Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, April 28, 2016

Ed Whelan on the G.G. case

Ed Whelan has six posts at NRO following his original comment on the Fourth Circuit panel decision last week in G.G. v. Gloucester County School Board. Whelan's sixth post here links to the prior five.  And, for those interested in more, Judge Niemeyer's dissent, beginning on page 45, is very clear and well worth the read in full. 

April 28, 2016 in Bachiochi, Erika | Permalink

The NCAA and Religious Colleges and Universities

It's a longstanding piety -- at least since the Land O'Lakes statement -- among many in Catholic higher education specifically that Catholic universities should not be beholden to or bound by "external" authorities -- meaning, usually, ecclesiastical authorities.  But, of course Catholic universities are tightly constrained by and seem more than willing to be constrained by a wide range of "external" authorities, including accrediting and licensing bodies, government conditions on funding and contracts, grantmaking bodies, and -- of course -- the NCAA.  

As this USA Today story describes,  things are moving rapidly toward a confrontation between religious institutions' rules and expectations regarding sexual morality, on the one hand, and the expanding understanding on the part of the NCAA (and corporate sponsors of athletics) of the non-discrimination norm.  Here is just a bit:

The Education Department said in 2014 that transgender students are protected by Title IX. Since, dozens of religious schools — mostly smaller and lesser known, and none of the schools mentioned in this story — have asked for waivers that allow them to deny admittance to transgender students. And that has turned into a flashpoint for the NCAA.

Recently more than 80 LGBT organizations wrote a letter to the NCAA urging it to divest membership of religiously affiliated schools that ask for such waivers. “These requests,” the letter said, “are directly in conflict with the NCAA’s longstanding commitment to diversity and inclusion for all people regardless of sexual orientation and gender identity.”

. . . 

Schulz, chair of the NCAA board of governors, expressed willingness to take up the issue.

“I really liken it to some of the issues in the deep South for African American student-athletes going back to the 1960s,” he says. “We can look back now and say, ‘I can’t believe these teams weren’t playing each other because they had African-American basketball players.’ We can look back now and say, ‘That is unfathomable.’

“I’m not so sure that we wouldn’t look back in 20 or 30 years and say the same thing about some of our LGBT athletes. … We need to talk about it, but at the same time the NCAA has a powerful bully pulpit. And if we talk about inclusivity, I think it’s important that we take a stand on these social issues.”

In my view (as I've written here and here) it is usually a mistake to think that the non-discrimination norm, appropriately understood, requires governments (or, I am inclined to say, bodies like the NCAA) to punish, regulate, or even discourage religious institutions from adopting policies that reflect and promote their religious mission, even with those policies are not congruent with the rules that control the liberal state itself.  The NCAA should allow, say, BYU or Baylor to be themselves.  (I do not agree that policies reflecting traditional religious teachings on sexual morality are usefully compared to race discrimination.)  But, I am not optimistic either that the NCAA et al. will stay their hand or that religious universities with major sports programs will resist.  We'll see.

April 28, 2016 in Garnett, Rick | Permalink

Wednesday, April 27, 2016

Five Constitutional Controversies, Five Judicial Opinions

The five constitutional controversies addressed by Justice Nemo in a paper just posted to SSRN (here) concern matters of interest to many MOJ readers, including capital punishment, same-sex marriage, physician-assisted suicide, and abortion.  Here's the abstract:

In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.

That is, Justice Nemo’s five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?

This paper is drawn from my new book, which will be published early next year by Cambridge University Press:  A Global Political Morality:  Human Rights, Democracy, and Constitutionalism.

April 27, 2016 in Perry, Michael | Permalink

Trinity Lutheran Amicus Brief: Religious Persons are Equal Citizens

As many readers know, the Supreme Court is currently considering Trinity Lutheran Church v. Pauley, a case about discrimination against churches in state funding programs. The Religious Liberty Appellate Clinic at St. Thomas, which I supervise, filed an amicus brief on behalf of several church-related groups and other religious organizations.

The case involves exclusion of a church from a Missouri state program that provides funds to non-profit institutions to help them resurface their playgrounds using rubber from recycled tires. Trinity Lutheran Church, which operates a preschool and day-care center, applied for funds because its current playground surface posed dangers to children who fell while playing. The church would have qualified for a grant, but the state excluded it solely because it was a church. Trinity argues that this discrimination against religion violates the Free Exercise Clause.

Here is a passage from our brief that gives the gist of its argument: 

By its exclusion, the state has denied equal treatment with respect to one of government’s core functions: protection of the safety and health of persons within its jurisdiction. In a real sense, such an exclusion treats religious persons as less than equal citizens – as it would if the state were to deny other safety benefits such as police or fire protection. The children who attend petitioner’s preschool and daycare are entitled to the same eligibility for state safety benefits asare children who attend nonreligious institutions.... When a Lutheran child trips or falls on an “unforgiving” surface, her head injury is no less serious than if she attended a nonreligious private school. 

