Mirror of Justice

"Justice Talking" event in Philadelphia

On July 10, the National Constitution Center in Philadelphia is hosting an event, "Highlights of the Supreme Court Term: How Has the New Conservative Majority Affected the Court?," at 5:00 p.m.  Among other things, the event involves a discussion about the Term among Jan Crawford Greenburg, Prof. Geoff Stone, and me.  For more information, click here.

I'm going to go out on a limb, and predict friendly-but-spirited disagreement about Carhart and Catholic Justices.

Feminization of the Church

John Allen 's latest column discussesthe "feminization of the Church", evidenced by statistics showing the overwhelming predominance of women in the growing ranks of  the lay ecclesial ministry that is assuming a greater & greater role in parish life.  He discusses the general discomfort with this trend, based on fears that too much "feminization" of the Church makes it less attractive to men.  He also discusses the bind the Church finds itself in that keeps it from working too hard to attract more men to the lay ecclesial ministry to balance things out -- it doesn't want to siphon off men who might otherwise choose to become priests. 

On men's "alienation" from church, Allen cites some recent books: 

In that light, some recent writers have voiced concern that Christianity actually alienates men. David Murrow's Why Men Hate Going to Church (Nelson Books, 2004) and Leon J. Podles' The Church Impotent: The Feminization of Christianity (Spence, 1999), illustrate the point. Murrow is a Presbyterian and Podles a Catholic, but both have noticed something similar about their respective denominations.

As Podles put it succinctly, "Women go to church, men go to football games."

I'd be interested from hearing from some of you men bloggers -- do you, in fact, feel your own churches are become "feminized" to the extent that the church experience is somehow alienating?

Allen ends with this interesting social justice challenge:

One final observation is worth making. If lay ecclesial ministry continues to be a largely female profession, church officials will want to pay close attention to its impact on salary levels.

A 2007 study by the AFL-CIO found that as job categories come to be dominated by women, the social prestige attached to the position declines, as do average wages. Employment categories in which women occupy 70 percent or more of the jobs, the study found, typically pay a third less than jobs that are similar in terms of the skills required and the nature of the work, but which are more likely to be held by men. The 25.6 million American women who work in these predominantly female jobs lose an average of $3,446 in income each per year, compared to holding a similar job which is less gender-defined. Since men typically earn more than women across the board, the four million men who work in predominately female occupations lose an average of $6,259 each per year. Together, this amounts to a whopping $114 billion loss for men and women in predominately female jobs in the United States.

For a church that supports a "just wage" in the broader society, making sure its own employees are not the object of gender-based discrimination in wages will be an on-going challenge.

Harry Potter Watch

With just a little more than three weeks until Book Seven ...  Alan Jacobs of Wheaton College offers his speculations on how it will all end.  I tend to agree with the author of this enjoyable book, John Granger, that the Harry Potter books are "the most charming and challenging Christian fiction for children since Lewis's Chronicles of Narnia."  The themes of the power of sacrificial love, the dangers of pride, the imperative of justice for the downtrodden, etc., are unmistakable though never heavy-handed.  Then there's this catalog of J.K. Rowling's own statements hinting at her Christian sensibility in the books.

Tom

The Culture of Life at DOJ

The latest testimony in the scandal concerning the firings of U.S. attorneys:

Paul K. Charlton, one of nine U.S. attorneys fired last year, told members of Congress yesterday that Attorney General Alberto R. Gonzales has been overzealous in ordering federal prosecutors to seek the death penalty, including in an Arizona murder case in which no body had been recovered. . . .

Charlton testified that he asked Justice officials to reconsider [their directive, against his recommendation, to seek the death penalty in the case] and had what he called a "memorable" conversation with Deputy Attorney General Paul J. McNulty. Michael J. Elston, then McNulty's chief of staff, called Charlton to relay that the deputy had spent "a significant amount of time on this issue with the attorney general, perhaps as much as five to 10 minutes," and that Gonzales had not changed his mind. Charlton said he then asked to speak directly with Gonzales and was denied.

Last August, D. Kyle Sampson, then Gonzales's chief of staff, sent Elston a dismissive e-mail about the episode that said: "In the 'you won't believe this category,' Paul Charlton would like a few minutes of the AG's time." The next month, Charlton's name appeared on a list of prosecutors who should be fired, which Sampson sent to the White House.

Tom

Situation at Ave Worsens

From AveWatch, an independant blog that chronicles what goes on at Ave Maria Law:

Dean Retaliates Against Whistleblower

Wed, Jun27, 2007 | School of Law | Permalink

It's more of the same strong-arm tactics.

On Monday, Ave Maria School of Law's Dean Bernard Dobranski attempted to censure and begin dismissal proceedings against tenured professor Steven Safranek, a founder of the school. Professor Safranek was involved with the faculty's complaint to the school's accreditor, has filed a complaint with law enforcement against Dobranski, and recently called for a renewal of the faculty's earlier "vote of no confidence" in governance.

Professor Safranek has worked in prestigious law firms, and clerked for Judge O'Scannlain on the US Court of Appeals for the Ninth Circuit. He has been admitted to practice before federal courts, including the US Supreme Court. He has numerous publications and is the Executive Director and Founder of The True Marriage Project, an extension of Safranek's interest in "helping to ensure the survival and growth of the institution most critical to society, the family".

