Mirror of Justice

Credit When It's Due

While I find all this “renounce” and “reject”  stuff a bit silly, as long as we’re playing that game, what is good for the goose should be good for the gander.   With that in mind, I want to give credit to Bill Donohue for calling on John McCain to renounce the support of the anti-Catholic, anti-Semitic John Hagee.

Here's McCain's response to all of this.  Pretty weak tea compared to what Russert demanded from Obama the other night:

"Yesterday, Pastor John Hagee endorsed my candidacy for president in San Antonio, Texas. However, in no way did I intend for his endorsement to suggest that I in turn agree with all of Pastor Hagee's views, which I obviously do not.

"I am hopeful that Catholics, Protestants and all people of faith who share my vision for the future of America will respond to our message of defending innocent life, traditional marriage, and compassion for the most vulnerable in our society."

UPDATE:  Kudos also to Bainbridge for his discussion of this issue.  He calls it "even worse than McCain’s about face on Bob Jones University. It’s extremely disappointing."

America Magazine on Castro and Cuba

America Magazine has an editorial on Castro and Cuba in their March 10 edition.  Here is my wife Maria's reaction:

"What a disappointing editorial on Cuba and Fidel Castro! I am one of the Cuban American refugees that you label dismissively as mere 'exiles.' Our family did not leave Cuba because of it's economic conditions but because my father was imprisoned and our family persecuted for its Catholic faith. But economics is the only aspect you seem concerned about. I concur with Pope John Paul II's assessment during his visit to Cuba that the embargo must end. Yet in your narrow focus and overt praising of the questionable "legitimate accomplishments" of Castro's regime you become no different than the secular media--and you offend not only Cubans, but all refugees in this country who have fled repressive regimes in search of religious and other freedoms. What about Cuba's persecuted People of God? Are you aware of the underground Church? What about the hundreds of prisoners of conscience suffering in Cuba's prisons, imprisoned because of their faith or for taking principled stands against Cuban government policies? (see Amnesty International records)  I expect more from America than what I read in the New York Times. I expect a thoughtful response from a faithful and faithfilled Catholic perspective."

The Immanent Frame

Not long ago Rick Garnett recommended a blog titled The Immanent Frame:  Religion, Secularism, and the Public Sphere.  Today a post of mine appears on blog--a post about whether under the establishment clause religious rationales are a legitimate basis of coercive lawmaking.  Those who maintain the blog are eager to receive readers' comments on the posts.  So, if any of you are so inclined ...

Here's the link to my post.

Dying to Live: A Migrant's Journey

Fr. Daniel Groody, CSC, was on my panel Wednesday afternoon at the Gilvary Symposium at the University of Dayton School of Law.  As part of the panel, he showed his 30 minute documentary "Dying to Live:  A Migrant's Journey," which is a must see for anyone interested in putting a human face on the immigration debate.  The back of the DVD jacket says:  "Dying to Live is a profound look at the human face of the migrant.  It explores who these people are, why they leave their homes and what they face in their journey.  Drawing on the insights of Pulitzer Prize winning photographers, theologians, church and congressional leaders, activists, musicians and the immigrants themselves, this film explores the places of conflict, pain and hope along the US-Mexico border.  It is a reflection of the human struggle for a more dignified life and the search to find God in the midst of it all."

To order this powerful movie, click here.

Fr. Sirico on Buckley

Fr. Sirico of the Acton Institute has this reflection on William F. Buckley:

WFB: In Memoriam

Having been my father's remote control, I recall one Sunday afternoon in the 1960s being told to stop and back up to the "educational channel," as it was called.

The Sirico household were not big viewers of what was then Channel 13 in New York, so I wondered what my father was thinking.

I click over to the channel and my father said, "Sit down; you'll learn something."

Indeed, I did.

That was the first time I had heard or seen William F. Buckley, Jr., who died in his study on Wednesday while at work on yet another erudite page of insightful, urbane, and scintillating prose. Buckley (or Bill, as he almost insisted people call him) holds the record of sending me to the dictionary more than anyone I have ever read in the English language.

To continue reading, click here.

