February 28, 2011
Catholics v. Protestants on regulating the workplace
You should check out William & Mary law prof Nate Oman's op-ed arguing that labor law is Catholic and anti-discrimination law is Protestant. An excerpt:
Labor law and anti-discrimination law regulate the workplace in fundamentally different ways. Anti-discrimination laws treat workers in isolation, protecting them against mistreatment on the basis of race, religion, gender, and – in some jurisdictions – sexual orientation. It holds up the ideal of an individual judged wholly independent of any accidents of birth or identity.
Labor law, in contrast, creates associations of workers, often using mild coercion, and forces management to bargain with the associations. In contrast to the individualism of anti-discrimination laws, labor law envisions an ideal marketplace in which every worker is embedded in an association that both regulates his behavior and protects his interests.
Anti-discrimination law reflects a basically Protestant view of the moral universe, while labor law reflects a basically Catholic view of the moral universe. For Martin Luther every individual came alone before the throne of God, stripped of the mediating influences of tradition, community, or priesthoods, seeking mercy for his exposed and sinful soul.
. . . .
Despite our nation's laudable commitment to religious diversity, the majority of religious Americans are Protestants and Protestant assumptions are deeply embedded in our culture. In such a culture, it is unsurprising that a body of law based on Catholic notions of solidarity, community and skepticism about the ultimate merits of unfettered individualism enjoys a more precarious position than its Protestant cousin.
Parents as facilitators of choice
Jeffrey Shulman has posted the introduction to his forthcoming book on religious parenting rights and children. He apparently wants the law to better reflect a parent's duty to prepare the child to choose a life path of their own. This is not a new theme, but it does not cease to disturb:
If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person's education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of "protection," ensuring that children receive a truly public education.
Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority - and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under "a perpetual childhood of prescription," they must be exposed to the dust and heat of the race - intellectually, morally, spiritually. A public education is the engine by which children are exposed to "the great sphere" that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future.
Just reading these two paragraphs makes me want to pull my kids out of public school. Did you enjoy "the dust and heat of the race" at kindergarten today, honey? Is Mrs. Johnson making sure you reject any closed set of values and embrace an open future?
Should Newt Gingrich's marital history be relevant to Catholic voters?
Newt Gingrich is apparently on the verge of launching his presidential bid, and he is making an effort to connect with religious conservatives. A recent convert to Catholicism, Gingrich is outspoken about the need to make space for religion in public life, even comparing the U.S. today to 1979 Poland, with a "cultural elite" trying to create a secularized country. Gingrich also has a checkered past on the marital front, of course. As such, there is some skepticism that religious conservatives will embrace him. (There also is quite a bit of glee, I'm sure, among reporters who will get lots of opportunities to skewer a "family values" candidate for hypocrisy.) My question is this: to what extent should Catholics consider Gingrich's history of divorce and infidelity in evaluating his candidacy? Is it enough that he expresses regret for his actions, or is even that unnecessary without a nexus between the misconduct and his ability to govern? Any Thomists want to chime in?
Bernard Nathanson: A Life Transformed by Truth
At 10:00 this morning, a Mass of Christian Burial will be held at St. Patrick's Cathedral for Dr. Bernard Nathanson, the abortionist and leading crusader for legalized abortion who became a powerful pro-life witness. At Public Discourse, I offer some reflections on what led to Dr. Nathanson's change of mind and heart: http://www.thepublicdiscourse.com/2011/02/2806. Also at Public Discourse is an important essay by Notre Dame law professor and MoJ friend Gerry Bradley entitled "Obama's Unreasonable Abandonment of DOMA": http://www.thepublicdiscourse.com/2011/02/2804.
February 27, 2011
Has a billboard ever been taken down this quickly in NYC?
The billboard I blogged about last week was taken down after a single day. Al Sharpton was set to hold a press conference decrying the billboard. According to Planned Parenthood, the billboard was "offensive and disturbing," and its creators used "divisive messaging around race to restrict access to medical care." I agree with some of the commenters who pointed out the problematic statements about genocide on the website listed on the billboard, but I still believe that the message on the billboard itself is an important conversation-starter.
