Mirror of Justice

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Wednesday, May 27, 2015

ABA Journal: "Faith and fiscal responsibility cause many conservatives to change their view of the death penalty"

The ABA Journal reports

As with much social-issues reporting, it is difficult to get a sense of the magnitude of the reported shift in attitudes. The article quotes Kent Scheidegger, an excellent prosecution-oriented lawyer, as saying the shift in conservative attitudes is overblown:

“It’s a strategy of the other side to find people who fit that mold and promote them,” he says. “Every great once in a while you get a murder victim’s family member who says they are opposed and they get lots of support and exposure. Now they’re trying the same thing with people they identify as conservatives.”

That may be the case; hard to say. But perhaps the strategy is more effective these days because conservatives who oppose the death penalty are more numerous these days. That seems to be the case in Virginia, anyhow. A good example of a shift is former Virginia Attorney General Mark Earley,Sr., who described his changed perspective at a symposium last year at the University of Richmond School of Law

May 27, 2015 in Walsh, Kevin | Permalink

"Should Washington Try to Change Religious Beliefs?"

Here is a short piece I did for USA Today, which returns to the question raised in this earlier post.   A bit:

. . .  The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."

In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .

Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.

May 27, 2015 in Garnett, Rick | Permalink

Tuesday, May 26, 2015

Katha Pollitt's Intuition

Claremont Review of Books recently invited me to review Katha Pollitt’s new book Pro: Reclaiming Abortion Rights, alongside two other books on abortion, for their upcoming summer issue. I’ll post when the review is out, but for now, I wanted to cut through much of what has been written contra Pollitt’s book—and there is good reason for pro-lifers to express frustration on almost every page with a real misapprehension of the substantive arguments within the abortion debate—to point out an intuition of Pollitt’s that resurfaces throughout, the response to which needs to be integrated more fully into pro-life argument.

Even though Pollitt concedes the science, she, like so many of her friends in academia, is stuck in the philosophically untenable (and historically embarrassing) distinction between “human beings” and “human persons.” But here’s the intuition that Pollitt enunciates, following Ronald Dworkin, as a reductio ad absurdum in the pro-life movement: killing an embryo cannot be morally equated with killing a five year old, an infant, or even a late term fetus, but the pro-life position necessitates this moral equivalency in its support of fetal personhood. Pollitt maintains that pro-lifers don’t really even believe in this moral equivalency (after all, we don’t see pro-lifers picketing at IVF clinics where spare embryos are routinely discarded).

Perhaps if people who claim zygotes are persons had to spend a week arguing with Ronald Dworkin, they would collapse in exhaustion and admit that a fertilized egg is not the same as a five-year-old. Perhaps they would admit that they, too, would be more upset by a fire that killed four hundred workers in a factory or young people in a club…than at a fire in a fertility clinic that destroyed four hundred frozen embryos.

And so, Pollitt reasons, pro-lifers must believe what any reasonable person believes: human worth grows as the human being grows, thus not all human beings are worthy of equal legal protection (especially in a contest with a pregnant woman).

But here’s where I think Pollitt is right:  most pro-lifers don’t really believe that killing an embryo is the same as killing a five year old. But, I think, many pro-lifers think they should believe that—to be fully pro-life. They aren’t comfortable making the distinction, for fear of falling into philosophical gradualism. And here’s where masterful pro-life philosopher Christopher Kaczor comes in: in a 2011 First Things article that is short enough to be required reading for everyone reading this post and articulated whenever Pollitt/Dworkin’s argument is raised, Kaczor shows that pro-lifers need not believe that all killings are equally egregious to resist the gradualism at the heart of much academic pro-choice thinking. All human individuals have equal moral worth. This is the pro-life position. But it is more egregious to kill a five year old or even a late term fetus than it is to kill an embryo, andyet each of these killings is still morally wrong. Taking Kaczor’s argument a step further, it is more devastating to lose four hundred workers in a factory than four hundred embryos, even if, tragically, four hundred human lives have been lost in both. The sorts of philosophical distinctions Kaczor makes are necessary to grasping the real consistency within pro-life argumentation—distinctions Americans are less and less capable of making (and understanding) in political debate today.  

May 26, 2015 | Permalink

Immigration and the President: 5th Circuit ruling on motion to stay in Texas v. U.S.

The Order enjoining the Obama administration from implementing DAPA (granting temporary legalized status to as many as 4.3 million persons residing in the United States without authorization) will remain in force until after the 5th Circuit Court of Appeals has a chance to decide the merits of the case. 

After President Obama announced a program (DAPA) "[a]llowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years ... provided they have lived in the United States continuously since January 1, 2010, and pass required background checks." If implemented, this action would grant temporary legal status to up to 4.3 persons residing in the United States without legal authorization. Texas and 25 other states sued in U.S. District Court in Texas to set aside the administration's action on the grounds that a) the administration failed to follow the rulemaking procedures set out on the Administrative Procedures Act (the APA) and that the President had violated the separation of powers by usurpsing Congress' legislative authority.

The Disctrict Court enjoined implementation of the program and held that the Obama administration had violated the APA. It did not rule on the constitutional grounds, but it was pretty clear from the Court's ruling that if forced to reach the constitutional issues, it would conclude that the administration had acted unconstitutionally.

Today the 5th Circuit denied the Obama administration's request to lift the stay. It will hear the merits of the administration's appeal in July, but its opinion today gives us clues to how it will approach the merits. The administration should not be encouraged. Here are a few snippets:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

Pages 23-24.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.