The Presidential Election and Abortion, cont'd

I hope that MOJ readers (and others) who read Matthew Boudway's open letter to Deal Hudson (to which Michael linked, here) will also read Ramesh Ponnuru's recent piece, "Conscientious Voting," here.  A taste:

Feuerherd asks, “[I]s it fair for a Catholic like me to suspect that the liberal economic policies of the Democratic candidate, whether Obama or Sen. Hillary Rodham Clinton, will result in less dire poverty and thus perhaps fewer abortions? And isn't that supposed to be the goal?” Anyone who wants to cast a ballot on this assumption has a moral obligation to investigate whether it is, in fact, true that 1) Democratic policies would reduce poverty much more than Republican ones would and 2) that abortion and poverty rates correlate in as straightforward a manner as Feuerherd idly (and conveniently) supposes. I am not aware of research that corroborates point two, let alone both of them taken together.

And there is another problem with this argument, which is that a reduction in the number of abortions is not the only goal that pro-lifers should have. Also important is that the law stop treating unborn children as subhuman creatures who may legitimately be denied the protections of the law against unjust killing. Obama himself may be perfectly sincere in willing that fewer women exercise the (supposed) right to abortion even while he supports keeping that option legal and making it subsidized. I have no reason to doubt that he is. But he also wills that unborn children be denied the basic legal protection from homicide that you and I enjoy. The Catholic Church wants voters to take that injustice seriously; more seriously than Feuerherd seems inclined to take it. But of course it cannot (and has no ambition to) force any voter to do anything.

The Costs of Sprawl

Add world hunger as another cost of sprawl.

We're Number 26! We're Number 26! . . .

. . . on this list of the "most influential law blogs."  Hoo-rah.

"Reproduction and Public Discourse"

From the First Things blog, this by Ryan Anderson:

Benedict XVI recently asked the Congregation for the Doctrine of the Faith to turn its attention to the ethical challenges that new biotechnologies pose. Aware that the Church “cannot and should not intervene on every scientific innovation,” the pope charged the congregation with “reiterating the great values at stake, and providing the faithful, and all men and women of good will, with ethical and moral principles and guidelines for these new and important questions.”

To help direct the congregation’s reflection, he offered two principles: “(a) unconditional respect for the human being as a person from conception to natural death; (b) respect for the originality of the transmission of human life through the acts proper to spouses.”

. . . 

The Western tradition of moral reflection has produced a long line of reasoning about the fundamental worth of people and the immorality of direct killing. Battles over civil and human rights at home and abroad have taken up and developed the historical arguments about human dignity and equality. We have developed traditions of rationality about these questions—competing traditions, no doubt, but traditions of thought on these topics all the same.

So when debates about embryo freezing, manipulation, or killing arise, moral philosophers and theologians have rich resources for identifying the wrongs involved. It’s easy to speak to the public about all this. Start with the science that shows the humanity and individuality of the embryo, and then make philosophical arguments about the equality of all human beings as persons possessing inherent dignity. Finally, add the well-developed moral and legal prohibitions on directly killing innocent persons and you quickly arrive at the conclusion that killing human embryos is wrong.

In other words, religiously grounded thinkers make arguments about killing. They don’t simply pronounce, “God says it’s wrong.” As Benedict charged the CDF, they use arguments that can guide both the faithful “and all men and women of good will.”

With assisted reproductive technologies, things are different. . . .

Read the whole thing.

New blog! Stuntz and Skeel!

MOJ readers (and other sentient bipeds) will be familiar with the work of Professors Stuntz and Skeel.  Well, they have a blog, "Less than the Least."  Many of us here have had provocative and challenging conversations, and disagreements, with Stuntz and Skeel, but I feel comfortable expressing -- using the royal "we" -- "our" deep admiration for them and their work.

On a more somber note, as Prof. Stuntz reports here, he is struggling with colon cancer.  Oremus.

Buckley, hope, and faith

When I was young -- about 15 or so, I think -- my mother took me to an event, in Anchorage, Alaska (where I lived), at which William F. Buckley was the speaker.  (I think it was a Rotary-type civic organization's meeting.)  After the talk, during the Q & A, an elderly woman asked him (something like), "Mr. Buckley, most conservatives are gloomy and pessimistic.  But you seem happy and hopeful.  Why?"

"Because," he said, "I know that my Redeemer lives."  That was it.  Perfect.

What's Wrong With This Picture?

New York Times, 2/28/08

1 in 100 Americans Are Behind Bars
By Adam Liptak

For the first time in the nation’s history, more than one in 100 American adults is behind bars, according to a new report.

Nationwide, the prison population grew by 25,000 last year, bringing it to almost 1.6 million. Another 723,000 people are in local jails. The number of American adults is about 230 million, meaning that one in every 99.1 adults is behind bars.

