Mirror of Justice

Katrina and Spokane

Hugh Hewitt suggests that we "adopt a parish" that has been affected by Katrina. I appreciate the sentiment. As a Catholic, however, I am only going to contribute to national religious charities. Why? Because of the decision recently reached by the judge supervising the Diocese of Spokane's bankruptcy case (Spokane declared bankruptcy because the diocese can't pay all the legal claims arising out of the priest abuse scandal.) Here's a news summary of the holding:

U.S. Bankruptcy Judge Patricia Williams of Spokane ruled Aug. 26 that civil property laws prevail in a bankruptcy proceeding despite any internal church laws that might bar a bishop from full control over parish assets. Diocesan lawyers had argued that in church law parish assets belong to the parish itself, not to its pastor or to the bishop. They said that, while the diocesan bishop was nominally the owner in civil law, even in civil law he only held those properties in trust for the parishes themselves. ...

Last December the Spokane Diocese filed for bankruptcy protection under Chapter 11 of the federal Bankruptcy Act, citing $11.1 million in assets and $83.1 million in liabilities, mostly from people seeking recompense for childhood sexual abuse by priests. It did not include parishes, parish schools or cemeteries in its list of assets.

Victims' lawyers claimed that the bishop had more than $80 million in assets under his control if he included the diocese's 82 parishes, 16 diocesan and parochial schools, and various cemeteries and other properties that he claimed he held only in trust. {Ed: What exactly do the lawyers want to with the [expletive deleted] cemeteries? Dig up the bodies and sell the land?}

And here's the real kicker:

Stockton attorney Larry Drivon, who represents hundreds of Californians suing the Catholic Church over childhood sexual abuse, said the Spokane ruling sends a warning to other Catholic dioceses considering bankruptcy to avoid payment of multimillion-dollar jury verdicts in sex-abuse cases. "They are not going to get anywhere in bankruptcy," he said. "This is exactly what we've been saying since Day One, that all of the Catholic assets within the diocese are available to pay these plaintiffs," Drivon said.

Drivon said the ruling also meant that money held in restricted funds within dioceses for special projects, such as construction of a cathedral, can be used to pay judgments in sex-abuse cases, contradicting what some church officials have told donors. "They have told their parishioners, 'Don't worry about the funds that you gave us for the cathedral, because these funds are separate and cannot be used for lawsuits.' Well, they can," Drivon said.

In other words, giving money to a specific parish these days for a specific purpose like Katrina relief is no longer safe from the claims of sex abuse litigants. I firmly believe that the Church needs to compensate the victims of priestly sex abuse, but I also don't want money I give to hurricane relief being diverted to other purposes.

Increase in Poverty Rate

The Census Bureau released figures yesterday showing that the number of Americans living in poverty last year increased by 1.1 million to 37 million.  Of the 37 million, almost one third are children.  (The figures also show that the number of Americans without health insurance increased to 45.8 million.)

In Sollicitudo rei socialis, Pope John Paul II called the option for the poor "a special form of primacy in the exercise of Christian charity, to which the whole tradition of the Church bears witness....[T]his love of preference for the poor, and the decisions which it inspires in us, cannot but embrace the immense multitudes of the hungry, the needy, the homeless, those without medical care and, above all, those without hope of a better future.  It is impossible not to take into account the existence of these realities.  To ignore them would mean becoming like the 'rich man' who pretended not to know the beggar Lazarus lying at his gates."  He goes one to say that both our daily life and "our decisions in the political and economic fields must be marked by these realities." (par. 42)

Seems like we have a little work to do here.

New Orleans

I suppose this is a bit off topic, but I hope all MOJ readers will pray for, and financially support, those who are suffering because of the Katrina disaster.  If, as it increasingly appears, New Orleans as we have known it is gone, it is a tragedy for residents and their friends and loved ones, but also for the country, and for the Church.  New Orleans was -- though I persist in hoping it will remain -- a different place, in a culture, geography, and economy that (it seems to me) has been becoming more and more the same (not bad, just the same).  New Orleans is a reminder -- particularly if one scraped beneath the Bourbon Street stuff -- that not everything is Underground Atlanta, Universal Studios, the new Times Square, Tison's Corner, or Pier 49.  Grime, moss, mold . . . God bless it.

Rick

Katrina Relief

Catholic Charities is raising money for Hurricane Katrina relief services

Roberts

The comments section of what started out as a light-hearted self-congratulatory post over at my personal blog has morphed into a serious discussion of the moral obligations of Catholic judges, with direct reference to SCOTUS nominee John Roberts. With Roberts' confirmation hearings looming, consider this an invitation for any MOJ bloggers (or readers) to come over and weigh in with comments.

Strang on Originalism and Precedent

This article, by Ave Maria's Prof. Lee Strang, should be of interest to those who have been following our discussion about Catholic judges, stare decisis, and cooperation with evil.  Here is the abstract for "An Originalist Theory of Precedent."

There is substantial scholarly disagreement on whether and in what manner prior decisions of the United States Supreme Court interpreting the Constitution bind it later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an (in their view, often decisive) argument against originalism.

In this Article I will offer a theory of constitutional precedent within an originalist framework. I will argue that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal goal of effectively pursuing the common good.

I will initially describe the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, I will explain what I mean by a theory of precedent. Second, I will briefly discuss the debate over the proper interpretative methodology of the Constitution. Third, I will show how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, I will review attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.

I will then lay out my theory of originalist precedent. First, I will describe the originalist interpretative methodology I am assuming for purposes of this Article. Central to the originalist methodology that I describe are the concepts of the common good and authority, and the process of making natural law effective in society. Then, I will argue that courts should not overrule nonoriginalist constitutional precedent only when overruling the precedent would gravely harm society's pursuit of the common good.

Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent judges will be relatively unconstrained and will have to make those determinations by looking to what the common good of society requires. As a result, I will briefly discuss a theory of judicial virtue to account for how judges should exercise this discretion.

Rick

Do Catholic Still Care About Labor?

With Labor Day one week away, the current issue of America includes an article entitled, "Do Catholics Still Care About Labor?  The article concludes they do, giving examples of some grass roots efforts to support workers.  I'm not sure that is enough to give a full answer to the question and it is a question worth asking. 

Catholic Social Teaching on labor is quite clear and strong, yet the teaching gets remarkably little emphasis.  In 1891 Pope Leo XII wrote in Rerum Novarum that "some opportune remedy... [must] be found quickly for the misery and wretchedness pressing so justly on the majority of the working class."  In 2005, companies in the U.S. still engage in violation of child labor laws and actively oppose unionization efforts, most new jobs being created are paying poverty level wages, and day laborers and undocumented workers are abused in a myriad of ways (just to provide a few examples in the U.S. - not even reaching the issue of workers in foreign countries).  Shouldn't we be hearing a louder Catholic outcry and demand that "some opportune remedy...be found quickly"?

Public Schools, Private Schools, and Moral Capital

I've just finished reading Amy Gutmann's Democratic Education, and while I find myself resisting several of the book's assertions, I've had trouble articulating a response to one of the passages.  Here it is:

Many public schools in the mind-nineteenth century were, to say the least, disrespectful of Catholicism.  Catholic children who attended these schools were often humiliated, sometimes whipped for refusing to read the King James version of the Bible.  Imagine that instead of becoming more respectful, public schools had been abolished, and states had subsidized parents to send their children to the private school of their choice.  Protestant parents would have sent their children to Protestant schools, Catholic parents to Catholic schools.  The Protestant majority would have continued to educate their children to be disrespectful if not intolerant of Catholics.  The religious prejudices of Protestant parents would have been visited on their children, and the social, economic, and political effects of those prejudices would have persisted, probably with considerably less public protest, to this very day.  There may be little reason today for Catholic parents to worry that privatizing schools will reinstitutionalize bigotry against Catholics, at least in the short run.  But one reason that Catholics need not worry is that [a school system built on parental choice] today would be built on the moral capital created over almost a century by a public school system.

My questions for Rick, Tom, Patrick, Michael S., and others who have written or thought about the importance of Catholic schooling and/or school choice: Do you agree that, as public schools became more tolerant of minority views, they played an essential role in reducing tension and increasing understanding between Catholics and Protestants?  If so, would you still advocate for school choice if you were writing in the nineteenth century, or is your support for school choice premised, at least in part, on the availability of the "moral capital" created by public schooling?

Rob

Informal Groups and the Law

Even if you don't normally keep up on technology-and-law scholarship (and I don't), anyone interested in mediating structures, subsidiarity, civil society, etc. will want to check out Pittsburgh law prof Michael Madison's paper, "Social Software, Groups, and the Law."  Here is the abstract:

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading "social software," increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, of things, and of stories.

And here's an even more intriguing passage from the paper itself:

Law channels social organizations into prescribed forms, fictionalizing the entity for regulatory purposes.  Absent the prescribed form, law looks to the individual.  Informal social structures are messy and dynamic; formal legal structures are relatively neat, and static.  Part of my argument here is that something is lost in the translation.  There may be good which comes from informal groups, which may be lost when group activity is channeled into typical legal forms.

(HT: Solum)

Rob

Kmiec on Catholics, judges, and precedent

A long and very interesting interview with Pepperdine's Professor Doug Kmiec, "Catholic Judges, the U.S. Constitution, and Natural Law," is available at ZENIT (you might have to scroll down).  Note that Professor Kmiec kindly concludes his interview with a plug for Mirror of Justice!

Here is one exchange:

Q: Right now there are three, and there could be four, Catholics sitting on the Supreme Court. However, they often have diverging views on some important issues. Is there a Catholic way of interpreting the U.S. Constitution, or can there be legitimate disagreement about the meaning of the text?

Kmiec: The tools of constitutional interpretation are the text, history and structure of the American Constitution. Part of that history includes the Declaration of Independence and its reference to self-evident truths of creation, created equality and unalienable rights.

As Lincoln reflected, the Constitution was framed for the philosophy of the Declaration, not the other way around. It is to secure our unalienable rights that "governments are instituted." All those who would seek judicial office should sincerely appreciate the intrinsic value of the human person reflected in the Declaration.

Moreover, one would expect, and I do, that those who are truly sustained by the Catholic faith and a Catholic family, and perhaps educated in Catholic schools, would have a special appreciation by study of the natural law tradition and its direct contribution to the American order of these first principles.

As to divergence among believers, in law or anything else, that is part of the human condition. In truth, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy ­- the three Catholics presently on the Supreme Court -- have a statistically high level of agreement in matters of legal interpretation, though each has had different legal training and experience, and that, rather than their common faith, likely explains the variations among them.

Professor Kmiec very nicely identifies what was good, and what might have been off-base, in Bishop Skylstad's call not long ago for a Court that would rule in accord with certain USCCB-preferred policies:

Q: Recently, Bishop William Skylstad, president of the U.S. Conference of Catholic Bishops, sent a letter to President Bush calling for a Supreme Court justice that would rule in a number of ways consistent with the bishops' public policy agenda. What would be the jurisprudential consequences for a Catholic justice who heeded Bishop Skylstad's call?

Kmiec: Bishop Skylstad's letter was a direct and entirely appropriate expression of Catholic faith. The letter might be perceived as somewhat misunderstanding the intended role of the Supreme Court, but one can hardly fault the bishop for this since some members of Congress, themselves, wrongly think of judges as policy-makers.