Pages 24-25

[N]or does deferred action pursuant to DAPA mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” a change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.

Page 26

[W]e would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.

Page 28

The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.

Page 35

DAPA modifies substantive rights and interests—conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.

Page 37



May 26, 2015 in Scaperlanda, Mike | Permalink

Irish Catholicism and the Long Tail of Jansenism

The big story coming out of the weekend was the Irish referendum on same-sex marriage, accompanied by barely concealed glee in some quarters at the humiliation of the Catholic Church. Here’s a hypothesis to ponder about the historical reach of theological ideas and the place of Catholicism in different cultures (not so much about the substance of the same-sex marriage debate itself), even if it might not hold up in every detail to scrutiny.

As Damian Thompson writing at the Spectator notes here, the influence of Catholicism in Ireland has waned for various reasons (most especially the sex abuse scandal), and one factor he mentions in passing is “the joyless quasi-Jansenist character of the Irish Church.” Indeed, while the Church’s influence across Europe has fallen, the collapse in those parts of Europe (or places missionized by Europeans) arguably influenced by Jansenism has been ferocious: the Low Countries (we think of Jansenism as primarily a French movement, but Cornelius Jansen himself was Dutch and Bishop of Ypres), France, Quebec, and Ireland. The place of the Church in the culture of those parts of European Catholicism less tinged by Jansenism has fared a bit better: Poland, Austria, Bavaria, Italy, and, most especially, Spain and Portugal and their former colonies in Latin America and the Philippines.

I am simplifying a great deal here, of course. There was, for example, a robust Jansenist movement in parts of modern-day Italy, and, more importantly, it is hard to say how much Jansenist influence there really was in Irish Catholicism (captured by the “quasi-” in Thompson’s essay). Because of English persecution, there were no seminaries in Ireland up through the end of the eighteenth century and so Irish clergy were often trained at Jansenist French seminaries, and there might have been some Jansenist influence in the early days at Maynooth, the Irish national seminary founded in 1795. But the scope of the actual influence of Jansenist ideas on folk Irish Catholicism is much harder to determine, as Thomas O’Connor notes in his 2007 entry on “Jansenism” in The Oxford Companion to Irish History (“The frequent claim that Irish Catholicism was Jansenist-influenced springs from the tendency to confuse Jansenism with mere moral rigorism.”). Jansenism was just one (perhaps small) factor among many contributing to Seán Ó Faoláin’s “dreary Eden.”

If there is something to this, though, we shouldn’t be surprised. Jansenism—with its hyper-Augustinianism, insistence on human depravity, confused doctrine of freedom and grace, other-worldliness, and moral rigorism—was theologically pernicious (condemned in Cum occasione by Pope Innocent X in 1653 and in Unigenitus dei filius by Pope Clement VI in 1713). A Catholic culture shaped by it distorts our understanding of the human person and society, and bad theological doctrines about God, human nature, and sin can wreak havoc even if the institutional forms of the Church endure for a time. Jansenism produced a towering genius in Blaise Pascal and a minor genius in Antoine Arnauld, but it was an unfortunate development in early modern Catholicism. As we think about how to build (or re-build, as it may be) Catholic culture, we would do well to remember that joy is at the heart of the gospel, and a Catholic culture drained of such joy by Jansenism or its cousins will, when the time comes, all too easily be swept away.

May 26, 2015 in Moreland, Michael | Permalink

Mark Rienzi on SSM, substantive due process, and religious liberty

At the Stanford Law Review, Mark Rienzi has clear and short paper ("Substantive Due Process as a Two-Way Street") in which he suggests an approach to the pending same-sex-marriage cases that, he suggests, will reduce the conflict and tension that the Court's Equal Protection / "animus" approach risks causing.  He writes, among other things, "There is no inherent conflict between same-sex marriage and religious diversity. As with most other issues, our society remains capable of adopting a live-and-let-live approach in which same-sex marriage is recognized as a constitutional right, but religious dissenters are neither punished for their beliefs nor forced to violate them."

May 26, 2015 in Garnett, Rick | Permalink

Saturday, May 23, 2015

Blessed Oscar Romero

Today is a day many people have been waiting for a very long time: the beatification of Oscar Romero, one of my great heroes.

Romero's path to sainthood, however, has not been without controversy.  There are some who during his life viewed him (and some who continue to view him) as a Marxist or, in one commentator's words "a poster boy for the left-wing cause."

I think there is no better answer to the charge of Marxism than the words Romero spoke during his homily on the feast of the Ascension in 1977, three years before his assassination.  The message of the bishops in the Documents of the Second Vatican Council, he preached

condemns this false understanding of tradition that wants to present the Church as simply spiritual - a Church of sacraments and prayers but with no social commitment or commitment to history.  We would betray our mission as pastors, if we were to reduce evangelization to mere practices of individual piety and the participation in non-incarnated sacraments.  The Pope says: Evangelization would not be complete if it did not take account of the unceasing interplay of the Gospel and of man's concrete life, both personal and social (Evangelii Nuntiandi, 29).  My bothers and sisters, let us not place our faith in some corner and reduce it to some private place and then live in public as though we had no faith.  The Council said that this divorce between faith and our private life is one of the great errors of our time (cf. Gaudium et Spes, 43).  So great is this error that in the name of this error, the Church is called subversive because she wants to lead Christians to a faith commitment in their concrete life.  My dear Catholics, let us study this right doctrine and wisdom of the Church.  Then we will understand that priests and Christians who live their Christian commitment in the world are far from being communists or Marxists or subversives.