Incarceration rates are even higher for some groups. One in 36 Hispanic adults is behind bars, based on Justice Department figures for 2006. One in 15 black adults is, too, as is one in nine black men between the ages of 20 and 34.

The report, from the Pew Center on the States, also found that only one in 355 white women between the ages of 35 and 39 is behind bars, but that one in 100 black women is.

The report’s methodology differed from that used by the Justice Department, which calculates the incarceration rate by using the total population rather than the adult population as the denominator. Using the department’s methodology, about one in 130 Americans is behind bars.

Either way, said Susan Urahn, the center’s managing director, “we aren’t really getting the return in public safety from this level of incarceration.”

“We tend to be a country in which incarceration is an easy response to crime,” Ms. Urahn continued. “Being tough on crime is an easy position to take, particularly if you have the money. And we did have the money in the ’80s and ’90s.”

Now, with fewer resources available to the states, the report said, “prison costs are blowing a hole in state budgets.” On average, states spend almost 7 percent on their budgets on corrections, trailing only healthcare, education and transportation.

In 2007, according to the National Association of State Budgeting Officers, states spent $44 billion in tax dollars on corrections. That is up from $10.6 billion in 1987, a 127 increase once adjusted for inflation. With money from bond issues and from the federal government included, total state spending on corrections last year was $49 billion. By 2011, the report said, states are on track to spend an additional $25 billion.

It cost an average of $23,876 to imprison someone in 2005, the most recent year for which data is available. But state spending varies widely, from $45,000 a year for each inmate in Rhode Island to just $13,000 in Louisiana.

The cost of medical care is growing by 10 percent annually, the report said, a rate that will accelerate as the prison population ages.

About one in nine state government employees works in corrections, and some states are finding it hard to fill those jobs. California spent more than $500 million on overtime alone in 2006.

The number of prisoners in California dropped by 4,000 last year, making Texas’s prison system the nation’s largest, at about 172,000 inmates. But the Texas legislature approved broad changes to the state’s corrections system, including expansions of drug treatment programs and drug courts and revisions to parole practices.

“Our violent offenders, we lock them up for a very long time — rapists, murderers, child molestors,” said John Whitmire, a Democratic state senator from Houston and the chairman of the state senate’s criminal justice committee. “The problem was that we weren’t smart about nonviolent offenders. The legislature finally caught up with the public.”

He gave an example.

“We have 5,500 D.W.I offenders in prison,” he said, including people caught driving under the influence who had not been in an accident. “They’re in the general population. As serious as drinking and driving is, we should segregate them and give them treatment.”

The Pew report recommended diverting nonviolent offenders away from prison and using punishments short of reincarceration for minor or technical violations of probation or parole. It also urged states to consider earlier release of some prisoners.

Before the recent changes in Texas, Mr. Whitmire said, “we were recycling nonviolent offenders.”

The Presidential Election and Abortion Politics

There is an especially interesting and important post over at dotCommonweal--a post that could not be more relevant to us here at MOJ in the political season now upon us.  I've pasted it below.  (The author of the post is an associate editor of Commonweal.)  After you've finished reading the post, be sure to go to dotCommonweal to read all the interesting comments that the post is now eliciting/provoking!  (Here.)

William F. Buckley, Jr., Is Dead at 82

May he rest in peace.

An obituary is here.

Soft-core atheism

John Haught criticizes the spate of recent "God is evil/dead/non-existent" books for espousing a much softer, blander atheism than the bold atheist frameworks of the past:

[T]he recent atheist authors want atheism to prevail at the least possible expense to the agreeable socioeconomic circumstances out of which they sermonize. They would have the God-religions—Judaism, Christianity and Islam—simply disappear, after which we should be able go on enjoying the same lifestyle as before. People would then continue to cultivate essentially the same values as before, including altruism, but they would do it without inspired books and divine commandments. Educators would teach science without intrusions from creationists, and students would learn that evolution rather than divine creativity is the ultimate explanation of why we are the kind of organisms we are. Only propositions based on evidence would be tolerated, but the satisfaction of knowing the truth about nature by way of science would compensate for any ethical constraints we would still have to put on our animal instincts.

This, of course, is precisely the kind of atheism that nauseated Nietzsche and made Camus and Sartre cringe. For them, atheism of this sort is nothing more than the persistence of life-numbing religiosity—it is religiosity in a new guise. These more muscular critics of religion were at least smart enough to realize that a full acceptance of the death of God would require an asceticism completely missing in the new atheistic formulas.