Luke Kane, J.D. class of 2018, did excellent drafting work on the brief.

 

April 27, 2016 in Berg, Thomas, Current Affairs | Permalink

Monday, April 25, 2016

NOMOS LVI ("American Conservatism") is (finally) out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy."  Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus:  Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

April 25, 2016 in Garnett, Rick | Permalink | Comments (0)

Friday, April 22, 2016

Are the "barricades of the culture wars . . . collapsing"?

In this piece, commenting on (among other things) the awarding of this year's Laetare Medal to Vice-President Biden and Speaker Boehner, my former Notre Dame colleague Cathy Kaveny writes:

What has changed in the past seven years? We now have widespread recognition that the barricades of the culture wars are collapsing upon us. No war—even a culture war—can become an indefinite and customary state of affairs without disastrous consequences. We can only recover by learning how to work together again—despite our deep differences—and learning to see the good in one another. 

There is, to be sure, a lot to regret about the reality of the "culture wars" and the way they've distorted politics and harmed discourse -- among those things, in my view, is the common but unhelpful practice of labeling those with whom one disagrees politically as "culture warriors" -- although it seems to me that regret will not change the reality.  It is simply the case -- and it does not make one a "culture warrior" who is "obsessed" to notice it -- that there are determined, well-funded, and increasingly powerful institutions, actors, and forces at work in the culture, in politics, in the law, and in the academy (for example) that oppose strongly the moral vision, commitments, and witness of the Catholic Church and that are doing what they can -- and they can do a lot -- to marginalize the Church, her teachings, and her institutions in public life.  

I'm not entirely sure what Cathy means with her statement that "the barricades of the culture wars are collapsing upon us," but if she means that the institutions, actors, and forces I just mentioned are winning -- are overrunning the defensive "barricades" -- then I certainly agree.  They are not giving up or seeking a truce or peace, and there's no reason to think that they plan on finding ways to work together across deep differences.  Like Cathy, I think, I would very much prefer a politics that involved sincere and civil efforts to find common ground where it exists, to take half-a-loaf over nothing, to welcome incremental improvements and not insist on revolutions or routs, that didn't involve boycott threats and "bigotry" charges, etc.  I agree entirely with Cathy that politics is the art of the possible, that those who embrace the Church's social and moral teachings -- in their entirety -- have no choice but to not let the perfect be the enemy of the good, and that more "balance," compromise, and charity are needed in our politics.  I agree that it is "counterproductive" to insist on unattainable policy goals (though I think we cannot mute -- and Pope Francis is not telling us to mute -- our truth-telling about the injustice of our abortion regime).

At the same time:  it's a mistake to imagine that we can wish or good-will away the ongoing campaign against the Church's witness, work, and freedom.  This campaign is, again, a reality.  It has very real implications for, and poses non-imaginary threats to, our hospitals, universities, schools, social-welfare agencies, and social-justice activism.  It involves, first, conditions on funding, tax-exempt status, accreditation, and licensing, but it will not stop with conditions that we will be able, in theory, to take or leave.  By all means, let's work (and pray) for a better politics.  Let's be realistic, pragmatic, and -- perhaps -- resigned to certain new realities.  Let's also keep our eyes open.

April 22, 2016 in Garnett, Rick | Permalink

"When Bernie Met Francis"

Interesting commentary by University of St. Thomas law prof Charles Reid, here.  An excerpt:

One of the most important contributions that Catholic social thought can make to today’s progressive politics is a theory of the state as guarantor of a just and fair economic playing field. Bernie Sanders and others would be well-advised to draw deeply from this tradition.

In doing so, they would find themselves at odds with the last three-plus decades of political discourse, which has been all about de-legitimizing the state. When Ronald Reagan said in 1981 that “government is the problem, not the solution,” he likely did not believe it himself. But his rhetoric was careless. And surely it stands behind much of the reckless talk and dangerous politics emanating from Donald Trump, Ted Cruz, the Tea Party fanatics, and the Ayn Rand libertarian right.

April 22, 2016 in Perry, Michael | Permalink

Wednesday, April 20, 2016

The New Battle of the Sexes

Deferring to the U.S. Department of Education's Title IX guidelines and a January 2015 statement from the DOE's Office of Civil Rights, a Fourth Circuit panel ruled in favor of a transgender student up and against the student's school yesterday, holding that the school violated Title IX when it restricted students' bathroom use to their biological sex (rather than chosen gender identity). Ed Whelan writes at Bench Memos: "The court, in short, ruled that discrimination on the basis of gender identity is discrimination on the basis of sex, and that Title IX 'requires schools to provide transgender students access to restrooms congruent with their gender identity.'” Whelan posts a portion of Judge Paul Niemeyer's dissent which is well worth reading. Here's the money quote: "Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes." 

