Mirror of Justice

Bringing Death into Our Lives

Joseph Raz has posted the text of a lecture he gave recently, "Death in Our Life."  The abstract:

[The lecture] examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life in great pain or total dependence, or a vegetative state. I argue that the right cannot cogently be conceived as a narrow right, confined to very limited circumstances. It is based on the value of having the normative power to choose time and manner of one’s death. Its recognition will be accompanied by far reaching changes in culture and attitude, and these changes will enrich people’s life by enabling them to integrate their death as part of their lives.

I have not (yet) read the paper, but my reflexive reaction is to resist the presumption that bans on euthanasia preclude the integration of our deaths into our lives.  Integrating the various components of my existence into a coherent life does not necessarily require me to choose the terms of each component.  A natural death can be embraced as part of my life-narrative even if I cannot predict the circumstances or avoid the suffering that may accompany it.  I'm not making a broader argument about euthanasia at this point, simply objecting to the tendency to equate integration with choice. 

One additional point: Raz is undoubtedly correct that our society fails to support the integration of our deaths into our lives, but that may stem more from our efforts to avoid any meaningful contemplation of our mortality.  A more powerful remedy, in my view, can be found in Ash Wednesday than in euthanasia.  

The Wonder Drug . . . That Comes at a Terrible Price

Just when you think the world can suffer no deeper depravity than what has already taken place, the world surprises yet again.

Witness this report from South Korea where customs officials recently seized pills made from the dried flesh of aborted children from China (here). Labeled as “stamina boosters” or “rejuvenation pills” the tablets are reportedly used “to enhance sexual performance” (here).

As Pundit & Pundette wryly notes (here) “But of course.  It's like the circle of life.  Well, not life, exactly, but with 13 million abortions a year [in China], dead baby is definitely a renewable resource.”

In his Modest Proposal, Jonathan Swift recommended that the severe poverty in Ireland could be relieved by selling the young children of the poor to the wealthy for consumption.

“I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricasie, or a ragoust.”

What Swift intended as satire in the 18^th century has been realized as tragedy in the 21^st century with one difference.  Apparently the best use for the remains of dead children isn’t as a source of nutrition for adults but as a drug to enhance sexual virility.

This is yet another of the many wrongs committed by abortion.  The act of abortion not only takes the life of the unborn child, the legal recognition of this act also denies the child his or her very humanity, and with it the dignity that is integral to membership in the human family.  With the commodification of his or her remains, the aborted child has no dignity even in death.

The drug made from the dried flesh of dead human children may work wondrous results, but it comes a price . . . the price is one’s soul, and the soul of our culture.

Doubtless should a second term of the Obama administration become a reality Secretary Sebelius will find that “health” reasons necessitate the inclusion of this wonder pill on the HHS’s list of approved drugs that employers must make available to their employees.  And with the promotion of certain “preventive health services” by Sebelius and Obama’s HHS, the pills may even be available for “free” since these services will help ensure a ready supply of domestically produced raw materials.  (The legal reform of health care, you see, is all about cost savings!).

As we know from the current debate over the HHS contraception/sterilization/abortifacient mandate, what is advertised as “free” may come at a terrible price.  The price of the current mandate is the loss of religious freedom.  The price of the “rejuvenation pills” made from the flesh of aborted children is the loss of human dignity – for the children, for the consumers of such pills, and for all of us.

Scholars Letter on North Dakota Religious Liberty Amendment

Yesterday I blogged about the debate over the proposed North Dakota amendment to apply the "compelling interest" test to state religious-freedom claims (see my own op-ed defense of the proposal).  Now, to counter the groundless warnings about what the proposal would do, a group of religious liberty scholars (including MOJers Garnett, George, Sisk, and Berg) have issued a letter to the state legislative council, making among others the following points:

If the sky has not fallen in the 31 states where these provisions are already the law, including neighboring states like Minnesota, there is no reason to think the experience will be any different in North Dakota. 

