Mirror of Justice

Obama's Faith-Based Plan and Evangelicals

If Obama's faith-based plan was intended in part to woo evangelicals, it's going to face a major obstacle: 

Mr. Obama’s position that religious organizations would not be able to consider religion in their hiring for such programs would constitute a deal-breaker for many evangelicals, said several evangelical leaders, who represent a political constituency Mr. Obama has been trying to court.

“For those of who us who believe in protecting the integrity of our religious institutions, this is a fundamental right,” said Richard Cizik, vice president for governmental affairs for the National Association of Evangelicals. “He’s rolling back the Bush protections. That’s extremely disappointing.”

Rich Cizik is one of those centrist evangelicals who's broadened the public policy focus to include issues like global warming.  If he (understandably) finds the hiring-rights issue a deal-breaker, most evangelical leaders and social services will as well.  Of course, some evangelical voters may overlook that issue and respond positively to the general plan, and nudging a few more toward Obama may be all that his campaign expects politically.

Obama's Faith-Based Initiative

Barack Obama is giving a speech today committing to expand the federal "faith-based initiative" in terms of the amount of federal funding for religious and other community-based social services.  But unlike Bush, Obama would not allow an organization to "use [the federal] grant money" to "discriminate against ... the people [it] hire[s]" on the basis of religion.  The AP story is here; an advance text of the speech is here.

Providing greater funding to this effort than the Bush administration did is, as I've argued, a good and necessary thing.  But, as several of us here have argued, an organization hiring employees based on religion to carry out its mission should not be seen as practicing improper discrimination; and excluding those organizations is likely to undercut the breadth and effectiveness of the program.  Obama's speech also mentions that "directly" funded programs must remain secular in content.  This is a feature of the Bush initiative too; and Obama's language suggests perhaps that programs serving individuals receiving federal vouchers (i.e. programs that are "indirectly" funded) may have religious content.  More details to come, no doubt.

UPDATE: Here are the details of the plan from Obama's website; positive comments on it from former Bush faith-based czar John d'Iulio; and a critical analysis from Greg Baylor of the Christian Legal Society, which defends the right of religious organizations to hire on the basis of faith considerations.

Church Autonomy and the Virginia Episcopalian Unpleasantness

          A Virginia trial judge has ruled that conservative breakaway congregations from the Episcopal Church in Virginia should keep their property.  (HT: Christianity Today)  The judge relied on and upheld the constitutionality of an 1867 Virginia statute providing that whenever church property involving a congregation is held in the name of trustees, the majority of the congregation determines who gets the property.  This, the court held, was a permissible "neutral principle of law" for resolving intra-church property disputes, of the sort approved by the Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979).

          In these disputes over property arising from a schism, the issue for churches in which congregations belong to larger bodies with religious authority over them -- the Catholic Church quintessentially, but others as well -- is how to ensure that such an authority relationhip is respected by a civil court.  Jones v. Wolf had said that this was no problem because higher bodies or denominations could use general legal rules to put title in their name or create trusts in their favor.  The Episcopal Church created such an express trust for its parishes in favor of the diocese and general church.  But according to the Virginia court, trusts for religious denominations are invalid under state law.  Instead the general church should have put title in the name of the diocesan bishop, as Catholics do, or perhaps incorporate every parish.

          I'm not up on all the details of this litigation, but the decision raises several concerns.  The idea that it's no burden to be blocked from the express-trust route of maintaining control because you can put title in the bishop's name seems a dangerous restriction on churches' ability to structure themselves to reflect their religious understandings about polity.  In Virginia, the logic may force all churches to organize themselves either like Baptists (congregation wins) or like Catholics (bishop has formal title), when other churches may have religious reasons for preferring the route of local control but subject to a trust.  More generally, a restrictive rather than flexible attitude toward how religious organizations can reflect their polity in legal terms is bad for religious autonomy in general, and should be of concern to Catholics too.

          The trigger for these cases, of course, is the withdrawal of conservative congregations from the national church because of its liberal decisions, particularly but not only the ordination of an openly gay bishop.  My final worry is that theological traditionalists, cheering these property cases based on their immediate effect, will make law that is bad more generally for the autonomy of religious organizations from state restrictions.  That could well harm traditionalist Christianity more in the long run, since, as we are quite aware here on MOJ, traditionalist churches often run up against liberal- or secular-oriented regulation and look to constitutional autonomy doctrines to protect them.

          ADDENDUM:  I meant to congratulate Steffen Johnson and Gene Schaerr, my friends at Winston & Strawn, who won this case for the breakaway congregations.  They have been strong defenders of church autonomy over the years, and they made arguments that would preserve some options for higher church bodies/denominations to use legal rules to retain control over property.  But I still remain concerned about state rules that cut off certain kinds of organizational options, like trusts, for the higher body.

"Who'll Keep the Faith-Based Initiative?"

Jim Towey, former head of the White House Office for Faith-Based and Community Initiatives, asks that question about the two presidential candidates in today's Washington Post.  He begins by noting the opposition to the program:

Liberals who measure compassion only by tax dollars spent say it hasn't gone far enough, while zealots about church-state separation say that it goes too far and should be shut down. But this program is transforming lives. And in an election campaign lacking for new ideas, this one is worth saving.