As a matter of original understanding, nothing in the Constitution is at odds with any of the policies the bishop urges. For example, while the Constitution provides for capital punishment, there is nothing precluding the American people in their respective states to end or limit its application if the people come to be persuaded by the witness and prayer and instruction of Catholics -- and others -- in the public square that, as John Paul II taught in "The Gospel of Life," its application should be rare.

And, of particular relevance to our discussion about Roberts, precedent, and Roe, there's this:

Q: Can a Catholic judge in good conscience strike down laws restricting abortion that he or she believes are unconstitutional? What about applying unjust laws? What should a judge do in the case of a moral conflict?

Kmiec: As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law. Yet, repeatedly and circumspectly, the Church's teaching is directed at "elected officials" or those casting "a legislative vote."

. . . Nowhere, however, does the Church formally instruct judges to act outside the bounds of their judicial office to legislate from the bench. The Church exhibits great respect for the separation of powers, even as the justices themselves have been less than faithfully observant of this constitutional building-block.

Here, the Church is following in the instruction of St. Thomas Aquinas, who argued "that all should have some part in the government; for in this way peace is preserved among the people, and all are pleased with such a disposition of things and maintain it."

. . . So, while Church leaders are well within their rights as citizens to point out in public statement or amicus brief how they believe that a proper understanding of law does not support abortion on demand, a Catholic judge may be part of a judicial system that includes Roe.

In ruling on such matters, a judge does not become morally complicit in the underlying act or share in its intent. If the question is: Does John Roberts have a specific Catholic duty on the bench to restrain abortion? -- Justice Scalia has given the apt answer: "A judge ... bears no moral guilt for the laws society has failed to enact."

Rick

Religion and the New Urbanism

Here is an article, from the Chicago Tribune, about religion's inroads into the New Urbanism conversation.

Eric Jacobsen speaks passionately about things like sidewalks and storefronts. But he's not an architect or developer. He's a Presbyterian pastor.

As Jacobsen sees it, city planning has an important influence on religious experience. He is an advocate for New Urbanism, the architecture movement that calls for interdependence among residents, with neighborhoods where shops and homes co-exist, streets that are pedestrian-friendly and parks that are gathering places for residents.

New Urbanism has become a mantra for those interested in restoring urban centers and reconfiguring suburban sprawl. Its designs have sprouted from new towns like Seaside, Fla., to redevelopment in existing places like Gaithersburg, Md., or West Palm Beach, Fla. The Congress for the New Urbanism started small 12 years ago and now has more than 2,300 architects, developers, planners and urban designers.

Now Christian leaders are adopting the movement. They say the philosophy behind New Urbanism is a possible antidote to the isolation experienced by many churches and Christians. Across the country, influential Christians are thinking theologically about urban design and applying its principles to the church. They advocate for New Urbanist concepts because they force people to share with one another, dwell among their neighbors and allow for a healthy exchange of ideas.

This is, I think, a good thing.  And, it's good not just for the churches about which people like Jacobsen are concerned; it's also good for the New Urbanism.  Too often, the New Urbanists have proceeded as if religion did not exist.  Of course, Catholicism is home to a rich tradition of urbanism that -- maybe we can hope? -- the New Urbanists will learn to appreciate.

Rick

More church-property disputes

This article describes a "momentous" church-property ruling involving a dispute over homosexuality and property between an Episcopal church in Newport Beach, California and the Episcopal Diocese of Los Angeles.  Perhaps it is because the article appears in World magazine -- a publication that is, I believe, Evangelical in orientation -- that the piece appears quite sanguine about the developments it reports:  "California courts appear to be the most aggressive in applying the neutral-principles doctrine."  Apparently, the local church even filed an "an anti-SLAPP motion against the diocese.  In legal jargon, a SLAPP (Strategic Lawsuit Against Public Participation) is a suit aimed at intimidating and silencing a critic by making defense so expensive the critic abandons it."

Judge Velasquez agreed with St. James: The diocese had sued only after the parish rejected its pro-homosexual doctrinal positions and the leadership of Bishop J. Jon Bruno. (Bishop Bruno had voted for the consecration of a noncelibate homosexual as bishop and endorsed blessings for same-sex couples.) The judge reasoned this made the case also a free-speech matter for the purposes of a SLAPP ruling.

Even if one is inclined -- as I probably am -- to sympathize with the dissenting, "conservative" parish, it seems to me that the law is reaching awfully far (and many believers are inviting the law awfully far) into internal church matters.

Rick

St. Maximos' Hut

Law prof Andy Morriss and several others have started a group-blog, "St. Maximos' Hut" (check it out to learn about the name!) dedicated to the conflicts and connections between religion and economics.  It looks to be very interesting.  This post, "Orthogonality", serves up an interesting taste of what's to come . . .

Rick

Neutrality and Free Exercise

My new colleague, Nelson Tebbe, has recently published a piece in the Hastings Law Journal that will be of interest to MOJ readers.  The article, "Free Exercise and the Problem of Symmetry" (56 Hastings L.J. 699 (2005), parts company with the critics of the Supreme Court's decision in Employment Division v. Smith whose claim is that that Court should have adopted a principle of substantive neutrality rather than one of formal neutrality.  Because of tensions with what he terms the problem of symmetry, Tebbe argues that "neutrality of any stripe will insufficiently protect free exercise."  He thus proposes the addition of a liberty principle for evaluating free exericse claims, finding a liberty principle both easier to defend and one that "better captures the affirmative value of free exercise" and avoids the symmetry problem.  The article elaborates on his "substantive liberty" principle and defends it against anticipated objections, including the claim that the principle violates the Establishment Clause.

More on Stare Decisis and Cooperation with Evil

On the blog Democracy of the Dead, Justin Dziowgo posts about our discussion whether affirming Roe and Casey as a matter of stare decisis -- say, because the societal reliance on abortion rights has become so great -- would be "culpable cooperation with evil" and thus create a conflict with fundamentals of Catholic faith.

