Friday, September 30, 2011
Please forgive this not-quite-Catholic-legal-theory post, but as a dyed-in-the-wool Red Sox fan since childhood (and especially since the 1986 series), I can't help but feeling a certain sense of peace descending on me in the last few days. That might sound perverse: the team collapsed in epic fashion, its closer blew it...huge, the manager is on his way out (of his own volition, it seems), the despised Yankees are off chasing their 36,000th title, the underfinanced Rays somehow snuck in, our overfinanced outfielder was a bust , and a general sense of hopeless depression has set in.
But my 8 year-old son, who was alive for the 2004 and 2007 seasons but insensible of them, was wearing his bright-red Carl Crawford t-shirt yesterday here in Yankee territory -- not proudly...just wearing it. And he has now been properly initiated into Red Sox fan-dom.
To be a Red Sox fan is to expect pain, to be waiting for misery, to exist in a perpetual state of pessimism. It is to be sure that your team will lose when others are sure it will win -- just because you didn't like the way somebody swung the bat or because of a twitch in the short reliever's throwing motion -- so sure that you turn off the set with your team well ahead. And sure enough, they do lose, and the sweet satisfaction of sports misery resets itself again and again. It never felt right to be winning, prepossessing, cheerful, hopeful. It was awkward, unnaturally prideful, and swollenly optimistic. It reflected the sense that we could improve on our past, escape our true nature, progress.
That's not who we are. This feels much better.
Many thanks to Rick for highlighting the Sullivan book, The Impossibility of Religious Freedom. With all that is going on in the world, including the United States, the subject of religious freedom is highlighted by the persecution of and assaults on religious believers.
As Rick points out, the Sullivan thesis points to the role of the state in the protection of religious freedom through the notion of equality. But as Rick points out, there is more to religious freedom than equality.
Of course, religious freedom is protected by the Universal Declaration of Human Rights and international juridical instruments. Moreover, by some of these important agreements, religious freedom is a right which the state cannot derogate, even though many states, including our own do infringe do infringe upon it in various contexts.
In the context of Catholic legal theory, the right of religious freedom is important. But it is more than that. This right prompts the question in CLT regarding the role and authority of the state. In the context of the Mirror of Justice project, religious freedom is a right—like the human person, the family, and the non-derogable rights—that precedes the state. For the state to construct a theory of the right as one based on equality is an ultra vires exercise of its proper and limited authority. At most, the state is its protector by obligation, not its definer by right.
I will attempt to tackle some aspects of this issue at the February Nootbaar conference at Pepperdine on the competing claims of law and religion when I present my paper entitled “Render Unto Mao the Things that Are Mao’s...” which addresses the subject of religious freedom (or not) in China.
Thursday, September 29, 2011
The Washington Post has a balanced article on the ministerial exemption and the upcoming Hosanna-Tabor case with some interesting comments from Professor Chip Lupu. One thing Chip mentions that I had not thought about was that he expects the three female justices, Justices Ginsburg, Sotomayor, and Kagan, to vote for a narrow ministerial exemption (assuming that they vote for an exemption) for the reason that they will want to protect teachers in religious schools who are likely to be women. I am not sure how these Justices would vote, but I think I agree with Chip that some or perhaps even all three of them are likely to vote for a narrow exemption. For example, I think Justice Kagan's dissent in Arizona v. Winn was some indication of her views of religion clause questions, though that case implicated EC issues, and these Justices' views of the FEC is largely a mystery. But I had not considered the particular reason that Chip offers. But if this is a reason to vote against the ME, I don't think it's one which would apply to a variety of (perhaps even many) situations in which the ministerial exemption would otherwise apply. Do others disagree with me? [x-posted CLR Forum]
Wednesday, September 28, 2011
At the Immanent Frame blog, Amanda Kaplan links to Douglas Remy's review and discussion of Winnie Sullivan's (2005) book, The Impossibility of Religious Freedom, and how it relates to the discussions and debates about international religious freedom. The basic challenge, in Sullivan's view -- that is, the reason why "religious freedom" is "impossible" -- comes from the proposed fact that the would-be guarantor of religious freedom, i.e., the secular state, "cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from 'making laws respecting an establishment of religion.' In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion." As many MOJ readers will know, this diagnosis leads Sullivan to conclude that "religious freedom" is best protected simply by protecting equality.
Like my fellow-blogger Tom Berg, I don't think this (i.e., just protecting equality) is enough, and I'm do not agree that the difficulties which certainly attend the necessary task of "defining" (for legal purposes) religion make it "impossible" for the state to meaningfully, even if imperfectly, protect religious freedom. (FWIW, I reviewed Sullivan's book, and some others, in Commonweal a few years ago.)
Over at Larry Solum's invaluable "Legal Theory Lexicon," he has an entry on "well-being and happiness," which should be of interest to folks working on and thinking about Catholic legal theory, given the aretaic dimension of the Catholic tradition.
This piece, by Jody Bottum, makes for bracing, but important reading. My own sense is that we in the United States can focus too much on (what strike me as) somewhat marginal threats to religious freedom (which is not to say that we do not face some grave and pressing ones), and overlook (what should be) the shocking and outrageous instances of real persecution and violence, of a kind that (thank God, and silliness about "theocrats" notwithstanding) we do not confront here.