Safranek is in good company. Recall that another Law School founder, Professor Emeritus Charles Rice of Notre Dame, was also terminated by Dobranski and booted from the Law School Board for questioning institutional governance and the legality of Monaghan's proposed Florida town concept. Ave Maria's history of firing whistleblowers is well-known.

More will be posted as this story develops. See Fumare for commentary here and here.    [endquote]

I encourage those disturbed by this to review earlier posts on AveWatch and Fumare to get a fuller sense of what has been going on.

-Mark

Rick Garnett in NYT on SCOTUS

Even in Agreement, Scalia Puts Roberts to Lash

By LINDA GREENHOUSE

Published: June 28, 2007

...

The conservative alliance at the court may be fractious but not fragile, strong enough to withstand Justice Scalia’s “tweaking and needling,” as Prof. Richard W. Garnett of Notre Dame Law School describes it.

“I look at it as a bit of a kabuki dance,” said Professor Garnett, who clerked for Chief Justice Rehnquist and is close to the court’s conservatives. He said he had no doubt that Justice Scalia had “huge respect for the new chief as a person and as a lawyer.”

What is visible now, he said, is the latest iteration of the endless struggle between the need for stability in the law and the desire to correct previous mistakes.

“Different people who call themselves conservatives resolve that tension in different ways,” Professor Garnett said, adding that Justice Scalia was “laying down markers, making sure the arguments are out there to be used in later cases.”

For the full article, click here.

Christ the King (of the Courthouse)

Let's put disputes over the propriety of displaying the Ten Commandments on government property to the side for a moment.  Anyone care to defend a courthouse portrait of Jesus?  If so, your services are needed in Slidell, Louisiana.  (HT: Religion Clause) Whatever creative Establishment Clause argument city officials can come up with, the rally last night did not help their cause:

[P]rotesters claimed that the portrait, which has been on display since the building opened in 1997, has never posed a problem and fairly represents the majority of residents in their largely Christian community. . . .

"You know, (the ACLU) is picking on a small community," said Randy Lee, 60, of Slidell. A self-described Christian fundamentalist, he gripped a hand-lettered sign that read "In God We Trust."

"Christians are seen as very passive. It's time for Christian people to stand up and say, 'Hey!'"

The rally lasted about an hour and was peppered with prayer and shouts of "Hallelujah!" and "Praise Jesus!" Toward the end of her speech, the Rev. Kathleen Javery-Bacon, of the Holy Ghost and Fire Revival Ministries in Slidell, raised her arm to the sky while chanting, "Jesus! Jesus! Jesus" as the crowd echoed her cry.

How should we respond to this data?

Robert Putnam (of Bowling Alone fame) is apparently nervous about releasing his new study because he fears it will be hijacked by anti-immigration folks.  I can see why:

Putnam’s study reveals that immigration and diversity not only reduce social capital between ethnic groups, but also within the groups themselves. Trust, even for members of one’s own race, is lower, altruism and community cooperation rarer, friendships fewer. The problem isn’t ethnic conflict or troubled racial relations, but withdrawal and isolation. Putnam writes: “In colloquial language, people living in ethnically diverse settings appear to ‘hunker down’—that is, to pull in like a turtle.”

In the 41 sites Putnam studied in the U.S., he found that the more diverse the neighborhood, the less residents trust neighbors. This proved true in communities large and small, from big cities like Los Angeles, Chicago, Houston, and Boston to tiny Yakima, Washington, rural South Dakota, and the mountains of West Virginia. In diverse San Francisco and Los Angeles, about 30 percent of people say that they trust neighbors a lot. In ethnically homogeneous communities in the Dakotas, the figure is 70 percent to 80 percent.

Diversity does not produce “bad race relations,” Putnam says. Rather, people in diverse communities tend “to withdraw even from close friends, to expect the worst from their community and its leaders, to volunteer less, give less to charity and work on community projects less often, to register to vote less, to agitate for social reform more, but have less faith that they can actually make a difference, and to huddle unhappily in front of the television.” Putnam adds a crushing footnote: his findings “may underestimate the real effect of diversity on social withdrawal.”

Neither age nor disparities of wealth explain this result. “Americans raised in the 1970s,” he writes, “seem fully as unnerved by diversity as those raised in the 1920s.” And the “hunkering down” occurred no matter whether the communities were relatively egalitarian or showed great differences in personal income. Even when communities are equally poor or rich, equally safe or crime-ridden, diversity correlates with less trust of neighbors, lower confidence in local politicians and news media, less charitable giving and volunteering, fewer close friends, and less happiness.

Rod Dreher comments: "I predict this research will have absolutely zero impact on the immigration debate. Why? Because Diversity is a dogmatic secular religion."

Condoms and the Media

Condom-maker Trojan is involved in a bit of a controversy regarding its new ad campaign "Evolve."  It seems that CBS and Fox have refused to air the commercial, even with late-night restrictions.  Fox explained that condom advertising is appropriate for health reasons, but not for pregnancy prevention.  One critic commented:

“It’s so hypocritical for any network in this culture to go all puritanical on the subject of condom use when their programming is so salacious,” said Mark Crispin Miller, a media critic who teaches at New York University. “I mean, let’s get real here. Fox and CBS and all of them are in the business of nonstop soft porn, but God forbid we should use a condom in the pursuit of sexual pleasure.”