Would such cooperation make him culpable? I would argue that it depends upon the obligations of a judge to the stare decisis principle. If a judge has a moral obligation to that principle due to natural law or civil law, and if it is clear that stare decisis must be applied in this particular case, then it seems that Roberts would not be culpable, for one must still do what they are morally obliged to do even if the consequences may be bad. Any argument that Roberts would still be culpable in these conditions would then seem to rest on a false idea about the power of a Supreme Court justice.

If one argues that he’s morally obligated to follow stare decisis and at the same time is morally bound to overturn Roe even when stare decisis calls for it to be maintained, then they are effectively arguing that he should act beyond his capacity to overturn it. Reductio ad absurdum would suggest that this could cause many problems. Suppose that in addition to stare decisis, there is a legal principle found in the Constitution that upholds the wrongly decided Roe case. Should Roberts override that principle as well? If so, when should he stop? And what if Roberts decides that it is really our form of government that ultimately allows the Roe case? Should he then begin a revolution against the government? In other words, I think the culpability of Roberts has to be measured by the limits of his office.

One could argue that this is false because one is not obligated to follow the evil orders of a superior, and in this case the superior is stare decisis. I think, however, that Roberts would not be following an evil order, for stare decisis is not evil. It is a good principle – presumably – that is allowing an evil to happen, just as doing many other good things allow evils to happen. An example is that my following the good principle of respecting human life keeps me from killing abortionists even though I know that their existence permits other evils.

A few quick responses -- very abbreviated because of the press of other commitments.  First, I think that give more credence than Mr. Dziowgo does to the existence of conflicts between prima facie moral duties.  Second, as I said before, I don't think that a justice who votes to uphold Roe and Casey merely "allow[s abortion] to happen," as when one refrains from interfering with an abortionist (or, to take another example, when a judge refrains from blocking a death sentence, the ground that the death penalty is constitutionally permissible).  The justice actually blocks a legislative effort to stop abortion; the analogy is not to refraining from interfering with an abortionist, but to stepping in to block someone else from doing so.

Mr. Dziowgo also argues that "the Casey decision is slightly different because it makes arguments for why Roe was right and why the right to abortion must be maintained."  This is a distinction that, as I said before, I don't see.  If anything, it seems more justifiable to adhere to a constitutional decision whose result runs against religious faith because the decision is a correct interpretation of the Constitution than because the decision, though an incorrect interpretation, should be followed as stare decisis.

Finally, even if Mr. Dziowgo's arguments show that following stare decisis is ultimately justifiable and therefore creates no conflict with Catholic faith in this case, I don't think that this conclusion is so obvious -- note it takes several paragraphs to reach the conclusion -- that one should simply assume that Roberts would not feel the conflict.  Therefore, it still seems to me too simple to say that in no way would Roberts' religious beliefs ever be likely to have any bearing on the issue. 

Tom B.

Vincentian Chair of Social Justice Conference

On October 22, the St. John's University Vincentian Center for Church and Society will hold its biennial Vincentian Chair of Social Justice conference.  The biennial conferences convene academics, practitioners, church leaders and policy makers to explore perspectives on poverty in an effort to move toward systemic solutions.  In this 40th anniversary year of Gaudium et spes, the theological virtue of hope is celebrated. 

For additional information concerning speakers, sessions and registration information, see the conference web page here.

Commitments to Precedent and to Faith

I appreciate Rick's response to my suggestion that Roberts might well face a conflict between his judgment about Roe/Casey as stare decisis versus his Catholic conscience.  Like Rick, I'm not equipped to apply "cooperation with evil" principles to this particular situation (moral theologians out there, write and advise us!).  But my initial reaction is to disagree with his argument that there's no reason to question Roberts on Catholicism because "I [Rick] do not see how it would, or even could, 'conflict[] with the fundamentals of [his] faith' for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil."

Didn't Justice Kennedy do precisely that in Casey -- decline for stare decisis reasons to overrule the basic abortion right of Roe -- and hasn't he been excoriated for doing so as a Catholic?  I strongly expect (although I don't have specific quotes to support it) that many of Kennedy's vocal critics think very much that he committed culpable cooperation with evil by upholding the basic holding of Roe.

Or is the Kennedy situation different because the Casey joint opinion also included some passages defnding Roe on its merits?  That seems a very slender reed for distinguishing the two instances, since:  (1) The stare decisis reasoning was clearly very important to the joint opinion's conclusion (the opinion several times referred to the author's potential "doubts" about the original correctness of Roe).  (2) Whether the ruling rests on stare decisis or on the merits, in either case the justice votes to stand in the way of a law that seeks to prevent a very great evil (we're taking the great wrongness of abortion as a given, of course).  Can stare decisis really be sufficient to allow the justuce to take such an active step preserving and defending a great injustice?  Indeed, I would have thought that if there were any difference, stare decisis would be a less powerful justification for ruling to protect an evil than is the justification that the Constitution on the merits protects the evil.  So I don't think it's implausible at all to think that a justice's commitment to stare decisis could be overridden by (and therefore is in potential conflict with) the fundamentals of the faith, especially on a matter such as this.

Again, I'm not saying that this stare-decisis possibility is enough to justify grilling Roberts about his Catholic conscience concerning abortion.  (As I said before, there are many reasons to presume against such religion-related questions.)  But I still think the issue is more complicated than Rick concludes.

Tom B.

Reply to Berg re: Roberts

I appreciate Tom's reply to my post on Judge Roberts, religion, and Governor Cuomo.  Tom highlights what he sees as two "complications" with my view, which Tom describes in this way:  "Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure").