As a defender (in scholarship and in litigation) of the faith-based initiative, I agree with Mr. Towey that it has opened the door for many private organizations doing good work with the needy to cooperate with government without having to give up their religious character.  (If it focuses on faith-based organizations, that's because they were discriminated against in the past and rules need to be adopted against such discrimination.)  But it's a bit irritating to see the paragraph above refer only to "liberals" and separationist "zealots" as dangers to the program.  In fact, we have considerable evidence that there were many opponents within the Bush administration itself -- those concerned above all with cutting social spending and, one may reasonably infer, interested in maintaining the program primarily for its political value -- and that they were successful in limiting its funding.  That evidence comes not only from the program's former deputy director David Kuo, but from its enthusiastic congressional supporters such as Rep. Mark Souder (Rick Santorum also fought for more funding).

In that light, it seems somewhat partisan to list as opponents of the plan only separationists along with certain "liberals" who want it to do more.  But it's good that Mr. Towey ultimately asks McCain as well as Obama whether they''ll really be committed to cooperating with private (including religious) organizations to reduce poverty, especially since McCain has put such an emphasis on restricting discretionary domestic spending.  It's just that he might also ask if either of them will put more resources into that cooperative effort.

A "New Generation" of Religious Voters?

Theologian Robin Lovin predicts (and says it's already been) "a change election for religion and politics":

Just where all of this is going is still unclear. We may get a religious movement that is both socially conservative and globally aware in ways that refuse to line up neatly with the available political options. Instead of being a reliable part of someone's base, religious voters may become the new swing vote. Or the new generation may compel the politicians to redefine what the political options are. That will not happen quickly, if it happens at all, but the rhetoric of change that we now hear from both presidential candidates shows that they are alert to this possibility, and the results of the general election in November may give us hints of what this new politics will look like, or at least help to identify who will be shaping it.

Tom

More on Same-Sex Marriage and Religious Liberty

Dale Carpenter's typically thoughtful post argues that one shouldn't oppose same-sex marriage on the ground that it creates "novel" threats to religious liberty, religious liberty concerns are no reason to oppose same-sex marriage, in large part because the conflicts between religious liberty and gay rights in multiple contexts predate any recognitions of same-sex marriage.  I agree with the subordinate point.  But the problem with his conclusion is that these other conflicts, although distinct, can be affected by the recognition of same-sex marriage, for a couple of reasons.  (These are apart from any new religious-liberty challenges that gay marriage itself may raise.)

First, the methodology of the Bob Jones case and lower-court cases following it is that if there is a "firm national policy" against a certain kind of discrimination, then a compelling interest exists to override a religious liberty claim (as was done in Bob Jones; see also the analysis, reaching a different result, in Thomas v. Anchorage, 165 F.3d 692 (9th CIr. 1999)).  So the courts look for other provisions forbidding the kind of discrimination in question, and if there are a lot of them, the religious liberty claim loses.  Although same-sex marriage would be adopted state-by-state rather than nationally, its adoption in a state will certainly be cited as evidence of a firm state policy of sexual-orientation nondiscrimination that in turn further shrinks the proper scope of exemptions from gay-rights laws in other contexts.  For example, although Dale takes the position that Catholic Charities should have been exempted from the Massachusetts law requiring it to place children with same-sex couples, I've no doubt that, if the issue had gone to litigation, the recognition of same-sex marriage in Massachusetts would have been cited against any such exemption claim.  (Dale is right that the advent of gay marriage in Massachusetts didn't trigger the issue.  But it could have affected the result had Catholic Charities pursued the issue.)

Second, if recognition of same-sex marriage rests -- as is frequently asserted -- on the premise that private discrimination against same-sex relationships should be treated the same in all legal respects as private racial discrimination, then it is likely to reinforce a very grudging attitude toward religious liberty claims, paralleling the brisk dismissal of the claim in Bob Jones.  For example, since I can't imagine that a Massachusetts agency that refused to place children with interracial couples would get any shrift on a constitutional claim, the race/sexual-orientation analogy, if accepted, would seem to doom the kind of exemption for Catholic Charities that Dale supports.  And by analogy to Bob Jones, should an evangelical college such as Wheaton lose its tax-exempt status because it articulates a standard against same-sex sexual intimacy?

I don't claim that this proves religious liberty is a sufficient ground to oppose same-sex marriage all things considered.  But it does, I think, make it quite rational to be concerned, if you think that religious liberty in this context is already in a precarious state -- as is shown, for example, by the potential implications of the Bob Jones approach, and by the fact that Catholic Charities was forced out of adoption work even though plenty of other agencies were around to place children with same-sex couples.

I think that Dale is right in principle that same-sex marriage and meaningful religious liberty can coexist.  But in order for that to happen, sexual-orientation discrimination cannot be analogized in all respects to racial discrimination.  The closer analogy, at least when a religious organization is involved, ought to be religious discrimination -- where we have, in Title VII, public norms of nondiscrimination in hiring coexisting with significant exemptions for religious organizations.  For example, the federal sexual-orientation nondiscrimination bill, the Employment Non-Discrimination Act (H.R. 3685), now has -- after some pressure in legislative hearings in which I was involved -- a broadened exemption for religious organizations that largely tracks their Title VII exemption for religion-based hiring.