Miller makes a good point, and I'm frankly surprised that networks still are drawing those lines.  Another interesting angle is Trojan's tag line: "Evolve.  Use a condom every time."  Yale law prof Ian Ayres comments:

If people followed this advice literally, it would mean the end of evolution as humans would stop procreating. Thanks mom and dad, for not using a condom everytime.

So what should the advice be?  Ayres suggests that we should:

stress a modern day equivalent to the three date rule. When I was going off to school, my parents emphasized to me that it was not wise to have sex with anyone until at least the third date. The modern day update for condom advice is to use a condom no matter what for the first three times you have sex with someone. The power behind the three condom rule is that most sexual pairings in the U.S. don't last 3 encounters. [His coauthor] Kathy Baker and I found that 46% of sexual pairings had sex only one time. From a public health perspective, if we could get people to use condoms the first three times they had sex with someone else we might cripple the power of many STDs.

Of course I won't be able to control what my kids do, but 'm hoping that my advice on sex will be a bit more robust than the "three date rule" or the suggestion that their evolution as a person turns on their willingness to "use a condom every time."

A new sort of inclusiveness

I sometimes get puzzled looks when I describe myself as an evangelical Catholic.  I feel a lot more confident about my own religious identity after reading the story of Rev. Ann Holmes Redding, an Episcopal priest in Seattle who is also a practicing Muslim.  (HT: Evangelical Outpost)  She explains:

"I am both Muslim and Christian, just like I'm both an American of African descent and a woman. I'm 100 percent both."

Redding doesn't feel she has to resolve all the contradictions. People within one religion can't even agree on all the details, she said. "So why would I spend time to try to reconcile all of Christian belief with all of Islam?

"At the most basic level, I understand the two religions to be compatible. That's all I need."

And when do the church's disciplinary proceedings get underway?  Well . . . maybe not right now:

Redding's bishop, the Rt. Rev. Vincent Warner, says he accepts Redding as an Episcopal priest and a Muslim, and that he finds the interfaith possibilities exciting.

Bush and Blair . . . Still Wrong on Iraq

If anyone still wonders whether Pope Benedict shares his predecessor's steadfast opposition to our invasion of Iraq, the answer appears to be a resounding yes.

More on Jesus of Nazareth and CLT

This follows my earlier posts on the questions raised by Joseph Ratzinger's book, Jesus of Nazareth, for the CLT project. As in my earlier posts, the question for me (us?) is what is my (our) response to the text.

p.118 - The "communion of will with God given by Jesus ... frees men and nations to discover what aspects of political and social order accord iwth this communion of will and so to work out their own juridical arrangements. ... The concrete political and social order is released from the directly sacred realm, from theocratic legislation, and is transferred to the freedom of man, whom Jesus has established in God's will and taught thereby to see the right and the good." 

On p. 119, he identifies the current social and political problem - "In our day, of course, freedom has been totally wrenched away from any godly perspective or from communion with Jesus.  Freedom for universality and so for the legitimate secularity of the state has been transformed into an absolute secularism, for which forgetfulness of God and exclusive concern with success seem to have become guiding principles."  In response, he proposes that "for the believing Christian ... the search for God's will in communion with Jesus is above all a signpost for his reason, without which it is always in danger of being dazzled and blinded."

More later...

Special Olympics vs. Plastic Surgery

I think most of us would agree that equal access to health care is a pressing social justice issue (e.g., Lisa Sowle Cahill's Theological Bioethics).  I had an experience of severe cognitive dissonance this past weekend that raised some questions about the allocation of our nation's health care resources. 

I spent four hours Saturday afternoon at my son's State Special Olympics gymnastics meet.  I was particularly captivated by many of the young women athletes.  Various forms of mental retardation are associated with low muscle tone and various metabolic conditions that can lead to body shapes and sizes that are very different from the images of women athletes we're accustomed to seeing in televized sporting events.   Yet the athletes that I watched on Saturday were uniformly graceful, confident, and so evidently proud of themselves as they soared over vaults and performed their floor exercises all afternoon in their gym.  They were in their element, performing physical feats that they had practiced for years with their supportive, capable, and loving volunteers, and they KNEW they were truly beautiful, and they truly WERE beautiful.

Later that evening, I went out to dinner with some friends at the outdoor patio of a restaurant on the shores of a lake near where we live.  It's a dockside restaurant, where boaters can pull up to the dock, hop on shore, and eat dinner.    As we ate, we couldn't help but notice the conspicuous parade of, shall we say, "surgically-enhanced" female bodies in bikinis popping in and out of the boats docking for dinner.  The basic tenor of the conversations I overheard in a visit to the ladies' room revealed that, for all the conventional physical beauty on display on that dock, many of these women seemed to be suffering an inordinate amount of insecurity and lack of confidence about their appearance.

Surely, whatever it is that the Special Olympics volunteers do with their athletes every weekend in their practice sessions must cost society a fraction of what is spent on plastic surgery in the U.S.   And, based on my observations last Saturday, it's much more effective in promoting self-esteem and self-confidence.  Isn't there some sort of CST argument for reallocating some of our nation's health care resources from the plastic surgery business to a Special Olympics-type program for people with too much money?