I agree with Tom that the question of "stare decisis" will be at the heart of the Roberts hearings, but I don't think I agree that the stare-decisis problem complicates or undermines my claim that Gov. Cuomo's op-ed, calling for Senators to ask Roberts about the tension between the Constitution and Catholicism, is misguided.  I understand, of course, that the fact Roe was wrongly decided does not necessarily translate into the conclusion that it will or should be overruled.  (More specifically, I understand that Roberts could conclude that Roe was wrongly decided -- and, it strkes me that he is too clear-thinking to believe otherwise -- yet refrain, for stare decisis reasons, from voting to overrule it.)  Still, the question whether Roberts would move from a judgment about Roe's wrongness to a decision to overrule it -- which is, I admit, a subject that Senators are perfectly within their rights to wonder about -- is not a question that, in my view, is remotely likely to be answered through inquiries into Roberts's religious beliefs.  I do not believe the new question that Tom poses -- "If you reach [the] conclusion [that Roe, although wrong, should not be overturned] as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?" -- is materially different from the questions that Gov. Cuomo seems to want and that I think are misconceived.  I do not see how it would, or even could, "conflict[] with the fundamentals of [his] faith" for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil, and so I don't think the question is appropriate.  (Of course, if the better trained moral philosophers out there tell me that relying on stare decisis to not overrule Roe v. Wade would constitute culpable cooperation with evil, then I'll have to revise my view.)

Rick

UPDATE:   A friend writes with this comment: 

Recently, on the Mirror of Justice blog, you wrote that you didn't see how it would, or even could, conflict with the fundamentals of a Justice's faith for him to decline to overrule a wrongly decided case, even one that has contributed to great evil. It seems to me that, given the nature of stare decisis, there could be such a conflict. The Supreme Court has repeatedly stated, and the legal community seems to agree, that stare decisis is a prudential doctrine, rather than one required by the Constitution or the nature of the judicial function. When the Court declines to overrule a wrongly decided case, it does so not on the grounds that there is anything wrong in principle with overruling prior precedent, but because there are certain prudential concerns that favor upholding the decision. So, for example, in Casey the Court cited the need for stability in the law, the damage that "overruling under fire" would have on the institutional integrity of th e Court, the fact that people had come to rely on the availability of abortion when planning their futures, etc., as reasons not to revisit and possibly overturn the "essential holding of Roe." The problem I would see for a Catholic Justice is that, in the case of something like abortion, any such prudential concerns would be outweighed by the massive injustice and evil that comes from legalized abortion. So he (or she) would not simply be able to say "stare decisis - my hands are tied" as a way of getting out of the difficulty.

Another comment on the Compendium

Kevin Lee asked me to post his reaction to Alison Sulentic's reaction to my question about the use of the Compenium as a teaching tool.  (Sorry for the delay in posting - I just returned from picking up my daughter from summer camp.)  Kevin does not share Alison's sense that the Compendium overemphasizes the writings of Pope John Paul II, given the length of his tenure during a time of "radical development" in the Church's social teaching.  He observes:

"It may be that students will have difficulty grasping the accomplishments of this soon-to-be-canonized pope, but I think rather than presenting his thought against other less authoritative voices, it might be more productive to attempt to locate his thought in the fullness of the Catholic intellectual heritage by clearly articulating his reading of that tradition with as much hermeneutical good will as can be brought to the task. This is a very demanding task, indeed, because he was a complex thinker and the text tradition of his work is in a nascent stage. But, I would encourage all of us to read deeply of John Paul II’s thought in order to make a cogent critique of it, rather than to risk allowing the students to dismiss it without fully appreciating what it has to offer.

"I understand all too well the problems involved in trying to come to terms with the complexity of John Paul’s thought. I’ve been working for several years on my doctorial dissertation, which attempts to unfold the meaning of his conception of the human person for the Rule of Law. What I have found is that to understand his thought it is vital to get into the primary sources from his early life as a scholar of philosophical ethics. Here you can find a number of helpful works. In addition to the standard ones, Acting Person, Love and Responsibility, etc., what I have found most important for understanding his assessment of moral philosophy in the Catholic intellectual heritage is his collection of essays known as the “Lublin Lectures.” It is here that he takes up Aquinas, Kant, Scheler and several others in a robust discussion of the nature of the moral good and justice in the context of a magnificent discussion of the phenomenology of moral action. This is heady stuff, but well worth reading. That’s the rub. For all its value, there is no reliable and authoritative English translation of the Lublin Lectures on the market today. If you read German, they are available in Lubliner Vorlesungen, ed. Juliusz Stroynowki (Stuttgart-Degerloch: Seewald Verlag, 1981).  This translation seems very good, but my German is very bad. Kenneth Schmitz relied on this translation in his very useful book, At the Center of the Human Drama (CUA Press).  This text, along with Rocco Buttiglione’s Karol Wojtyla, The Thought of the Man Who Because John Paul II, are excellent background sources on John Paul’s thought and its relation to twentieth century Neo-Scholastic thought and phenomenological ethics. I think, given the relative innocence of most students of the Catholic intellectual tradition in general and Catholic moral philosophy, let alone secular moral philosophy, that picking and choosing among texts is quite difficult. Unfortunately, there is no single work on the market today with a sustained analysis of his Lublin Lectures, although I plan to have one out soon."

I don't disagree with the importance of John Paul II to the development of Catholic Social Thought (and did not read Alison as doing so either).  That does not mean, however, that having students read other sources in addition to his teachings risks the students dismissing his thought without fully appreciating it.  Certainly it can't be said that no other voices are worthwhile and important to the development of the Church's thought.  It is this that leads Alison (and several others whom I have read) to hesitate about overreliance on the Compendium.

More on Roberts and Conflicts

I think that Rick is probably right when he argues that the likelihood of a conflict between Roberts' religious views on abortion and his interpretation of what the Constitution properly requires is not great enough to justify sensitive inquiries into Robert's Catholicism (inquiries that should be at least somewhat disfavored because they are likely to stir up emotions and prejudices concerning other issues, etc.).