The blandness of the new soft-core atheism lies ironically in its willingness to compromise with the politically and culturally insipid kind of theism it claims to be ousting. Such a pale brand of atheism uncritically permits the same old values and meanings to hang around, only now they can become sanctified by an ethically and politically conservative Darwinian orthodoxy. If the new atheists' wishes are ever fulfilled, we need anticipate little in the way of cultural reform aside from turning the world's places of worship into museums, discos and coffee shops.

He makes a good point.  When I compare the worldview of Christopher Hitchens, for example, with the worldview expressed by the actions of Islamic militants, I'm tempted to believe that the naked public square is not such a bad thing, and that a future in which cultural norms are grounded more firmly in a collective agnosticism about God's existence (or at least relevance) appears much rosier than the alternative.  But then I catch myself, remembering that Islamic militants are not inescapably the sole occupants of the religion-friendly public square, and that the world in which Hitchens provides such wonderful conversation-starters may look quite different if his worldview ultimately holds sway.

Immigration Symposium at Dayton

If you are in the Dayton, Ohio area this Wednesday or Thursday (Feb. 27-28), check out the Gilvary Symposium on Law, Religion, & Social Justice at the University of Dayton School of Law.  This year's conference is entitled "Justice for Strangers?  Legal Assistance and the Foreign Born."

"No Law Respecting the Practice of Religion"

A heads up from MOJ friend Andrew Moore on what looks to be a fantastic event in Detroit on March 18:

The University of Detroit Mercy School of Law welcomes Dr. Leslie Griffin, Larry and Joanne Doherty Chair in Legal Ethics, University of Houston Law Center to deliver the 10th Annual McElroy Lecture on Law & Religion, Tuesday, March 18, 2008 @ 5:30 PM

"No Law Respecting the Practice of Religion"

The First Amendment of the U.S. Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What if the drafters used the words “practice of religion” instead of “religion”? How would this change the jurisprudence surrounding this part of our Constitution? Dr. Leslie Griffin, Professor of Law at the University Houston Law Center will address this compelling question, focusing on government funding for religious organizations, public school prayer and free exercise claims. Through this exercise, Dr. Griffin will explore the meaning our courts have given to the term “religion” as they have addressed these critical issues. For more information please contact Prof. Andrew Moore, (313)596-0220 or mooreaf@udmercy.edu

The faith of our childhood

According to an interesting piece in today's New York Times, "[m]ore than a quarter of adult Americans have left the faith of their childhood to join another religion or no religion, according to a new survey of religious affiliation by the Pew Forum on Religion and Public Life."

Well, some of us leave the faith of our childhood without ever leaving the faith of our childhood, if you know what I mean.

Americans Change Faiths at Rising Rate, Report Finds
By NEELA BANERJEE  

More than a quarter of adult Americans have left the faith of their childhood to join another religion or no religion, according to a new survey of religious affiliation by the Pew Forum on Religion and Public Life.

The report, titled “U.S. Religious Landscape Survey,” depicts a highly fluid and diverse national religious life. If shifts among Protestant denominations are included, then it appears that 44 percent of Americans have switched religious affiliations.

For at least a generation, scholars have noted that more Americans are moving among faiths, as denominational loyalty erodes. But the survey, based on interviews with more than 35,000 Americans, offers one of the clearest views yet of that trend, scholars said. The United States Census does not track religious affiliation.

The report shows, for example, that every religion is losing and gaining members, but that the Roman Catholic Church €œhas experienced the greatest net losses as a result of affiliation changes.€

The survey also indicates that the group that had the greatest net gain was the unaffiliated. More than 16 percent of American adults say they are not part of any organized faith, which makes the unaffiliated the country'€™s fourth largest €œreligious group.€

...

The percentage of Catholics in the American population has held steady for decades at about 25 percent. But that masks a precipitous decline in native-born Catholics. The proportion has been bolstered by the large influx of Catholic immigrants, mostly from Latin America, the survey found.

The Catholic Church has lost more adherents than any other group: about one-third of respondents raised Catholic said they no longer identified as such. Based on the data, the survey showed, “this means that roughly 10 percent of all Americans are former Catholics.”

[Click here to read the rest.]

Marriage and the State

My colleague John Witte, who directs Emory's Center for the Study of Law and Religion, had a terrific op-ed in yesterday's Atlanta Journal Constitution.  Many MOJ readers will be interested.

The future of marriage
State laws and religious laws cannot co-exist . . . can they?

 Anglican Archbishop Rowan Williams set off an international firestorm this month by suggesting that some accommodation of Muslim family law was "unavoidable" in England.

