Mirror of Justice

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Tuesday, August 19, 2014

Robert Miller on Hadley Arkes, RFRA, courts, and the law

Prof. Robert Miller (Iowa) has a nice essay up at Public Discourse in which he responds to the argument that Prof. Hadley Arkes (and some others) has made, that is, "that the plaintiffs in Burwell v. Hobby Lobby, most of their supporters in the public square, and Justice Alito in his majority opinion in the case have adopted a mistaken and dangerous understanding of religious freedom."  (I addressed this argument in this post, and Prof. Arkes responded here.) 

Here is a taste (but I recommend reading the whole thing):

. . .  In the law of religious freedom, the morality of the religious practices of the man who claims a right to religious freedom is relevant, but so too are many other considerations. Once again, it matters that the law is a system administered by imperfect human beings. In particular, long and sad experience has shown that legislatures and courts are not good at sorting out true religious beliefs from false ones, and majorities, whether religious or non-religious, tend to persecute religious minorities, which produces social strife and sometimes bloodshed. Even when a law is not aimed at restricting a minority’s religious practices, if the law in fact does so, such pernicious consequences often follow. This means that, sometimes, even though a certain religious practice is based on false beliefs and is morally wrong, nevertheless making a law to suppress that practice is wrong too. For just such reasons, our law includes provisions like the religion clauses in the First Amendment and the Religious Freedom Restoration Act (RFRA), which limit the government’s involvement and interference in religious matters. . . .

August 19, 2014 in Garnett, Rick | Permalink

Monday, August 18, 2014

RFRA, the Pitchfork, and the Crozier

[MOJ reader Christian E. O'Connell wrote and sent in the following and -- with his permission -- I am posting it here]:

RFRA, the Pitchfork and the Crozier

Christian E. O’Connell [*]


Will no one rid Professor Marci Hamilton of these turbulent priests?

The Cardozo law professor’s resentment at the meddlesome shepherds of the Catholic Church is palpable in her new essay (“The Circle Starts to Close”) at Justia’s Verdict.  The U.S. bishops pressed, albeit unsuccessfully, for an abortion-related exception to the Religious Freedom Restoration Act (“RFRA”) at the time of its enactment; they’re currently “sinking who-knows-how-much-money” into RFRA litigation to avoid being compelled to provide what Hamilton terms “cost-free contraception coverage.”  Perhaps most insolent of all in Hamilton’s tally of grievances, the bishops “lobbied like crazy” alongside evangelical Protestants and others for informed consent laws requiring physicians to provide certain information to women seeking elective abortions.

Now that an ostensibly religious organization called the Satanic Temple has commenced a campaign to avail its women members of a RFRA exemption to state informed consent laws, Hamilton is gratified by the prospect of seeing the Catholic episcopate hoist with its own petard.  By Hamilton’s reckoning, the road to the Satanic Temple’s victory is paved with the intentions of those who, like the bishops, welcomed the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby.

Continue reading

August 18, 2014 in Garnett, Rick | Permalink

Thursday, August 14, 2014

Donald Drakeman's response to Garnett on "The Freedom of the Church"

Dr. Donald Drakeman has posted a thoughtful response to my short essay, "Freedom of Religion and the Freedom of the Church" (about which I posted the other day), at the Law & Liberty blog.  Drakeman's response is called "Negotiating the Freedom of the Church."  He notes, among other things:

As the religious mission moves out of the church and toward more direct contact with the world, however, the rest of the world may push back. The polls say that there is some support, albeit more limited, for the concept of the church carrying its religious freedom rights into the world. Accordingly, as in Cardinal George’s message, churches may need to articulate not only the religious importance of their educational and healing missions, but also the practical importance to society of the churches’ continuing to maintain them. . . 

Read the whole thing, and also John Inazu's contribution, "Freedom of the Church Not Freedom of Religion."

August 14, 2014 in Garnett, Rick | Permalink

"What Would Jeremiah Do?"

I thought this essay, by Samuel Goldman, was interesting and thoughtful.  The basic idea:  One possible response to the MacIntyre-ian conclusion that "we live amidst the ruins of Western civilization" is -- as readers of After Virtue remember -- the so-called "Benedict Option."  Goldman discusses another possibility, the "Jeremiah Option" --  a strategy that "[t]he Hebrew Bible and Jewish history suggest . . . according to which exiles plant roots within and work for the improvement of the society in which they live, even if they never fully join it."

This strategy lacks the historical drama attached to the Benedict Option. It promises no triumphant restoration of virtue, in which values preserved like treasures can be restored to their original public role. But the Jews know a lot about balancing alienation from the mainstream with participation in the broader society. Perhaps they can offer inspiration not only to Christians in the ruins of Christendom but also to a secular society that draws strength from the participation of religiously committed people and communities. 

Check it out.  Thoughts welcome.