I do think, though, that it's a little more complicated than Rick's argument portrays it.  Here's his money quote:

The premise for Governor Cuomo's "I can't impose my personal religious beliefs on the Constitution" is, and has been for two decades, that the Constitution actually requires an near-unlimited abortion license.  But, it doesn't.  If we were talking about a conflict between religious belief and, say, the requirement that Representatives have attained the age of 25 years -- if we wondered whether Roberts's religion would compel him to require the seating of a 16 year old -- then the potential for that conflict might be worth exploring.  But we are not.

I.e., Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure").  I certainly agree with this judgment about the wrongness of Roe.  But two complications.

First, the issue of stare decisis.  There is some possibility that in applying his best understanding of the legal considerations concerning overruling of precedents, Roberts might conclude that there is a case for preserving Roe on stare decisis grounds, even if it was originally wrong.  A senator  might plausibly ask, "If you reach that conclusion as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?"  This possibility -- however unlikely  -- fits with my general sense that the extent and contours of Roberts' commitment to stare decisis is the most crucial single issue in the entire upcoming hearings.  (And it's a wild-card issue because theories of stare decisis are way underdeveloped compared with theories of constitutional interpretation on the merits.)  Perhaps the answer in return is, "Roe is so wrong that Roberts is not going to be drawn to upholding it based on stare decisis considerations."  That may be -- again, I certainly don't want to minimize the constitutional wrongness of Roe -- but it nevertheless seems to me that this is more complex than the argument as Rick puts it.

More broadly, the question put to the nominee is not precisely, "If your religious faith conflicts with what the Constitution requires, what will you do?" but rather, "If your religious faith conflicts with your best understanding of what the Constitution requires, what will you do?"  What the senators want (and should want) to know is that the nominee will follow his/her best understanding of constitutional method to its logical conclusion, notwithstanding any distortion or misdirection from extra-constitutional sources.  So the question is not so much whether Roe is right constitutionally (and a nominee's faith might misdirect him or her to the opposite result).  The question is somewhat more subjective:  whether the nominee conscientiously, after engaging in his best attempt to interpret the Constitution, would conclude it's right (but then be so misdirected).  Thus my reaction is that Rick, in simply pointing out the constitutional wrongness of Roe, is not quite asking the right question; you can't smuggle in your own evaluation of the merits of the issue (however correct that evaluation is).  Rather, since the question is whether the (prospective) justice's judgment would be distorted or misdirected, the question is what would Roberts conclude about Roe as a matter of constitutional interpretation.  (Again, the answer may be -- and this seems probably right -- that Roberts would himself think Roe wrong, as an original matter, for the same (good) reasons that Rick offers.  But again, although this may not change the ultimate conclusion, it does make the argument more complicated, it seems to me.)

Am I wrong about this, Rick or others?

Tom B.

 

Mike Schutt's additions to the booklist

Mike Schutt has these recomendations:

1. Augustine, City of God

2. A.P. D'entreves, Natural Law

3. O'Donovan and O'Donovan, From Irenaeus to Grotius: A Sourcebook on
Christian Political Thought

I'll also take this opportunity to remind our readers of his fine bibliography, Law and the Biblical Traditon:  Select Bibliography for Christian Law Students, and another bibliography, The Catholic Dimensions of Legal Study:  The Catholic University Law School Annotated Bibliography.

Interesting church-property case

This news story describes a recent ruling by a federal bankruptcy judge that -- contrary to the arguments of the Diocese of Spokane -- the Diocese owns the parishes and schools in the diocese, and that these properties are therefore available to the Diocese's creditors, including sex-abuse victims.  The Diocese had "argued that the properties belong to individual parishes, not to the diocese, and therefore were not subject to liquidation."

In her ruling, [Judge] Williams tackled thorny church-state issues that are being closely watched nationwide. Among the most important: whether civil law would trump church law on the issue of who owns parish property.

Under Catholic Church law, individual parishes own their property. And while the bishop holds legal title to parish property and schools, the church considers such property to be held in trust for the benefit of parishioners. The diocese argued that any decision to the contrary would violate the church's First Amendment rights in that the state essentially would be forcing the bishop to violate church law.

In her ruling, . . . the bankruptcy judge said [Bishop] Skylstad had voluntarily entered into bankruptcy court. She said that though the dispute did involve a church, the case was not an internal church dispute and therefore civil law took precedence.

Further, she said it was not a violation of the First Amendment to apply federal bankruptcy law or state law to determine what property the diocese owns.

I tend to be a church-autonomy hawk.  Still, this ruling -- as described in the article, anyway -- seems right.  I'm not an expert in this area, but I'm inclined to think that, having cast the finances -- and perhaps the future -- of the Diocese before the bankruptcy court, Bishop Skylstad can hardly complain that the bankruptcy court is doing what bankruptcy courts do.  (Thanks to Amy Welborn).

Do others disagree?

Rick

Update:  Professor Friedman reports, at "Religion Clause", on another interesting church-autonomy / no-entanglement case, involving New York's divorce law and Jewish marriage law, and on yet another one, involving judicial resolution of collective-bargaining disputes involving Catholic schools.

Cuomo on Roberts and Religion

Here is Mario Cuomo's L.A. Times op-ed, "Put a little faith in Roberts:  Go ahead, ask him about his religious beliefs.  As long as he puts the Constitution first, there should be no problem." 

Well, not to be too flip, but there actually would be a problem -- wouldn't there be? -- if Roberts "put the Constitution first," ahead of his "religious beliefs".  Cuomo's real point, of course, is this:

The question about Roberts' beliefs in effect asks whether he would impose his own personal test, religious or otherwise, on his reading of the Constitution: Would he say he might ignore his oath to support the Constitution if faced with an overriding personal belief?