His suggestion, though tentative, has already prompted more than 250 articles in the world press, the vast majority denouncing it. England will be beset by "licensed polygamy," "barbaric procedures" and "brutal violence" against women and children, his critics argued, all administered by "legally ghettoized" Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim Sharia with the common law, other critics added. The horrific excesses of their religious courts —- even calling the faithful to stone innocent rape victims for dishonoring their families —- prove that religious laws and state laws on the family simply cannot coexist. Case closed.

This case won't stay closed for long, however. The archbishop was not calling for the establishment of independent Muslim courts in England, let alone the enforcement of Sharia law by state courts. He instead wanted his nation to have a full and frank debate about what it means to be married in a growing multicultural society. What forms of marriage should citizens be able to choose, and what forms of religious marriage law should government be required to respect? These are "unavoidable" questions for any modern society dedicated to protecting both the civil and religious liberties of all its citizens.

These are quickly becoming "unavoidable" questions for America, too. We already have a lot more marital pluralism than a generation ago —- with a number of legal options now available. Massachusetts offers traditional marriage and same-sex marriage to its citizens. Several more states will likely follow suit. Vermont leads four states in offering straight couples marriage and gay couples civil union, with comparable rules governing each form. A dozen more states are considering this two-tier system. Six states, including California, offer domestic partner registration status, providing straight and gay couples with some of the benefits and protections of marriage. Louisiana, Arkansas and Arizona offer couples either a simple contract marriage or a covenant marriage with more traditional and rigorous rules of entrance and exit.

While these marital options remain firmly under state law, other options now draw in religious law, too, implicitly or explicitly. Utah and surrounding states, for example, house some 30,000 polygamous families. These families and the fundamentalist Mormon churches that govern them are openly breaking state criminal laws against bigamy, but the states will not prosecute unless minors are forced into marriage.

In New York, Orthodox Jewish couples cannot get a state divorce without first obtaining a rabbinic divorce. This privileges Jewish family law over all other religious laws, and it forces some New York citizens to discharge a religious duty to gain a civil right to divorce. In more than 20 states, marriages arranged by Hindu, Muslim and Unification Church officials have been upheld, with divorce the only option left for parties who claim coercion or surprise.

A number of religious couples now choose to arbitrate their marital and family disputes before religious courts and tribunals rather than litigate them in state courts. Courts generally uphold the judgments of Jewish and Christian tribunals in these cases. Muslims, Hindus and other religious minorities are now pressing for equal treatment for their systems of religious arbitration of marriage and family disputes.

Granting Muslims and others equal treatment in these cases does seem "unavoidable" if the parties have freely consented to this method of dispute resolution. To deny Muslims divorce arbitration while granting it to Jews and Christians is patently discriminatory.

[There is more.  To read the rest, click here.]

Obama and Educational Reform

As has often been displayed in discussions on the Mirror of Justice, many of us believe that the most powerful engine for social justice and economic advancement for every class of Americans is high quality education. And many of us believe in turn that, especially for the disadvantaged, opportunities to attend private school through vouchers may be the only way out of a cycle of poverty (as well as allowing people to choose the kind of education that best supports their own values, including faith-based education).

Nor has it passed notice that the political elite — including every Democratic nominee for President in the past two decades (Clinton, Gore, and Kerry), as well as both current contenders for that nomination (Clinton and Obama) — have chosen to send their children to private schools, even as they close those doors to the poor.

Thus, although he was far from enthusiastic about vouchers, it was encouraging to hear Senator Obama say this recently while campaigning in Wisconsin (rest of article here):

“If there was any argument for vouchers, it was ‘Alright, let's see if this experiment works,’ and if it does, then whatever my preconceptions, my attitude is you do what works for the kids,” the senator said. “I will not allow my predispositions to stand in the way of making sure that our kids can learn. We’re losing several generations of kids and something has to be done.”

Well, this breath of fresh air in the increasingly stale education reform debate was nice while it lasted — which wasn't long. As soon as news attention was drawn to his departure from Democratic Party orthodoxy, the Obama campaign issued a statement titled “Response to Misleading Reports Concerning Senator Obama's Position on Vouchers” (Feb. 20, 2008):

There have been misleading reports that Senator Obama voiced support for voucher programs in an interview with the editorial board of the Milwaukee Journal Sentinel. Senator Obama has always been a critic of vouchers, and expressed his longstanding skepticism in that interview. Throughout his career, he has voted against voucher proposals and voiced concern for siphoning off resources from our public schools. . . . These misleading reports are particularly disturbing given that Senator Obama has laid out the most comprehensive education agenda of any candidate in this race — an agenda that does not include vouchers, in any shape or form.

