue in the realm of legitimate state categories.

These people, if such exist, might then also firmly subscribe and commit to, and with sincere hearts defend and act in accordance with, their congregations' understandings of marriage, while at the same time believing that state functionaries would be abusing state office, state sanction, and state power were they to employ identical criteria in framing the conditions of state-recognized domestic partnership as they do in framing the conditions of marriage within their ecclesial traditions. One such criterion that they might then in good faith find legitimate in the first case but not in the second case might speak to the genders, as distinguished from the ages, competences, and cognate contract-relevant characteristics of the would-be spouses or partners.  So far as legitimate state interests are concerned, they might reason, reasonably (but secularly) qualified dyadic partnership is what warrants state recognition and favor of various sorts, while sexual complementarity, ultimate sameness of flesh, and like matters of profound metaphysical significance are matters of ecclesial but not legitimate state competence. 

It is true, of course, that the word 'marriage' is used, at least in the U.S., in respect of both of the categories I mention - ecclesial and state. In that sense, our legal terminology, admittedly and perhaps regrettably conflates the two categories. But of course it need not; it could be reformed. And it seems to me that in the meanwhile a, say, quite seriously devout Catholic legislator might prefer globally to change the legal terminology where state-recognized domestic partnership is concerned, while at the same time being willing, until such time as that happens, to approve legislation that ends the state's making what amount to ecclesial decisions concerning the substantive criteria upon which state-recognized and -encouraged dyadic domestic partnership is to be determined. Could s/he not?

Now assuming that the charitable interpretation of at least some actual or possible tradition-faithful state functionaries' or political figures' decisions and actions in respect of 'same sex unions' here offered is plausible, it should go without saying that it does not carry over, at least absent further elaboration and argumentation, to the case of such persons' decisions or actions in respect of abortion. For that latter, of course, involves not only two acting partners of one sort or another, but innocent third parties as well - or at the very least critically implicates precisely that fateful question, as even 'pro-choicers' would be bound in candor to admit.

(Cross-posted at ReligiousLeftLaw)

 

A follow-up to the “HHS ‘Power Grab’”

 

In the words of John Paul II (Veritatis Splendor, N. 101)

Today, when many countries have seen the fall of ideologies which bound politics to a totalitarian conception of the world — Marxism being the foremost of these — there is no less grave a danger that the fundamental rights of the human person will be denied and that the religious yearnings which arise in the heart of every human being will be absorbed once again into politics. This is the risk of an alliance between democracy and ethical relativism, which would remove any sure moral reference point from political and social life, and on a deeper level make the acknowledgement of truth impossible. Indeed, “if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism”.

 

RJA sj

 

Gerson on the HHS "power grab"

It's tough-talk, but I think it's true, what Michael Gerson writes:  The HHS mandate, coming as and when it did, despite the efforts of more than a few of his Catholic supporters to stop it, is an "edict delivered with a sneer."  This is also right, I think:

Obama’s decision also reflects a certain view of liberalism. Classical liberalism was concerned with the freedom to hold and practice beliefs at odds with a public consensus. Modern liberalism uses the power of the state to impose liberal values on institutions it regards as backward. It is the difference between pluralism and anti-­clericalism.

An attractive liberalism is one that does not insist on liberalism "all the way down."

Coke on the Common Law

Today is the 460th anniversary of Sir Edward Coke's birth.  Coke is widely known in part for his role in the prosecution of the Gunpowder Plot.  But Coke was also an astute student of the law.  Here's a memorable passage from Coke's report of Bonham's Case, which involved the question whether a London physician could be prevented from practicing medicine and imprisoned pursuant to the newly formed charter of the Royal College of Physicians -- and later ratified by an act of Parliament -- which altered the common law practice.  The "censors" of the College had acted as both party and judge in the case, contravening the ancient rule.  As those more learned than I have observed, Bonham's Case has almost nothing to do with the contemporary power of judicial review and everything to do with the power of the common law to control the unfettered will of decision-makers -- to restrain the rule of men by the common law, not to unleash it:

The censors cannot be judges, ministers, and parties . . . . And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.  