Now, as Gov. Cuomo knows full well, there is zero chance that Judge Roberts will say -- or that Judge Roberts believes -- he should "impose his own personal [religious] test . . . on his reading of the Constitution."  Presumably Gov. Cuomo -- as much as he frustrates me, I have no doubt that he is a decent man -- strongly believes that being a public official does not excuse acting wrongly (lying, cheating, stealing, etc.).  So, why does Cuomo think the question should be asked?  Payback, apparently.  Here is Cuomo's opening:

FOR MORE THAN 20 years, some conservative clerics and politicians have bitterly criticized Catholic public officials for refusing to use their office to "correct" the law of the land. They demand that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder and work to overturn Roe vs. Wade and other laws that make abortion legal.

Most of the targeted officials have been Democrats such as Ted Kennedy, Gerry Ferraro and John Kerry. But now that Judge John G. Roberts Jr. — their candidate — has been nominated for the U.S. Supreme Court, the shoe is on the other political foot. Conservatives are outraged that another Catholic public official might be considered deserving of the same criticism. They demand that Roberts not be asked about personal beliefs, including religious ones, because it would amount to a "religious test" prohibited by the Constitution.

So, Cuomo -- like E.J. Dionne, in his own recent editorial piece -- contends that consistency somehow requires "conservative" Catholics not to object to questioning about Roberts's religion, becuase they have (he says) "bitterly criticized Catholic public officials for refusing to use their office to 'correct' the law of the land" and have "demand[ed] that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder[.]"  Cuomo wants Roberts to be asked about religion, because he thinks it unfair that he (and Senator Kerry, and Mayor Rudy G., and Rep. Ferraro, etc.) were challenged by co-religionists.

I imagine it is comforting for Gov. Cuomo to imagine that he and Judge Roberts are similarly situated, and that his own support for abortion rights (and his opposition even to regulations of abortion that might be permissible under Roe and Casey) is not meaningfully distinguishable from, say, Justice Roberts's decision to vote in accord with the fact (and it is a fact) that the Constitution permits the death penalty, notwithstanding its immorality.

But the complaint of "conservatives" about politicians like Cuomo has not been -- at least, in my view, it should not have been -- that these politicians have not "ma[d]e political decisions reflecting their religious belief that abortion is tantamount to murder[.]"  It has been that (a) they are making political decisions that do not provide the protection to unborn children that justice -- not "religious belief[]" -- requires and (b) that they have, for political expediency, embraced a reading of the Constitution that is mistaken.  Roe v. Wade was wrongly decided, not because it conflicts with Catholic teaching, but because it cannot be squared with the Constitution's text, history, and structure.

It is also sad to hear Gov. Cuomo characterizing Catholics' opposition to abortion as reflecting nothing more than their "personal" "religious beliefs."  After all, the Catholic claim is not that abortion's wrong-ness is revealed, or a mystery of the Faith.  The Catholic claim that abortion is wrong -- which Gov. Cuomo refuses to support politically -- is not different from the Catholic claim that race discrimination is wrong.  These are moral claims, yes -- and maybe all moral claims are, in a sense, "religious" -- but I assume Governor Cuomo has no objection to political actors trying to use their office to bring about a more just, moral society (e.g., the Civil Rights Act, the Social Security Act, etc.).  The premise for Governor Cuomo's "I can't impose my personal religious beliefs on the Constitution" is, and has been for two decades, that the Constitution actually requires an near-unlimited abortion license.  But, it doesn't.  If we were talking about a conflict between religious belief and, say, the requirement that Representatives have attained the age of 25 years -- if we wondered whether Roberts's religion would compel him to require the seating of a 16 year old -- then the potential for that conflict might be worth exploring.  But we are not.

Finally, the whole "would Justice Roberts put his oath to the Constitution above his faith?" question is misconceived, in my view.  In an honest world, Roberts would say, "What a strange question.  Of course the Faith comes first.  No, I certainly would not, in exercising my office, culpably cooperate with evil.  But there is nothing about my oath to uphold the Constitution, properly understood, in my capacity as an appellate judge, that is remotely likely to conflict with my moral obligations or religious commitments.  The same cannot be said for you, though, Senator.  After all, you are responsible for many of the laws that I am charged with interpreting."

Am I being unfair to Gov. Cuomo?  Am I letting Roberts off too easy?

Rick

Popular by Contract

Given our ongoing discussion of Pat Robertson's bizarre behavior this week, it bears noting that he appears to be even less of a spokesperson for evangelicals than we might think, as he is no longer dependent on attracting or keeping viewers with his espoused take on the world.  Christianity Today reports that:

Television and televangelism usually work through viewership. A show with few viewers won't stay on the air: On commercial television, no advertisers will buy space. In religious broadcasting, no donations will come in. But Robertson hasn't needed viewers for almost a decade. He has contractual obligations.

Many people have complained about the 700 Club to cable channel ABC Family, which airs it. But ABC Family has no choice. It is obligated under contract to air it. (The FCC may not be able to do anything, either)

In 1988, Robertson sold the Family Network to Fox for $1.9 billion.  Not bad, when you consider the channel was originally launched in 1977 through the donations of viewers who had been promised a Christian alternative to "secular" television, then taken public in 1992. CBN got $136 million from the sale. Robertson's Regent University got another $148 million. Robertson personally received $19 million, and the rest went to the Robertson Charitable Remainder Trust, which will fund CBN after Robertson and his wife die.

But the money wasn't the biggest part of the deal: Fox Family was required to air The 700 Club three times a day—and, if Fox sold the network, the obligation to air The 700 Club had to be part of that deal, too.

Cable World reported in 2001 that Robertson turned down hundreds of millions of dollars to renegotiate. Largely due to frustration that the 700 Club had disrupted its programming, Fox sold the network to the Walt Disney Company in 2001 for $3 billion and $2.3 billion in debt. Now ABC Family is obligated to air the program three times a day.