Indeed, these laws typically do not wind up applying to large numbers of cases. But those few cases are often of intense importance to the people affected. We should not punish a person for practicing his religion unless we have a very good reason. These cases are about whether people pay fines, or go to jail, for practicing their religion—in America, in the 21st century.

Former NY Capital Defender Kevin Doyle

Kevin Doyle lost his job as head of NY state's capital defense office for a really good reason: the state abolished the death penalty. Here is a wonderful interview with him that ranges over many important topics, including (briefly) his own reflections on fighting lymphoma. Kevin spoke and wrote for the St. Thomas Law Journal's symposium several years ago on "The Future of Pro-Life Progressivism." You can download his remarks here. They were witty, tough-minded, compassionate, and wholly and deeply Catholic (his first category of advice: "Don't burn your bridges, but make damn sure you char them"). The same features come through in this interview. Read it for an uplifting reminder, amid all the bickering these days, how many people are out there living the faith powerfully. Thanks and prayers for Kevin.

O'Callaghan on "Pentecost and the Mandate"

My friend and colleague, John O'Callaghan (Philosophy) has a guest-post up at America called "Pentecost and the Mandate" that is, I think, really good.  A bit:

  Pentecost reminds us that it is the task of all Christians to leave the rooms in which they huddle in fear of others' thoughts and actions, and despite their failings make manifest the gift that is offered to us all. Today in the United States the freedom to give that gift as the church understands it—a vision of how human life flourishes in caring for the sick, educating the young, feeding the hungry, comforting the dying, and so on—is threatened by those who hold the political and legal power to coerce the lives of citizens and the institutions within which they assemble. The HHS Mandate requires church institutions of any sort, not just Catholic, to act in ways contrary to what they believe is part of that gift they would offer the world. It claims the authority to coerce the lives of Christians precisely as Christians, if they dare to act beyond the walls of their church buildings in concert with and for people who do not share their faith.

Winters responds to Garnett

Here, Michael Sean Winters responds to a recent post of mine about the Smith case.  At the end of the day (putting aside the question of how to read Dignitatis humanae), I think the disagreement between Winters and I comes down to (i) whether it is true that it was Justice Scalia, rather than those who ratified the First and Fourteenth Amendments, who is responsible for the rule in Smith and (ii) as a general matter, do we think that the challenging project of accommodating religious objectors to the community's generally applicable laws is one that is best assigned to politically accountable legislatures (who are probably better situated than courts to collect the information necessary for cost-benefit judgments) or to constitutional courts.  And, in my view (and in Justice Scalia's), to opt for the former is not, in any way, to disdain religious freedom.

Thanks, of course, to Winters for the detailed response.

McGinnis on Berman

Have a look at John McGinnis's short introductory post on a planned multi-part series on the work of the late great Harold Berman.  I had not known that Professor Berman was an expert in the law of the former Soviet Union.  Professor McGinnis connects that expertise to Berman's larger historical project.   

Bishop Wester responds to Dowd

Here.  (HT:  Distinctly Catholic.)

In an age of sound-bite journalism, the Catholic Church’s positions on complex issues are often relegated to simplified remarks. While we respect the opinions of others, it is essential to avoid simplifying the current religious liberty debate to the point of distortion, as New York Times columnist Maureen Dowd, unfortunately, did in her May 24 column in The Tribune ("Father doesn’t know best," Opinion).

In an effort to make a case against the church’s objection to the Health and Human Services mandate requiring most religious institutions to offer contraception within their health insurance policies, Dowd ignores complicated First Amendment issues and church teaching to try to paint the Catholic Church as anti-women and abusive. Unfortunately, a column that was ostensibly about a relevant issue ended up as nothing more than a rambling attack on the Catholic Church. . . .

Well said.

Sex-selection abortion ban = anti-Asian?