If religious exemptions rested on more secure foundations, then the case for opposing same-sex marriage based on religious liberty grounds would indeed be weaker.

Tom

Pro-Life Pharmacies

The Washington Post reports on the "small but growing number":

When DMC Pharmacy opens this summer on Route 50 in Chantilly, the shelves will be stocked with allergy remedies, pain relievers, antiseptic ointments and almost everything else sold in any drugstore. But anyone who wants condoms, birth control pills or the Plan B emergency contraceptive will be turned away.

There's a familiar response from the "critics [who] say the stores could create dangerous obstacles for women seeking legal, safe and widely used birth control methods."  But no evidence of any such obstacles, given that usually contraceptives are available at any number of drugstores.

Tom

Race, Sexual Orientation, and Religious Liberty

I'm a little confused by aspects of the Vischer-Perry exchange.  Rob, when you express concern about "state efforts to overcome ... obstacles to same-sex marriage," are you talking primarily about the state imposing nondiscrimination rules on those who (for religious or other reasons) conscientiously oppose SSM?  Michael, in your response appealing to the parallel to Loving, are you generally equating sexual-orientation discrimination with racial discrimination?   If the two are equated, then that is likely to do away with most religious liberty claims against the imposition of SSM or sexual-orientation discrimination laws, e.g. employment or employment-benefits decisions by religious schools or social services.  See, e.g., Bob Jones (withdrawal of tax exemption because of policy against interracial dating).  But I thought, Michael, that you viewed it as consistent to have both SSM and a strong religious liberty/exemptions scheme.  Even if SSM is determined to be warranted on constitutional or policy grounds, I think that preserving religious liberty in that context will depend on seeing some differences between SSM and interracial marriage.

Tom

"The Power of God" in Social Movements, And What Difference It Makes

Fleming Rutledge, among the first women ordained in the Episcopal church, is one of America's great preachers.  (Check out a video here.)  She proclaims a powerful message of orthodox, evangelical Christianity that involves the transformation of the world.  Here she writes on how social transformations like the civil rights, anti-apartheid, and Solidarity movements have rested on the power of God rather than "the possibilities inherent in human nature":

For some time now, the academic guilds have been moving away from a rationalistic mode of biblical interpretation. This development opens the way for a new appropriation of the conceptual world of the New Testament, in which the presence of the demonic is presupposed. This perspective shapes theo-ethical thinking in two crucial ways: First, it allows Christians to view opponents not as evil in themselves, but as those who are in the grip of external forces. This conviction empowered Martin Luther King in his consistent message that blacks and whites together were in need of deliverance. Second, the worldview that acknowledges the agency of an active Enemy in world events encourages Christians to look for the power of God not only in stories of individual deliverance, but also in the great social movements of our time.

What practical implications does this have?  Well, for example, in the context of exploitative factory conditions,

[i]f we are thinking theologically, we cannot in this illustration cast the corporate bosses as guilty exploiters and the workers as innocent victims. Rather, we see how the Enemy works to seduce and insulate powerful people from perceiving the suffering of their underlings. The bosses of workers in unjust situations are not evil in themselves. They are in bondage to the desire for profit, so that they think of their workers as means to an end, if they think of them at all. Who can loosen such bonds? God alone. Therefore, social action undertaken in the sight of God has the potential to liberate not only the workers but also the bosses, not to mention the activists themselves! This is the uniquely Christian vision based in the knowledge of the power of God for the justification of the ungodly (Rom. 4:5; 5:6).

Rutledge speaks in distinctively Protestant terms, but do these ideas resonate with Catholic themes?

Tom

Prof. Moltmann on Benedict

We have had, I think, only a bit of commentary on the blog concerning Benedict's November 2007 encyclical Spe salvi facti sumus ("in hope we were saved").  Now the great Protestant theologian Jurgen Moltmann, who for years has set forth a "theology of hope," critiques the encyclical.  A couple of passages:

If we compare [Spe Salvi] with Vatican II's 1965 document on "Joy and Hope," or Gaudium et Spes[,] the peculiarity of Benedict's encyclical immediately catches our eye. Benedict's encyclical is intended for church insiders; it is aimed spiritually and pastorally at the bishops of the Roman Catholic Church and "all Christian believers." It limits Christian hope to the faithful and separates them from those in the world "who have no hope."

By contrast, Gaudium et Spes begins with the church's deep solidarity with "the entire human family." ...

What is lacking in the papal writing? What is missing is the gospel of the kingdom of God, the gospel that Jesus himself proclaimed. What is missing is the message of the lordship of the risen Christ over the living and the dead and the entire cosmos that we find in the apostle Paul. ...  In short, what is missing is the hope of the all-encompassing promise of God who is coming: "See, I am making all things new." By limiting hope to the blessedness of souls in eternal life, Benedict also leaves out the prophetic promises of the Old Testament. Christian hope then becomes hard to differentiate from a Gnostic religion of salvation.

Comments welcome.  Is this critique a fair reading of Benedict -- does he indeed "limi[t] Christian hope to the faithful" and "to the blessedness of souls in eternal life"?