More on Standing and the Establishment Clause

                 Thanks to Rick for getting "first to the post," so to speak, on the Supreme Court's Hein decision today limiting taxpayer standing to challenge the government's conduct of religious programs.  I agree that the limited allowance of taxpayer standing in Flast v. Cohen, reaffirmed but limited today by (what is likely) the controlling three-justice opinion, is a compromise that has conceptual difficulties.  Justice Scalia's concurring opinion, which calls for overruling Flast -- and in which is (no surprise) the most enjoyable opinion to read and discuss -- describes the problem well.  If the injury in question is suffering an extra tax burden from the particular program, the plaintiff can almost never prove that connection and should never have standing; but if the injury is offense at the government's having supported religion, then the plaintiff always has that and should always have standing.  Either way, limited Establishment-Clause standing seems to make no sense.

                However, Justice Scalia's opinion seems to me to duck a couple of important arguments.  First, if there is no taxpayer standing at all for the Establishment Clause, there would be no federal-court enforcement on issues at the heart of even the narrowest understanding of the Establishment Clause: for example, the funding of clergy of only one denomination.  Without taxpayer standing, there would be no plaintiff to challenge such an action, which though unlikely now was a real concern of the framers.  Unlike the case with school prayers or creche, there is no person affected by the action in the sense of having to listen to or view the activities of the funded clergy and who could sue on that basis.  Given the centrality of "no preferential funding of clergy" to the Establishment Clause, can't one plausibly argue, as Flast did, that the Clause implicitly amended previous Article III limits on taxpayer standing?  (It's true that many state courts have broader taxpayer-standing rules, but many don't; plus if Article III standing is absent, the Supreme Court cannot  review the case coming from state court to ensure uniformity of federal law -- unless it happens to be the government petitioning for cert (see ASARCO v. Kadish, 1989).)  At the least, I think, Justice Scalia should have dealt with this argument.

               Second, it has been argued by Carl Esbeck and others -- and I think Rick actually has considerable sympathy with this view -- that the Establishment Clause is not so much an individual-rights provision as a structural provision, meant to keep the state from intruding into the religious sphere (in certain ways, at least) and thus to preserve some kind of separation that (though its scope is a matter of debate) is healthy for both the churches and the civil society.  If that's true, then it may make perfect sense to permit standing for a broader class of individuals not directly or substantially affected by the government's conduct but still acting as sort of private attorneys-general to enforce a proper structural state-church relationship.  (Again, let me emphasize that that's not to say anything about whether the plaintiff should win on the merits of any particular Establishment Clause claim: for example, a plaintiff challenging a school voucher program might have standing but should lose on the merits because it is a permissible program of "true private choice" under the 2002 Zelman decision.)

                Finally, I want to be somewhat careful about embracing the idea that constitutional issues concerning religion -- in this case, Article III bars to taxpayer standing -- should always be treated the same as other constitutional issues.  That reasoning, for example, has led courts too often to dismiss constitutional claims for the freedom of religious organizations and individuals on the ground that the religious interest gets no extra weight, in spite of the presence of the Free Exercise and Establishment clauses.

                I therefore have sympathy for the three-justice opinion that refuses to overrule Flast, but that also restricts it so as to avoid permitting taxpayer standing in every Establishment Clause case.  Scalia is right, though, that the distinction these three justices (Roberts, Alito, Kennedy) adopt doesn't serve the underlying purposes well.  They seem at times to say that executive-branch actions taken under a statute affording discretion to the executive branch cannot be challenged, that only legislation that specifically orders the disbursement of  money can be challenged.  This makes sense in the context of the Hein case, where the executive officials weren't disbursing funds, but were only making speeches and conducting their own programs, and the only connection to a legislative expenditure was that Congress had funded the agencies' general operations.  But if the executive branch gets a free pass altogether, then it could simply give its discretionary funds to Baptist (and no other) clergy, violating the core of the Establishment Clause, with no (or very limited) federal-court policing.

                A distinction that would better reach the core cases while restricting federal-court lawsuits and involvement, it seems to me, would be to limit Flast to cases of government disbursement of funds to private, religious parties.  This would allow challenges to the core cases like (at the extreme) preferential funding of clergy or churches -- whether done by the legislature or by the executive -- while eliminating taxpayer standing as a basis for challenging government's own religious programs or symbols.  In the latter cases, people who actually have to be exposed to the exercise or symbol should be the ones, and the only ones, able to sue.  The Christian Legal Society, following Professor Esbeck's lead, recently advanced this distinction in an amicus brief filed supporting Notre Dame's cert petition in a case challenging federal teacher-training grants to the university (Notre Dame v. Laskowski).

                                                                Tom

Standing, religion, and judicial power

Today, the Supreme Court handed down its decision in the Hein case, which presented a question involving "taxpayer standing" to challenge, on Establishment Clause grounds, certain features of the White House's faith-based initiative.  Here is a link to the opinion.  For my own part (and like Justice Scalia, who -- along with Justice Thomas -- concurred separately), I am inclined to think that the whole Flast enterprise of permitting taxpayer standing in Establishment Clause cases (but only in Establishment Clause cases) is misconceived.  That said, I'm pleased that the majority did not extend Flast in today's decision.  Yes, the state-of-the-law that results is (to put it mildly) conceptually muddled, but . . . that's life.

As I see it, today's decision is not so much about the place of religion in public life, or the relationship between the institutions of faith and those of government.  Instead, it is about the limited role and power of the federal judiciary.  As Justice Alito described, in his plurality opinion, the task of federal judges is to resolve certain controversies between parties with a concrete stake in the outcome; it is not to use lawsuits as a vehicle for reviewing or second-guessing policies with which some taxpayers disagree.