West on Waldron on the Rule of Law

Robin West has written an interesting critique of Jeremy Waldron's take on the rule of law. (HT: Solum)  The abstract:

This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has usefully identified and distinguished — formal, procedural, and substantive — need to move beyond identifying the Rule of Law as a means to counter the pernicious abuse of power by a too-fierce state besotted by its own political will, and acknowledge the ways in which the law expresses the will of the state to protect weaker parties harmed not by the state but by powerful private entities.

E.J. Dionne on the "Utterly Botched" Contraception Mandate

From Commonweal:

One of Barack Obama's great attractions as a presidential candidate was his sensitivity to the feelings and intellectual concerns of religious believers. That is why it is so remarkable that he utterly botched the admittedly difficult question of how contraceptive services should be treated under the new health-care law. His administration mishandled this decision not once but twice. In the process, Obama threw his progressive Catholic allies under the bus and strengthened the hand of those inside the church who had originally sought to derail the health care law.

I don't find the question whether to broaden the exemption difficult, but otherwise:  Ditto!

E.J. also mentions as a compromise the idea of expanding the exemption but requiring objecting employers to notify employees that they do not cover contraceptives and to inform employees of alternate ways they can obtain coverage.  But for many organizations this won't reduce the conflict much, since they'd view providing information about specific alternatives--essentially, referrals--as likewise material cooperation with evil.  And there's the rub that the mandated contraceptives include some that may act as abortifacients, which widens the duty not to cooperate.

As I finish this, I've caught Rick's post linking to the very interesting discussion among moral theologians about the cooperation-with-evil analysis of this.

Let's have the same rule for both parties on filibustering judicial nominees

Speaking of the editorial board of the New York Times, are its members for or against the use of the filibuster in confirmation fights against judicial nominees?  Well, as the indispensable Ed Whelan of the Ethics and Public Policy Center shows, it all seems to depend on whether the president making the appointments is a Republican or a Democrat:  http://www.nationalreview.com/bench-memos/289719/nyt-goes-full-circle-filibusters-ed-whelan.  Like Ed Whelan, I'm no fan of the use of the filibuster in judicial confirmation proceedings.  But I think the same rule---whatever it is---should apply to Republicans and Democrats.  It matters less, I think, what that rule is, than that it apply in the same way to both parties.  The editors of the New York Times should settle on a principled position, one way or the other---a position they are willing to stick to whether a Republican or a Democrat occupies the White House.

Religious liberty and SSM in Maryland

Here is a letter to officials in Maryland (Download Maryland letter), from Prof. Robin Fretwell Wilson, Tom Berg, Marc Stern, Carl Esbeck, and me, urging the inclusion of meaningful religious-freedom protections, for individuals and institutions, in any legislation that changes the definition of marriage to include same-sex couples. 

Which side are you on, boys, which side are you on?

Back in the 1990s, when I was working for Governor Robert P. Casey of Pennsylvania, he used to lament the fact that Catholic politicians---mostly Democrats---were in the vanguard of pushing legal abortion and its public funding and resisting all efforts to protect the fundamental right to life of children in the womb.  Casey knew that one didn't need to be a Catholic to understand that unborn children, like all members of the human family, deserve the full and equal protection of the laws. But he believed that Catholics had no excuses for failing to understand that, and that Catholic political leaders had no excuses for failing to act on that understanding.  That is why he had nothing but contempt for Mario Cuomo's famous (or infamous) speech at Notre Dame arguing that one could be a good Catholic who "personally opposed" abortion, while at the same time supporting "a woman's right to choose." 