Spes Salvi certainly talks about the Kingdom of God and how we are saved in order to live for others.  But Benedict's and Moltmann's ultimate visions of the Kingdom of God are different.  Influenced deeply by Augustine, Benedict maintains a sharp distinction between our limited "day by day hopes" and "the great hope which must surpass everything else" (para. 31), so that we don't make idols of things in this imperfect world.  Moltmann says that reduces ultimate hope to a solely spiritual state, in disregard of the teaching of a new heaven "and a new earth."  I don't think that follows: the Pope's point is not that the ultimate hope is un-earthly, but that it must be brought about by God rather than by human efforts at improvement.  But I''m pretty sure Moltmann would agree with that.  So is the difference between them that Moltmann believes much more than the Pope that God can work outside the church, the body of believers?  Who's right on that?  If you think Benedict is basically right, does Moltmann nevertheless offer a necessary corrective, reminding us that God's good purposes of love and justice can be accomplished by people outside the Christian church too?

Tom

Is Compassionate Conservatism the Problem?

Senator Tom Coburn (R-Okla.) writes in today's Wall Street Journal that what has ailed the Republican party recently are its "big government" ideas, including not just the lobbyist-oriented "K Street Project" but also "compassionate conservatism":

Compassionate conservatism's starting point had merit. The essential argument that Republicans should orient policy around how our ideas will affect the poor, the widow, the orphan, the forgotten and the "other" is indisputable – particularly for those who claim, as I do, to submit to an authority higher than government. Yet conservatives are conservatives because our policies promote deliverance from poverty rather than dependence on government.

Compassionate conservatism's next step – its implicit claim that charity or compassion translates into a particular style of activist government involving massive spending increases and entitlement expansion – was its undoing. Common sense and the Scriptures show that true giving and compassion require sacrifice by the giver. This is why Jesus told the rich young ruler to sell his possessions, not his neighbor's possessions. Spending other people's money is not compassionate.

I wonder if this means Sen. Coburn wants to eliminate not just earmarks and the Medicare prescription-drug benefit (the big recent social spending increases), but also the Bush initiative for making more assistance available to faith-based and other community organizations helping the needy.  No doubt we all here agree that "policies [should] promote deliverance from poverty rather than dependence on government."  But let's suppose, as I think is true, that many private nonprofits receiving government social-service funds do aim to empower people to escape poverty, often in part through personal transformation, rather than just tide them over with material support.  Sen. Coburn's logic seems to reject assisting even these agencies with tax funds because "true giving and compassion require sacrifice by the giver" and "[s]pending other people's money is not compassionate."  Is that argument well-founded?  Assume that a certain form of help to the needy is truly empowering rather than dependence-inducing, and is properly administered -- then isn't it supported by demands of justice as well as of charity, and therefore proper for government to assist and promote?  Isn't compassion in part an obligation of justice as well as of charity?  Should government assistance in that context be dissed as "spending other people's money"?

Tom

Women, Work, and Leadership

Sunday's NY Times magazine contained an article discussing what we and our daughters should learn  from the fact that opposition to Sen. Clinton's candidacy has included some expressions of sexism and misogyny (e.g. the "Life's a Bitch, Don't Vote for One" T-shirts) along with, the author recognizes, legitimate grounds for opposing her.  The author then talks about the obstacles women still face in entering "male" occupations like firefighter and in rising to the top as large-company CEOs, large-firm law partners, etc.  I was struck not by the article's emphasis on obstacles -- it took a pretty middle position recognizing the "possibilities" for young women and the "vitriol" they may face in working to realize them -- but by the fact that all the obstacles described were flat-out sexist expressions or attitudes (facing "the b- and c- words," surveys showing lots of men prefering to have male bosses etc.).  There was no mention of the structural obstacles that exist because women remain the dominant family caregivers while also trying to provide the long work hours and intense work availability that it typically takes to rise high in a workplace.  Again, I don't discount the sexism or misogyny aspect of the problem, and maybe the article focused on sexist expressions because it was trying to draw lessons from the Clinton candidacy (or maybe the author as a contributing (free lance?) writer hasn't experienced the structural workplace-demands problem herself).  But it struck me again how often the structural side of the "glass ceiling" problem is ignored -- that if we value both mothers' caregiving and women's professional leadership, then changes in the competition-driven workplace are needed -- and therefore how important are the ideas discussed in this symposium, at St. Thomas Law last year, to which Lisa, Susan, and Michael S. (see link on symposium page) contributed.

Tom

Models of Christian Legal Scholarship

Bill Brewbaker (Alabama) posts what looks to be a very interesting paper, Theory, Identity, Vocation: Three Models of Christian Legal Scholarship.  From the abstract:

Recognizably Christian scholarship is becoming more commonplace in the American legal academy, yet little systematic attention has been given to fundamental questions of approach. This article highlights moments of continuity and discontinuity between Christian legal scholarship and its secular counterparts. Contrary to the expectations generated by contemporary political debate, the distinctive contribution of Christian legal scholarship is not primarily to provide ammunition for political programs of the right or the left, but to situate law and human legal practices within a larger story about the world.

The "vocation" model seems particularly interesting:

Finally, a vocation model emphasizes that legal scholarship is one of many human (and not merely Christian) callings, the point of which, as with other such callings, is the glory and enjoyment of God. In order to know what pleases God, the scholar will need to study the Scriptures and theology; he or she will need the church. But the scholar will also need to study God's creation, including not only the world God has made directly, but also those relevant human institutions that, in God's providence, inhabit it. On this view, there is no reason to prescribe a uniform methodology for Christian legal scholars, nor should we necessarily expect widespread agreement among Christians on contestible legal issues.