Hopefully reality will give folks pause before they attribute Robertson's "leadership" to the desires and inclinations of evangelicals (much less Christians more broadly).

Rob

Just War and the Leaderless State

Jonathan Watson offers another consideration to Steve's analysis of just war theory as applied to the assassination of Hugo Chavez:

although the just war analysis on assassination of Chavez looks at him as a confluence of two people (individual and leader), the proportionality idea needs an additional thought. My consideration is of him as a leader in a position of power. Whenever the leader of a country dies while in office, there is naturally a time of confusion while the power vacuum is filled. When the transition is planned for, such as is the case in the United States, where we have ready successors and electors to fill the gap if necessary, that time of confusion is short and tends toward the orderly. However, when the electoral are questionable, the leader holds power either through Machiavellian or other power politics, or succession is unplanned and unexpected, chaos could result.  In my (short) experience, such chaos often results in the deaths of innocents, as well as economic depression. This should be taken into account in any just war discussion on assassination.

Jonathan also has three more entries for our Catholic legal theory book list:

Christopher Lasch, The True and Only Heaven: Progress and Its Critics

Christopher Lasch, The Culture of Narcissism: American Life in an Age of Diminishing Expectations

Gratian, The Decretum, Treatise on Law

Rob

Congrats to Gerard Bradley

My colleague, Gerard Bradley -- who is, among other things, the director of Notre Dame's Natural Law Institute and co-editor (with John Finnis) of the American Journal of Jurisprudence -- is to be honored at this year's Annual Convention of the Fellowship of Catholic Scholars with the Cardinal Wright Award.  Gerry is a great friend, colleague, scholar, and citizen, and the award is richly deserved.

Rick

Puritan Revolution and the Law of Contracts

I just received a copy of Professor Scott Pryor and Glenn Hoshauer's article, Puritan Revolution and the Law of Contracts, published as part of a symposium on the 150th anniversary of Hadley v. Baxendale, 11 Texas Wesleyan Law Review 291 (2005). 

I haven't yet read the article but thought I would share with you part of the abstract:  "Most legal historians have ignored the impact of the Protestant Reformation and the rise of Puritianism on the development of the common law. ... The Authors conclude that Puritan theology was irrelevant to assumpit and consideration ... [T]he Puritan emphasis on discipline - personal, social, and ecclesiastical - [however] represents an independent source of inluence on the development of the common law of contracts.  The disciplined life grew in cultural significance with the Reformation and the subsequent process of confessionalization. ..."

Another book for the list

OU law grad and self-described member of the "Rick Garnett fan club," Jason Reese, suggests reading Joseph de Maistre, especially On Sovereignty.

Robertson, Chavez, and Just War Theory

I hasten to acknowledge at the outset that the only claim I have to expertise on the international law of the use of force and/or Catholic just war theory is two years of law school service on the Virginia Journal of International Law and having had one of the leading experts on that field as law school roommate and best man. Hence, I may be all wet on the following (although I tried to avoid that by being as inconclusive as possible!). But I offer it up as a start to turning the discussion from the question of whether Robertson is a crackpot to the merits of the underlying proposal.

There is an interesting discussion in the comment thread to a post on my personal criticizing Pat Robertson's comments about Hugo Chavez in which some folks are debating the Christian morality of war versus assassination. I've directed those folks to Marvin Olasky's thoughtful op-ed on the subject, but I wanted to flag it here as raising issues of Catholic just war theory.

Olasky opines:

The televangelist should have remembered Spiderman's message that "with great power comes great responsibility." By his blurting, Robertson aided Venezuelan autocrats such as Vice President Jose Vicente Rangel, who sarcastically said that assassination advocacy was "very Christian" and went on to argue that "religious fundamentalism is one of the great problems facing humanity." ...

... it's hard to see either general or specific biblical warrant for his fatwa. In general, as Paul wrote to Timothy, Christians are to pray "for all people, for kings and all who are in high positions."

Hugo Chavez is an evil tyrant, but so were many Roman emperors -- and Paul told Romans to "bless those who persecute you. ... Repay no one evil for evil, but give thought to do what is honorable in the sight of all." Last time I looked, "assassin" was not on the general list of honorable callings. Wartime is different, but last time I looked, we weren't at war with Venezuela.

Applying Old Testament history to current politics is sometimes exegetically tricky, but the wartime assassinations in Judges 3 and 4 -- Jael hammering a tent peg into Sisera's brain, Ehud the left-handed man thrusting his sword into the fat belly of the king of Moab -- also do not provide warrant for taking out Hugo Chavez. Nor do any of Christ's words or deeds suggest a WWJA (Who Would Jesus Assassinate?) list.

... God is the God of history. He raises up leaders and strikes them down. The Christian goal is to follow biblical principles, including "just war" ones, and not to create new orders. Christians who are careless bring dishonor to God's name by making many believe there is no difference between the pre-eminent religion of peace and the many religions of violence.

Olasky's comments suggest that the right inquiry would be to ask whether just war theory justifies assassinations. As Catholics, of course, I assume we would all agree with that, albeit focusing specifically on the Augustinian position.

First, here's an analysis arguing that assassination of political leaders during wartime is not inconsistent  with (secular) just war theory.

... what if the leaders are removed from the area of hostilities? Are they fair game? International law says they are. Therefore, the idea of assassination being morally wrong loses all meaning during war because the political leaders are legitimate targets. The moral equivalency of the "assassin" is the same as that of the coalition soldier fighting in the desert. It is the dysfunctional agreement during war: both sides try to kill the other side's forces, including the leaders.

I assume from Olasky's apparently careful phrasing that he would agree. On the other hand, however, here is a source positing that some will question that claim:

Political leaders such as Saddam Hussein or Fidel Castro, some have argued,