The Theology of Work and Dignity of Workers
Given our recent conversations about how Catholics should view the labor situation in Wisconsin, MoJ readers in the New York area (and even those outside the New York area) may want to make plans to be at St. John's on March 18-19. David Gregory has put together a truly stellar lineup of folks to address some very timely questions at the intersection of Catholic teaching and labor/employment law. Participants include Cardinal Egan, more bishops than I've ever seen at an academic conference (five on one panel!), the presidents of both the UAW and AFL-CIO, the chair of the NLRB, and scholars such as Samuel Estreicher, Cynthia Nance, Joseph Slater, and Lawrence Joseph. More details are available here.
Better play it safe: choose abortion
News from the UK:
The draft guidance from the Royal College of Obstetricians and Gynaecologists is for all doctors, nurses and counsellors advising women contemplating terminations. Its first recommendation on "what women need to know" instructs health professionals: "Women should be advised that abortion is generally safer than continuing a pregnancy to term." The guidance also says that women who are deciding whether to have an abortion must be told that most do not suffer any psychological harm.
Depravity: Finding Meaning in Doctrine, Not Abstraction
A few last thoughts on the crime of depraved heart murder in New York -- the end of my depraved trilogy. In previous posts, I accepted the received wisdom that depraved indifference murder is some sort of amalgam of extreme risk-taking regarding homicidal risk and a distinctive mens rea. The New York Court of Appeals adopted this view in People v. Suarez and People v. Feingold, overruling the older, Herbert Wechsler/Model Penal Code-inspired "objective circumstances" gloss. In this post, I want to sketch an argument that depraved indifference (or "heart," or "mind") murder actually has very little -- almost nothing -- to do with the extremeness of the risk-taking involved, and almost everything to do with the distinctive -- albeit elusive -- cast of mind connoted by the baroque term itself.
The etymology of depravity is Latin: "pravus" means crooked, warped, distorted and twisted. I speculate that adding the "de" further emphasizes and augments the sense of crookedness -- we're now talking about an additional quantum of deviance from an existing crookedness and distortion, a second-level quality of warped-ness.
Nevertheless, it's difficult to put one's finger on exactly what this quality looks like in the real world. Users of Joshua Dressler's criminal law textbook like me know that he points to some language from an Alabama court describing a "don't give a damn attitude." That's helpful, but for me it speaks to the "indifference" component of depraved indifference, and not so much to the quality of depravity. So what are we talking about?
The New York Court of Appeals's doctrinal struggle sheds some light on the question, but a little excavation is necessary to get at it, since the Court nowhere really puts two and two together. And the answer suggests not only that risk taking doesn't have much to do with it but also that it's a quality that finds elucidation not in a clean abstraction, but only in the welter of real facts.
The Court of Appeals historically has recognized two categories of depraved indifference murder, which it mistakenly treats as somehow distinct or separate.
The first category deals with defendants who do not intend to kill when they "shoot into a crowd or otherwise endanger innocent bystanders." People v. Payne. Cases that fall into this category include: where a defendant shoots into a house and ends up killing people with whom he has had a fight (People v. Jernatowski); where a defendant shoots at a retreating crowd (People v. Fenner); where a defendant drives onto a sidewalk with people on it and mows down two kids without stopping (People v. Gomez); but not, apparently, where he drives like a madman and plows into a car, killing the victim inside (see my previous post on People v. Prindle).
The Court has come up with a strange little rule that generally speaking, one-on-one killings (particularly when done with a weapon) cannot qualify as depraved indifference homicides. That's because those are -- again, in the main -- likely to be intentional killings.
But there is an exception -- one which forms the basis of the second category of depraved indifference murder, and which, I believe, illuminates matters somewhat: where a defendant has no intent to kill but directs his acts against one specific victim in an uncommonly brutal or heinous manner. In this category are the following cases: without intending to kill, the defendant systematically beat a three year old child over an extended period of time (People v. Poplis); without intending to kill, the defendant fractured the skull of a seven week old baby, the forensic evidence indicating severe shaking and a fall consistent with the impact one might receive from dropping from the second story of a building (People v. Bryce); without intending to kill, the defendant inflicted repeated and sustained beatings on a nine year old boy, which over time created open wounds that became infected, resulting in vomiting, the inability to vomit, and death by asphyxiation and blood poisoning (People v. Best).