Tom

More on Obama and Judges

In reaction to Rick and Rob on Obama, I think that we do not want judges (in constitutional and statutory cases) to carry out "their broader vision of what America should be," but that we do want judges who can understand (or try to understand) "what it's like to be gay, poor, or black" (as well as other characteristics; I do think there's a problem with overly selective sympathy).  Sympathy for the real-world conditions of people is a judicial virtue, not because the judge is suppose to enact that sympathy solely or in the face of the law, but because it is often essential to giving meaning to the directives of the law (constitutional or statutory).  Interpretation, even an under an originalist analysis, often requires making an analogy (or disanalogy) between the context of the enactment and the context today.  For example, could a justice have voted to strike down school segregation in Brown without making some judgment that segregation denied equality to people in an analogous way to the black codes of 1868, and that education had become so pervasive a factor in people's opportunities by 1954 that it was analogous to the rights (property, contracts, etc.) as to which the 1868 framers meant to guarantee equality?  Would a justice be able to reach those conclusions, or even address those questions, without trying to imagine "what it [was] like to be black" in segregated societies/schools"?

As another example, I've found that asserting the constitutional right to bring religion into the public square -- a well-grounded right historically, but one whose contours in current situations are not entirely clear -- won't succeed unless judges try to sympathize with the religious believer facing the state: the student who wants to do a religious paper topic in class over a teacher's objection, or the family that wants their religious choice included equally in a school choice program as against the state's teacher's lobby and Blaine Amendment history.  Without thinking "what it's like to be a serious religious believer," judges tend to say "I don't see that you're that burdened; you can still practice your religion at church and home."

Tom

Divorce Issue re. Wheaton Professor

From Christianity Today online:

After refusing to discuss the details of his divorce, tenured professor Kent Gramm resigned from his English position at [evangelical] Wheaton College.

Wheaton’s faculty handbook states that the college will consider employee retention “when there is reasonable evidence that the circumstances that led to the final dissolution of the marriage related to desertion or adultery on the part of the other partner."

But Gramm declined to discuss details. “None of Your Business” headlined Monday’s Chicago Sun-Times front-page story.

Wheaton apparently followed the rule it had in place.  But the comments section includes interesting thoughts on what the rule should be, for example:

Christians are often accused of being inconsistent in discussing family issues--i.e., how can you be vocal on homosexuality but silent on no-fault divorce? Opposing no-fault divorce is one step toward consistency and one step away from hypocrisy. I think firing Christian professors who do not defend their life choices is one way to make that statement.

Versus:

Yes, they should fire the divorcing person as long as they fire everyone else who commits a sin or makes a mistake.

Tom

John Green (Pew Forum) on Catholics and Obama

Apropos the Sisk/Shiffrin exhange on Obama's problems with Catholic voters, here are thoughts on the subject from religion and voting expert John Green of the Pew Forum on Religion and Public Life.

No St. Thomas Law Public-Service Credit for Work at Planned Parenthood

This week our dean at St. Thomas Law, Tom Mengler, ruled that students seeking to satisfy our 50-hour public-service requirement for graduation cannot get credit for hours volunteered at Planned Parenthood, even if the specific work they do is not abortion or contraception services.  The Cardinal Newman Society (CNS) applauds the decision here.  I'm not trying to curry favor with my dean when say that I (along with lots of others) applaud it too.  Since some of Tom's explanatory email has already been quoted by the CNS, I think it's best just to post the whole email and let it speak for itself.

Tom B.

++++++

Dear friends,

I write to resolve a community dispute regarding a decision made yesterday by our Public Service Board (PSB).  Yesterday, the PSB voted to authorize public service credit to a student who would like to volunteer at Planned Parenthood.  Since then, Dean Organ and I have received a number of emails or visits from students and faculty questioning the PSB’s decision, as well as questioning some of the language and processes under which the PSB functions.

For now, I would like to set aside for another day some of the broader questions that members of this community, including members of the PSB, have raised with respect to modifying the PSB guidelines.  These Guidelines were adopted by the faculty and can be amended, therefore, only by a favorable vote of the faculty.

I do think it is important, however, for me to treat as a formal appeal to the Dean the specific concerns that many from this community have voiced regarding the PSB’s decision to certify volunteer work at Planned Parenthood as “qualifying public service.”  [I'm omitting a short discussion here about the appeal procedures.--TB]

As the PSB Guidelines make clear, they are designed to encourage an ethic of servant-leadership within this community.  The Guidelines also clarify that qualifying public service is restricted to “any type of volunteer work that is consistent with the mission of the School of Law and the University of St. Thomas.”  Not surprisingly, this broad encouragement of public service activity places few restrictions on the types of volunteerism for which our law school community should be congratulated.