The New York Sun offers wry comment, in a riff on the Obama campaign's theme:

The initial statement was change you can believe in. The follow-up message was the same old interest-group Democratic Party politics as usual. It was plainly designed to assuage the teachers’ unions, who are the enemies of change.

Sigh.

Greg Sisk

Stuntz v. Sunstein (?)

Last week we discussed Bill Stuntz's recent essay, in which he asserts that "[c]ultures are powerful and mysterious things; the idea that laws and politicians can direct their paths is, to say the least, lacking in empirical support."  In a separate context, I brought up Cass Sunstein's work emphasizing the government's important role in the shaping and management of norms.  Randy Heinig observes:

Don't many of the objections to Stuntz's piece grow out of a line of thinking related to the Sunstein [thesis]?  Isn't norm management what the legal angle on the culture wars (including, say, Philip Johnsons' work) is all about - the recognition that law sets some important cultural and social parameters? To what extent is Stuntz trying to push Christians (and particularly evangelicals) out of the business of using law to manage/create/instill/sustain moral norms?  Would Stuntz and Sunstein disagree?

The Dutch Dominicans, Revisited

This, from The Tablet, Feb. 9, 2008:

A LEADING theologian and key critic of Pope Benedict has rushed to the defence of the Dominicans’ Dutch province after it was silenced by the order for suggesting that lay ministers be allowed to celebrate the Eucharist if no priest is available, writes Tom Heneghan.

Professor Hermann Häring, a German theologian known in Germany as a ferocious critic of Joseph Ratzinger and who taught at the Catholic University in Nijmegen in The Netherlands for 25 years, called the analysis of the Dutch Dominicans’ booklet “Church and Ministry” by the French Dominican theologian Fr Hervé Legrand “a sword that stops all arguments”.'

In his analysis Fr Legrand warned the Dutch Dominicans not to risk schism by promoting the booklet, which he dismissed as a one-sided and theologically unfounded document (The Tablet, 2 February).

The Dutch Dominicans, who stressed in the booklet that congregations should be able to appoint lay  inisters only in emergency situations, have posted a Dutch translation of Fr Legrand’s French-language analysis on their website. In an open letter in German Professor Häring accused Fr Legrand of misrepresenting the Dutch Dominicans’ arguments and not understanding the Dutch Church. Professor Häring also rejected Fr Legrand’s charge that the Dutch Dominicans tried to overturn the Church’s  ierarchical pyramid, placing the laity over the bishops.

“Don’t forget that you are dealing with a completely democratic people. Wherever they are, the Dutch prefer to speak openly and directly. Opportunism is abhorrent to them, also in the Catholic Church.  That’s what creates so many problems for Rome,” wrote Professor Häring, an associate of Swiss theologian Fr Hans Küng.

Congrats to MOJ-er Greg Sisk ...

... on the publication of his casebook.

Litigation with the Federal Government: Cases and Materials
GREGORY C. SISK University of St. Thomas School of Law (Minnesota) U of St. Thomas Legal Studies Research Paper No. 07-36 Gregory C. Sisk, LITIGATION WITH THE FEDERAL GOVERNMENT: CASES AND MATERIALS, Foundation Press, 2d ed., 2007
Abstract:      Although every lawyer, law teacher, and law student recognizes that the United States government is involved in every federal criminal case, fewer appreciate that the federal government is a party, as plaintiff or defendant, to between one-fifth and one-quarter of all civil cases in the federal courts. Moreover, the United States is hardly a typical litigant, as it benefits from a plethora of special procedures, defenses, and limitations on liability not available to others. Indeed, the federal government may not be subjected to suit at all absent its own express consent - a concept of federal sovereign immunity that rests somewhat uneasily within the jurisprudence of a democratic society. The United States Supreme Court and the federal courts continue to devote substantial attention to recurring questions of sovereign immunity, the distinctive jurisdictional statutes governing litigation with the United States, special forums for adjudication of particular types of governmental disputes, the limitations on governmental liability in tort and contract, and the availability of and standards for awards of attorney's fees against the government and its agencies. We can learn much about a system of government by examining when and how that government responds (or does not respond) to injuries that its agents or activities have caused to its citizens. Accordingly, any student of federal litigation or of our system of government should develop a critical understanding of the unique principles and statutes that govern when the federal sovereign becomes a party to a civil action. In this casebook, Professor Sisk collects the leading cases, pertinent statutory texts, and scholarly commentary, together with substantial accompanying notes and questions. The book examines the federal government as a civil litigator, including the role of the Department of Justice, ethical expectations for government attorneys, and the procedural rules for litigation and resolution of claims against the government; the persistent question of federal sovereign immunity; federal governmental liability in tort, contract, and other areas; specialized tribunals for federal government cases; suits against federal officers; and awards of attorney's fees against the government and its agencies.