Blessed Oscar Romero, pray for us!

[cross-posted from Creo en Dios!

May 23, 2015 in Stabile, Susan | Permalink

Friday, May 22, 2015

A challenging premise, human dignity, and "reasoned moral response"

"The premise is that there is a spark of humanity in everyone that is ultimately more defining than whatever delusions, depression, and negative emotions culminated in the act of murder." 

But there is also this: "Clarke saved his life at the expense of his dignity. Kaczynski was furious, and remains so."

And this:

In death-penalty cases, the jury is asked to make a "reasoned moral response" to evidence about the offense and the offender. In federal law, the process involves "weighing" aggravating and mitigating factors. Each juror is permitted to give any mitigating factor whatever weight that juror thinks it deserves. Jurors don't need to come to agreement about what is mitigating and what the mitigators are "worth." A single juror can prevent the unanimous verdict that is necessary to authorize the death penalty.

Now the odd thing: This "reasoned moral response" is given by jurors who already said they were willing to vote for death. Anyone against the death penalty is excluded.

Clarke's task is to create "reasoned moral response." It's not just a recitation of trauma but something more comparable to the work of a novelist. In Paradise Lost, the Devil is the most interesting character, famously. It's thought that Dostoyevsky's best work rose from a polemic waged against the hollow characters of Gogol, whose shells he stole and reinhabited from within, allowing the reader to get close enough so that when murder happens, we sympathize, not with the crime, but with the anguish of the character who committed it.

May 22, 2015 in Walsh, Kevin | Permalink

Thursday, May 21, 2015

Movsesian on the Pew Survey and the "nones"

Over at First Things, Mark Movsesian has posted some as-per-usual insightful thoughts on the recent Pew survey that, among other things, found that the number of Americans who identify as Christian, or with specific Christian denominations and traditions, is declining.   He writes:

[I]t’s hard to see how the rise of the Nones is good for religious freedom. As people check out of organized religion, they are less likely to view it as important and worthy of protection. People with even marginal affiliations may still understand and endorse the importance of religious commitment. The fact that they affiliate at all shows that religion makes up at least some part of their identity. Once people cut their ties completely, however, they are much less likely to be sympathetic to religious communities. If the future of religious freedom depends on the ability of believers to persuade our fellow citizens that faith commitments deserve respect and protection, that task may well become more difficult in the years ahead.

May 21, 2015 in Garnett, Rick | Permalink

One reading of some signs of the times: Time to kill the death penalty

A commentary by George Will in the Washington Post and a piece by Ben Crair at The New Republic (not sure what to call it, as it's not billed as an editorial or opinion piece but reads like one)provide reasons to think that the death penalty is ripe for repeal or drastic limitation. (HT: How Appealing)

I hope that legislators in Virginia (where I live) can follow the lead of legislators in Nebraska and vote to eliminate the state death penalty.

At a minimum, those legislators who support the death penalty should have the courage of their convictions and replace lethal injection with the firing squad as a method of execution. In comparison with lethal injection using experimental protocols, the firing squad is quicker, more reliable, and less vulnerable to constitutional challenge.

May 21, 2015 in Walsh, Kevin | Permalink

May 17, 1924: The Battle of South Bend (Notre Dame v. the Klan)

A few days ago was the anniversary of the day in 1924 that Notre Dame students disrupted a Klan rally.  The incident was part of a longer-running clash between the Klan and the Irish.  Read more here

May 21, 2015 in Garnett, Rick | Permalink

Wednesday, May 20, 2015

Some reading to accompany pages 1-5 of Judge Posner's latest (and hopefully not long for our law) opinion on the contraceptives mandate

Judge Posner is back with another opinion rejecting Notre Dame's attempt to secure exemption from the contraceptives mandate, as required by the Religious Freedom Restoration Act. I couldn't make it past page five before desiring to post some readings to accompany his recitation of the case. 

Three points:

1. For a fuller explanation of the materials discussed in the paragraph on pages 2-3 that concludes with a recommendation to read the D.C. Circuit's Priests for Life opinion for "a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception," take a look at Helen Alvaré, No Compelling Interest: The "Birth Control" Mandate and Religious Freedom, 58 Vill. L. Rev. 379 (2013). Note also the failure of Judge Posner's formulation here at the outset to map onto the level of specificity required by Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal

2. For the claim on page 4 that the Administration formulated its religious employer exemption "mindful of the dictate of the Religious Freedom Restoration Act," look at the portion of the Federal Register cited by Judge Posner for support, which makes no mention of RFRA. As explained and documented in an amicus curiae brief I co-authored on behalf of Senator Hatch and other lawmakers who enacted RFRA, "the government ignored RFRA in formulating the narrow religious exemption at the outset and only attended to its requirements because of litigation and the reaction to public scrutiny." 

3. For the claim that Notre Dame came within the scope of "the exemption" as a result of new regulations in 2013, take a look at the portion of the Federal Register cited by Judge Posner for support. Rather than expand the exemption to include religious employers like Notre Dame, these regulations provide an "accommodation" for these non-exempt religious employers. In response to commenters who argued that "the proposed definition of religious employer was too narrow and should be broadened to include all employers, both nonprofit and for-profit, that have a religious objection to providing contraceptive coverage in their group health plan," the promulgating Departments said that they were "finalizing without change the definition of religious employer in the proposed regulations." This definition was limited to houses of worship and integrated auxiliaries; it did not include Notre Dame.