One restriction, however, flows directly from the University of St. Thomas as a Catholic University, and of the School of Law as an academic unit that seeks to live its Catholic identity.  At this University, there is helpful precedent.  Nine years ago in 1999, Father Dennis Dease as President of this University decided an issue very similar to the one that presents itself to our law school community.  Father Dease denied externship credit to an undergraduate student who wished to volunteer at Planned Parenthood on grounds that St. Thomas cannot endorse -- with academic credit -- student service at an organization whose mission is fundamentally in conflict with a core value of a Catholic University.   Because Planned Parenthood is a leader in the abortions rights movement and because opposition to abortion is one of the core values of the Catholic faith, Father Dease refused to authorize the extension of academic credit to academic or service work at Planned Parenthood.

I regard Father Dease’s decision in 1999 as controlling -- and for this reason I must reverse the decision of the PSB.  Volunteer service at Planned Parenthood, whatever the nature of that service, advances the mission of Planned Parenthood, an organization whose mission is fundamentally at odds with a core value of the Catholic Church.  Such service does not constitute “qualifying public service” for purposes of satisfying the School of Law’s graduation requirement of 50 hours of public service.

I understand and appreciate that my decision in this matter will be met with mixed reaction.  At the School of Law, we have set a course that attempts to live out our Catholic identity in a way that, on the one hand, is true to this identity and, on the other hand, is welcoming and embracing of those who differ.  I regard this decision as an effort to walk that path.  Because our Catholic identity begins with the value of extending respect and dignity to every individual, rarely should it require us to make decisions that cause unhappiness or discontent.  This is one of those rare circumstances, however, in which living out our Catholic nature as a Catholic law school may cause a difference of opinion and feelings among students, faculty, and staff.

Finally, I would like to make clear that my decision should not be read as critical of the fine work of the PSB.  The student members of the PSB have consistently worked effectively and tirelessly to administer our public service requirement, to make public service opportunities available to this community, and to encourage all of us to become servant leaders.  With regard to this particular issue, the PSB debated deliberately and reflectively on their roles and attempted to reach a decision that was true to our Catholic identity and encouraged each of us to draw on our own faith and values to become professionals of character and integrity.  I commend the PSB on the seriousness with which it undertook to resolve a difficult question.

Sincerely,

Dean Mengler   

Tancredo Blasts the Pope on Immigration

As the New York Times reported, the Pope spoke in favor of immigrants several times during his visit, including in his speech to the American bishops, where he urged them and their communities "to continue to welcome the immigrants who join your ranks today, to share their joys and hopes, to support them in their sorrows and trials, and to help them flourish in their new home. This, indeed, is what your fellow countrymen have done for generations."  He also spoke of the need to prevent the breakup of families in the immigration context, since the separation "'is truly dangerous for the social, and human fabric' of Latin and Central American families."

One of the Pope's comments -- that the U.S. should do "everything possible to fight . . . all forms of violence so that immigrants may lead dignified lives" -- set off anti-illegal-immigration obsessive Rep. Tom Tancredo (R-CO), who issued a statement saying, "I would like to know what part of our lax immigration policy is violent" and claiming that the Peope had "encourag[ed] Bush to provide blanket amnesty to all illegal immigrants in the United States."  (HT: Kathryn Lopez)  Tancredo went on, as described by the Times:

Accusing the Pope of "faith-based marketing," Mr. Tancredo said Benedict's comments welcoming immigrants "may have less to do with spreading the Gospel than they do about recruiting new members of the Church."  Mr. Tancredo, a former Catholic who now attends an evangelical Christian church, said it was not in the pope's "job description to engage in American politics."

Obviously there are legitimate arguments for strengthening anti-illegal-immigration policy in various ways.  No one could reasonably criticize Benedict for his calls for humaneness in treatment of illegal immigrants -- which has implications for the policy issues like deportations (although I'm quite confident he's never urged "blanket amnesty").  But one can colorably argue that a call, like his, to "welcome immigrants" must always be qualified by recognizing the need for legal-immigration requirements to manage the flow of incomers in an orderly way.

But my preexisting impression that Tancredo carries beyond these arguments to foment prejudice has now been strengthened by his rush to beat off any challenge by invoking, explicitly or implicitly, other prejudices: that the Church is mostly concerned to "recruit" rather than uphold human dignity, and that the Pope should not comment on American moral-political issues (combining allusions to "religion should stay out of politics" and "the Pope is a foreigner").

Tom

Another St. Thomas Speaker Kerfuffle

There is developing blogosphere commentary over the recent decision by a University of St. Thomas administrator to reject an April 21 on-campus speaking event with Star Parker, pro-life activist, who would speak about "the harmful impact of abortion, especially in minority communities."  The speech would have been sponsored by the University's Students for Human Life and the conservative Young America's Foundation.  From everything I can tell, this is another misguided decision by University administration to reject a speaker based on greatly exaggerated fears about disturbances, or about inflammatory speech that might be inconsistent with the University's mission.  (See here, e.g., for a statement last fall criticizing the University's decision, later reversed, to refuse an invitation to Abp. Tutu -- who coincidentally spoke in the Twin Cities last Friday at the event in question, which in the end was not held at St. Thomas.)  Hopefully, criticisms of this decision, as of that one, will lead to a reversal.

Tom

Another Unnecessary Imposition on Conscience

Continuing in the threats to conscience vein ....  Eugene Volokh reports:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock's same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney's fees and costs.