UPDATE:  Here is a link to a conversation between Prof. Walter Dellinger and me about today's First Amendment cases, on the News Hour with Jim Lehrer.

Does Dawkins Embrace Design?

Over at First Things, Robert Miller and Francis Beckwith are having a wonderful exchange about Richard Dawkins and the intelligibility of "wasting one's gifts" in the absence of a theistic worldview.  (Begin here, then read here and here.)

The Donors Have Spoken

A new survey has found that nearly 60 percent of infertility patients are willing to donate their frozen embryos for use in stem cell research.  This figure is roughly three times the percentage of those who are willing to donate their frozen embryos for adoption.  According to the researcher:

This provides additional support for the stem cell legislation and for how to think about the legislation. This will not change the view of people who hold the position that destroying embryos is immoral and never justifiable. That's a coherent position that these data cannot challenge. But for people who believe that there might be some circumstances in which early human life can be ethically destroyed to achieve another human end, this is important data.

Jesus and CLT continued

Lisa's post has caused me to think that the early Church, in its encounter with the Roman Empire and other non-Christian cultures, proposes a model for us to consider in our encounter with the secular academy and secular society today.

On page 98 of Jesus of Nazareth, in exploring the Beatitudes, Joseph Ratzinger says: "As we witness the abuse of economic power, as we witness the cruelties of a capitalism that degrades man to teh level of merchandise, we have also realized the perils of wealth, and we have gained a new appreciation of what Jesus meant when he warned of riches, of the man-destroying Mammon, which grips larges parts of the world in a cruel stranglehold."  He then follows this up with the primacy of God, the centrality of the person of Jesus, and the face of Love.   If Ratzinger is correct, and I think he is, what are the implications for CLT?

More later...

Thoughts about the Early Christians

I haven't read Ratzinger's Jesus of Nazareth, but some of the points raised by Michael S's  post on it have been on my mind lately.  I'm in the extremely fortunate position of being able to spend much of my time over the next year as a student, working on a Master's Degree in Catholic Studies here at St. Thomas.  I'm taking two courses this summer, one an introductory survey, "Catholic Thought & Culture I" (covering the first 13 centuries of Christianity in one semester....), the other "The Church and the Biomedical Revolution."  In both classes, we started off with some reading and discussion of the beginnings of Christianity.  My imagination has been utterly captured by the struggle of the early Christians to define and explain this revolutionary new religion, both for themselves and for the rest of the world, the pagan world they were trying to live in and make peace with.

For the Catholic Thought & Culture class, we read an excerpt from Robert Wilken's The Spirit of Early Christian Thought.  The very first chapter talks about the efforts of Justin Martyr and Origen to respond to the pagan philosophers challenging this new religion.  Wilken makes the point that, despite the brilliance of the arguments these early Christians formulated to engage the philosophers on their own terms, they never lost their awareness that the truly revolutionary thing about this religion was that it was centered on the life of Jesus.  He writes:

What had been handed on in the church's worship and practice, in prayers and catechetical instruction, in the words and images and stories of the Bible was set on a firm intellectual foundation.  Yet, and this is the central point, the biblical narrative was not reduced to a set of ideas or a body of principles;  no conceptual scheme was allowed to displace the evangelical history.  Christianity, wrote Leo the Great, bishop of Rome in the fifth century, is a "religion founded on the mystery of the Cross of Christ."  Christian thinking did not spring from an original idea, and it was not nourished by a seminal spiritual insight.  It had its beginnings in the history of Israel and the life of a human being named Jesus of Nazareth, who was born of Mary, lived in Judea, suffered and died in Jerusalem, and was raised by God to new life.

It just stuck me, reading that, how easy it would have been for all of these brilliant Church fathers to take the "sayings" of this historical person, Jesus, and take on the pagan world intellectually by reducing the words to a "set of ideas or a body of principles" or a "conceptual scheme."  But that's not what happened.  It's really a rather extraordinary thing, when you think about it on the human level of very smart people (not unlike, say, law professors) trying to explain themselves and their revolutionary faith to a secular world.

In my other class, "The Church and the Biomedical Revolution", I learned another fascinating thing about the early Christians, perhaps not really related to Michael's point, but something that has similarly seized my imagination.  We read a chapter from a book by Rodney Stark, The Rise of Christianity:  A Sociologist Reconsiders History.  In a chapter called "Epidemics, Networks, and Conversion", Stark suggests that contributing to the rapid rise of Christianity throughout the Roman Empire were two epidemics, one in 165 (probably smallpox) and another in 251 (probably measles).  One of many interesting points that Stark makes is that far greater numbers of Christians survived those epidemics than pagans, for the simple reason that they were living basic Christian values of love and charity.  The simple act of not abandoning the sick -- as their pagan neighbors generally did -- but instead sticking around and providing for their elemental needs for food and water, greatly reduced mortality.  (He writes "Modern medical experts believe that conscientious nursing without any medications could cut the mortality rate by two-thirds or even more.")  In addition to the higher survival rates of the Christians, the fact that the Christian ethic led them to care for pagans as well, and the power of the seemingly "miraculous" survival of so many Christians, affected the subsequent conversion of surviving pagans.  I'm not sure what that has to do with CLT, and I'm not sure why it has so seized my imagination, but isn't it fascinating?

