Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, June 18, 2018

Parents' Rights in the border context . . . and beyond

One of the first papers I published, after becoming a law professor, was about parents' rights -- both generally and in the education and medical-treatment-refusal contexts more specifically.  It was called "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children" (available here).  Here is the abstract:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

I took (and still hold) a strong view of parents' rights to direct and control the upbringing of their children and I disagreed with those scholars who contended that (a) it is a mistake to talk about "parents' rights" because no one has a "right" to control another person's upbringing and development, (b) that it is a concession -- but only that -- by the state that we presumptively defer to (most) parents' choices about their children's upbringing and education, and (c) that the transmission of traditional or otherwise illiberal religious views and positions by parents to children can "count" as a "harm" that warrants state interference with the parents' practices.

This is, again, still my view.  That said, my impression is that -- in both the family-law and the constitutional-law fields -- the merits of the Pierce rule are quite contested and that many scholars hold the view that parents' power or authority to raise their children is merely delegated and should be subject to closer state supervision, in order to resist the successful transmission of illiberal or traditional religious views.  That is, the Douglas view in Yoder seems more popular than the Pierce decision.

In recent days, there has been a lot of close attention paid to the gravity of the state's decision to separate parents and children for public-policy (or, as we are seeing now, in terrorem) reasons.  I'm not an expert, but I'm inclined to agree with those who insist that it is unjust and unnecessary to have a blanket policy of separating and detaining the children of people who cross the border unlawfully and then present themselves for asylum consideration.  One hope I have for this current debate is that it will remind people of the moral and constitutional significance of the parental/family relationship and that we'll see some re-consideration by parents'-rights skeptics.  

June 18, 2018 in Garnett, Rick | Permalink

Thursday, June 14, 2018

Munoz, "Defending American Classical Liberalism"

In recent years, a number of important and interesting critiques of "liberalism", many rooted in the Catholic tradition of social and political theory, have been proposed by leading scholars and thinkers like Patrick Deneen, (our own) Adrian Vermeule and Marc DeGirolami, Ryszard Legutko, Michael Baxter, Rod Dreher, William Cavanaugh, David Schindler, Michael Hanby, etc., etc.  My colleague in Political Science, Phillip Munoz -- a scholar of the American founding -- has written a response.   Check it out.

I tend to agree with many of the critics' diagnoses of the present situation, but to disagree with the stronger genealogical claims (i.e., "what looks like today's illiberal progressivism is really the working-out of liberalism's key premises").  I tend to endorse (cling to?) the Murray-esque view that a relatively thin, primarily procedural liberalism leaves plenty of room for real human flourishing and the freedom of the Church.  But . . . I could be wrong.  I'd welcome others' reactions to Munoz's piece!


June 14, 2018 in Garnett, Rick | Permalink

Wednesday, June 13, 2018

A note about the Georgetown conference on "polarization" in the Church

I was scheduled to attend, but then -- unexpectedly, and to my regret -- had to miss, the recent conference at Georgetown, "Overcoming Polarization in a Divided Nation Through Catholic Social Thought."  (Learn more about the conference, and watch some video, here.)  At Distinctly Catholic, Michael Sean Winters -- who did participate -- shares some reactions.

I think Winters is right to remind us both that "polarization" is not new nor is it worse than it has ever been.  I also share the view that "civility" -- as important as it is -- needs to be discussed and thought about in the larger context of moral (and the morality of) argument.  (See, e.g., Murray:   "[S]ociety is civil when it is formed by men locked together in argument."  And he's wrong (though many other commentators are, too) to suggest that the fact Merrick Garland is not an Associate Justice somehow establishes which of the two dominant parties is more ruthless or determined in its efforts to secure its policy and other aims, especially with respect to judges, but put that aside.  I want to focus on one thing in particular, he said with respect to Prof. Helen Alvare's presentation.

[T]here remains a point of confusion that must be addressed. In the public session, Professor Helen Alvaré, law professor at George Mason University, said that she always thought the dichotomy between "social justice Catholics" and "pro-life Catholics" was a false one, because all of her pro-life friends work at soup kitchens or undertake similar work on behalf of the poor. God bless them. But, Catholic social teaching, while it commends opportunities for charity of the kind Alvaré described, also demands more. It demands justice. It demands that we look at, say, the economy through the lens of Catholic moral teaching and reach moral and anthropological conclusions based on our teaching rather than merely swallowing the dominant Hayekian ideology about markets that is so popular on the right and can be found in the classrooms of the Catholic University of America's business school.