May 20, 2015 in Walsh, Kevin | Permalink

Tuesday, May 19, 2015

A Christian Conversation On Human Trafficking and Civil Rights

This is the subtitle of an important conference going on today through Wednesday in Cincinnati. The Freedom Summit is an effort by Christian churches to come together and discuss important components of today's human trafficking problem. It describes the Summit as follows:

"We have seen and heard from people around the country that we're facing a distinct challenge from communities fighting for justice in our nation. On one hand, there are many organizations and churches that are active on the issue of human trafficking both in America and around the globe. On the other hand, there are many Christian groups - particularly in the minority community - who focus significant efforts on the vestiges of slavery and ongoing racism in our nation. Too often these groups don't come together. This is a summit focused on reconciliation, specifically reconciliation around the critical issues of modern day slavery and race in America."

Sponsored largely by the National Underground Railroad Freedom Center, this conference is yet another important example of the role organized religion can play in the movement against human trafficking. Furthermore, it brings into the spotlight the often ignored reality that race plays in human trafficking.

To end this form of exploitation, organizations and individuals must engage in difficult conversations and confront the reality that we all contribute to human trafficking and that we have more people enslaved throughout the world today than at any time in human history. No doubt this conference will contribute to the the national conversation looking to end this exploitation that enslaves millions everyday.

May 19, 2015 in Leary, Mary G. | Permalink

A Bit of Pessimism on the New Pessimism

This column by Damon Linker is a useful summary of some of the current debates concerning the "Benedict Option"--the burgeoning pessimistic weltanschauung inspired by Alisdair MacIntyre's closing words in After Virtue, and characterized by:

[T]raditionalist Christians choosing to step back from the now-futile political projects and ambitions of the past four decades to cultivate and preserve a robustly Christian subculture within an increasingly hostile common culture. That inward turn toward community-building is the element of monasticism in the project. But its participants won't be monks. They will be families, parishes, and churches working to protect themselves from the acids of modernity, skepticism, and freedom (understood as personal autonomy), as well as from the expansive regulatory power of the secular state.

I won't consider the virtues and vices of such a course here. I want instead to suppose that "traditionalist Christians" (and other disaffected constituencies) pursue this approach. And I will assume that by pursuing it, they hope and believe it might be successful. 

The principal question I have is: what cause have they so to hope and believe? Does the success of the Benedict Option not ultimately depend on its political and legal feasibility? Does it not flower or wither at the pleasure of the very culture from which "traditionalist Christians" desire insulation? The preferred instrument of social control in that culture is law. Linker says that the new Benedictines "will presumably still vote and contribute to various public causes, especially those that promise to protect their interests." Yet having withdrawn from politics and law, for whom will they vote? What sort of enfeebled candidates and causes will remain to protect their interests? What legal and political power will want their socially toxic contributions? As I've wondered aloud here before:

There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if [Jody] Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.

The Benedict Option claims to be a withdrawal from politics and law. But it is through politics and law that the conditions that constitute the Benedict Option will be permitted to exist, and probably not as an all-or-nothing affair, but through a series of carefully negotiated compromises. Is not the Benedict Option's contemplated political and legal withdrawal a fantasy--a sort of escapism--that is likely to be the very cause of its failure? 

These are questions for the new pessimism asked, admittedly, from a lawyer's point of view. And perhaps there are some answers to them. But if there are, they will be answers rooted in and dependent upon law and politics.

May 19, 2015 in DeGirolami, Marc | Permalink

Archive: Letters in Defense of State RFRAs

The debate over state religious freedom restoration acts (state RFRAs) has obviously become white-hot, and it likely will heat up again in states in the future. For purposes of convenience and of the record, here is a collection of letters defending various state RFRAs, written to legislators considering such bills, by religious-liberty scholars--several of whom (including me) support same-sex marriage--who want to set the record straight on what such bills are actually likely to do. Among other things, the letters state that:

[From IN letter:] The most common charge opponents make against RFRA legislation is that it is a "license to discriminate." It is no such thing.... [Application of anti-discrimination laws] creates a serious conflict for religious individuals who personally provide creative services to assist with such weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is far from clear that the proposed Indiana RFRA would lead courts to recognize such an exemption....


[From GA letter:] Most RFRA cases do not involve anti-discrimination laws or suits between private parties.... Rather, they involve disputes between government and a religious individual or organization, and they arise when one of our vast array of government regulations turns out to burden one of the diverse religious practices of the American people.... State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths.

Georgia (Feb. 2015)

Indiana (Feb. 2015)

Arizona (Feb. 2014, to Gov. Jan Brewer; countering widespread misstatements about the likely effect of amendments to the state RFRA, even though some of the signers did not take a position on whether the amendments should be adopted)

Mississippi (Feb. 2014)

North Dakota (May 2012)

May 19, 2015 in Berg, Thomas | Permalink

Monday, May 18, 2015

Prenatal Trisomy Diagnosis Awareness Act

With Minnesota's Governor threatening to veto the bipartisan education funding bill later today, sending the legislature into a special session this summer, I'm happy to report that something positive came out of this past session.  On Monday, Governor Dayton signed the Prenatal Trisomy Diagnosis Awareness Act.  It passed unanimously in the House and 58-1 in the Senate.  That doesn't happen much anymore!