Eugene goes on to discuss Elane's legal objections to this sanction.  One is the First Amendment's right against compelled speech (Board of Education v. Barnette), based on the argument that the photographer is compelled to use her artistic talent to present positive images of an event she opposes.  Another is the New Mexico state Religious Freedom Restoration Act, which requires that the state justify any substantial burden it imposes on religion as "essential to further a compelling governmental interest" and as the "least restrictive means of furthering" that interest.  Statutes like this, also in force for the federal government and about a dozen other states, provide legal authority for giving weight both to religious conscience and to governmental interests in particular contexts.  In this case it's the photographer's interest in freedom of conscience against government sanctions, versus -- and let's put it in the strongest light -- the couple's interest in carrying out their conscientious decision to make a public commitment to each other with the assistance of various commercial services that one expects to be able to make such events memorable.

It seems very likely than in Albuquerque, the couple can go the next wedding photographer in the phone book or online and secure its services.  To help the couple can avoid this inconvenience, the state proposes to drive out of the wedding-photography business anyone who won't participate in commemorating same-sex marriages or commitment ceremonies.  I would think that the effect on the photographer (who has probably made some investment in that business) is typically much greater than the effect on the couple who can usually obtain another photographer easily.  Thus this seems like one of the many cases in which an exemption preserves the ability of the people on both sides to follow their consciences.

As Eugene notes, though, antidiscrimination plaintiffs and state antidiscrimination agencies argue that each act of discrimination itself violates a compelling interest in nondiscrimination, so the availability of other services (photographers or whatever) is irrelevant.  This argument has basically been accepted in the case of race discrimination, where exemptions are almost always refused even if done by a few isolated entities (think, for example, the Bob Jones University case).  But as Rob and others have  argued, the prohibition on race discrimination in commercial activities came after a long national debate (with just a few battles and protest marches along the way) out of which an overwhelming consensus emerged about the wrongness of racial discrimination.  We are much, much earlier in the process of debating the legitimacy of same-sex marriage.  Giving conscience serious but sensible protection includes leaving room for that debate to happen before the government throws its weight in by sanctioning those who carry their belief (on one side or the other) into their work lives.

It's especially silly, of course, that the state should punish private citizens for doing the very thing that the state itself does: refuse to recognize or participate in a same-sex marriage.  That certainly undercuts any allegedly compelling nature of the state's interest here; and it dramatizes how misguided it is for the state to try to pressure people on the same-sex marriage issue at this stage in the debate (when the state isn't even willing to take the step itself), unless same-sex couples are really unable to get services.  Even if or when the state recognizes same-sex marriage, the photographer's conscience should be protected when other photographers are available; but the state's coercion of conscience at this point in time is even more unwarranted.

Tom

Resource on Marriage Law

This new publication, described by Maggie Gallagher, looks like a good resource:

This month iMAPP, in conjunction with the Marriage Law Foundation, is announcing a new monthly e-publication, the "Marriage Law Digest."

Edited by Bill Duncan, the Marriage Law Digest aims to provide readable summaries of key legal opinions affecting marriage and family life in the U.S., with links to the opinions themselves where possible.

Each month, the Marriage Law Digest will be available (free) online at the Insitute for Marriage and Public Policy's website. You can download this month's edition here. . . .

Tom

Rick and Other Speakers, at St. Thomas, on Evangelization/Proselytization

Having just returned from a few days' vacation, let me second Rick's invitation to Twin Cities-area readers to check out the program we are doing here at St. Thomas Law's Murphy Institute, this coming Monday April 7, concerning the conflicts over interreligious evangelization.  In addition to Rick revisiting his excellent paper on "Changing Minds," we'll have a companion address by Ali Khan, a very interesting Islamic law scholar from Washburn Law School in Kansas, and responses from two Twin Cities religious leaders, Rabbi Marcia Zimmerman of the Temple Israel (Reform) synagogue and Wilbur Stone, a professor of global ministry at the evangelical Protestant Bethel Seminary.  Speakers from four different religious traditions, offering legal, theological, and pastoral perspectives on what are increasingly viewed, as Rick notes, as matters not only "of piety and zeal, [but] of geopolitical, cultural, and national-security significance as well."  Hope to see some of you there, at 4:30 p.m. with a reception following.

Tom

CA Court Will Rehear Homeschooling Case

The California Court of Appeal has granted a rehearing petition in the case in which it held that home-schooling parents must have teacher credentials and rejected any constitutional right to engage in home schooling.  The Alliance Defense Fund news release is here.  Rick's earlier post on the case is here.

The usual pattern in the past with home-schooling has been that courts have rejected constitutional claims by home schoolers and then the political branches have enacted statutes or regulations protecting them.  We'll see if this case ultimately ends up in a court win.

Tom

"The Abstinence Teacher"

Although I haven't read Tom Perrotta's novels Little Children and The Election, both made for excellent films (Tracy Flick for vice president!).  So Perrotta's new book The Abstinence Teacher, whose plot-instigating device is a high-school sex-ed controversy, might well be worth a read.