"Churches weigh in on same-sex marriage"

[HT:  Maggie Gallagher.]

San Francisco Chronicle
February 18, 2008

Churches weigh in on same-sex marriage
Bob Egelko, Chronicle Staff Writer                                                                  

The legal battle over same-sex marriage in California is also a clash of religions.

As the state Supreme Court prepares for a three-hour hearing March 4 on the constitutionality of a state law allowing only opposite-sex couples to marry, the justices have been flooded with written arguments from advocates on both sides - including two large contingents of religious organizations with sharply differing views.

On one side are the Mormon church, the California Catholic Conference, the National Association of Evangelicals and the Union of Orthodox Jewish Congregations. They describe marriage between a man and a woman as "the lifeblood of community, society and the state" and say any attempt by the courts to change that would create "deep tensions between civil and religious understandings of that institution."

On the other side are the Unitarians, the United Church of Christ, the Union for Reform Judaism, the Soka Gakkai branch of Buddhism, and dissident groups of Mormons, Catholics and Muslims. Saying their faiths and a wide range of historical traditions honor same-sex unions, they argue that the current law puts the state's stamp of approval on "the religious orthodoxy of some sects concerning who may marry."

Those groups won't be represented at next month's oral arguments, when the court will hear from the parties in the case: same-sex couples and the city of San Francisco, challenging the marriage law, and the attorney general's and governor's offices, defending the law. Also participating will be lawyers seeking to intervene on behalf of two organizations opposing gay rights.

The religious groups' written arguments, known as friend-of-the-court briefs, play the less-visible but important role of advising the justices how their ruling could affect society. Courts at all levels sometimes cite those arguments to buttress their legal reasoning.

Fifty such briefs have been filed in this case, representing hundreds of organizations and individuals - professional associations of psychologists and anthropologists, city and county governments, law professors, businesses, civil rights organizations, one former state Supreme Court justice, and advocates of "alternatives to homosexuality."

The religious coalitions have enlisted legal heavyweights: for opponents of same-sex marriage, Kenneth Starr, the former U.S. solicitor general, federal judge and impeachment prosecutor of former President Bill Clinton; and for their adversaries, Raoul Kennedy, a prominent San Francisco attorney.

[Read the rest, here.]

The Vatican and the '08 Presidential Race

MOJ readers will be interested in what Vatican savant John Allen has to say, here.

More on Judging Decisions Not to Abort

In a post several weeks ago, I expressed concern about the development of an expectation among some medical personnel and others that pregnant women should abort in certain circumstances.  Now we get a story of a biology professor at the University of North Carolina telling his students that "the moral thing" for older women who become pregnant is to have an amniocentesis and then abort the fetus if it has the Down Syndrome chromosome.  If we continue along this path, who else will people decide doesn't have the right to live?  If we can identify in utero that a fetus will be born with a below average intelligence, will women start being told it is immoral to bring the child into the world?  What about indications that the fetus will be born with serious physical deformities? 

Beatitude

For the next few days, I will be in Little Cottonwood Canyon, Utah -- at Alta -- where the skiing is better than it is anyplace else on the planet.  If the goal of "Catholic" anything -- legal theory, etc. -- is, ultimately, to "be happy with Him in the next," I think that -- at 10,500 feet in the Utah sunshine -- I can consider this trip MOJ official business.   

Non-celibate priests, same-sex unions, and magisterial authority, oh my!

[HT:  Peggy Steinfels, at dotCommonweal.]

More from Prof. Kmiec

Professor Doug Kmiec expands on his recent Slate piece, "Reaganites for Obama?" (in which he wrote, among other things, "Sorry, McCain, Barack Obama is a natural for the Catholic vote") in this guest commentary, "The Moral Duty to Inquire."  Although I think the original piece was off-base in a few respects, I also think that much of what he says in this second piece -- e.g., the Faith and Catholic Social Teaching are not the property of one party, Catholic voters have a range of issues to consider, Barack Obama's record on abortion is really bad, etc. -- is sensible.