The claim about "dominant Hayekian ideology" is misplaced (because no such "ideology" is "dominant" at CUA or anywhere else; the debate is about the extent, content, and efficacy, not the existence, of economic regulations) but the point about "justice" is worth underscoring.  Winters points out that more than personal charity directed toward the poor is required by the Church's social teachings, and that sounds right.  By the same token, though -- and I suspect Winters would not disagree -- more than support for policies that, one hopes, will result in fewer women becoming pregnant and choosing abortion is required by those teachings, too.  What is "demand[ed]" here is also "justice," and - contrary to the recent suggestion by Fr. Reese -- a "new strategy" that gives up on building a just legal regime, one that recognizes the equality and protects the dignity of each person, is not an attractive one.   

June 13, 2018 in Garnett, Rick | Permalink

"Irish Catholic Hospitals 'Will Have To Perform Abortions'"

The news, given the givens, is probably not all that surprising.   Still, there's something not a little bit . . . chilling about the tone of the PM's diktat.  "It will not, however, be possible for publicly-funded hospitals, no matter who their patron or owner is, to opt out of providing these necessary services which will be legal in this state," for example.  Well, it certainly is and would be "possible" for Catholic hospitals not to be forced to facilitate acts they (reasonably) regard as gravely wrong.  And this:

Mr Varadkar added: "That legislation will allow individuals to opt out based on their consciences or their religious convictions but will not allow institutions to do so.

"So, just as is the case now in the legislation for the Protection of Life During Pregnancy Act 2013, hospitals like for example Holles Street, which is a Catholic voluntary ethos hospital, the Mater, St Vincent's and others will be required, and will be expected to, carry out any procedure that is legal in this state and that is the model we will follow."

The tone's a mix between a bureaucrat in a dystopian novel and a scolding kindergarten teacher.  

So . . . how will/should the Church respond?

June 13, 2018 in Garnett, Rick | Permalink

Tuesday, June 12, 2018

Fr. Justin Brophy on "The Practice of Catholicism and Modern Identity."

In Notre Dame's (excellent) Church Life Journal is an essay by my former student, Fr. Justin Brophy, O.P., called "The Practice of Catholicism and Modern Identity."  Here's a taste:

We are products of our zeitgeist more than we sometimes understand or admit. The Gospel of Jesus Christ transcends time and place, but Catholics themselves are not immune from the influences of the period in which they are born. Simply by virtue of living in the contemporary age, modern Catholics are presented with a set of peculiar difficulties that either explicitly or implicitly affect the practice of their faith.

One of the greatest challenges pressing believers today is what Benedict XVI called the “dictatorship of relativism.”[1] A prevalent part of our worldview is certainly the idea that no objective moral truths exist or that all moral truths are historically conditioned. But relativism is not the only trial modernity presents and further difficulties arise in the response to the relativist mindset. This essay is an attempt to understand one such challenge: a type of intellectualism that I find common among Catholics who come or return to the faith after a period of searching. That is, for many persons who come to the Church to escape the modern predicament, the only criterion against which they can evaluate the answers the Church offers to modern existential questions is their own autonomous judgment. . . .

Even though Christianity cannot completely accommodate itself to any age, the preceding considerations show that in fact all of us are unavoidably creatures of modernity. This is nowhere more evident than in the way many of us come to embrace the practice of faith for ourselves in the modern world.

Perhaps such a realization will also lead to an increase in charity during our disputes with one another. We are all moderns of one sort or another. We are more similar to each other than we are different—and this is to say nothing of our common identity in baptism.

Our faith is not just a set of ideas. It is a relationship with God, who in his very reality is relational, and who has held out a new relationship with us through Jesus. Human beings find meaning and purpose in developing personal relationships with God, Jesus, and each other. While this seems obvious on its face, these relationships can be difficult to realize in the modern predicament. Fear is major impediment to developing such relationships, when encumbered by the intellectualism of the modern age.. . .