Finally, there is People v. Mills, where a group of 16 and 17 year-old boys went to a pier to go swimming. In order to access the pier they had to climb over a fence, which separated the beach area from the pier. As they were leaving the pier, each of the boys climbed over the fence to go back to the beach, and the defendant was the last one on the pier side. Just then, the victim, a 12 year old boy not part of the group climbed over the fence and headed toward the pier to go swimming. Defendant told the group that he was going to “push the bastard in” and he ran some distance back up the pier and pushed the 12 year old kid hard in the back. The kid fell down hard, hit his head against the concrete, and slid into the water. The defendant's companions on the other side of the fence yelled to the defendant to help the boy, but the defendant indicated to them through a swimming motion that the boy was just fine, so everyone took off. But the boy was not fine; he was motionless in the water, and he drowned. Later on, when his friends asked him whether the boy made it to shore, the defendant told them that he had drowned and threatened to hurt them if they revealed what had happened.
Why all the detail? It's because I believe that (a) the cases in the second category are really the ones that suggest something tangible and distinct about depravity as a category of murder; (b) that quality actually exists also in the first category, so the Court is mistaken to have a special rule for killings done one-on-one with a weapon; and (c) that quality is really what ought to be driving the depraved indifference engine, not the idea of extreme (or "transcendent" or "grave" (P. v. Sanchez)) risk-taking.
But that quality can only be captured with words like viciousness, atrocity, cruelty, barbarity. It's a quality that is present no less in the person who shoots cravenly into a retreating crowd, relishing the terror without specifically intending anyone's death, than it is in the incomparable nastiness of a young man who shoves a young kid hard just for the raw pleasure of it, watches him crash headlong into a block of cement and slip into the water, deceives people that the kid is just fine and waves off help, and then threatens to hurt them if they confess.
That's the core of depraved indifference, and it matters little whether we can measure exactly how risky it was to shoot into a terrorized and retreating crowd, or to beat one's child so severely and with such consistent atrocity that its poor little body became infected and poisoned. It is the quality of inhuman atrocity that one can feel in these cases which forms the core of depraved indifference -- and not any colder, even if harder-edged, calculations about risk-taking.
Admittedly, I haven't been able to articulate a standard, a precise theory that we can use to distinguish neatly when a defendant acts with depravity and when he does not. But my own inadequacy with words doesn't mean that there isn't anything real or true about the quality these cases evince. The facts speak for themselves, and they shape the doctrine accordingly. And it is the doctrine, and not our cleaner intellectual abstractions from it, which reflects the truth with greatest acuity.
February 25, 2011
Church Autonomy on Tap?
John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today. It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management. The second case, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, would involve the Court in a ministerial exemption issue. The terminated employee, through the EEOC, brought a claim under the Americans With Disabilities Act (according to the petition for cert. filed by Doug Laycock, she claimed in part that she was fired because of her diagnosed narcolepsy -- interesting).
I hope the Court takes Hosanna-Tabor, if only to declare itself on the ministerial exemption. The federal circuits have uniformly accepted the ME, though there is a difference of opinion about its scope. But the Supreme Court hasn't even officially ever recognized the doctrine at all. Arguably, it obliquely acknowedged the ME in NLRB v. Catholic Bishop of Chicago, where it said that "excessive entanglement" concerns necessitated that teachers in parochial schools be exempted from collective bargaining requirements. But it would be good to get a clear statement from the Court on the viability, let alone the reach, of the ME.
ADDENDUM: A knowledgeable commenter points out that the plaintiff is now proceeding only on a retaliation claim and has dropped the discrimination on the basis of disability claim.
February 24, 2011
Reid on Rerum Novarum and the right's demonization of labor unions
My colleague Charles Reid offers these thoughts on the situation in Wisconsin:
Atomization is one of the great crises now threatening American society. Both the contemporary left and the contemporary right, in their own ways, have gone about promoting the atomization of American life. The left seeks to make all associations voluntary and dissolvable, even institutions like the family. The right wishes to strip the individual of all intermediating groups that shield the person from larger impersonal forces. The individual is left to stand, naked and alone, defenseless before the power of capital and government.