We are told that today's GOP is becoming a whites-only affair.  How did this come to pass?  Well, according to Dana Millbank, it's due in part to Republicans' insistence on proposing legislation to ban sex-selection abortions.  Such a law, in the view of Rep. Barbara Lee, would "lead to further stigmatization of women, especially Asian Pacific American women."  Millbank writes that the problem "is that it's not entirely clear there is a problem" with sex-selection abortion in the U.S.  He acknowledges that "[s]ex-selection abortion is a huge tragedy in parts of Asia, but to the extent it's happening in this country, it's mostly among Asian immigrants."  I'm not sure I follow Millbank's logic.  It's not clear it's a problem in this country, but (or because?) it's happening "mostly among Asian immigrants?"  Or does the fact that the practice is concentrated among a particular minority group mean that legislation targeting the practice is inescapably discriminatory?  As Millbank puts it, this is "paternalism toward minority groups," and may cause the GOP to "lose Asian Americans." 

Perhaps there are other flaws in the proposed legislation (which apparently has little chance of passing the House), but I'm having a very hard time seeing the bill as anti-Asian.  If the political community deems a practice morally odious and unacceptable, why does the prudence of its legal prohibition depend on the concentration of its practitioners within a particular racial or immigrant group?  We would not hesitate to use law to try to prevent the custom of sati from taking root in the United States -- i.e., a widow throwing herself on her husband's funeral pyre -- even if practitioners tended to be concentrated within immigrant Hindu communities.  So why does a bill banning sex-selection abortion automatically become part of the "GOP for whites only" narrative?

Steinfels on "The Bishops and Religious Liberty"

Commonweal is hosting a symposium on the current religious freedom / HHS mandate / lawsuits / Bishops' statement cluster of issues, here.  Our own Michael Moreland will be contributing.

Peter Steinfels' opening statement is, as one would expect, thoughtful.  The concerns he expresses are, I think, reasonable, even if I do not, in the end, share all of them.  I think it is worth noting that, despite his judgment that the Bishops' "campaign is poorly conceived and runs a high risk of harming the very causes it would defend", he acknowledges several times that the "religious employer" exemption contained in the preventive-services mandate is troubling and that the Bishops were and are right to protest it.  This exemption is, at present, the law, and there has been no indication that it is going to be changed.  It remains as troubling as it was, when it -- for a time -- united "progressive" and "conservative" Catholics in opposition.  This exemption is a key target of the recently filed lawsuits, and so I continue to not understand the criticisms -- especially when they come from Catholics and others who see, or at least saw, the objectionable nature of this narrow exemption -- of the recent lawsuits, which were -- as Fr. Jenkins made clear -- filed with regret and only after careful consideration.

I look forward to the other contributions.  Given the authors, I expect that they will avoid what I regard as the mistake of presuming partisan aims on the part of those of us who oppose the mandate, agree with the Bishops that religious-freedom is vulnerable and in need of renewed defense at present, and who believe that (unfortunately) this administration's insensitivity to religious freedom has made political and legal responses necessary.  I am confident that they, unlike some, will avoid the unhelpful and unfair charge that we are somehow unable to distinguish between real and imaginary threats, or that we fail to appreciate the important distinctions that exist between, say, requirements that one act immorally and requirements that one pay taxes.  And, I believe they will resist any temptation to imagine that our concerns about religious liberty generally, or the HHS mandate in particular, reflect an unsophisticated or unthinking failure to appreciate the realities of political life in a pluralistic society. 

From Judge to Priest: A story made for MOJ

A friend passed on this piece , about former judge and now Fr. Tim Corcoran.  A really nice read:

. . . He's had a colorful adult life. A stint in the Navy that included combat duty in Vietnam at the same time his career-Marine father served. And his distinguished legal career included a law practice, a 14-year judgeship on the federal bench for the Middle District of Florida and service as a certified mediator.

At age 62, with retirement within his grasp, and the chance to golf and sail and play bridge to his heart's content, he did something most men of a certain age would never consider.

He entered the seminary to become a priest. . . .

Teaching Feminist Legal Theory with a Faith Perspective -- and a free book offer!