I agree with Bottum that the response to the alarming anti-religious (in most instances today, anti-Christian) cannot be to tell the persecuted to behave more demurely. All human beings -- including, say, Christians living in Iran and China and Pakisatan -- have a human right to religious liberty (which includes the freedom to practice, and talk openly about, their religion). For the United States, given our great experiment in religious freedom -- one that it was hoped would "bring lustre to our country" -- it cannot be the right approach to join those who tell Christians to avoid persecution by hiding.
For an interesting interview with my colleague and rock-star jurisprude John Finnis, go here. A bit:
. . . I would say that true human freedom (as St Thomas says on the first page of his great treatment of morality) is the freedom of an image of God – one who has freedom of choice and exercises it in line with goods that are truly fulfilling – fulfilling for individuals and for the friendships and wider societies in which they find so much of their fulfilment. As Augustine says, just before the passage the Pope quoted – and here the saint is transmitting the philosophical tradition established by Plato and carried forward by Aristotle – the life of an individual who gives in to cupiditas is a life of enslavement to anxiety, insecurity, unslakeable lusts, and so forth. No true freedom that way. Nor by any “existentialist” “self-determination” by which one might seek to recreate oneself as a quasi-Nietzschean master, free from the constraints of human equality and justice. Perhaps also related to the Pope’s thought in these sentences is this: any manipulation of human nature, for example, by non-therapeutic genetic modification, makes the products of that manipulation the slaves of the manipulators, even if the latter were benevolently motivated.
Continuing with MOJ's recent capital-punishment theme: Our own Michael Perry has a new paper on SSRN called "Is Capital Punishment 'Cruel and Unusual'?". Here is the abstract:
The right of every human being—every human being without exception—not to be subjected to any punishment that is “cruel, inhuman or degrading” is an international human right. A version of that right is entrenched in the constitutional law of the United States: the right of every human being—again, without exception--not to be subjected to any punishment that is “cruel and unusual”. In this paper, I inquire both whether capital punishment is “cruel, inhuman or degrading” and, next, whether capital punishment is “cruel and unusual”.
Michael concludes that the answer to both questions is "yes" (in part because capital punishment -- when considered in a global context, and not only in a national context -- has become "unusual"); he addresses elsewhere the question whether the "yes" answer to the second question means that the Supreme Court of the United States should rule that capital punishment (always) violates the Eighth Amendment. Check it out.
I oppose capital punishment for (I think) the same reasons that Michael does. But, in my view, it is problematic -- which is not to say I'm sure it's wrong -- to give much weight to the abolition of the death penalty in other countries when deciding whether capital punishment is "unusual" for Eighth Amendment purposes. One concern I have is that it is hard to say that the abolition of capital punishment in all of these countries has been the result of meaningfully democratic decisionmaking.
On October 10, Professor Sanford Levinson will deliver the inaugural lecture in what looks like a wonderful lecture series at the Jewish Law Institute at Touro Law Center, directed by MOJ friend, Sam Levine. Professor Levinson will speak about his well-known book, Constitutional Faith, which has been reissued with a new afterword by Levinson, as noted here.
I am currently teaching a seminar in “Catholic Social Thought and Economic Justice.” Over the past few years I have re-vamped the syllabus, cutting down the number of topics I try to cover so as to have more time to discuss applications and the mesh with legal topics and structures. I am increasingly enamored of including film – at the moment, the Dorothy Day story, “Entertaining Angels” (1996, Paulist Pictures, with Martin Sheen); and “Romero” (1989 Paulist Pictures, starring Raul Julia).
Two snapshots of what I am learning from my students’ interaction with “Entertaining Angels”: First, really interesting observations about the tensions and ambiguities in Dorothy Day’s approach to single-mother parenting, as she raised her young daughter in the midst of the somewhat chaotic instability of the first Catholic worker house. This brought us into a fascinating discussion of how one’s commitment to working for justice (or any cause) impacts those closest; and how you think through those choices. It also gave me a glimpse of how much anxious pressure this generation feels to create an “ideal” setting for their children – which is making me think that as we move into Laborem Exercens I need to give some significant space to talking through a concept of “vocation” (both personal and professional) which allows plenty of room for human limitations, failures and frailty – as well as plenty of room (and permission) to work through the inevitable sufferings of life.
Second, there’s a fabulous culminating scene in which Day emerges from her own dark night in the community’s founding – which included tensions over whether to focus on the dissemination of ideas through the paper; or the day-to-day direct work with the extremely vulnerable and demanding homeless and poor. The turning point is through Day’s an encounter with Maggie, the alcoholic prostitute who was attempting to steal the community’s rent money. In response to Maggie’s sobs, “hit me,” Day responds: “I can see the light in you . . . the courage and the love … You are very beautiful . . . I love you.” What emerged in the class discussion was how this resolved the seeming tension between “contact” and “concepts” - as Peter-Hans Kolvenbach put in in his 2000 talk on the promotion of justice in Jesuit higher education -– “solidarity is learned through ‘contact’ rather than through ‘concepts.’” For me, Day’s “I can see the light in you” – leading to an attraction to the beauty of the encounter with Christ in the other – regardless of their external circumstances – captures what it means to find a powerful synthesis in a vision that fully contains both.