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February 27, 2010
The Battle of Hastings
Here is Joe Carter, at First Things, writing about the upcoming Martinez case (in which Tom Berg and I filed an amicus brief), "The Battle of Hastings" for religious-liberty. He quotes a passage from the lead brief in the case:
A “variety of viewpoints” is far more likely to be achieved when students are allowed to sort themselves out by interest and viewpoint—Republicans in one club, Democrats in another; Muslims in one organization, Lutherans in another. Without such sorting, all viewpoints are blurred. The Democratic Caucus becomes the Bipartisan Caucus; the Christian, Jewish, and Muslim clubs become the Ecumenical Society; and every other group organized around a belief becomes a Debate Club. Each group becomes no more than its own diverse forum—writ small. The all-comers rule thus defeats the very purpose of recognizing any group as a group in the first place. Preventing students from organizing around shared beliefs does not foster a robust or diverse exchange of views.
Exactly. Genuine "diversity" in a conversation is promoted if the participants in that conversation do, and are permitted to, be distinctive.
Posted by Rick Garnett on February 27, 2010 at 05:50 PM in Garnett, Rick | Permalink
Appleby on "'Religious Freedom' and its Critics"
Here is Prof. Scott Appleby, writing at "The Immanent Frame," about a "Task Force Report" issued by The Chicago Council on Global Affairs, entitled “Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy.” Explaining the "scare quotes" around "religious freedom," he writes:
. . . While the members of the task force share a commitment to religious freedom as a universal human right—one enshrined not only in the U.S. Constitution and the Universal Declaration of Human Rights, but also, with various degrees of impact on actual policy, in the constitutions of dozens of nations around the world—there was disagreement among us, cordial but occasionally sharp, about the relative weight to be given in the TFR to direct advocacy of the right by the federal government.
Those who were most uncomfortable with making religious freedom the headline tended to imagine the term in ironic scare quotes. “Religious freedom” is perceived by many peoples around the world, not least Muslims of the Middle East, they argued, not as a universal human right, but as a superpower-charged means of advancing hegemonic U.S. (read: Christian or, worse from their perspective, Judeo-Christian) interests. This particular strain of anti-Americanism is inflamed by isolated episodes of Christian missionaries proselytizing defiantly (or clumsily) in settings where they were manifestly unwelcome, and thereby igniting riots and sometimes deadly violence. More broadly, some suspect that missionaries, preachers, or U.S. government agents (sometimes conflated in the anti-American imagination) seek to impose on vulnerable populations “The American Way of Religion”—i.e., voluntarism, church-state separation, a free marketplace of religious ideas—which foreign opponents of U.S. influence believe to be anything but a universal human good. . . .
Read the whole thing.
Posted by Rick Garnett on February 27, 2010 at 05:47 PM | Permalink
Mark Mitchell, at the (wonderful) blog "Front Porch Republic" -- taking a cue from our friends at Commonweal, apparently -- links here to Stephen Colbert's riff on "corporate personhood" (and hilarity ensues). Mitchell writes:
Corporations today are considered legal persons. This means that they enjoy the protections of the 14th amendment which implies that the bill of rights applies to “corporate” persons as well as “real” persons. But corporations are not persons. They are not alive. They are not even dead. They do not have natural life spans. They are not mortal creatures whose essential mortality induces reflection on the ultimate meaning of life and leads the wise to live out that brief existence with an eye to what matters most. A corporation never dies a natural death and therefore lacks the natural incentive to live a life that includes dying well. An immortal person is a god. By calling a corporation a person (whose charter is for perpetuity) have we created a strange new god? A new idol before which we prostrate ourselves? The corporation, rightly conceived, is to serve human beings. Corporate personhood has the effect of blurring this goal and reversing the relationship.
Arguments like this have been thick on the ground (or in the air?) in the wake of the Citizens United case (which was, in my view, correctly -- if perhaps overbroadly -- decided). In my view, the "corporations are not alive, etc." argument misses the point (at least, it misses the point of the Court's free-speech caselaw). The issue is not so much whether or not "corporations are . . . persons" that "enjoy the protections" of the 14th Amendment. Rather, the issues is about the nature of the constraints that the First Amendment places on government regulations of political speech (and political ads, even if paid for by corporations, remain "political speech"). In my view, the First Amendment embodies a strong "no government distortion or manipulation of the content of political expression and debate" norm. When applying this norm, it seems to me more important to focus on what the government is doing than on who (or what) it is doing it to.