This past semester I taught, for the first time, a course in Feminist Legal Theory.  I supplemented one of the standard feminist legal theory casebooks with a number of essays by women taking various faith perspectives – Catholic, Lutheran, Muslim, and Jewish -- on feminist issues, including a couple of chapters from Erika Bachichio's edited collection, Women, Sex, and the Church:  A Case for Catholic Teaching.  I also used the draft of a Teaching Guide that the Murphy Institute commissioned from Erika, which keys the relevant chapters of that book to some of the standard feminist jurisprudence casebooks. 

I wasn't sure how my class (13 women, 4 men, probably about 1/3 Catholic) would react to the faith perspectives, or how well they would fit a legal theory class.  Based both on reactions from my students, and my own observations about the class, the experiment was a great success.  As a teacher, the most interested thing I learned was how important it was to have on the table for discussion in class some alternative visions of: (1) what a family is or should be; and (2) what relations between men and women should ideally look like.  The perspectives of religious feminists provided some alternatives that could be presented as comparison to the visions presented in the standard texts.    Most often, in our classroom discussions focused on what my students personally wanted as an ideal of the family or the type of relationship, what they wanted was something very close to the Catholic vision, no matter where their theoretical commitments might be leading them. 

As a scholar interested in feminist legal theory, the most interesting thing I thing I learned from this semester was how often the religious feminists made arguments that sounded an awful lot like the arguments of the Dominance Feminists.  I expected to see a lot of convergence with Relational and Care Feminists, and I did see those, but the convergence with Dominance Feminists like Catherine MacKinnon really surprised me. 

Erika's Teaching Guide is available for free at the Murphy Institute website, here.  It provides some truly meaty background for anyone wishing to provide a Catholic perspective on a multitude of issues addressed not just in feminist legal theory courses, but many course in the law school curriculum:  abortion, contraception, marriage, work-life balance, even priesthood.  And if you look at the ad on p. 14 of the June/July issue of First Things, you'll see that we're even able to offer a limited number of review copies of the book itself for professors teaching related courses.  Contact Murphyinstit@stthomas.edu for more information about the free book!

(By the way, the Murphy Institute is planning on commissioning more of these sorts of guides for professors interested in supplementing law school courses with a Catholic perspective, and offering them for free on our web site.  If you are interested in writing one on any legal topic, please contact me.)

Religious Freedom Debate in North Dakota

They're really at the cutting edge In North Dakota now: they're awash not only in oil, but also in controversy over religious freedom. A proposed state constitutional amendment, on the ballot for June 12, would adopt for the state the "burden on religious exercise/compelling interest" test already applicable to the federal government through RFRA and to 27 states through statutes or constitutional rules. But the proposal has come under attack from a variety of groups. The Minneapolis Star-Tribune, which reaches much of the state, suggested in an editorial that the amendment was merely the handiwork, and for the benefit, of Catholic bishops and religious-right activists. So I published this op-ed response in the paper arguing that such measures protect religious liberty even-handedly, and with reasonable limits, for all.

As I've said here before, a great challenge today is to convince citizens of all political stripes that vigorous religious freedom is not just a ploy for the right--because more and more people dismiss it as that--but an inheritance of all Americans and a treasure of our society.

Thomas More Was Not "Unnaturally Fond of Torturing Heretics"

This past Sunday's NY Times Book Review includes a review of Bring Up the Bodies, the much-anticipated sequel to Hilary Mantel's Booker Prize-winning novel Wolf Hall about Henry VIII and his court. The hero, of sorts, in Mantel's novels about the period is Thomas Cromwell, whom Mantel sets off against Thomas More (depicted in Wolf Hall as an eager torturer of Protestants). The reviewer, Charles McGrath (former editor of the Book Review), writes: "In Mantel’s version, More is no saint, as he almost certainly was not in real life: he’s fussily pious, stiff-­necked and unnaturally fond of torturing heretics."

Let me be clear: Thomas More generally shared in the prejudices of his age and was complicit in practices (most especially the use of state coercion with regard to religious belief) that we would today regard as morally odious. That's just to say that he lived in the early sixteenth century and not the early twenty-first century, and we could have a lively discussion about how the Catholic Church should assess the sanctity of people with the benefit of historical and moral hindsight.