The student's Equal Protection claim is pending before the district court thus was not at issue in the case decided yesterday. Still, Niemeyer's understanding of biological sex as the essential legal marker is in keeping with the line of Equal Protection cases that take seriously "inherent" biological difference, even as they treat "sex stereotyping" (what we'd now likely refer to as "gender stereotyping") as sex discrimination. Though I don't pretend this is a full analysis, I thought it'd be helpful to point out quickly some relevant language in the Court's decisions vis-a-vis biological difference.

Remember Justice Ginsburg writing for the Court in United States v. Virginia (1996) in which the Court struck down the historic male-only admissions policy of Virginia Military Institute:  “Inherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity." And Justice Kennedy writing for the Court in Nguyen v. INS (2001), upholding the INS' differential treatment of American mothers and fathers in their children's citizenship proceedings: "To fail to acknowledge even our most basic biological differences...risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real." 

For sex discrimination law to serve its function--for the rule of law to govern--sex as a legal term has to mean something in particular.  

 

 

April 20, 2016 in Bachiochi, Erika | Permalink

Monday, April 18, 2016

Great news: Notre Dame scraps plans for "liberal arts college" collaboration with China

The story is here.  For almost two years now, I've been very nervously awaiting the outcome of the decision-making process regarding the proposal to set up a "liberal arts college" in cooperation with the government in the PRC.  From the start, I thought (and said) that the proposal was not an attractive or defensible one, that it would involve close collaboration in real violations of academic freedom and human rights, and that it would compromise not only the University's integrity as a Catholic institution but as a university dedicated in a particular way to the liberal arts and the pursuit of truth through open inquiry.  In any event, the outcome and news are good.

Pray for the suffering Church in China.

April 18, 2016 in Garnett, Rick | Permalink

Notre Dame legend, Prof. David Solomon, to retire

Prof. David Solomon -- a longtime professor of philosophy at Notre Dame -- is retiring at the end of this semester.  (Here's a very nice tribute to him that appeared the other day in the campus newspaper.)  It's impossible to overstate the importance of Prof. Solomon's contributions not only to the formation and education of thousands of Notre Dame students but also to the University's Catholic character and mission.  Among other things, Prof. Solomon was the founding director of the Notre Dame Center for Ethics & Culture, which has been for nearly 20 years a center of vibrant inquiry and engagement on issues ranging from bioethics to J.R.R. Tolkien.  The Center's annual Fall Conference is, for many of us, among the highlights of the academic year.  

When I first came to Notre Dame, in 1999, I met Prof. Solomon through a mutual friend and colleague and, pretty quickly, my daily ritual included a bagel and coffee with David and a few others at Lula's, South Bend's initial effort at a campus-y coffee shop.  My first daughter spent a lot of time, as a baby, crawling around under the tables there and wiping crumbs on Prof. Solomon.  He welcomed and inculturated my wife and me into the University community and his love for and dedication to the place were inspiring and infectious.  It's very hard to imagine life at the University without him, his wit, and his generosity.  If you care about Catholic higher education -- and all MOJ readers should -- then you have good reasons to be grateful to David Solomon.  

UPDATE: This tribute by Fr. Bill Miscamble is excellent.  A bit:

David has loved being a teacher and a philosopher and his labors have allowed him to seek the good and to touch the lives of many students. Of course, as a philosopher he has emphasized the role of the intellect, but this has never been done by him at the expense of the heart. No doubt over time he has come to appreciate ever more deeply and in the manner of St. Thomas that love must have the final word, for only love can truly complete the intellect’s knowledge. He has given of himself for his students, his colleagues, and his friends and Notre Dame is a much better place because of him.

April 18, 2016 in Garnett, Rick | Permalink

Sunday, April 17, 2016

"Conversations" with Kristol . . . and Robert George (on history, Unger, Hegel, etc.)

I really enjoy Bill Kristol's "Conversations" podcasts.  Some of my favorites (I listen when "running") have been with Mitch Daniels, Justice Alito, and Leon & Amy Kass.  And now, there's the latest, which features our own Robby George.  It's really good.  Check it out.

Here's a bit, from the transcript, on "history":

GEORGE: It’s a tough challenge, but things always seem impossible until people do them. We are still, even those of us who are conservatives, to some extent in the grip of the Hegelian-Marxist idea that there are laws of history and society that generate outcomes quite independently of what individual actors or people organize together do. Now, that’s a really stupid view.

KRISTOL: Somehow deep in the modern world. Progress goes in one direction, more or less.