Posted by Rick Garnett on February 27, 2010 at 05:37 PM | Permalink
Obscenity, Pornography, and Vagueness
Many of my students think it
obvious that obscenity and pornography statutes are too vague. When I ask my
students whether they think it should be unconstitutional to prohibit the
distribution of obscene materials to children, they overwhelmingly respond that
such a prohibition should be upheld. This vagueness, they can live with.
When judges are asked to
declare a statute for vagueness, their analysis ordinarily goes something like
this: “The statute is unreasonably vague.” Or “No it’s not.” It is child’s play
to observe that any statute has vagueness issues. Even an overbroad, but
seemingly precise statute, that forbids the use of the name Obama in a sentence
could give rise to questions about the meaning of a sentence in particular
The best opinion I know of in
attempting to analyze a vagueness claim is that of Justice Brennan in the
obscenity context. He argued that the degree of vagueness one tolerates depends
upon the severity of the state interest and the possibility of a clearer formulation.
Accordingly, he thought a statute forbidding the distribution of obscene
material to adults should be unconstitutional (no significant enough interest
involved), but a statute prohibiting distribution to children or unconsenting
adults should be constitutional.
At the time, Brennan, of
course, did not know of the research assembled by Malamuth and others. But any
assessment of a vagueness claim regarding pornography would have to take it
into account. In assessing the vagueness claim, MacKinnon would do more than
cite the seriousness of the harm. She would point to the fact that there is a
core of clear meaning and that core involves billions of dollars of material
distributed each year. She would observe that other pockets of first amendment
law are equally unclear. What is defamatory? Who is a public figure? What is
fair use? There are clear cases, of course, but notorious vagueness as well.
And, of course, obscenity law
is vague, but beneath the protection of the first amendment. One could argue
that MacKinnon’s pornography ordinance is clearer than obscenity law. Obscenity
law, to oversimplify a bit, generally outlaws the distribution of patently
offensive materials that appeal to prurient interests, materials that lack
serious literary, artistic, political, or scientific value. MacKinnon’s
ordinance forbids the distribution of materials that involves the graphic
sexually explicit subordination of women through pictures and/or words that
also includes one or more of a number of specified factors, such as women
presented as sexual objects who take pleasure in being raped (some factors are clearer
than others – good arguments exist for the view that some of the factors should
be omitted). MacKinnon’s ordinance has no value test, but, if one were added, the
pornography ordinance would be less broad and clearer than the obscenity
category. Indeed, it would identify a class of material that is patently
offensive and appeals to prurient interest.
Crossposted at religiousleftlaw.com together with a post on
Pornography and Liberals and more later on the connections between Obscenity, Pornography, and Catholic Legal Theory
Posted by Steve Shiffrin on February 27, 2010 at 08:42 AM in Shiffrin, Steve | Permalink
More on conscience at BYU
A few other highlights from today's conscience conference at BYU (earlier posts here and here):
Wash U law/med prof Rebecca Dresser explained an "institutional" approach to conscience, asking institutions to take steps to minimize cases in which individual objections jeopardize health care. As a self-identified "pro-choice liberal," she welcomes the conversation about conscience in health care because the concerns raised by objectors can help encourage society to think about and reflect on what we want to do (and do not want to do) in health care. Right now it's a laissez faire approach in terms of new techology -- we aren't having serious moral conversations about where we're headed in areas like cognitive enhancement, and the type of concerns raised in the conscience debate can help create space for those conversations.
BYU law prof Cole Durham argued for an "integrationist view" of law under which conscientious objection is not a tolerated exception to the general rule, but part of the rule structure itself in light of the Constitution's protection of religious liberty. Ave Maria law prof Richard Myers countered that the First Amendment does not supply much of a basis for conscience protection, and didn't supply one even before Employment Division v. Smith. He also cautioned against a constitutional law approach to conscience (rather than a statutory approach), for fear that it could contribute to a trend toward privatized religion and a loss of public morality.
BYU law prof Lynn Wardle argued that Roe v. Wade and Doe v. Bolton provide a foundation for a right to conscientious objection to participating in abortion, both because of the statutes at issue and because of the Court's focus on the privacy right that attaches to the doctor-patient reationship.