But a couple of further observations about the review:

1. McGrath's statement (characterizing Mantel's view) that More was "fussily pious" and "stiff-necked" is open to debate based on the contemporaneous accounts of More, though I'd simply make the point for now that More's canonization in 1935 was largely based on the manner of his death--the fact that More (alongside John Fisher and later joined by the 1970 canonization of 40 martyrs and the 1987 beatification of 85 martyrs from the sixteenth and seventeenth centuries in England) suffered martyrdom for the Catholic faith rather than acquiescing to Henry VIII's assertion of power over the Church in England.

2. It's another thing altogether to make the slanderous claim that More was "unnaturally fond of torturing heretics," for the scholarly consensus is that there is no historical evidence that More engaged in torture. As summarized by John Guy in The Public Career of Sir Thomas More (Yale, 1980), "Serious analysis precludes the repetition of protestant stories that Sir Thomas flogged heretics against a tree in his garden at Chelsea. It must exclude, too, the accusations of illegal imprisonment made against More by John Field and Thomas Phillips. Much vaunted by J.A. Froude, such charges are unsupported by independent proof. More indeed answered them in his Apology with emphatic denial. None has ever been substantiated, and we may hope that they were all untrue" (165-66). See also G.R. Elton, Studies in Tudor and Stuart Politics and Government, Papers and Reviews 1946-1972, Volume 1, 158 ("It is necessary to be very clear about More's reaction to the changes in religion which he saw all around him. No doubt, the more scurrilous stories of his personal ill-treatment of accused heretics have been properly buried, but that is not to make him into a tolerant liberal.").

More was not, of course, a tolerant liberal and was an eager persecutor of heretics while Lord Chancellor from 1529 to 1532. The number of heretics burned at the stake under More's chancellorship is generally agreed to have been six, with three cases in which More was himself involved directly. See Richard Rex, "Thomas More and the Heretics: Statesman or Fanatic?," in The Cambridge Companion to Thomas More, ed. George M. Logan (Cambridge, 2011), 93-115. Obviously, we rightly regard that today as a gross injustice, but it's hard to see how that constitutes "unnatural fondness" for persecuting heretics, particularly in light of the many hundreds put to death under Mary I or Elizabeth I over the next few generations. Nor was More's involvement out of the ordinary for his time. As Elton writes (161-62), "There is every reason to think that among the purposes [More] hoped to fulfil when he accepted office he put high the protection of the Church against heretical enemies. In this, however, he was not at all out of step with the official policy of those years. At the time, in fact, both king and Commons repeatedly demonstrated their orthodoxy in order to rebut the charge that their actions against clergy and pope were equal to heresy. More was more zealous and almost certainly more sincere than most, but as an enemy of heresy he had, during his years as chancellor, nothing to apprehend from king or Council."

Garvey on the mandate and church-state separation

Separation properly understood, that is.  Check it out.  Here's the nice concluding paragraph:

The government has been eager to regulate the behavior of churches in ways more to its liking. It does this by defining religion down, so that only the most rigid and separatist groups are exempt. The rest are, for constitutional purposes, no different from the Jaycees or the Elks Club. We might say that the wall of separation is intact, but the government has made it so small that it encloses nothing more than a flower bed.

What Are We Doing For Those Being Left Behind

[Cross-posted from Creo en Dios!]

When my friend Richard met me for lunch the other day, he gave me a copy of a book title The Other Wes Moore: One Name, Two Fates. The book will be read by all first-year students at the University of Minnesota – Twin Cities this year, and other members of the university community (which includes my friend Richard) are invited to read it along with them. Richard ha an extra copy and thought I might be interested in reading it. He was right. I finished reading it within 48 hours after our lunch.

The book, written by Wes Moore, tells the story of two boys named Wes Moore, one of whom is that author. Both boys grew up fatherless in Baltimore, both had difficult childhoods, both had trouble with the police. But whereas the author grew up to join the military, graduating college with distinction, become a Rhodes Scholar, a White House Fellow and then a successful business leader, the other is serving a life sentence for felony murder.