If Governor Casey were still with us, no one would be less suprised than he that it is again Catholic politicians---mostly Democrats---who are leading the charge to abolish the conjugal understanding of marriage as a one-flesh union of sexually complementary spouses and replace it with a revisionist understanding of marriage as a romantic-sexual domestic partnership.  Predictably, it is the pro-abortion Catholic politicos---people like Andrew Cuomo, Martin O'Malley, and Christine Gregoire---who are in the forefront of the movement to redefine marriage.  That, I believe, reveals something rather significant:  The philosophical tradition that shapes the reasoning and actions of these people is expressive individualism, or what is sometimes called "life-style liberalism"; it is not Catholicism, or the Judaeo-Christian ethic, or the natural law tradition.  Whatever is to be said for and against that tradition, it is deeply alien (and hostile) to the Catholic tradition's commitments to the sanctity of human life in all stages and conditions and the dignity of marriage as a conjugal partnership.

Somehow, when politicians like Cuomo, O'Malley, and Gregoire go about the business of discerning their obligations on issues of profound moral significance on which Catholicism teaches one thing, and the editorial board of the New York Times teaches something else, they are always led by the spirit to side with the Times.  Funny, how that is.

Marriage Equality Bill Sponsored by Catholic Governor

The Washington State Legislature is poised to pass a marriage equality bill, which will likely make it the 7th state (9th US jurisdiction if one includes DC and the Suquamish Indian Tribe) to allow same-sex marriage. http://seattletimes.nwsource.com/html/politicsnorthwest/2017341256_gay_marriage_bill_voted_out_of.html As in Maryland, the Washington bill is sponsored by a Catholic Governor. http://ncronline.org/news/politics/same-sex-marriage-issue-facing-lawmakers-voters-several-states Washington Governor Christine Gregoire has explicitly addressed her discernment process over the past several years. http://www.huffingtonpost.com/2012/01/28/chris-gregoire-washington-governor-gay-marriage_n_1239058.html

The Importance of Institutional Pluralism

As Rick notes, Yuval Levin's piece today and Ross Douthat’s column yesterday are valuable reflections on the importance of institutional pluralism in a liberal society, a point underappreciated by many, including Douthat's colleagues on the editorial board. Yuval and Douthat show that the disagreement over the HHS mandate is a debate over whether and in what circumstances the coercive power of the state should be employed against the institutions of civil society. As Yuval observes, Catholicism (and especially American Catholicism) is a uniquely institutional form of religion, with social service agencies, hospitals, and schools at every level, and Catholic institutions are, not surprisingly, on the front lines of these battles. It strikes me that one’s view of the HHS mandate will often vary depending on whether one embraces “the logic of congruence,” in Nancy Rosenblum’s phrase, or a robust commitment to the freedom of civil society (churches, civic organizations, families, etc.), including toleration for views one sharply disagrees with. If the former, then you just have to bide your time until your side has a grasp on the levers of state power, and so, as Douthat points out, the increased authority of the state in these matters will eventually gore everyone’s ox--liberal or conservative, religious or not--depending on the politics of the administration. As Rosenblum and Robert Post put it in the introduction to Civil Society and Government (Princeton, 2002):

Advocates of congruence fear that the multiplication of intermediate institutions does not mediate but balkanizes public life. They are apprehensive that plural associations and groups amplify self-interest, encourage arrant interest-group politics, exaggerate cultural egocentrism, and defy government. What is needed, in their view, is a strong assertion of public values and policies designed to loosen the hold of particular affiliations, so that members will be empowered to look beyond their groups and to identify themselves as members of the larger political community. The “logic of congruence” envisions civil society as reflecting common values and practices “all the way down.”