UPDATE:  Bryan Kern suggests some additional "options":

Augustine option (Political Writings; Dodaro; p. 96-98; Letter 155): “If you recognise the source of the virtues you have been given and give him thanks; if you use them even in your secular position of honour to contribute to his worship; if you inspire and lead those people under your power to worship him both by living an exemplary religious life and through the devotion you show to their interests, whether by support or deterrence; if the only reason that you want them, with your help, to live more securely is so that they might win God, in whose presence they will live blessedly; then, all your virtues will be real ones. . . . Let us do everything we can, then, to bring to him also those whom we love as ourselves; if, that is, we now realise that loving ourselves means loving him. For Christ himself (that is, the truth) said on these two commandments hang all the law and the prophets: to love God with all our heart, and all our soul, and all our mind; and to love our neighbours as ourselves. . . . We ought therefore to love both God and our neighbour as ourselves, so that we will lead anyone we can to worship God by comforting them with kindness, or educating them through teaching, or restraining them through discipline, in the knowledge that all of the law and the prophets hang on these two commandments.”
Francis option (Evangelii Gaudium, 89): "Today, our challenge is not so much
atheism as the need to respond adequately to many people’s thirst for God, lest they try to satisfy it with alienating solutions or with a disembodied Jesus who demands nothing of us with regard to others. Unless these people find in the Church a spirituality which can offer healing and liberation, and fill them with life and peace, while at the same time summoning them to fraternal communion and missionary fruitfulness, they will end up by being taken in by solutions which neither make life truly human nor give glory to God."
Ratzinger option (from A Turning Point For Europe, apologies for no page numbers, coming from e-reader) :“What the Church has to remember is that, though the sources of law have been entrusted to her safekeeping, she does not have any specific answers to concrete political questions. She must not make herself out to be the sole possessor of political reason. She points out paths for reason to follow, and yet reason’s own responsibilities remain. . . . All this comes together in the Church’s most interior and yet also most human task: the task of making, not just talking about, peace, in deeds of love. . . . The Church’s fidelity to her true nature is shown in her ability to support human beings in the vocation to love, to bring the vocation of love to maturity and to give it concrete form in the life of the community. Through the power of love, the Church must serve the poor, the sick, the lost, the oppressed. She must go into prison, into the suffering of mind and body, as far as the dark way of death. In areas torn by the strife the human race always has experienced and always will experience, the Church must give men the strength to survive and, with the power of forgiveness, awaken the capacity to make a new start. Only the man who can forgive can build and preserve peace.
Von Balthasar option (from Test Everything, again on e-reader): “We cannot simply entrust politics to non-Christians. The Church is confronted with political systems in the world—and by no means merely peripherally. They are to be taken seriously, even though they may present a heavy burden for the Christian. This presupposes, of course, professional competence, just as a physician or lawyer must exhibit competence in his field. This idea is basic to all secular institutes. What applies to secular professions applies equally to politics: although we cannot force specifically Christian ethics on non-Christians, we nevertheless have to demonstrate that life according to such terms is humanly believable.”

August 14, 2014 in Garnett, Rick | Permalink

Monday, August 11, 2014

James Mumford on Paul Ryan and a "New Approach to Poverty"

James Mumford has a very thoughtful piece up at The Hedgehog Review, called "A New Approach to Poverty."  It's a reflection on Rep. Ryan's new set of reform proposals relating to relieving poverty (and enhancing opportunities).  Worth a read.

August 11, 2014 in Garnett, Rick | Permalink

Thursday, August 7, 2014

"Religious Identity in a Time of Challenge for Law Schools"

This is the theme of the upcoming annual Religiously Affiliated Law Schools conference, which is being held this year at St. Thomas.  Don't miss it!  

August 7, 2014 in Garnett, Rick | Permalink

"Freedom of Religion and the Freedom of the Church"

Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church."  (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.)  Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously).  Here's a bit:

Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.”[4] However, he continued, “it has again taken center stage.” It seems that it has.[5] Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[6]

But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?

 UPDATE:  John Inazu's (excellent) response is available here.

August 7, 2014 in Garnett, Rick | Permalink

Monday, August 4, 2014

Catholic Social Teaching and public-employee unions

Prof. Meghan Clark argued recently, in this piece ("Power to the Public Workers"), that the deeply rooted Catholic principles and teachings having to do with the dignity of work and workers mean, in practice, that public-employee unions should not be distinguished from private-sector-employee unions when it comes to collective bargaining and other labor-related policies.

I have contended often here at MOJ and elsewhere  that "it is both appropriate and important to distinguish, for purposes of thinking about the implications of the Church's teachings regarding the dignity of work and workers, between public-employee unions and private-sector unions."  To quote an earlier post:

(The point, obviously, is not that public-sector work and workers are less worthy of respect but that the dynamic between employer and employee is meaningfully different and different in ways that are relevant to evaluating the positions, and the power, of public-employee unions.)   As I wrote a few years ago:

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters andMorning's Minionand Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum.