USF philosophy prof Tom Cavanaugh attempted to distinguish between "professional conscientious objection" (understood as accessible claims) and "religious conscientious objection" (understood as inaccessible claims), and between conscientious objection to a type of intervention (worthy of recognition) and conscientious objection to the patient requesting the intervention (not worthy of recognition). I'm not sure he persuaded me of the workability of either distinction, but he had some thought-provoking suggestions for how to navigate the conflicts.
Other papers focused on practical resolutions to real-world conscience clashes. My own contribution focused, not surprisingly, on the implications of conscience's relational dimension for health care. I'll try to post the paper within a week or so.
Posted by Rob Vischer on February 27, 2010 at 12:15 AM in Vischer, Rob | Permalink
| Comments (0)
February 26, 2010
A Catholic Justification for Waterboarding? No Way!
These days, when "liberal" Catholics and "conservative" Catholics agree about something, that's news ... of the "man bites dog" variety. More importantly, when LCs and CCs agree about something, that's the Holy Spirit speaking, yes? Read all about it in the "Beliefs" column of the NYT, here.
Posted by Michael Perry on February 26, 2010 at 06:08 PM | Permalink
Ireland and the Church, con't
For those of you following this story, the commentary in this week's The Tablet is worth a read. Available in full here. An excerpt:
Too little, too late, again
Irish abuse scandal
Irish hierarchy’s meeting with Pope Benedict last week raised huge
expectations in Ireland. But the outcome has done nothing to calm the
anger felt by many towards the Church following the publication of the
Murphy Report on abuse in the Archdiocese of Dublin
Exactly what was discussed at the two-day meeting between the Pope
and Vatican officials and the Irish bishops is not clear. What we do
know is that its immediate aftermath turned into a PR disaster of
The disaster began with the lunch-time
publication on Tuesday last week of a statement summarising some of
what was discussed at the meeting. It described how the meeting
discussed “the serious situation which has emerged in the Church in
Ireland” and “the failure of Irish church authorities for many years to
act effectively in dealing with cases involving the sexual abuse of
young people by some Irish clergy and Religious”.
correctly, of the “thousands of trained and dedicated lay volunteers at
parish level” who help to implement the Church’s now robust child
protection policy. It urged the bishops to “face the present crisis
with honesty and courage”. But the victims, and the assembled Irish
media, were not to be placated. For example, the statement was attacked
as “a cynical exercise” by a prominent abuse victim, Colm O’Gorman, now
head of Amnesty International Ireland.
It was condemned because
it contained no word of apology from the Pope himself, no
acknowledgement of a “cover-up”, and no forced resignations of further
Irish bishops. By mid-afternoon, when Cardinal Sean Brady headed a
press conference in Rome organised by the Irish bishops, the media
narrative was already set in stone. The victims were angry, they felt
betrayed, the Church had let them down, yet again. The questions from
the assembled Irish journalists reflected this mood. . . .
Perhaps this shows that the Vatican was still underestimating the
extent of public anger in Ireland. It could hardly be under-estimating
it now. The mood is so bad that it is now common to find calls in Irish
newspapers, and on the airwaves, for the Government to sever diplomatic
ties with the Holy See, and not only because of the scandals, but also,
for example, because the Vatican is “misogynistic”, in its ban on women
The Vatican has been described by respected
commentators as a “foreign dictatorship”. Another commentator in all
seriousness called on the Government to establish a panel that will
oversee the appointment of bishops. Even the kissing of the papal ring
by the bishops when they are greeted by the Pope has been viewed
negatively, much as an old-style Irish nationalist might view bowing to
the Queen of England. In fact, it might be said that in Ireland
“Church-bashing” has become the new “Brit-bashing”. . . .
Posted by Michael Perry on February 26, 2010 at 04:40 PM | Permalink
Andy Koppelman responds to Robby George
[This is Andy's post at Balkinization:]
Friday, February 26, 2010
Koppelman vs. George on same-sex marriage
Posted by Michael Perry on February 26, 2010 at 03:43 PM | Permalink
"Social Issues: A Catholic Perspective"
[John Allen writes in his Friday column:]
Fans of the budding corpus of Catholic social teaching sometimes refer to it
as the church’s “best-kept secret,” an indirect way of lamenting that recent
Catholic teaching on the economy, war and peace, the environment, and other
matters of social concern is not better known – either in the pews, or in the
One creative response to that frustration now comes from England, in the form
of a new bi-monthly magazine called Justice, with the subtitle “Social
Issues: A Catholic Perspective.” It’s put out by Gabriel Publications, which
publishes The Universe, Catholic Times and Catholic
Life in the U.K.