Tom

Law and Religion ... Summer ... Tuscany

That's what the University of Siena's annual International Law and Religion Summer School offers.  I taught there two summers ago, enjoyed spending the week with faculty and students from throughout Europe, and highly recommend the program and the city (including the marvelous frescoes "The Allegories of Good and Bad Government" in the medieval city hall).  From this year's notice:

[T]he International Summer School in Law and Religion will take place in Siena, Italy, from June the 18th to June the 22nd 2008.  For full information (speakers, registration, fees, deadlines) please report to the official website of the School.  This year we will be concentrating on "Women in Law and Religion". Given the importance of the subject in our times and within the international context I hope you will be interested in the event, and inform anyone you deem could be interested.

Tom B.

"The Hazy Faith-based Future"

Christianity Today reports on what the three remaining presidential candidates have said so far concerning the future of funding for faith-based social services and of questions concerning their autonomy.  Obama seems the most skeptical, McCain the most positive: no surprise I guess.  Obama's comment that "if the federal government starts paying the piper, then they get to call the tune" is (as I've argued here) not a good reason to eliminate the initiative and remove the option to seek funding -- because faith-based organizations also face pressures on their autonomous program decisions if they have to compete with preferentially funded secular providers.  The choice whether to participate in funding should be up to the organization.

One interesting comment in the piece:

Jay Hein, current director of the White House's faith-based office, has sought to make the faith-based initiative permanent by expanding it to the state level. According to the White House, 35 governors and more than 100 mayors now have faith-based offices.

"Outside Washington, this is not a partisan issue," said Doug Koopman, a Calvin College political science professor. "Inside Washington, it's identified with President Bush, who is an outspoken evangelical. That edge to it has never gone away."

Tom

More Church Autonomy Problems in the UK

The BBC reports a disturbing ruling in Wales (HT to my colleague Teresa Collett):

A gay Christian who won a claim against the Church of England has been awarded more than £47,000 in compensation.

John Reaney took the Hereford diocesan board of finance to an employment tribunal after his appointment as a youth worker was blocked.

According to an earlier BBC story, Mr. Reaney seemed to be in line for the job but then, in a final-stage interview, the bishop of Hereford asked him a series of questions about whether he could remain celibate outside of marriage as the Church of England's rules require.  Reaney's claim was that the bishop wouldn't have asked these questions of a heterosexual applicant, and/or that such an applicant's assurances that s/he could remain celibate would have been accepted.  From the current story:

In his evidence to the original tribunal, Bishop Priddis said anyone in a sexual relationship outside marriage would have been rejected.

However the tribunal last month ruled Mr Reaney, who now lives in Cardiff, had been discriminated against "on the grounds of sexual orientation."

There is a distinction between orientation and extramarital conduct as grounds for employment actions; and one might criticize, say, the Catholic Church on theological grounds (as several MOJers have) for rejecting men with a "deeply rooted" homosexual orientation as priests regardless of whether they can convincingly claim a past and future commitment to celibacy.  (A counterargument here.)  But from what I can see, this case exemplifies why that distinctions should not form the basis for imposing liability on a church for its hiring -- especially for a position that appears pretty pastoral (Mr. Reaney speaks of "numerous young people who have become Christians due to my work and ministry among them").  It looks like there was indeed reason to raise questions about Mr. Reaney's commitment to celibate conduct, since according to the earlier story he had "resigned [a previous youth-worker position] after being asked to choose between his partner and his job."  With the prospect of a tribunal deciding after the fact whether any given line of questions was more than a straight applicant in similar circumstances would have faced -- and $100,000 in damages possibly at stake each go-round -- surely a lot of church interviewers will just let the celibacy subject drop.  The Hereford diocese spokeswoman puts a brave, but not altogether convincing, face on it when she says:

"We are now aware that when making such an appointment we must make it clear if it is a genuine occupational requirement that the post-holder should believe in and uphold the Christian belief and ideal of marriage, and that sexual relationships are confined to marriage."

Tom

"A Prolife Progressive's (Fictional) Run for President"

A new blog, "Prez4Life," is developing the fictional narrative of a "pro-life progressive" -- a former Minnesota Democratic senator -- running for president as an independent.  It looks interesting, both for its effort at serial blog fiction incorporating real campaign developments, and for the vision it imagines.  The author is, at this point, anonymous and unknown to me (despite the reference to the "pro-life progressivism" conference at St. Thomas Law a few years back).

Tom B.

The End of Compassionate Conservatism?

Continuing with the theme of assessing compassionate conservatism -- which, to my knowledge, not one Republican candidate since the long-departed Sam Brownback has given a serious mention (Huckabee offers only occasional stabs, not any coherent policy)....  Here's Michael Gerson's perspective on Bush's commitment to the idea (the faith-based initiative, AIDS/malaria funding, etc.), and why the idea hasn't stuck.

Bush has received little attention or thanks for his compassionate reforms. This is less a reflection on him than on the political challenge of compassionate conservatism. The conservative movement gives the president no credit because it views all these priorities -- foreign assistance, a federal role in education, the expansion of an entitlement -- as heresies, worthy of the stake. Liberals and Democrats offer no praise because a desire to help dying Africans, minority students and low-income seniors does not fit the image of Bush's cruelty that they wish to cultivate.

Compassionate conservatism is thus a cause without a constituency -- except for the large-hearted man I first met in 1999 and who, on Monday night, proposed to double global AIDS spending once again.

I agree that Bush deserves credit.  But I think it's also undeniable that his focus on compassionate conservatism got crowded out not only by opposition in both parties, but by his focus on fighting terrorism and