GEORGE: Just think of how much traction folks on the Left get out of accusing their adversaries of being on the wrong side of history. Many of their adversaries are actually concerned about that. They’re worried about being on the wrong side of history, as if history were endowed with the powers of judgment with God to determine what’s right and what’s wrong, separate the sheep from the goats on the last day, so to say. But of course, history – this is why I say it’s stupid – history is an impersonal sequence of events. It has no power to judge than a rock outcropping or a golden calf. It’s just literally an idol.

KRISTOL: It’s a powerful idol. Bill Buckley doesn’t get enough credit for standing athwart history. That was a very important thing just to say. He didn’t believe history had a movement either, I don’t think. But he thought it was important to show people that a young, well-educated, intelligent, fun-loving person could say no. You know, one forgets just in the mid-50s how bold that was, I think, and how much people did believe in a sort of decayed version of Hegelian-Marxist history with a capital H.

GEORGE: We’re still in its grip today. Can I say one more word about that, Bill, before you move on? You’ll probably find it surprising that I was not taught this view, but strongly reinforced in this view when I was a student at Harvard Law School by a leftwing professor. It was actually Roberto Unger who strengthened my belief in the radical contingency of history and my skepticism about the Hegelian-Marxist idea of a progressive history because although he was on the Left, he was a radical anti-Marxist when it came to the idea of laws of history and society. Radically skeptical about them, as well he should be. And you know, I don’t agree with various other aspects of his thought – on this, I think he was absolutely right – but he was a very strong influence on me.

KRISTOL: That’s interesting. I remember he was such a prominent – considered far on the Left in a way. Radical Left, as you say. More radical than Marxist almost.

GEORGE: And some people both on the Left and the Right just regarded him as a very sophisticated Marxist. When he himself said, “No, I’m not that. You’ve misunderstood me,” people were puzzled.

There was an exchange he had in the University of Minnesota Law Review years ago after his first book was published, Knowledge and Politics, when Tony Kronman who later became a very prominent law professor, Dean of Yale Law School. Tony Kronman in a review of Knowledge and Politics just identified Unger as a sophisticated sort of Frankfurt School Marxist. Unger wrote back in saying, “No, you’ve completely misunderstood me.” Kronman couldn’t understand, and Unger said, “The thing that you most misunderstood me about is I can’t be a Marxist because I do not believe in a dialectic of history. I don’t believe in the inevitability of anything. I believe in the radical contingency of history. That idea is much more comfortably categorized as a Catholic idea.” Unger himself was not a believer. But he said, “That’s much more easily categorized as, say, a Catholic idea than as a Marxist idea.”

April 17, 2016 in Garnett, Rick | Permalink

Friday, April 15, 2016

Sex and Gender in the Literature

Last week I participated in an intense and deeply informative conference on "gender theory," co-sponsored by the Catholic Women's Forum at the Ethics and Public Policy Center and the Catholic Information Center. We heard from a scientist, historian and economist, as well as philosophers, theologians, and lawyers. Should these papers be published--and that is the hope--I will be sure to post here. But in the meantime, I wanted to post a few excellent resources for anyone trying to make sense of what has become a leading--and confusing--issue today. 

Here is a collection of studies drawn from scientists and researchers on sex differences in the brain, posted yesterday on MercatorNet, originally published in the journal, The Family in America. A few money quotes: 

. . . The truth is that virtually every professional scientist and researcher into the subject has concluded that the brains of men and women are different. . . . [T]he nature and cause of brain differences are now known beyond speculation, beyond prejudice, and beyond reasonable doubt.

As a result, “There has seldom been a greater divide between what intelligent, enlightened opinion presumes—that men and women have the same brain—and what sciences knows—that they do not.” Therefore, they proclaim in frankness, “It is time to cease the vain contention that men and women are created the same."

And this one is especially interesting: 

Given that cultures are different and that male and female differences are demonstrated to varying degrees in different cultures, where would you imagine gender differences between male and female to be most pronounced?

In traditional, developing cultures, where men and women have to depend on each other for daily survival, where today’s food is collected, prepared, cooked, and consumed today?

Or . . .

In modern cultures that are more technologically, economically and politically advanced, where men and women have the resources and cultural freedoms to become and do what they desire?

It appears that when they enjoy greater freedom—financially, politically, and culturally—men become more stereotypically masculine and women more stereotypically feminine. This is, however, most true for women.

The New York Times summarized the findings of personality tests in more than 60 different countries and cultures: “It looks as if personality differences between men and women are smaller in traditional cultures like India’s or Zimbabwe’s than in the Netherlands or the United States.” The New York Times concludes: “The more Venus and Mars have equal rights and similar jobs, the more their personalities seem to diverge."