And next week, we get to Augustine, organ transplantation, and the theological foundations of medical research ethics.  Am I not just the luckiest girl around?

Jesus of Nazareth and Catholic Legal Theory

I have just started Joseph Ratzinger, Benedict XVI's, book "Jesus of Nazareth," which I picked of at Loome's during our meeting of the Conference of Catholic Legal Scholars last week.  The first thing I noted is that the author is Joseph Ratzinger, Pope Benedict XVI and not Pope Benedict XVI.  He retains his given name, I suspect, because, as he explains in the foreward:  "It goes without saying that this book is in no way an exercise of the magisterium, but is solely an expression of my personal search 'for the face of the Lord' (cf. Ps. 27:8)." In other words, Ratzinger is inviting us to consider with him, the face of Jesus as he has encountered Him.  And, so far it is a great journey.

Since God's entry into the human condition in the person of Jesus, the Son, affects all aspects of our life, it should not be surprising that the book raises questions for our Catholic Legal Theory project. 

On page 29, in the chapter on the temptations, Ratizinger says:  "God is the issue:  Is he real, reality itself, or isn't he?  Is he good, or do we have to invent the good ourselves?  The God question is the fundamental question, and it sets us down right at the crossroads of human existence."  If Ratzinger is correct, and I think he is, what are the implications for CLT?

On page 33, he quotes the martyred (by the Nazi's) German Jesuit, Alfred Delp:  "Bread is important, freedom is more important, but most important of all is unbroken fidelity and faithful adoration."  Ratzinger presses the point:  "When this ordering of goods is no longer respected, but turned on its head, the result is not justice or concern for human suffering.  The result is rather ruin and destruction even of the material goods themselves."  He continues:  "The aid offered by the West to developing countries has been purely technical and materially based, and not only has left God out of the picture, but has driven men away from God.  And, this aid, proudly claiming to 'know better,' is itself what first turned the 'third world' into what we mean today by that term."  He agains returns to the theme:  "The issue is the primacy of God.  The issue is acknolwedging that he is a reality, that he is the reality without which nothing else can be good.  History cannot be detached from God and then run smoothly on purely material lines."  If Ratzinger is correct, and I think he is, what are the implications for CLT?

On page 39, he says:  "Without heaven, earthly power is always ambiguous and fragile.  Only when power submits to the measure and the judgment of heaven - of God, in other words - can it become power fro good.  And only when power stands under God's blessing can it be trusted."  If Ratzinger is correct, and I think he is, what are the implications for CLT?

And, that is as far as I have read.

St. Thomas !!!

Today (barely!) is the feat of St. Thomas More.  (Thanks to MOJ-friend John Breen for the reminder.)  Here is Pope John Paul II's motu proprio proclaiming St. Thomas to be the patron of politicians and statesmen. 

And, I can't resist observing, tomorrow is the feast of St. Thomas Garnet (no, I'm not kidding), which also happens to be the birthday of one Thomas William Garnett, of South Bend, Indiana.

More on Americans United for Separation and Bishop Tobin

I would like to thank Prof. Steve Shiffrin for his thoughtful post of June 20 responding to my earlier remarks regarding Bishop Tobin’s Rhode Island Catholic May 31 article entitled My R.S.V.P. to Rudy Giuliani. Steve suggests disagreement with me on some matters. His comments also indicate that I may have been too brief and should have fleshed out more wholly my perspective on the Tobin-Lynn question. Of course, one of the problems that is characteristic of most web log postings is that they are not designed to study in depth any matter or issue. But, Steve does appear to agree with me on one important point. At the end of his post he states that government actions against religious groups (i.e., “the spectre of government bribing leaders of religious organizations to stay out of politics… even when their conscience dictates otherwise”) present problems. To quote a line from the old English cases, I am of the same opinion. As I see the situation, these problems can include using the tax code as a means of pressuring the proper exercise of the Constitutional guarantees pertaining to the free exercise of religion and freedom of expression.

What is presently at issue in the matter on which I previously wrote is the allegation by Barry Lynn and Americans United for Separation of Church and State that Bishop Tobin violated Section 501(c)(3) of Title 26 of the United States Code when he, Tobin, stated in his Rhode Island Catholic article that he would never defend a candidate who supports legalized abortion. Under this provision of the Internal Revenue Code, tax exempt organizations are forbidden from publishing or distributing statements in “any political campaign on behalf of (or in opposition to) any candidate for public office.” The Rev. Lynn and Americans United are renewing the argument that was essentially made by Abortion Rights Mobilization, Inc. (ARM) against the Catholic Church in the 1980s. ARM sued the U.S. Bishops Conference and the U.S. Treasury that the latter should revoke the Church’s tax exempt status because of the Church’s public teaching on abortion and the political position this teaching conveyed. In this lawsuit, the courts did not disturb the IRS’s findings that the Church was in compliance with Section 501(c)(3). I suggest that the current circumstances surrounding the concerns of Americans United for Separation of Church and State are no different.