Effective August 1st, health care practitioners in Minnesota who perform genetic tests on pregnant women for Patua syndrome (trisomy 13), Edwards syndrome (trisomy 18), or Downs syndrome (trisomy 21), will have to provide specific information if the results are positive. The information has to include "up-to-date and evidence-based information about the trisomy conditions that has been reviewed by medical experts and national trisomy organizations", including expected "physical, developmental, educational, and psychosocial outcomes", life expectancy, and contact information for nonprofit organizations that provide information and support services for trisomy conditions.

You'd think such information should be routinely given, but 20  years ago when I received a diagnosis of Trisomy 21 for my son, it certainly was not part of anything I got from our genetic counselor or doctor; anectodal evidence suggests things aren't much different now.

According to my friends (and a former student) at the Minnesota Catholic Conference, some of the key factors in getting passed were the diverse coalition of supporters, bipartisan authorship, pepole with disabilities serving as the principal public advocates, and message discipline (this is an information bill--and who is against more information?  Well, based on the sole vote against this, apparently Senator Katie Sieben.)

Though similar bills have been passed in six other states [Massachusetts (2012), Kentucky (2013), Pennsylvania (2014), Maryland (2014), Louisiana (2014) Delaware (2014), and Ohio (2014)]  Minnesota's is the first to include Trisomy 13 and 18.  Anyone who wants information on this bill or the background of its passage, feel free to contact Jason Adkins, Executive Director of the Minnesota Catholic Conference.



May 18, 2015 in Schiltz, Elizabeth | Permalink

Race and Justice

Yesterday I moderated a program at Our Lady of Lourdes on Race and Justice, the inaugural program in Lourdes' new Salt and Light Series.  We had a panel of three speakers, each of whom spoke for about ten minutes, after which we had time for dialogue and question and answer.  The three speakers were Archbishop Emeritus Harry Flynn, Nekima Levy-Pounds (my colleague at UST Law School and the newly elected President of the Minneapolis NAACP), and Tom Johnson former county attorney and former president of the Council of Crime and Justice.  It was a moving and sobering event.

One of the things that was mentioned was the pastoral letter on racisim Archbishop Flynn released in 2003, In God's Image.  Archbishop Flynn talked about the circumstances of his issuing it and the reaction (positive and negative) he received, and Professor Levy-Pounds noted that she assignes the pastoral letter (along with Martin Luther King's Letter from a Birmingham Jail) to her students each semester.

When I went back to look at the pastoral letter again when I got home yesterday afternoon, I realized how that the words the former Archbishop used to introduce his letter are as timely and important today - perhaps more so - than they were when he wrote them in 20o3.

Here is the Preface to In God's Image:

Brothers and Sisters in Christ,

In the Hebrew Scriptures the prophet Micah gives us a simple but very challenging formula for holiness. He writes,

“… This is what Yahweh asks of you: Only this, to act justly, to love tenderly, and to walk humbly with your God.” (Micah 6:8)

This is the spirit that I hope all of you will bring to the discussion of racism and racial justice in our church and in our society. We cannot be a church that is true to the demands of the Gospel if we do not act justly, if we do not act to root out racism in the structures of our society and our church. And we cannot achieve personal holiness if we do not love tenderly, if we do not love and respect all human beings, regardless of their race, language, or ethnic heritage.

Only if we do these things can we expect to walk humbly with our God. For our God is a God of love and justice, a God who made all of us in His image. Racism is a denial of that fact. It is an offense against God. I realize that the subject of race can be a very difficult one for all of us. Yet I am convinced that we must address it with honesty and courage. For it remains a significant and sinful reality in our midst.

I am issuing this pastoral letter as an invitation to discussion and dialogue. I hope all of you will accept this invitation by taking part in discussions in your parish and community. By engaging in such a dialogue, we can all enhance our understanding of the role that race plays in our lives and we can join together in working to combat racism in all its forms.

Thank you for your commitment to the values of human dignity and racial justice.

God bless you,

Most Reverend Harry J. Flynn

You can read the pastoral letter in its entirety here, and I encourage you to do so.

[Cross-posted from Creo en Dios!]

May 18, 2015 in Stabile, Susan | Permalink

Sunday, May 17, 2015

"We often hide . . . ."

A blog dedicated to Catholic legal theory is surely an apt forum in which to explore the causes and consequences of lawlessness in the Catholic Church.  Today's lesson comes to us from the Diocese of St. Petersburg, where His Excellency Robert Lynch has served as Ordinary since 1996.  First, a little background.  

Yesterday, Bishop Lynch took to his blog (here), "For His Friends," to celebrate his ordination yesterday of five new priests for the Diocese, the largest class of ordinands there since 1991.  I join Bishop Lynch in giving thanks for these new priests of Jesus Christ, all of whom began their studies for the priesthood during the pontificate of Pope Benedict XVI.  Here, in part, is what Bishop Lynch had to say to his new priests yesterday:

We don’t teach what we believe as well as we should. We rely perhaps too heavily on old methods of communication and put too much reliance on traditional vestige, hierarchy of orders and judgment. We often hide in the clothes of the past as well as some of the ideas of the past, disregarding the fact that to today’s younger generation not only are these things devoid of meaning and anachronistic but also some can suggest tendencies that may not otherwise be present.