All of this was diagnosed by Tocqueville, who saw that individualism and statism are reinforcing over time, crowding out religious and other forms of associational life for the allegiance of citizens:

As in periods of equality no man is compelled to lend his assistance to his fellow men, and none has any right to expect much support from them, everyone is at once independent and powerless. These two conditions, which must never be either separately considered or confounded together, inspire the citizen of a democratic country with very contrary propensities. His independence fills him with self-reliance and pride among his equals; his debility makes him feel from time to time the want of some outward assistance, which he cannot expect from any of them, because they are all impotent and unsympathizing. In this predicament he naturally turns his eyes to that imposing power which alone rises above the level of universal depression. Of that power his wants and especially his desires continually remind him, until he ultimately views it as the sole and necessary support of his own weakness.
 
It frequently happens that the members of the community promote the influence of the central power without intending to. Democratic eras are periods of experiment, innovation, and adventure. There is always a multitude of men engaged in difficult or novel undertakings, which they follow by themselves without shackling themselves to their fellows. Such persons will admit, as a general principle, that the public authority ought not to interfere in private concerns; but, by an exception to that rule, each of them craves its assistance in the particular concern on which he is engaged and seeks to draw upon the influence of the government for his own benefit, although he would restrict it on all other occasions. If a large number of men applies this particular exception to a great variety of different purposes, the sphere of the central power extends itself imperceptibly in all directions, although everyone wishes it to be circumscribed.
 
Thus a democratic government increases its power simply by the fact of its permanence. Time is on its side, every incident befriends it, the passions of individuals unconsciously promote it; and it may be asserted that the older a democratic community is, the more centralized will its government become.
 
Democracy in America, Vol. II, Pt. 4, Ch. 3

more on the Stolen Valor Act

While the Supreme Court is reviewing the Alvarez case from the Ninth Circuit, the Tenth Circuit (featuring a very good majority opinion by Judge Tymkovich) has upheld the constitutionality ofthe Stolen Valor Act. Here. Although Judge Holmes's dissenting opinion does not reach the same heights (or lows) as Judge Kozinski's paean to falsehood, I am still troubled by phrases such as this one--"little white lies (even those knowingly told and designed to deceive) that season are speech, like beneficent salt, ... preserve the grace and dignity of human relationships."

Richard M.    

Welcome to Mary Leary / "Catholic Schools Week"

First, I'd like to welcome to the MOJ crew Prof. Mary Leary, of Catholic University's Columbus School of Law. Professor Leary is a former AUSA, and her scholarship examines the intersection of contemporary social problems, criminal law, and criminal procedure.  (Read more about Mary and her work here.) 

Second, here is her inaugural MOJ post, on Catholic Schools Week:

This week marks an important week for the over two million students attending Catholic school in the United States.  Of course, I speak of the time honored tradition of “Catholic Schools Week.”

While this annual week of reflection and celebration is reserved for the primary and secondary Catholic schools throughout the country, there is certainly some room for its consideration on the university and post-graduate level.  Indeed, many a legal professor has either lamented a particular student’s struggles resulting from inadequate skill development, or praised and reaped the fruits of a well-equipped and inquisitive mind initially shaped in the student’s early education. One could argue that the success or failure of students in law school is directly affected by the effectiveness of many students’ early education.

This week may present an opportunity for us in legal education to think about the importance of Catholic education in the 21^st century.  This year’s theme is:  “Faith, Academics, Service.”  Such educational goals are not foreign to many Catholic law schools which seek to provide, not only outstanding academic preparation for the practice of law, but to produce highly ethical lawyers armed with the moral compasses necessary to navigate a challenging profession and serve those most in need.    This goal can be more easily achieved when students come to our law schools familiar with such priorities.

The importance of such an educational emphasis at all levels of education can be seen in the highest echelons of the legal system.  During the appointment of Justice Sotomayor much was made of the fact that six of the Justices could be categorized as Catholic.  However, it is important to note that four of the Justices are also the products of Catholic education at some level. 