The book does not try to explicitly answer the question so many people have asked the author: What made the difference between the two Wes Moore’s? How do we explain how two boys with similar backgrounds and identical names ended up in such radically different places?

There is clearly no one answer to that question. It is no more possible to answer it with respect to these two boys than it is to understand why the lives of some people are easier than others. Why do some seem to get all the breaks and others none? Why does every step seem difficult for some and paved for success for another?

One thing is clear, however. As a society we can and must acknowledge that we need to do a better job than we are doing to be sure that all of our young people are given a chance to make the best decisions possible about what to do with their lives. To make sure that everyone has the opportunity to succeed. That no one is viewed as expendable. That we are providing a good education to everyone, not just those with family resources. That no young person views selling drugs or other crime as their only way to make ends meet.

And each of us has a role to play. Whether it is providing necessary mentoring for young people without reliable adult figures in their lives. Or advocating on behalf of the vulnerable. Of contributing resources to those who do. Or finding some other way to make a difference.

The Compendium of the Social Doctrine of the Church speaks of the need to have the good of all people as it primary goal, reminding us that everyone “has the right to enjoy the conditions of human life brought about by the quest for the common good.” It also advises us of the fact that no one is exempt from cooperating in advancing the common good. Right now, a lot of people are being left behind and we can all do a better job of helping them.

In the book, one boy was given a chance and the other wasn't. My heart rejoices for the Wes Moore who had people who went out of their way to ensure that he has options. And my heart grieves for the Wes Moore who will remain in jail for the rest of his life.

Intersection of Graduation Day and Memorial Day

 

Thanks to Tom for this post regarding the wonderful Tom Mengler and his thoughtful reflections on why a Catholic law school should be Catholic. I would like to offer an example of what I think Dean, now President, Mengler referenced.

Earlier this week I was present at our law school graduation mass. It was especially lovely due to bountiful student participation. An acutely poignant moment for me was during the prayers of the faithful, which were read by many individual students. The prayer for members of our military, particularly those who had been killed or injured and their families, was read by a student, Mary, whom I knew to be a veteran. She was also the President of our Catholic Lawyers Guild. As she read those words, I was moved, as I knew that she intensely understood their profound meaning. With less than one percent of Americans in active duty military service, Mary had been asked to serve her country at great sacrifice and risk. She had resisted the social messaging given to her generation (not to mention women of her generation) as well as the easier path of self-enrichment selected by most of her peers, and answered the call of her country. No doubt as she read that prayer, she was keenly aware of the effects of war and its casualties.

That, however, was not the most interesting part of this observation. I had had the pleasure of meeting her mother, also named Mary, before mass. Like many of the graduates' parents, she was beaming with pride. The three of us began talking and I had remembered that the Mary's brother had come to visit our law school class shortly before himself deploying to Afghanistan. I also learned another brother was a fireman. I inquired from the mother if theirs was a military family and was surprised to learn it was not. What inspired her children to follow such paths of service and heroism? "Oh, that was September 11^th," she modestly stated.

It was not just September 11^th. As I talked more to this family and their particularly humble mother, it was clear to me it was so much more. It seemed to me that through her faith, this mother had instilled values of service, sacrifice, and responsibility in her children. So, when an event like September 11^th occurred, they were ready to respond in a way few others do…with their lives if necessary.

This is perhaps an example of what Dean Mengler meant when he said that a Catholic law school should help students "continue on their journeys by searching actively for the truth in their lives." These are the students who come to us. Whether, as I suspect in Mary's case, they come from a Catholic tradition which values service, or from some other community, so many students come to law school searching for that truth in their lives, and understanding that it is found often in serving others. I might suggest that it is one role of a Catholic law school: to continue the work of the students and their mothers and fathers, families, and all those who helped instill in those students such values. The Catholic law school is different because its mission does not end with solely providing intellectual and academic excellence - necessary components of a legal education. Beyond that, it should also be a place that nurtures these students, reinforces and strengthens their resolve to serve, and awakens such a resolve in others. As in Mary's case, they often come to us from fertile ground. We take on an almost sacred responsibility to cultivate that ground, make it more potent, and support it, such that it will bloom even more brilliantly than when it came.