Talk about weird!  What "tendencies that may not otherwise be present" is the Bishop talking about at an ordination?  Moving on (because there is nothing to see here), to whom does the Bishop refer as "hid[ing] in clothes of the past?"  Is the simple choice to wear the traditional vestments of the Roman Rite to "hide?" And don't forget that "some . . . ideas of the past" are also apparently a refuge for those wishing to "hide!"  

Was the Archbishop of Miami, His Excellency Thomas Wenski, "hid[ing]" when he celebrated a Pontifical Solemn High Mass according to the Usus Antiquior (here)?  Those who have had the privilege of spending time with Arbishop Wenski, who "rides a Harley" (here), can attest that he is no "hid[er]."  His public stances on disputed matters of policy have been courageous, and he frequently celebrates Mass in Haitian Creole.  

If anyone had any doubt about Bishop Lynch's agenda at the ordination and otherwise, his letter in this link gives it all away.  His Excellency has a long history of despising the Traditional Latin Mass (see here), and his letter of April 20, included in full in the link above, virtually breathes contempt for the faithful devoted to the Traditional Mass.

But I said this post was to be about lawlessness, and indeed it is.  Bishop Lynch's endless tactics and strategies for making the traditional Latin Mass all but unavailable in his Diocese are in clear violation of the juridical norms set out by Pope Benedict in Summorum Pontificum (here).  Pope Benedict made clear that he knew that many Bishops were impeding the celebration of the Traditional Mass under the indult permission allowed since 1984 in Quattuor abhinc annos by Saint Pope John Paul II, and for that very reason Summorum removed Bishops from the loop, so to speak.  The permission of the local Bishop is not required for the celebration of the Traditional Latin Mass in public (or in private).  Bishop Lynch's specious logic for suppressing the celebration of the Traditional Latin Mass where it is now celebrated and for consolidating its celebration in the Vietnamese Mission parish has the support of no Roman legal norms currently in force.  We are witnessing unvarnished antinomianism.  I do hope that the good people of the Diocese of St. Petersburg will receive due relief and remedy from the Pontifical Commission Ecclesia Dei, but I am not hopeful.

Why am I not hopeful?  Consider these words that Bishop Lynch also spoke to the ordinands he cautioned not to "hide:"

Style your ministry after Pope Francis. Ever the teacher, he is a master of the use of the gesture which captures the hearts of the world. Why, because he acts like most of us think Christ would act. He speaks with authority only when he has to but with wisdom and understanding and openness. He doesn’t hide behind rich vestments and vestiges of power and privilege but leads by example using words only when absolutely necessary. When Raul Castro can suggest that this Pope is truly an ambassador for God, we least of all,  should never take him for granted.

Did every Pope until Francis "hide?"  And is it true that Pope Francis "use[s] words only when absolutely necessary?"  But who am I to judge?  

May 17, 2015 in Brennan, Patrick | Permalink

Saturday, May 16, 2015

Alan Hurst on marriage, compromise, and changing minds

With Alan's permission, I am posting a version of a thoughtful comment he shared with the Law and Religion listserv:

“You shouldn’t worry about gay marriage and religious freedom,” I’ve occasionally been told. “In thirty years, pretty much nobody’s going to be religiously opposed to gay marriage, so gay marriage won’t interfere with anybody’s religion.” 

The people who’ve told me this generally meant well, but I think their willingness to think this sort of thing—and to imagine that believers concerned about religious freedom would find it comforting—is a testament to the ignorance about religion that pervades certain parts of our society. 

To begin with, few believers could possibly be comforted by someone saying, “You shouldn't worry about the long run because your religions will just change their minds on this issue anyway.” That statement suggests at least one of the following two ideas: 

    1. that religious beliefs are entirely a product of time and culture, with no basis in any transcendent truth and no capacity to resist broader cultural movements. 
    2. that religious beliefs opposing gay marriage are purely an irrational bias and, like religious opposition to interracial marriage, will gradually vanish as gay marriage becomes commonplace and believers' aversion to gay relationships is worn down by familiarity.

 These ideas are too big for me to try to refute here, and certainly there are people who believe them. But if you’re among those people, I hope you’ll consider for a moment how they sound to believers who disagree with you. In essence, when you say, “Your religion will change on this issue,” you’re saying either, “The beliefs you've built your life on have no basis in reality” or “Your bigotry has led you to misunderstand your own religion.” True or false, these two thoughts are quite the opposite of comforting to a concerned believer; indeed, they’re likely to convince some believers that you really don’t understand religion and that you really are out to get them.

But there’s a more practical reason not to tell believers that their religions will soon abandon traditional Christian sexual ethics: if you do, there’s a good chance you’ll be wrong.

Partially I say this because the analogy between religious racism and religious heteronormativity is at most superficially accurate. Traditional Christian teachings about sex just have a much different place in the church than American Christians’ teachings about race ever did—theologically, practically, socially, historically, etc. These things are simply not the same. Ross Douthat wrote briefly (but I think accurately) about this here.

And partially I say this because religion has always been international in nature, and like everything else it's getting to be more so. The heart of Christianity is moving from Europe and North America to Latin America, Africa, and Asia. Within a few decades, China may be home to more Christians than any other country. American Catholicism has never been especially important to the Catholic church, and even we Mormons now have more members outside the U.S. than inside.