My own sense, for what it's worth, of some conservatives' reaction to Prof. Kmiec's original piece was not so much that they thought (certainly, I didn't) that it is wrong to "inquire", from a Catholic perspective, into the merits of the Obama candidacy, but that Kmiec's original piece mis-framed the debate, while the second piece, for the most part, does not.  (I say "for the most part" because the second piece still appears to regard the Catholic position on immigration as weighing against McCain and for Obama, which is not how I see the matter.  McCain, not Obama, has taken political risks for immigrants, and has actually developed -- much to the chagrin of some conservatives -- an actual record of bi-partisan cooperation.)

In any event, check it out.  Prof. Kmiec, as everyone knows, has been a stalwart defender of religious freedom and the sanctity of life, in the academy, in law, and in policy, for decades.  I do not believe that Sen. Obama -- his attractive personality notwithstanding -- is, in fact, a "Catholic natural", but certainly, as Prof. Kmiec contends, it is entirely appropriate to ask whether Obama might be, all things considered, the better choice for a Catholic.  I am pretty sure he is not, but I understand that others will disagree.

On the other hand . . .

A few days ago, Michael suggested the indefensibility of certain Bush Administration policies relating to mercury pollution.  Just to make him feel a bit better about our Commander-in-Chief, I'm linking to this article, in which musician / activist Bob Geldof has nice words for President Bush's efforts with regard to poverty, disease, and development in Africa.

Seriously, I expect that similar efforts will be Bush's focus as ex-President.  And, that seems to me a commendable and worthy way to spend an ex-presidency.

Blog Stats, or, Behold the Awesome Force that is MOJ

Uber-law-blogger Paul Caron has posted a ranking of law-prof blogs.  MOJ's loyal readers might have been perturbed to notice our absence from the "top 30."  Fear not.  As Prof. Caron noted, we were omitted from the stats because we did not (we do now!) have a public site-meter.  And, for what it's worth, I am informed by our tech-meisters that, in 2007, MOJ had 379,191 "page views" (up from 278,700 in 2006).  We are, at present, on pace to exceed this total in 2008.  And, these stats put us at No. 20 (right below the U of Chicago Law Faculty blog). 

It also means that we get almost half-of-one-percent of the number of page views enjoyed by Instapundit.  So, here's our goal:  "One percent in 2008!"

Spread the word . . . .

Better Family Leave Policies for A More Balanced Academy?

Two Penn State professors have been trying to figure out empirially exactly why the academy leans toward the left politically.  They just released a paper, "Left Pipeline:  Why Conservatives Don't Get Doctorates", in which they conclude that the values and interests of liberal students naturally incline them more towards careers as academics than those of conservative students.  According to a Chronicle of Higher Ed article:

They found that in a variety of ways, conservative students were less interested than liberals in subject matter that often leads to doctoral degrees, and less interested in doing the kinds of things that professors spend their time doing.

For example, liberal students reported valuing intellectual freedom, creativity, and the chance to write original work and make a theoretical contribution to science. They outnumbered conservative students two to one in the humanities and social sciences — which are among the fields most likely to produce interest in doctoral study. Conservative students, however, put more value on personal achievement and orderliness, and on practical professions, like accounting and computer science, that could earn them lots of money.

The Woessners also found that conservative students put a higher priority than liberal ones on raising a family. That does not always fit well with a career in academe, where people often delay childbearing until after they earn tenure.

The research led the Woessners to conclude that if higher education wants to attract more conservatives to the professoriate, it should smooth the way financially, offering subsidized health insurance and housing for graduate students, and adopting family-friendly policies for professors.

Norm management and sex-ed licenses

Dan Markel offers this response to my comment on his sex-ed license proposal:

Rob is right that there are definitely norm-management issues involved, but consider whether the same concerns exist regarding gambling, alcohol, and tobacco. Why do norms against abusing these exist even though their use is permitted by law? Maybe, one could respond that these three things are restricted to adults, so it's easier to manage the messages we send to minors about these things. But to my mind, that still begs the question regarding how we're able to create norms against abuse while still allowing the law to permit them for adults.

For what it's worth, I am much less troubled by the message that this license says: "go get some action," than the injustice and inefficiency of punishing purely consensual relations between mature and informed individuals.  But I should note that I'd be fine if the sex-ed license focused on the  consequences of sex so it served a bit like a "scared straight" movie.  Maybe a condition for the license would also require everyone to watch