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused). 

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It isnotgood for unions to use workers’ contributions to support political causes –say, abortion rights – that are not relevant to the association’s purpose and mission.

Prof. Clark writes:

Our teachers, librarians, police, firefighters, sanitation workers, and all civil servants actively contribute to the common good. They and their jobs are not lesser because their wages are funded by your taxes. They have equal dignity with private employees. In this current wave of hostility toward public workers, Catholic social teaching reminds us that the dignity of all workers—public and private—grounds their basic right to association, including the right to unionize and bargain collectively. 

I agree entirely with the first three of these sentences, but have to respectfully disagree with the suggestion that public employees' "equal dignity" means that the content and limits of their "right to unionize" are or should be the same as that of private-sector employees.  That the employer is not "capital" but is, instead, the political community is, it seems to me, very relevant to questions about the employer-employee relationship.  The employer -- again, the political community -- has obligations not only to its employees, but also to citizens, taxpayers, and -- as the looming crisis in underfunded public-employee pensions reminds us -- future generations.

August 4, 2014 in Garnett, Rick | Permalink

School vouchers, intolerance, and justice: A response to Michael S.

A few weeks ago, Michael Scaperlanda shared this post, "School Vouchers in a Time of Increasing Intolerance," in which (among other things) he invited my thoughts about and reactions to his suggestion that the Blaine Amendments, "as ugly as they were[, could] be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy[.]"

It is, I am afraid, true (as Michael's post suggests) that we can expect public funds and support -- including not just vouchers, but also tax-exempt status, access to public forums and programs, even accreditation -- to come with heavy-handed regulatory "strings" that will often be in tension with the mission and character of authentically Catholic schools.  But, the anti-Catholic Blaine Amendments (which have, in some states, had the effect of limiting public funds for Catholic schools and the families who support them) will not really be any help, I'm afraid.

Now, in my view (and in Michael's, I know) -- see here and here for more -- it is unjust for communities to limit public funding of education to education that takes place in state-run institutions.  It is unjust -- and Catholic social teaching is clear on this point -- to deny parents the support or assistance necessary for them to send their children -- if they want to send their children -- to Catholic schools.  That said, and as Michael reminds us, the danger has always been real -- and school-choice opponents have often emphasized it -- that public funding would come with mission-compromising regulations.  I do not think this danger is a sufficient reason to stop trying to bring about more just school-funding policies.  It should be kept clearly in view, though, as policies are designed and debated.

I do not believe that Catholics and the Church can -- in this country, given all the on-the-ground givens -- just "walk away" from our institutions and this means -- again, given all the givens, that we cannot just "walk away" altogether from public funding and potentially entangling regulations.  It's not just that we need our institutions, or that they do a lot of good work, or that we have become overly dependant on public support.  It is, in addition, that the political authority is not going to allow us to walk away.  The argument that non-state institutions may and should be not only incentivized, but compelled, to come into ideological congruence with the practices and commitments of state organizations used to be marginal and radical, but it now seems entrenched comfortably in the mainstream.   Blaine Amendments or no, vouchers or no . . . it will be an increasingly difficult political and legal fight to preserve Catholic institutions' ability and freedom to be -- assuming they want to be -- Catholic institutions.

August 4, 2014 in Garnett, Rick | Permalink

"New Urbs" at The American Conservative

Readers of MOJ are probably very(!) familiar with my love-hate interest in "New Urbanism", about which I've often blogged here.  That interest prompted me to read this, at The American Conservative, about a new project of their called "New Urbs":

. . . Over the course of the next year, The American Conservative will be opening a discussion on how to rebuild America’s communities and sense of place by fostering humane, sustainable, and walkable built environments, made possible by a grant from the Richard H. Driehaus Foundation. For while the breakdown of community and the family is a consistent theme in conservative circles, the conversation very rarely gets beyond some mix of exhortation towards traditional values and demands for rollback or reform of the welfare state. That’s where a school of urban design called “New Urbanism” comes into play.

Just as an individual is embedded in a family, and a family is embedded in a community, so too a community is embedded in its neighborhood. The patterns we live in can bring us into the sort of constant, casual, incidental contact that builds bonds between neighbors, or they can silo each of our families away, leaving civil society to wither as the “place between” is filled with asphalt and strip malls. As Paul Weyrich, William S. Lind, and Andres Duany wrote in “Conservatives and the New Urbanism” in 2006, “Edmund Burke told us more than two hundred years ago that traditional societies are organic wholes. If you (literally) disintegrate a society’s physical setting, as sprawl has done, you tend to disintegrate its culture as well.” New Urbanists aim to reinvigorate those traditional structures, like the classic Main Street with living space above the storefronts, and other homes right around the corner. . . .

Stay tuned . . .

August 4, 2014 in Garnett, Rick | Permalink