Monday, February 28, 2011
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.
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?
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?
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: https://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": https://www.thepublicdiscourse.com/2011/02/2804.
Sunday, February 27, 2011
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.
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.
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.
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.
Friday, February 25, 2011
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.
Thursday, February 24, 2011
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."