I'd also recommend UVA professor Steven Rhoades 2005 book, Taking Sex Differences Seriously, and Leonard Sax's Why Gender Matters? Additionally, this paper by Sister Prudence Allen, the learned philosopher and author of the three-volume series The Concept of Woman (Vol 3 available in November 2016), is very helpful as a historical-philosophical approach. She also has an excellent, clarifying chapter in Not Just Good, but Beautiful, the collection of presentations of the Humanum colloquium in Rome last year. 

The Holy Father has strongly opposed what he calls "gender ideology" in a number of documents, including Laudato Si and now Amoris Laetitia. Here is #56 in the latter:

Yet another challenge is posed by the various forms of an ideology of gender that “denies the difference and reciprocity in nature of a man and a woman and envisages a society without sexual differences, thereby eliminating the anthropological basis of the family. This ideology leads to educational programmes and legislative enactments that promote a personal identity and emotional intimacy radically separated from the biological difference between male and female. Consequently, human identity becomes the choice of the individual, one which can also change over time”[Quoting the Relatio Finalis, 2015]. It is a source of concern that some ideologies of this sort, which seek to respond to what are at times understandable aspirations, manage to assert themselves as absolute and unquestionable, even dictating how children should be raised. It needs to be emphasized that “biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated”. On the other hand, “the technological revolution in the field of human procreation has introduced the ability to manipulate the reproductive act, making it independent of the sexual relationship between a man and a woman. In this way, human life and parenthood have become modular and separable realities, subject mainly to the wishes of individuals or couples”. It is one thing to be understanding of human weakness and the complexities of life, and another to accept ideologies that attempt to sunder what are inseparable aspects of reality. Let us not fall into the sin of trying to replace the Creator. We are creatures, and not omnipotent. Creation is prior to us and must be received as a gift. At the same time, we are called to protect our humanity, and this means, in the first place, accepting it and respecting it as it was created. 

I've shared some of my take on all this here at MOJ, and also in Mary Hasson's book, Promise and Challenge, from the first gathering of the Catholic Women's Forum. First Things is due to publish another article soon. 

April 15, 2016 in Bachiochi, Erika | Permalink

Wednesday, April 13, 2016

Alice Paul: “Abortion is the Ultimate Exploitation of Women”

Yesterday, President Obama designated the “Belmont-Paul Women’s Equality National Monument” in Washington, D.C.  This is the building that not only served as the headquarters of the Women’s Party beginning in 1929, but was the home for such early leaders of political rights for women as Alice Paul.

AlicePaul_1901

Not surprisingly, while President Obama justly sang the praises of such giants in the struggle for human dignity as Alice Paul, the historical narrative was decidedly slanted to fit current liberal political themes.  Scrubbed from the historical record and never mentioned in President Obama’s speech was the courageous and consistent stance that Alice Paul took against abortion over the decades, speaking up when others promoted the Equal Rights Amendment and womens equality as supposedly linked to abortion “rights.”

Just a few months ago, Marjorie Dannenfelser of the pro-life Susan B. Anthony List wrote in Time magazine (here): “Many of today’s feminists see abortion as one of the touchstones of their movement. Yet many of the early leaders of the women’s suffrage movement in the U.S. believed that the rights of mother and child are inextricably linked and that the right to life and the right to vote are rooted in the inherent dignity of each human person.”

Alice Paul would have emphatically agreed.  Living until her 90’s and the 1970s, Alice Paul called it like it is, saying that “Abortion is the ultimate exploitation of women.”

April 13, 2016 | Permalink

McConnell on the Religious Non-Profits' (and Administrations) supplemental arguments

Mark Silk says that the religious non-profits "caved" in the contraception-coverage-mandate litigation.  I think he's quite wrong.  As Michael McConnell shows, here, the matter is far more complicated.  And, the latest round -- far from showing that the Little Sisters et al. were overreaching (or, as some persist in mistakenly insisting, distracted or pulled off course by their lawyers).  Conclusion:

On a highly polarized issue, the Supreme Court deserves credit for seeking a solution that protects the rights of religious parties under RFRA while still accomplishing the government’s goal of free access to contraception. The Little Sisters have always said they simply want to be left alone to carry out their good works without violating their religious beliefs. Their supplemental brief proves the point, showing that there is no inherent conflict between their religious beliefs and the government’s goals. The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.

April 13, 2016 in Garnett, Rick | Permalink

Quick Takes on "Amoris Laetitia"

Like (I strongly suspect) the vast majority of commentators who have commented publicly on the new apostolic exhortation, I have not read Amoris Laetitia carefully and in its entirety.   I've read a fair bit of commentary, though . . . which reminds me of one of my favorite bits from the (wonderful) film, Metropolitan:

Audrey Rouget: What Jane Austen novels have you read?