Our conversation ended with Mary's mother saying she "was so excited to see what Mary will do next. I know it is going to be great." I was honored to have met them, honored to have been present for the prayer, and honored that Mary and students like her choose to attend our law school. Catholic law schools, I might suggest, serve an important role of nurturing and promoting the whole student to achieve all the great-- and selfless-- things Mary's mother envisions.

"'Mommy Wars' Redux"

The NYT this weekend published another of its periodic pieces about 'the Mommy Wars',this one really solid summary of the current state of the argument in feminist legal theory, by Dartmouth philosopher Amy Allen.  She ends with this conclusion, the same one I've reached in a lot of my work.  So many of the feminist legal theories & mainstream media debates focus on the psychological or theoretical implications of the 'choice' a relatively few privileged women in this country have between raising a family and taking a paying job, when the more significant issue is a structural conflict:

. . . the conflict between economic policies and social institutions that set up systematic obstacles to women working outside of the home — in the United States, the lack of affordable, high quality day care, paid parental leave, flex time and so on — and the ideologies that support those policies and institutions, on the one hand, and equality for women, on the other hand.

This is the conflict that we should be talking about.  Unfortunately this is also a conversation that is difficult for us to have in the United States where discussions of feminism always seem to boil down to questions of choice.  The problem with framing the mommy wars in terms of choice is not just that only highly educated, affluent, mostly white women have a genuine choice about whether to become über moms (though the ways in which educational, economic and racial privilege structure women’s choices is a serious problem that must not be overlooked).  The problem is also that under current social, economic, and cultural conditions, no matter what one chooses, there will be costs:  for stay at home mothers, increased economic vulnerability and dependence on their spouses, which can decrease their exit options and thus their power in their marriages; for working mothers, the high costs of quality child care and difficulty keeping up at work with those who either have no children or have spouses at home taking care of them, which exacerbates the wage gap and keeps the glass ceiling in place. (Families with working mothers and fathers who are primary care givers avoid some of these problems, but have to pay the costs associated with transgressing traditional gender norms and expectations.)

If the “the conflict” continues to be framed as one between women — between liberal and cultural feminists, or between stay at home mothers and working women, or between affluent professionals and working class women, or between mothers and childless women — it will continue to distract us from what we should really be doing: working together — women and men together— to change the cultural, social and economic conditions within these crucial choices are made.

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge "built on air."  Actually, it is built on the Constitution and a federal statute, and we'll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate -- and not the putative change in plans alluded to by the President in February -- is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: "In 1993, Congress required government actions that “substantially burden a person's exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy."  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.

School's Out

Not Catholic Legal Theory, but an important reminder:

The school year is coming to an end.  Among other consequences of school being out for summer is that families of thousands of children who receive free or reduced-cost meals during the school year have to replace those meals, which puts increased demand on food shelves around the country.

Although demand at food shelves is highest duing the months of June, July and August, donations are usually at their lowest during the summer.  

So please remember to donate generously to your local food shelves, which usually are happy to receive cash as well as food donations.  

Tom Mengler's Legacy: "Why a Catholic Law School Should Be Catholic"

As I write this post, Tom Mengler is finishing his last day as dean at  St. Thomas.  Susan has already expressed the mixed feeling of sadness and peace that we feel as Tom and Mona follow their call to his new position as president of St. Mary's University (San Antonio).  I'm reflecting today joyfully on the many things that the law school has put in motion or carried forward during the 10 years of Tom's leadership--10 of the 12 crucial first years of our institution.  It's fitting, I think, to link to Tom's own description, from his 2009/10 speech and article at Villanova, of "why a Catholic law school should be Catholic" and what has progressed and might progress on that front both among schools generally and at St. Thomas.  From his conclusion:

As we at St. Thomas have together reflected on the core of a Catholic law school, we have tried to focus principally on two reasons why we believe a Catholic law school should be Catholic: the integration of Catholic thought, as well as other religious traditions, in faculty scholarship and throughout the academic program and the encouragement of everyone in the community – students, faculty, and staff – to continue on their journeys by searching actively for the truth in their lives. We believe ultimately that from these twin goals everything that is commonly associated with a Catholic law school follows – an embracing community, a service ethic that is focused on our most vulnerable neighbors, a commitment to the highest professionalism. Grounded in an intellectual, moral, and spiritual formation, we hope to prepare our students for purposeful lives as lawyers and servant leaders of their communities. In so doing, we try to fulfill the mission of a Catholic law school.

Thanks, Tom and Mona, and godspeed.

Gregory VII and Libertas Ecclesiae

In light of the issues of the day, we can hardly let this Friday of Memorial Day weekend pass without acknowledging today's feast of Gregory VII, the great reformer of the medieval church who died on this date in 1085. Here is a short excerpt from a discussion of Gregory's legacy in Alasdair MacIntyre's Whose Justice? Which Rationality? (pp. 159-60):

Gregory's particular reforms were all aimed at enabling the concrete organizational forms of the church to express more adequately this universality and this sovereignty [of the church]. The widespread breakdown in maintaining priestly celibacy and in preventing simony, and the tendency of bishops to value the favors conferred by princes rather than the authority of the papacy, were all understood by Gregory as ways in which sex, money, and political power were used to subvert the independence, the libertas, of the church. So that in his identification of the points at which he found himself compelled to enter into political conflict, most notably with the Emperor Henry IV, what is always in question is a vindication of the ability of the church to determine its own structure in a way that conforms to the sovereignty of God.

Libertas, therefore, is a condition for iustitia, and when both political societies and the universal church are ordered in accordance with justice, the appropriate libertas of each will also have been achieved. In affirming the order of iustitiaagainst those ostensibly Christian secular rulers in the established powers of Europe, the Salian Reichand the France of the Capetian kings, whose aggrandizement violated that order, the second responsibility of Gregory VII's papacy was discharged. The order of iustitia is an order embodied in the universal church, an order in which each human being has his or her own allotted place and his or her own allotted duties. To occupy that place and to perform that function well is to be just. To refuse to occupy that place or to discharge its duties badly or to rebel against the order defining that place is to fail in respect of justice.

Well said, Fr. Ted

Fr. Ted Hesburgh, who just turned 95 (!!), put well and pithily what's going on in the HHS lawsuits:  "I would only say that I think the university is doing what it should do. The government just overreached and overstretched and has to be brought up short," he says.

How Law is Like a Settling House

Paul Horwitz has a very nice post in response to Rick's discussion of Employment Division v. Smith.  Paul recognizes that there are ways to reconcile Smith and Hosanna-Tabor, but he puts together a nifty argument that there are some deeper tensions between the two decisions as well as interesting questions about the relationship of institutional and individual free exercise.

For years before we moved to New York, my wife and I lived in a lovely old nineteenth century townhouse in Boston.  We lived there for about 5 years, and in those years, we noticed gradual shifts in the house's structure, particularly the higher up you went.  The joints between walls would move, overlap -- settle, settle, settle.  The floor would slowly develop a ridge or a depression.  The stairs would gradually slant left, except at the bottom where they straightened out.  An unexpected feature of this process was that settlements in one direction could also slow down, or even reverse course.  Guests who visited only once in a while would not notice these micro-shifts.  Appreciating these changes required the perspective of time.     

In a recent talk that Mike McConnell gave over at St. John's, he said something along these lines: when there is an instability in the law, the likeliest outcome is that over time -- sometimes over a very long time, depending on the quality of the tension -- the law will resolve the instability in one or another direction.  Those shifts are signs of the law settling, and the process of that settling continues without ending point, sometimes changing directions.  Maybe the instability that Paul recognizes will give rise to doctrine over the next 50-100 years that shifts, settles, reshifts, and resettles.