Although the gay rights movement is likewise an international phenomenon, it’s not likely to play out everywhere the same way it has here. There are some places where gay marriage will not be legal for the foreseeable future; there are others where legalization will not lead to the sort of pressure on traditionalists that has begun to be exerted here. So long as such places exist, their Christians are going to give some ballast to American Christian opposition to gay marriage. Indeed, to some extent it’s already happening—witness, for example, the ties springing up between conservative American Episcopalians and African Anglicans.

My prediction? I think religious opposition to gay marriage is going to be like religious opposition to premarital sex. The polls will move more rapidly than anyone used to think possible, and in a decade or two only 20% of Americans will think gay marriage is immoral. And then the graph will bottom out, and 20% of Americans will still be thinking that for a long time.

So, the upshot of all this: don’t proclaim too loudly that the present controversies are temporary because we’re all going to agree about all of this very soon. It’s rude: it tells believers you don’t take their beliefs seriously. It’s counterproductive: it will only heighten the fears of people who see gay marriage as a threat to their way of life. And there’s a good chance that it will prove to be wrong, and that we’re stuck for the foreseeable future with the hard work of drawing distinctions and making compromises. The sooner we all commit to it, the better.

May 16, 2015 in Garnett, Rick | Permalink

Friday, May 15, 2015

Conference on Kent Greenawalt

I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent's primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler's colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.

Here's a quote of Kent's I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.

Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)--whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that "public meaning" cannot be ascertained without recourse to someone's intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy's talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is "dangerous," which I thought was an interesting thing to say.

May 15, 2015 in DeGirolami, Marc | Permalink

Thursday, May 14, 2015

By way of introduction...

It is a real honor to have been invited to 'blog' here at Mirror of Justice.  I have long admired the keen observations about all things Catholic and legal on this blog, and am so grateful it exists. I do not know how well I'll take to blogging, but if there is a blog for me, this is the one. Thank you Rick and Lisa for taking a chance on me. 

It is particularly edifying to have been invited to join a 'law professor' blog without, well, being a law professor. It gives some credence to the view that my scholarly work is actually important to someone out there; it's not just something I do to keep myself intellectually engaged when I am not otherwise active with six young children or with the classical Catholic school I just helped to found outside of Boston:  www.stbenedictelementary.com.  

My work involves the development of a thoroughgoing Catholic feminist theory as well as a Catholic feminist legal theory, especially as questions about gender intersect with questions of sexual and social ethics.  (I'm also quite interested and adept in discussing theories of both education/educational policy and religious liberty, but will also readily admit to expertise in neither.)

I entered the feminist conversation 20 yrs ago, as a secular feminist activist and Women’s Studies student during my early years at Middlebury College in Vermont.  Since my conversion (or ‘reversion’) to Catholicism in my final year at Middlebury in 1996 (a drama that involves the intellectual intervention of a leading Staussian atheist Jew), I’ve been keenly aware that, to be taken seriously in the modern world, the Church has to be in serious conversation with secular feminists. And though I tend to like a debate, and am strident in my arguments, I do mean conversation. Our political discourse—what with recent War on Women rhetoric on the left and a real demonization of feminism on the right—hasn’t served us well on this score. While adhominems fly, opportunity for real conversation among those of who see ourselves working for women’s progress remains barren. (NB: I applaud the work of Lisa Schiltz and Susan Stabile, especially in their most recent book in search of common ground with Georgetown law professor Robin West, about which I hope to write in a future post.)

So what I’ve tried to do in my work as legal scholar and women’s advocate is something not many faithful Catholic intellectuals would really ever care to do, but is something that is increasingly necessary if we are to truly engage secular feminism on its own terms: as a good Straussian, I seek to read the leading feminist philosophical and legal literature with a sympathetic eye; having been on board once upon a time, I find such sympathy easy to come by (and often still agree with and enjoy much of what I read). 

As I write in Mary Rice Hasson's new book, Promise and Challenge (mentioned by Lisa in an earlier post): 

In order to advance successfully a new feminist worldview in public life or in scholarship, we have to take the time to listen to our feminist-minded interlocutors, read them, and get to know them. If we are convinced, with St. Thomas, that human beings seek the good and the truth, we can turn to feminist theory and argument, and make an effort to identify the good intentions, insights, and authentic advances. In order to love them, we must take them seriously and sympathize with their position the best we can. We must have the confidence to ask humbly what we can learn from our interlocutors. What is it that makes their viewpoint, their writings, so compelling to others? Listening to them can teach us much—about their presuppositions first and foremost, and about potential areas of agreement. In general, though of course there are myriad exceptions, feminist-minded scholars and lay persons tend to care deeply about the sorts of things Catholic women care about:  women and children, relationships, and the vulnerable. We just have starkly different ways of addressing these shared concerns.