Tom Townsend: None. I don't read novels. I prefer good literary criticism. That way you get both the novelists' ideas as well as the critics' thinking. With fiction I can never forget that none of it really happened, that it's all just made up by the author.

Anyway, three "quick takes":

First, the document is too long.  It just is.  (Another film reference . . . "too many notes.")  It's length makes it less likely that it will have the pastoral and evangelical effects that I believe the Holy Father wants it to have.  Few lay people will read the whole thing and -- I strongly suspect -- not even all conscientious, well-meaning, pastorally-minded priests will read the whole thing, either.  This means that the document's "message" will, unfortunately, be in no small part a function of spinners and quote-hunters, whose goals in spinning and quote-hunting might not be the same as Pope Francis's.  

Second, as I've noted on some other occasions, regarding the reactions among commentators to Pope Francis's statements and writings, I'm seeing -- and, to be clear, it might not be a representative sample -- a disappointing amount of "this document is great because it's making those I disagree with politically and in the Church uncomfortable and angry."  I understand, entirely, the appeal of schadenfreude but if one's analysis, evaluation, and reception of the document are simply a function of that emotion, then it could well be that it is one, and not one's opponents, who doesn't "get" Pope Francis.  

Third, and more substantively.  I share the concern -- and not, I feel confident, because my "heart" is particularly "hard" on these matters -- that the document is making so much (again, in the limited parts I've read) of the importance of not letting "rules" get in the way of mercy, accompaniment, invitation, evangelization, etc., that it will be read as suggesting that the truths and goods that the Church's "rules" reflect and serve are themselves the obstructions and stumbling blocks.  It is, for example, the Truth about the Eucharist, and not only a rule about receiving it, that is implicated in debates about whether those who are in second civil marriages may receive it.  (To say this is not to be the "pharisee," nor is it to disagree with the Holy Father that the Eucharist “is not a prize for the perfect, but a powerful medicine and nourishment for the weak.")

One more thing:  As someone who hates "Valentine's Day" (as it is celebrated in the United States), I wish the Holy Father had given it a big, fat anathema.

April 13, 2016 in Garnett, Rick | Permalink

"Taking the Long Way" with Yuval Levin

Thanks to my colleague Phillip Munoz and Notre Dame's Tocqueville Program I was able to enjoy a great workshop/symposium on Yuval Levin's outstanding essay, "Taking the Long Way:  Disciplines of the Soul are the Basis of a Liberal Society."  (One reason I like it so much is that it said, better, a lot of the things I said in this 2001 law-review article, "The Story of Henry Adams's Soul"!).  Here's a bit from Yuval's piece:

This view of the common good as balanced or coordinated self-interest was facilitated by modern political philosophy’s lowering of the goals of social life. Modern thinkers since Machiavelli and Hobbes have tended to assert that the purpose of society is simply to meet our basic needs for security in our person and property and our desire for liberty in all other things. This minimal view allows us to hope that an arrangement of institutions, incentives, and interests that keeps us out of each other’s hair will be enough. The market economy, too, is premised on the notion that if all we want is prosperity and comfort, then we should be able to achieve those in spades without having to argue about moral premises too much.

In reality, however, such hopes are possible because we presuppose the existence of a human being and citizen capable of handling a remarkably high degree of freedom and responsibility. We do not often enough reflect on how extraordinary it is that our society actually contains such people. A population of citizens generally capable of using their freedom well, not the American Constitution or the market system, is the greatest modern achievement of our civilization. That achievement is the prerequisite for liberalism, whether progressive or conservative, not only at its origin but in every generation. Thus the dangerous impoverishment of our political culture today: The idea of liberty that both progressives and conservatives generally articulate takes the person capable of freedom for granted without pausing to wonder where he might come from.

Read the whole thing!

April 13, 2016 in Garnett, Rick | Permalink

Pope warns of "polite persecution disguised as progress"

Story here.  And, he is certainly right to do so.  I realize, of course, that in some quarters, talk like this -- words like "persecution" -- are seen as overblown, paranoid, or needlessly inflammatory (perhaps excessively "prophetic").  And, to be sure, many suffer (as the Pope acknowledged in his remarks) extremely impolite -- violent, lethal -- persecution for their faith.  Still:

However, he added, there is also a “polite” persecution that “takes away from man and woman their freedom, as well as their right to conscientious objection.”

“Jesus has named the head of this ‘polite’ persecution: the prince of this world. And when the powerful want to impose behaviors, laws against the dignity of the son of God, they persecute them and go against God the Creator. It is the great apostasy,” the pope said.

Pope Francis said that although Christians are besieged by persecution, Jesus will always remain close.

“The Lord has promised that he will not be far from us: ‘Beware, beware! Do not fall for the spirit of the world. Beware! But go forward, I will be with you,'” he said.