Of course any law-school-based reflection on what it means to be a Catholic institution brings to mind Judge John T. Noonan’s 1992 Essay, A Catholic Law School, 67 Notre Dame L. Rev. 1037 (1992), where he writes, “[t]he main attraction of a Catholic law school should be the historical, jurisprudential, and ethical dimensions….”  (MOJ contributor Patrick Brennan revisited this piece on this blog after speaking at the Catholic University of America’s "Realizing the Promise of Religious Mission in Legal Education" in 2009. 

No doubt this is a valid observation, but one more achievable when the previous education of the students possesses these same characteristics as well.  The words Pope Benedict XVI shared with Catholic educators during his 2008 address at the Catholic University of America speak to all levels of Catholic education.  “It comes as no surprise, then… [that] society in general has high expectations of Catholic educators…. More and more people . . . recognize the need for excellence in the human formation….” 

Therefore, as we celebrate and reflect upon Catholic education this week, we may wish to consider the reality of financial burdens on American Catholic schools which are serving some of the most diverse and  needy populations in the country.  With an increasing number of Catholic schools closing their doors, the resultant cost is not only to primary and secondary education, but also graduate education and the nation itself when fewer students are trained in “Faith, Academics, and Service.” 

"Government and its Rivals"

It's common -- and correct, to a point -- to observe that the Catholic Social Tradition is more "communitarian," and emphasizes more the "social," than is and does classical liberalism / libertarianism.  At the same time, it is important to remember that the Tradition is not "statist," in the sense that it does not reduce "community" to "government." 

Ross Douthat writes, in the New York Times:

WHEN liberals are in a philosophical mood, they like to cast debates over the role of government not as a clash between the individual and the state, but as a conflict between the individual and the community. Liberals are for cooperation and joint effort; conservatives are for self-interest and selfishness. Liberals build the Hoover Dam and the interstate highways; conservatives sit home and dog-ear copies of “The Fountainhead.” Liberals know that it takes a village; conservatives pretend that all it takes is John Wayne . . .

. . .  But there are trade-offs as well, which liberal communitarians don’t always like to acknowledge. When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good. Unlike most communal organizations, the government has coercive power — the power to regulate, to mandate and to tax. These advantages make it all too easy for the state to gradually crowd out its rivals. The more things we “do together” as a government, in many cases, the fewer things we’re allowed to do together in other spheres. . . .

. . . 

The more the federal government becomes an instrument of culture war, the greater the incentive for both conservatives and liberals to expand its powers and turn them to ideological ends. It is Catholics hospitals today; it will be someone else tomorrow.

The White House attack on conscience is a vindication of health care reform’s critics, who saw exactly this kind of overreach coming. But it’s also an intimation of a darker American future, in which our voluntary communities wither away and government becomes the only word we have for the things we do together.

I agree.  And, I tried to elaborate on similar themes, about ten years ago, in this article, about the mediating, educating, and formative role of associations:

In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.

In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions ­including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyalties­that is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.

UPDATE:  Yuval Levin sets out a similar argument -- about the civil-society dimension of the HHS mandate debate -- here.

Archbishop Chaput on school choice and Catholic Schools Week

Philadelphia's Archbishop Chaput kicks off Catholic Schools Week with a punchy essay in support of school choice.  He ends with this:

When vouchers stalled, yet again, in the Pennsylvania house last fall, a frustrated Catholic school teacher friend of mine said “Catholics are suckers.” I don’t believe that. But then, I’m new in town. If we Philadelphia Catholics love our Catholic schools, and we obviously do, then the time to get active and focused is now. We need to begin pressing our state lawmakers to pass the school choice legislation — including vouchers and expanded EITC credits — that’s currently pending in Harrisburg. And we need to do it this week, today, right now. I plan to do that. I hope you’ll join me.

Indeed.

Dana Dillon on the mandate and cooperation with evil

At the Catholic Moral Theology blog, Dana Dillon helpfully (to my mind) walks through the cooperation-with-evil analysis with respect to the HHS mandate.