June 12, 2018 in Garnett, Rick | Permalink

Murray, "The Return to Tribalism"

I recently read both Patrick Deneen's Why Liberalism Failed and Jonah Goldberg's The Suicide of the West.  Good times.  In the latter, I came across mention of a John Courtney Murray piece that I'd read before but forgotten.  It's called The Return to Tribalism and, on re-reading, it seems both prescient and timely.  Here's a bit:

I suggest that the real enemy within the gates of the city is not the Communist, but the idiot. Here I am using the word "idiot" not in its customary, contemporary vernacular usage of one who is mentally deficient. No, I am going back to the primitive Greek usage; the "idiot" meant, first of all, the private person, and then came to mean the man who does not possess the public philosophy, the man who is not master of the knowledge and the skills that underlie the life of the civilized city. The idiot, to the Greek, was just one stage removed from the barbarian. He is the man who is ignorant of the meaning of the word "civility."

What is our contemporary idiocy? What is the enemy within the city? If I had to give it a name, I think I would call it "technological secularism." The idiot today is the techno-logical secularist who knows everything. He's the man who knows everything about the organization of all the instruments and techniques of power that are available in the contemporary world and who, at the same time, understands nothing about the nature of man or about the nature of true civilization. . . .

June 12, 2018 in Garnett, Rick | Permalink

Thursday, June 7, 2018

"Freedom 'for' Religion: (Yet) Another View of the Cathedral"

I've posted a short paper on SSRN, on the idea of "Freedom 'for' Religion".   Here's the abstract:

This chapter is a reflection on the meaning and implications of "freedom for religion." It is suggested that to consider "freedom for religion" as one dimension of the right to religious freedom is to ask, "what are the necessary or helpful conditions that contribute to making religious freedom a healthy reality? What is needed 'for' religious freedom to work, even to thrive?" The chapter argues that a healthily "secular" political community may and should take account of citizens' religious lives and help to create conditions favorable to the fostering of religious life. Although the state should remain "neutral" with respect to (most) religious questions—primarily because the resolution of such questions, assuming for now that they can be identified, is outside the jurisdiction of civil authorities—it may and should affirm enthusiastically that religious freedom is a good thing and that it should be not only protected, but also nurtured, by law and policy.

As one would expect, Rouen and Monet make appearances . . .

June 7, 2018 in Garnett, Rick | Permalink

Tuesday, June 5, 2018

"Ireland Takes on the Catholic Church Again"

This piece has a tendentious headline (sigh) but it points to some important questions about the mission, character, funding, and regulation of Catholic schools.  It's hard to see how it can be justified -- except on "fit of spite" grounds -- to say that Catholic schools should lose the right to prefer Catholics in admissions, but faith schools connected with other traditions will not.  More generally, though, I would think that even the battered and lacking-credibility Church in Ireland is in a sufficiently strong bargaining position to say, "if you want to run our Catholic schools as secular state schools, then we will sell some of them to you."  It is not unreasonable for the public, and the public authority, to think that there should be non-Catholic school options for children whose families prefer those options.

I am, as MOJ readers know, a strong supporter of school-choice programs; indeed, I believe they are morally required.  But, this story about what's happening in Ireland is an important reminder about the temptation on the part of the state to leverage the funding it provides to secure practices and outcomes it prefers.        

June 5, 2018 in Garnett, Rick | Permalink

Some reactions to the Cakeshop case

Here are some quick thoughts of mine -- not nearly so well developed as Marc's! -- on the Masterpiece Cakeshop ruling.  Here's a (perhaps overly optimistic) bit:

The Court affirmed that religious and other conscientious beliefs regarding same-sex marriage are constitutionally protected, even when unpopular. The justices recognized that deep and sincere disagreements persist about these matters and that both our First Amendment and the needs of civil society require balance, understanding, and humility.

Although the decision is not definitive, and the justices seemed deliberately to avoid the difficult but important constitutional questions that most Court-watchers thought were at stake, the ruling can be seen as a prudent way for the Court to invite civil dialogue and conversation, rather than more rancor and litigation, about striking the right balance in our pluralistic society.

June 5, 2018 in Garnett, Rick | Permalink

Tuesday, May 29, 2018

The Irish vote

I imagine that Mirror of Justice readers have read more than enough about the recent vote in Ireland to scrap the pro-life provision in its Constitution.  The end-of-the-day results didn't surprise me, but I was struck (and sickened) by the nature of the repeal campaign and the images of ghoulish jubilation in the streets after the vote.  

It remains to be seen what legal regime Ireland will construct for regulating abortion.  It's worth noting that one of the possibilities that I've heard the most about would make 12 weeks the cut-off for abortion-on-demand.  This would mean that even Ireland's brand-new, spirit-of-the-age, cast-off-shackles-of-popery abortion regime would still be more restrictive than any American state's.   

May 29, 2018 in Garnett, Rick | Permalink