I suppose some might say that the Pope is falling into a "culture warrior" mentality here?  I would not.  What's happening to, say, the Little Sisters of the Poor is not -- not even close -- what's happening to Christians in the Middle East and in China.  But, it's naive (or worse) to imagine that, in the United States and elsewhere, the Pope is wrong when he says that "Christians must beware of a 'polite' persecution that is cloaked in a disguise of 'culture, modernity and progress,' Pope Francis said."  

April 13, 2016 in Garnett, Rick | Permalink

Monday, April 11, 2016

Doctrine by Footnote?

I have only read the first 28 pages of Amoris Laetitia--and do intend to read the rest "patiently and carefully" as the Holy Father instructs us to in the Exhortation's introduction. Admittedly, however, upon hearing of the controversy stirred up by a few footnotes in Chapter 8, I raced ahead to see what all the fuss was about...as though doctrine could be taught...changed!?...via footnote? But then, am I the only one for whom footnote 4 of Carolene Products came rushing to mind? 

Recall that in US v. Carolene Products Company (1938), the Supreme Court upheld a public health and safety regulation as presumptively constitutional law-making on the part of the federal government as within its power to regulate interstate commerce. (The Court had repudiated Lochner  just a year earlier.) But the Court dropped footnote four, laying claim to other types of legislation for which a more probing scrutiny would ensue. Footnote four would eventually become legal doctrine. 

Of course the parallel between the Exhortation and Carolene Products fails as to the substantive contents of the text and footnotes, and it's inapt to compare the development of doctrine in the the Church with the development of jurisprudence by the US Supreme Court. But what I am struck by is the confidence with which notable Catholics eager to see the full dismantling of the Church's sexual teachings believe they have found their foothold in the Exhortation--and perhaps in the footnotes specifically! (And some Catholics hoping to see tradition upheld have agreed that the debate about the document's meaning takes place in a footnote...with some quite sure of it!) 

Even for a centuries-old faith, this is a first. 

 

 

 

April 11, 2016 in Bachiochi, Erika | Permalink

Saturday, April 9, 2016

More on the strange goings-on at Marquette

Here is Prof. McAdams's (I think devastating) letter to Pres. Michael Lovell.  For more on the controversy, go here.  Judging only by information that's public, it appears to me that -- apart from the important underlying questions about the implications of Marquette's Catholic character for what students should be welcome to say in philosophy and other classes -- Pres. Lovell is getting bad advice.

April 9, 2016 in Garnett, Rick | Permalink

Friday, April 8, 2016

Charles Taylor on Secular Democracy

Charles Taylor, Professor Emeritus at McGill University, Montreal, is not only "one of the world's most celebrated living philosophers;" he is also a Catholic.  So his reflections on secular democracy should be of special interest to MOJ readers.

We are informed, at the end of his reflections, that "Professor Taylor will visit Sydney to launch Australian Catholic University's Institute for Social Justice at the Opera House on Thursday, 28 April, and will give two public lectures: "The Language Animal" on Friday, 22 April, and "Secularism and Religious and Spiritual Forms of Belonging" on Friday, 29 April."  Let's stay tuned.

April 8, 2016 in Perry, Michael | Permalink

Get your "Joy of Love" here

Hmmm.  That blog-post-title doesn't sound quite right, does it?  In any event . . . you can download it (and get a pretty readable PDF), and also get Bishop Robert Barron's take, at the "Word on Fire" site.

April 8, 2016 in Garnett, Rick | Permalink

David Brooks on "Covenant"

I know that Brooks's writing and views are not for everyone, but I still often like what he writes, and these piece ("How Covenants Make Us") struck me as particularly interesting and also as consonant with a number of the themes we've been kicking around for the last decade or so here at MOJ.  A bit:

Creating situatedness requires a different way of thinking. When we go out and do a deal, we make a contract. When we are situated within something it is because we have made a covenant. A contract protects interests, Pally notes, but a covenant protects relationships. A covenant exists between people who understand they are part of one another. It involves a vow to serve the relationship that is sealed by love: Where you go, I will go. Where you stay, I will stay. Your people shall be my people. . . .

Check it out.

April 8, 2016 in Garnett, Rick | Permalink

Wednesday, April 6, 2016

Paul Horwitz, "Against Martyrdom: A Liberal Argument for Accommodation of Religion"

Get your copy here.  