The IRS has determined that the Church’s teaching on the abortion issue does not violate the tax code. As one leader of the Church, Bishop Tobin has the responsibility in his teaching office to continue this fundamental instruction. Some may argue that while there are Constitutional protections upon which the Church and Bishop Tobin rely in this regard, there are also statutory provisions, such as the Internal Revenue Code, that must be honored as well. But when there is perceived tension between the Constitution, the supreme law of the land, and a particular statute, the primary way of avoiding any conflict between these two legal authorities is to read the statute in a way that is consistent with the applicable Constitutional provisions. In this case, Section 501(c)(3) is to be interpreted in a manner that is consistent with the First Amendment.

But if this is not possible, it may be argued that the statute which remains in conflict with the Constitution is, in fact, unconstitutional. Steve suggests this possibility in his posting.

In the meantime, I think it is helpful to keep in mind that Americans United for Separation of Church and State is another tax exempt organization that relies on the protection of Section 501(c)(3). While Americans United for Separation asserts that “we are careful to make sure we are always in compliance [with the requirements of 501(c)(3)]… [by not] making any statements supporting or opposing any candidate or party…” its actions indicate otherwise. For example, the website of Americans United for Separation has a menu where the reader can click on the voting records of elected officials including state officials and Members of Congress. By selecting the entry on a particular official, the reader can see if that office holder voted “with us” or “against us.” While this information provided by Americans United for Separation is nuanced, it nevertheless indicates that this tax exempt organization is presenting a position on and the suitability of this office holder and future candidate by indicating whether he or she is “with us” or “against us.” Perhaps Americans United for Separation would disagree with my analysis. But since a part of their mission is to educate the public “about religious freedom issues and organize local chapters all over the country,” their actions speak more clearly than their words. The Rev. Barry Lynn and the organization of which he is executive director understandably want to exercise their Constitutional rights. This is essentially the position of the NAACP, another tax exempt organization, took when President Julian Bond delivered a speech in July of 2004 that made implications about candidates in the then upcoming presidential election. Has Bishop Tobin done anything different? No. He has exercised his Constitutional liberties to protect the unborn and to teach about the evils of abortion and to agree with Mr. Giuliani that abortion is “morally wrong.”    RJA sj

NYT Op-ed on "Why Pro-Choice is a Bad Choice for the Democrats"

From today's op-ed by journalist Melinda Henneberger:

Over 18 months, I traveled to 20 states listening to women of all ages, races, tax brackets and points of view speak at length on the issues they care about heading into ’08. They convinced me that the conventional wisdom was wrong about the last presidential contest, that Democrats did not lose support among women because “security moms” saw President Bush as the better protector against terrorism. What first-time defectors mentioned most often was abortion. . . .

Many of them, Catholic women in particular, are liberal, deep-in-their-heart Democrats who support social spending, who opposed the war from the start and who cross their arms over their chests reflexively when they say the word “Republican.” Some could fairly be described as desperate to find a way home. And if the party they’d prefer doesn’t send a car for them, with a really polite driver, it will have only itself to blame.

The title that the editors chose overstates what the op-ed actually claims, which is only that the Democrats should respect pro-lifers and should give some on things like partial-birth abortion bans (and maybe some other regulations? -- it's unclear) because of the widespread public support for them.  But what the author found about the importance of abortion as an issue for the women to whom she talked looks interesting.  The book based on these interviews is available here.

Tom

Nicholas Salazar on the Magisterium and a brief response

Dear Professor Shiffrin,

I recently read your post on same-sex relations on Mirror of Justice, and was
puzzled by the following passages:

"I am, of course, aware that the Vatican teaches otherwise. I do not agree with
positions the Vatican has taken on many issues involving sexuality, women, and
marriage.

"I should say once again that when I think of the Church, I do not think of the
Vatican. I think of Jesus, the Communion of Saints, the People of God. I pray
for the Pope and the Bishops (for the difficulty of their task and in
particular that they will be better servants of a pilgrim church, as we all
do), but I also pray on many issues that the Church will not be lead by them."

I do not understand how you can affirm your assent to certain doctrines taught
by the Pope and the bishops--like the doctrines concerning Jesus and the
Communion of Saints--and yet affirm your dissent from other doctrines issuing
from the same authority.  Either the Pope and the bishops possess a valid
teaching authority or they do not.  If they don't, then it makes no sense to
believe anything they say touching faith and morals.  If they do, then it makes
no sense to deny anything they say touching faith and morals.  Within that
sphere, they have either plenary authority or none at all, precisely because
that authority comes from God or does not.  If it comes from God, then we
ignore it or deny it at our peril; if it does not come from God, then it is
objectively irrelevant.

Your position seems to me analogous to saying that one accepts the authority of
the scientific method for all areas of scientific inquiry except those
pertaining to chemistry and planetary science; there one prefers the teachings
of alchemy and Ptolemaic cosmology, respectively.

If one is going to reject the authority of the hierarchy or of the scientific
method, that's perfectly within one's rights.  But, at least as a matter of
logic, it only makes sense to do it whole hog.

Sincerely,
Nicholas E. Salazar

Whether Richard McCormick and others were right in thinking that the Magisterium 
is entitled to less (or no) deference when it addresses questions 
regarding women and sexuality (taking lack of experience, lack of consultation, 
the silencing of theologians, and the failure to take the experience of others 
into account), they were not making a logical mistake. 
Assuming God speaks on some subjects through the Bishops does not necessitate 
the view that God speaks on all subjects that it claims to have authority over. 
To assume otherwise is to assume that God has gotten it wrong in the past. 
The Vatican has spoken on many matters of morals in a non-infallible way, 
and the the extent to which Catholics are bound on those matters 
has been much debated on this site. 
Of course, those Catholics who follow their conscience on moral matters 
do so at their peril. But it is sometimes forgotten that those who follow 
the teachings of the Vatican do so at their peril. 
Consider those who endorsed and implemented religious persecution 
in the past, for example. 