Catholic social thought challenges this atomization. I've written extensively on the family and really don't need to address that further in the context of this post. My concern rather is with the response of Catholic social thought to the atomization fostered and promoted by the contemporary right. And here, Catholic thought builds on a rich medieval heritage of guilds and trade associations to promote the value of organized labor. We might consider the papal encyclical Rerum Novarum, whose Latin title literally means "Concerning Revolution," but which is commonly rendered in English as "On the Rights of Labor."
Pope Leo XIII, the author of the encyclical, wrote in the 1890s, during a time of vast industrial upheaval that featured growing conflict between the forces of capital, on the one hand, and the demand, by workers' groups, to socialize the means of production. Leo saw both extremes as dangerous and sought to establish a middle ground where labor and capital might meet in conditions of relative equality.
His age, Leo wrote, was characterized by a great division between rich and poor: On the one hand, there were "the enormous fortunes of some few individuals;" on the other, "the utter poverty of the masses." (para. 1). The old economic order has been turned upside down. "The ancient working men's guilds were abolished in the last century, and no other protective organization took their place." (para. 3). Workers have thus been "surrendered, isolated and helpless" to their employers. (Id). "Public institutions and laws" intended as safeguards have been dismantled. (Id).
Leo is at great pains to stress that socialism is not the answer: in its demand that everything must be public, in its denial of the private, in its attack on property and ownership, socialism wars against the human personality itself. Private property and investment of capital, on the other hand, promotes cultivation, economic development, and the betterment of human life. Socialism, Leo prophesied, by denying elemental truths about the person, must lead to its own destruction. (paras. 4-12).
Mediating institutions, however, needed to be constructed to protect individuals from being swamped and overwhelmed in a world controlled by vast impersonal institutions and aggregations of wealth. Workers, in Leo's words, need insulation from "the cruelty of men of greed." (para. 42). Leo appreciated that what was called for was a system of checks and balances to control the sinful impulses of all concerned. Power to fix and determine the conditions of employment, to define wages and benefits, Leo realized, must not be allowed to vest exclusively in either employers or employees.
Leo looked to the deep wellsprings of Christian anthropology for an answer to this dilemma. The human person is a social being, naturally fitted to participate and draw succor and strength from civil groups. Christianity, Leo reminded his readers, had long made use of such groups. There have always been "confraternities, societies, religious orders" that have shaped life within the Church. This experience, Leo argued, must drawn upon in order to build unions that genuinely represent the needs of workers. These organizations must not be socialist in character (para. 54); rather they must be informed by "good will" and observe "due prudence." (para. 58). Properly defined and limited, these organizations should negotiate and mediate "[t]he rights and duties of the employers, as compared with the rights and duties of the employed." (Id).
It would be tedious and is not really necessary to trace the development of this line of thought in Catholic social doctrine. Rather than undertaking such an exercise I should like instead to state that my childhood, my early development as a person, was shaped decisively by the practical implementation of this teaching.
In the Milwaukee of my youth, in the Catholic working-class neighborhood where I grew up, unions were a way of life. They promoted economic stability and working-class prosperity. Crime was rare. Families were supportive.
The American right has spent forty years demonizing and dismantling private-sector labor unions. They have been stamped out in the name of free trade, efficiency, and greater profits to the holders of capital. And what has taken their place? A beggared working class. Soaring social pathologies. Pay-day lenders, exploding rates of incarceration, record numbers of Americans on food stamps.
Now, the American right is targeting the last bastion of the union movement -- public-sector unions. In a perfect world, public-sector unions would be a secondary phenonemon, deriving benefits and strengths from private-sector unions. And, indeed, thirty and forty years ago, that was the case. Many of the public-sector contracts now under threat were modeled on the private-sector contracts of that era.
The Wisconsin teachers' union, as I understand it, has largely conceded the day on matters of salary and benefits. The issue now is whether the teachers' association, and other similar public-sector unions, continue to enjoy the right to fulfill their elementary purpose -- to bargain collectively on the terms of employment. This is where the line must be drawn.