Religious accommodation is going through a period of heated contestation in multiple arenas: in the courts, in the academy, and in public and political debate. For the most part, the contest involves the specific occasions and doctrinal mechanics of accommodation, not its availability. But contestation over specific applications, particularly when it is intertwined with a larger trend of political polarization, can lead to a greater skepticism about and rejection of religious accommodation altogether. And so it has. As a thick version of equality and dignity assumes the status of "the master value of our time," as a rationalist rather than pluralist strand of liberalism becomes increasingly dominant, as specific controversies evoke strong concerns about the danger of religious accommodation, and as pluralism is seen more as a danger to be cabined than as a good in itself, more liberals have adopted a position that is much more critical of religious accommodation as such. To slow or halt that momentum, and not simply relegate accommodationist arguments to the realm of religious traditionalism or political conservatism and encourage further polarization around the topic, arguments for religious accommodation are needed that speak in roughly liberal terms to liberal audiences.

That is the primary goal of this Article. It sets out one standard liberal concern about religious accommodation: that it encourages or entrenches illiberalism and illiberal groups. And it argues that resistance or rejection of religious accommodation as such on illiberalism-fearing grounds fails to fully appreciate the bifurcated response to such refusals. While some religious groups, or portions of such groups, may liberalize as a result of refusals to accommodate, other groups or sub-groups may respond by becoming more, and more intensely, illiberal. Those groups are not only likely to become more confirmed in their illiberal views, but also to withdraw from participation in the larger liberal society, adopting a "Benedict option" approach that makes them more insular and less involved in broader public discussion and participation, and that will make it even more difficult for its most vulnerable members to have access to information or exit options. There are, in short, good reasons for liberals to continue to believe in the value and availability, from their own perspective, of a general principle of religious accommodation.

The Article has three secondary goals. First, it discusses an important argument against accommodation made some time ago by Mark Tushnet: a theological argument for skepticism about religious accommodation, on the grounds that the state should in some sense be indifferent to the threat of religious martyrdom, and that religious groups err by moving into the state's realm when they seek accommodations to avoid that prospect. I argue that Tushnet's argument is important and intriguing, but too narrow in its view of the religious realm and its relation to the secular realm. Religious groups are thus not precluded from arguing for governmental accommodation of religion, and liberals should and do continue to have reasons to favor an anti-martyrdom position. Second, I argue that the Article's primary argument has implications for how governmental decision-makers, particularly judges, should approach accommodation cases. Drawing on the literature dealing with how courts should speak to constitutional "losers," I argue that they should avoid categorical, near-contemptuous rejections of religious arguments for accommodation, lest they add to the threat of illiberal retrenchment and insularity and drive illiberal groups out of the general sphere of liberal society altogether. Religious groups may indeed lose in some accommodation cases, but it can matter how they lose. Finally, albeit more implicitly than expressly, I suggest that the current debate over accommodation would benefit from greater emphasis on the pluralist strand of liberalism, and a view of religious and other forms of pluralism as a positive good to be encouraged rather than a threat to be managed.

This paper was Paul's contribution to an excellent symposium hosted by the Notre Dame Law Review.  

April 6, 2016 in Garnett, Rick | Permalink

"The End of Human Dignity?" Conference at Notre Dame

It's a nice problem to have but, sometimes, it is just not possible to attend all of the interesting events going on in lovely, cosmopolitan South Bend, Indiana. This conference, "The End of Human Dignity?  Recovering the Intellectual Appeal of Human Dignity for the Philosophical and Theological Imagination", has featured an array of amazing speakers.  Here's the blurb:

In recent years the concept of human dignity has come under intense scrutiny and has even been dismissed as “stupid” and “useless.” The erosion or outright dismissal of the concept of human dignity raises foundational questions, such as who is the human person and what kind of communities do we wish to inhabit? What would society look like if the language of human dignity were partly or entirely eliminated from public discourse? Such questions require that those who would assert the concept’s normativity must offer a philosophical and theological response that takes seriously the critique, renews the discourse, and offers new possibilities for how we may meaningfully engage the concept of human dignity.

My understanding is that, soon, video of the talks will be available online.  Stay tuned!

April 6, 2016 in Garnett, Rick | Permalink

Tuesday, April 5, 2016

St. John's Center for Law and Religion Hosts Justice Samuel Alito

St. John's Center for Law and Religion was delighted and honored to host Justice Samuel Alito at our colloquium in law and religion yesterday. Justice Alito discussed Hobby Lobby v. Burwell; Town of Greece v. Galloway; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; CLS v. Martinez; Salazar v. Buono; and Summum v. Pleasant Grove, as well as his dissent from denial of certiorari in Ben-Levi v. Brown and two free exercise decisions he authored as a Third Circuit judge, Fraternal Order of Police v. City of Newark and Blackhawk v. Pennsylvania.

We had a lovely day today as well, as Justice Alito discussed several important free speech cases in which he dissented with my constitutional law class–US v. Stevens, Snyder v. Phelps, and US v. Alvarez. It was a true pleasure to have him. 

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April 5, 2016 in DeGirolami, Marc | Permalink