The thrust of the magazine is to apply the lens of Catholic social teaching
to the whole panoply of global humanitarian concerns, whether it’s good
governance in Africa or controversies over blasphemy laws in Pakistan. The
magazine calls on a stable of talented journalists; for example, in one recent
issue, veteran Rome correspondent Gerry O’Connell interviews Archbishop Lauren
Monsengwo Pasinya of the Democratic Republic of Congo about the “silent
genocide” being fueled in that nation by a global scramble to exploit mineral
Alas, not much of the content is available on-line, but the magazine does
have a web site at www.justicemagazine.co.uk.
Posted by Michael Perry on February 26, 2010 at 03:27 PM | Permalink
Especially interesting from a pro-life perspective, don't you think?
Deaths Rising for Lack of Insurance, Study Finds
By MICHELLE ANDREWS
As members of the Obama administration and Congress met on Thursday to
try to find common ground on health care, a new report warned that
without comprehensive legislation, more than 275,000 adults nationwide
will die over the next decade because of a lack of health insurance.
Nearly 14,000 of those deaths would occur in New York State.
An earlier study by the Institute of Medicine estimated that 18,000
people died prematurely in 2000 because they lacked insurance; the
Urban Institute updated that figure to 22,000 in 2006. The new study,
by liberal advocacy group Families USA, applied the same methodology
used in the previous reports to drill down and calculate, on both a
national and state-by-state basis, the latest figures.
“This is only the tip of the iceberg, and the most severe
consequence, which is death,” said Kathleen Stoll, director of health
policy at Families USA. In addition, thousands of other citizens,
perhaps millions, are experiencing a reduction in the quality of their
lives and their health because they lack insurance, she said.
Not surprisingly, many of the states with the largest number of
projected premature deaths also have the largest populations. The top
12 states, in order of estimated premature deaths, are: California
(34,600), Texas (31,700), Florida (25,400), New York (13,900), Georgia
(11,500), North Carolina (9,600), Illinois (9,400), Ohio (8,900),
Louisiana (7,700), Michigan (7,600), Pennsylvania (7,500) and Tennessee
In 2008, roughly 46 million people in the United States lacked
health insurance, according to the Census Bureau. The new report
estimates that currently 68 adults under age 65 die every day because
they don’t have coverage. Absent a significant change in coverage, the
figure will climb to 84 by 2019, the study projects.
A growing body of research has explored the connection between a
lack of health insurance and an increased risk of death. Uninsured
people are more likely to skip screenings and other preventive care, so
their medical problems are often diagnosed later, when they are more
advanced and tougher to treat. The uninsured are also more likely to
skimp on necessary medical care, whether it’s prescription drugs to
keep their blood pressure in check or surgery to clear up clogged
“The bottom line is that if you don’t get a disease picked up early
and you don’t get necessary treatment, you’re more likely to die,” said
Stan Dorn, a senior fellow at the Urban Institute and the author of the
organization’s earlier study.
Experts say that the new study’s estimates of premature death likely
err on the conservative side. The report calculated that lack of
insurance increased mortality rates by 25 percent. But research
conducted using more recent data found that not having insurance
increases death rates by 40 percent.
In addition, these numbers don’t include children. Children are
generally very healthy, and many are eligible for coverage under public
programs like the state Children’s Health Insurance Program. But many
children aren’t enrolled in Medicaid or other programs for which
they’re eligible. According to research cited in the Families USA
study, hospital mortality rates were 60 percent higher for children
In addition to projecting premature deaths, the new study estimated
the number of people who had died since the last major push for health
care legislation in the early 1990s. It found that between 1995 and
2009, lack of insurance was responsible for more than 290,000 premature
Any estimate of this sort depends on the type of health care
legislation under discussion. For this report, Families USA relied on
Congressional Budget Office estimates regarding the bills that were
passed by the House and the Senate, which would increase the number of
insured by some 30 million. A health overhaul like the one proposed by
Republicans, which would increase the number of insured by about three
million, would yield much less bang for the buck.
“Clearly you wouldn’t see the same amelioration of the consequences,” Ms. Stoll said.
Posted by Michael Perry on February 26, 2010 at 03:07 PM | Permalink