I believe that the Church offers a richly pro-woman alternative to secular feminism, but that alternative is deeply inaccessible to the many many people who look out at the world through a secular feminist prism.   As I write in Promise and Challenge:  

Part of our current trouble making inroads into the culture with the Church’s extraordinarily liberating pro-woman message is our inability to translate it adequately for the modern world. (And Pope Francis does seem to think the trouble lay primarily with us, Christ’s disciples, and not with the lost sheep who no longer heed the Christian message.)...To the “JPII Catholic,” guided by the light of faith and strengthened by sacramental grace, the Church’s sexual teachings seem so right and life-saving, and so good for marriage, children, men and women—that there could be no other way. As a result, a vast gulf exists between the well-formed Catholic and the world’s sojourner, a sojourner who has been deeply formed, on the other hand, by the secular feminist worldview, whether or not she knows it or would even describe herself as a feminist. Key phrases used by John Paul II, such as “sexual complementarity,” “feminine, or nurturing, nature,” or “the nuptial meaning of the body” may mean gift and purpose to the well-formed Catholic but represent oppression and confinement to the feminist-minded. Just as in the days of the early Church, members of the same family speak as though foreigners, lacking not only a common moral framework, but also a common language. If we do not find a new translation, a mediating bridge that better articulates Church teaching in a world shaped by feminist views, we will remain forever a booming gong and clashing cymbal, a self-referential church, the Pope says, that thinks itself better than the world, but meanwhile shrivels in its pride, in its inability to love the other enough to go out and find her.

The rest of that chapter as well as the whole of Women, Sex & the Church: A Case for Catholic Teaching tries to make some progress in articulating Church teachings anew, not for utilitarian purposes as though to spin her unpopular teachings in a more attractive way, but alas, because they are true. The sexual revolution has not been the boon to women secular feminists seem to think. 


May 14, 2015 | Permalink

"[T]he government should look at China and aspire to do better."

Some basic, but unfortunately on-point advice from Mark Rienzi for the Obama Administration: Do better than China on religious liberty. 

The Administration (and others interested) should read Professor Rienzi's USA Today op-ed on a topic I briefly blogged about previously: "American nuns, Chinese booze and religious persecution." 

(Interesting sidenote: The op-ed is not about same-sex  marriage, but USA Today apparently saw fit to include "gay-marriage" in the web address: http://www.usatoday.com/story/opinion/2015/05/13/china-religion-america-government-gay-marriage-column/27130999/. It would have been really interesting if they had also sought to include "pizza," "memories," "Indiana," or some combination like "Hoosier-pizza-gay-marriage-China-religion-memories-america-take-out-government.")

May 14, 2015 in Walsh, Kevin | Permalink

"Final Exit" Convicted of Assisting in Suicide

Update to my recent post mentioning the prosecution of a the right-to-die group Final Exit Network Inc. here in Minnesota: they were convicted today assisting in the suicide of a woman who took her life in 2007 after years of suffering with chronic pain; it's the first time they've been found guilty of this charge.  They do, of course, intend to appeal for violation of the First Amendment.

May 14, 2015 in Schiltz, Elizabeth | Permalink

Brandon Paradise on "How Critical Race Theory Marginalizes the African American Christian Tradition"

Brandon Paradise (Rutgers Law) has a valuable new article on "How Critical Race Theory Marginalizes the African American Christian Tradition." It's a lengthy piece that documents how critical race theory's methodology has been overwhelmingly deconstructionist and secular, ignoring the central role of Christianity in the lives of most African Americans and in the civil rights movement.

As I read him, Professor Paradise thinks has had several troubling consequences (even though he understands how realities like white Christian support for slavery and quietism within the black church have helped spurred it). First, it has cut off critical race theory from a central aspect of the lives of a large percentage of African Americans--an ironic result given the critical-theory premise that “'the actual experience, history, culture, and intellectual tradition of people of color in America' should serve as the epistemological source for critical scholars." (Quoting Mari Matsuda.)

Second, it significantly eliminated from critical race theory the call for individual spiritual transformation that was an important part (although of course, Prof. Paradise recognizes, not the only part) of the message of M.L. King and other civil rights leaders. Third, and related, Paradise notes how the deconstructionist orientation limits the ability of the theory to appeal to universal principles of human dignity, human nature, and morality in the way that the Christianity-grounded civil rights movement did. Including that old concept of natural law, which just happens to be central to the "Letter from a Birmingham Jail." About the letter, Paradise writes:

[F]ar from offering an indeterminacy critique—the thrust of which illustrates that first principles cannot compel a specific vision of community—King resolutely argues that first principals of natural law compel him to reject a segregated vision of community in favor of a desegregated one.

Prof. Paradise then offers some sober hope about the possibilities for developing an African-American Christian approach to law:

Because of the possibility that developing an approach to law that reflects the African American Christian tradition will receive little support in the legal academy, scholars engaged in the project will have to be pioneering, prophetic voices who are willing to cut against the grain of the secular left as well as the predominantly colorblind, religious right. However, not all is grim. While the project may suffer marginalization within the halls of the legal academy, the Black community’s substantial identification with Christianity means that the effort to develop an African American
Christian approach to law has a natural and substantial constituency outside of the ivory tower.

Lengthy, but as Larry Solum would say, "highly recommended." In this more pluralistic age, civil-rights theory and practice surely can't be grounded solely in the Christianity that inspired the movement of the 1960s: I think Prof. Paradise would recognize that. But he makes a good case that Christianity has been far more marginal among the theorists than it ought to be.

May 14, 2015 in Berg, Thomas | Permalink

"Pope Benedict XVI's Legal Thought"

What a treat -- I received in the mail today my copy of Pope Benedict XVI's Legal Thought, edited by my friends Andrea Simoncini and Marta Cartabia, and published through John Witte's Cambridge Law and Christianity Series.   Learn more about (and buy) the book here.  The description:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

May 14, 2015 in Garnett, Rick | Permalink