Distributism, corporations, and freedom

M.Z. Forrest has a post at Vox Nova discussing corporatism, distributism, and freedom.  And, in the comments section, there are some suggested policy / legal reforms - including "abolishing LLCs" -- that, M.Z.F. believes, flow from the analysis.  On the other hand, there's Steve Bainbridge's paper, "Catholic Social Thought and the Corporation." 

How the West really lost God

In this essay in Policy Review, Mary Eberstadt explores a theory about "How the West Really Lost God":

[W]hat secularization theory assumes is that religious belief comes ontologically first for people and that it goes on to determine or shape other things they do -- including such elemental personal decisions as whether they marry and have children or not.10 Implied here is a striking, albeit widely assumed, view of how one social phenenomenon powers another: that religious believers are more likely to produce families because religious belief somehow comes first.

And therein lies a real defect with the conventional story line about how and why religion collapsed in Western Europe. For what has not been explained, but rather assumed throughout that chain of argument, is why the causal relationship between belief and practice should always run that way instead of the other, at least some of the time. It is as if recent intellectual history had lined up all the right puzzle pieces -- modernity, belief and disbelief, technology, shrinking and absent families -- only to press them together in a way that looks whole from a distance but leaves something critical out.

This essay is a preliminary attempt to supply that missing piece. It moves the human family from the periphery to the center of this debate over secularization -- and not as a theoretical exercise, but rather because compelling empirical evidence suggests an alternative account of what Nietzsche's madman really saw in the "tombs" (read, the churches and cathedrals) of Europe.

In brief, it is not only possible but highly plausible that many Western European Christians did not just stop having children and families because they became secular. At least some of the time, the record suggests, they also became secular because they stopped having children and families. If this way of augmenting the conventional explanation for the collapse of faith in Europe is correct, then certain things, including some radical things, follow from it.

UPDATE:  On this matter, as on so many others, Lisa Schiltz was way ahead of me.  Here's her June 9 post on the same essay.  Thanks to Elizabeth Brown for the tip.

Are Catholic Justices supposed to be pro-plaintiff?

Over at Vox Nova, Morning's Minion writes:

The Court has already issued a dozen rulings this term that limit damages and make it harder for people to sue corporations. The court is seen as tilting more toward business than even the Rehnquist court.

As for all those good pro-life people who cheered when Bush appointed Roberts and Alito to the Court-- I recommend the song that ended the Sopranos franchise: Don't Stop Believing...

I don't understand the complaint here.  Is the suggestion that, because Justices Roberts and Alito are declining to endorse plaintiffs' proposed interpretations of federal laws, their pro-life bona fides are somehow in question?  I'm not sure how much -- as a Catholic -- I should worry about the Supreme Court's willingness to "limit damages and make it harder for people to sue corporations." Again, I assume we're talking about cases where the Court is interpreting acts of Congress that, the Court thinks, "limit damages and make it harder for people to sue corporations." The suggestion that a willingness to sustain plaintiffs' lawsuits, or uphold huge damages awards, is a marker of fidelity to Catholicism, seems pretty unappealing; don't we need to know *something* about the merits of the disputes?

"Why Architecture Matters"

Catholic new urbanist and MOJ-friend Philip Bess is blogging over at "Right Reason" on the subject, "Why Architecture Matters."  Click here and here.  The posts are thorough and thoughtful, and too rich to blurb.  Nutshell:  Joel Kotkin says that cities should be "sacred, safe, and busy."  But what does it mean, really, for a city (today) to be "sacred"?  (And, we lawyers might ask, what work does law do in supporting, or undermining, the "sacred"?)

Thanks to Amy Welborn for the tip.

US Bishops on Climate Change

On June 7, John Carr, the head of the US Conference of Catholic Bishops Department of Social Development and World Peace, testified before the Senate's Committee on Environment and Public Works regarding the Catholic "bishops' position on climate change."  Although the testimony does not break much new ground over the 2001 bishops' statement on the issue, it does have some interesting bits, including a statement that, although it still hedges a little bit, comes closer than the 2001 document (or at least my hazy memory of that document) to a straightforward acknowledgment that climate change is happening. Here are a few highlights:

The bishops accept the growing consensus on climate change represented by the International Panel on Climate Change, but also recognize continuing debate and some uncertainties about the speed and severity of climate change.  However, it is not wise or useful to either minimize or exaggerate the uncertainties and challenges we face.

...Prudence requires wise action to address problems that will most likely only grow in magnitude and consequences.  Prudence is not simply about avoiding impulsive action, picking the predictable course or avoiding risks, but it can also require taking bold action weighing available policy alternative and moral goods and taking considered and decisive stops before the problems grow worse.

We believe solidarity also requires that the United States lead the way in addressing this issue and in addressing the disproportionate burdens of poorer countries and vulnerable people.

Those who contributed least to climate change will be affected the most; those who face the greatest threats will likely bear the greatest burdens and have the least capacity to cope or escape.  We should come together to focus more on protecting the poor than on protecting ourselves and promoting narrow agendas.