Authority and the Law

 

As you may recall from yesterday’s readings at the Fourth Sunday of Ordinary Time, the theme of authority was addressed in the reading from Deuteronomy and St. Mark’s Gospel. Authority is an important subject common to both Christianity and the civil law. What should Catholic legal theory’s take be on the matter?

Law that we encounter daily in civil society is a mechanism for exercising authority through the development of human norms that should be: (1) an exercise of human intelligence exercising objective reasoning that (2) takes stock of and responds to the needs of the intelligible reality that surrounds us. These two factors combine to formulate prudent normative principles that become the human law of the society for which they are promulgated to further the common good—the good of each individual and the good of everyone.

Of course, authority does not always proceed in this fashion. I suppose one reason that it does is because it possesses a sense of freedom to do what the authority wills. But this kind of freedom can be divorced from the exercise that comprehends and serves the common good. An illustration of this might be the recent HHS promulgation of regulations that will have a deleterious impact on Catholic institutions.

Here is where a thought borrowed from Lord Acton could help the authority that exercises its freedom in the promulgation of law: freedom is not what the authority wants to do; rather, freedom is what the authority must do in spite of what it wants to do. It is this latter context where human intelligence comprehending the intelligible reality has its best chance of making laws that further the common good.

 

RJA sj

 

Religious liberty and SSM in the State of Washington

Here is a letter (Download Washington letter), from Prof. Robin Fretwell Wilson, Tom Berg, Carl Esbeck, and others to legislators and officials in Washington, urging them to include meaningful protections for religious freedom in that state's pending same-sex-marriage legislation.

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

The informed readership at MOJ of course knows that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application -- where a system of individualized assessments with respect to exemption from the law has been adopted -- then the law is again subject to strict scrutiny.  I've looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out...a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school's "no referral to other counselors" policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see this item.  You might wonder just how powerful the individualized assessment exception is...you will have to wait for my book to see just how much!

The third exception carved out by Smith was for the church autonomy cases, and at one time it was not clear whether the ministerial exception would fall into that exception.  In Hosanna-Tabor, the Court made clear that it did.  And now (courtesy of the excellent Professor Friedman at Religion Clause blog), it seems that the South Dakota Supreme Court has extended Hosanna-Tabor to apply outside the employment context to a case about the potential dissolution of a particular religious group.  It is too early to tell what will happen...but...it may be that because of Hosanna-Tabor's uncertain scope, lower courts (state and federal) will extend it in unexpected directions -- and directions which differ one from another.  

If this does happen, I think we may witness (in conjunction with the continuing expansion and complication of some of the other exceptions) the taming of Employment Division v. Smith.  Smith will not be overruled, but it may be substantially chipped away in various ways.  And so what appeared once -- to opponents and supporters alike -- to be a rule of iron predictability, will in fact become something very different.   

St. Thomas and the Sanctity of Mind

As Rick notes, today is the Feast of St. Thomas Aquinas. Here's a bit from a homily preached at Blackfriars (Oxford) on this feast by my late friend Herbert McCabe, OP:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?

....

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

Dean Search at St. Thomas

Many of you know that at St. Thomas we are launching a dean search, now that Tom Mengler has announced he is leaving the deanship after 10 wonderful years.  I am co-chairing the search.  Please nominate candidates.  We're at an important moment for legal education, full of challenges and opportunities, especially for a Catholic law school like ours committed to excellence, to preparing students for the changing demands of the profession, and to the integration of faith with the study and practice of law.  I believe that our school is well positioned for this moment and that leading it can be a great source of satisfaction--in the best sense of purpose and calling--for the dean.  The webpage for the search process is here and will be updated as the search proceeds.  But let me take the liberty of posting the position announcement after the page break.

Tom  

Continue reading "Dean Search at St. Thomas"

Happy Feast of St. Thomas Aquinas!

Here is a reflection from Fr. Robert Barron, at Word on Fire.  And, if you do not yet own Chesterton's The Dumb Ox . . . fix that.