Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, July 7, 2016

Catholic Universities and #BlackLivesMatter

In the painful shadow of the Philando Castile and Alton Sterling shootings, I offer an essay over at America on why Catholic universities should be deeply engaged in today's racial justice struggle.  Here's an excerpt:

Today’s university jeopardizes its ability to speak to today’s protestors when it departs from its mission of forming the person. Rising student debt and questionable employment outcomes have caused many families to approach college through a strictly economic lens. In addition there is increasing concern that the identification and cultivation of particular virtues represents a kind of moral paternalism. As a result more aspirational educational goals are pushed to the margins. The hollowing out of the university mission makes it difficult to engage meaningfully with today’s campus protesters. After all, they are not demanding better job training; they are demanding a more inclusive community. This is a deeply moral demand.

The Catholic vision of education has always been about formation—a relational endeavor that is best undertaken in communities marked by dialogue, interpersonal modeling and opportunities for reflection and growth. Knowledge has more than instrumental value, and the student experience aims at moral growth, not just professional preparation. This foundational orientation does not make answers to deep and difficult questions about diversity and inclusion easy, but it means that the deep and difficult questions are not distractions from the educational mission; they are why the church operates universities in the first place.

July 7, 2016 in Vischer, Rob | Permalink

How Did We Get Here?

That's the title of a discerning essay, on our present political situation, over at Commonweal (here).  An excerpt:

Neither party, then, offers a compelling vision of human well-being. The Republicans stand up for the unborn and families, but they refuse to address the economic and social roots of abortion and the precariousness material conditions that threaten so many families. The Democrats support basic economic fairness and stand against racism, but they are most animated by the right of each individual to choose their own conception of the good. They are more interested in tolerance and diversity than in true solidarity. Neither party espouses a conception of freedom oriented toward the common good. Libertarians dismiss the very idea of a common good, seeing only a collection of individual people with individual interests. Latter-day progressives start from a slightly different point of view but reach a very similar conclusion; they argue that a commitment to pluralism precludes any notion of a common good. Missing from both views is the deep sense that “we are all really responsible for all.”

July 7, 2016 in Perry, Michael | Permalink

Wednesday, July 6, 2016

How Abortion Funding Impacts Single Motherhood

The Journal of Family and Economic Issues has published an intriguing study testing the famous birth-control-pill-as-technology-shock theory articulated by George Akerlof/Janet Yellen in 1996. Remember that Akerlof and Yellen had argued that the emergence of the pill in 1960 followed by liberalized abortion laws into the 1970s were to blame for the precipitous rise in single motherhood into the 1980s. (By contrast, Charles Murray had blamed increases in welfare benefits, and William Julius Wilson, lack of employment.) I write about all this as it relates to Catholic teaching here

Economist Andrew Beauchamp tests Akerlof's theory in reverse, analyzing the lack of state abortion funding on rates of single motherhood:  “The results showed that women in states that removed public funding saw decreased single motherhood and increased cohabitation among women giving birth. Estimates showed a 13 percent lower chance of being single following a birth in a state where funding was removed. This policy impact is substantial. If the entire sample were to experience a removal of abortion funding, these estimates would imply that the probability of cohabiting or marrying among low-income mothers would increase by between 12 and 18 percentage points conditional on giving birth. These estimates mean that among the children of low-income mothers, the fraction of children living with both biological parents at the time of birth would rise by 10 percentage points.”


July 6, 2016 in Bachiochi, Erika | Permalink

When Death Is Better Than the Alternative?

Not a particularly auspicious title for a post on a Catholic blog, it's true. But Tom and I don't see things too differently, though he is as usual more optimistic than I am. I think he undersells what can be read from the Stormans cert. denial. And the denial of cert. in Ben-Levi v. Brown (again with a J. Alito dissent). And the denial of cert. in Big Sky Colony, where I was also pleased to join another excellent amicus brief spearheaded by Tom himself urging review of the Free Exercise Clause issues. The Court just doesn't want any part of these issues right now.

But Tom's post makes me think that perhaps atrophy may actually be the best option on offer. Tom writes that "moderate-ish" liberals might be able to combine with the likes of Justice Alito to hear a case involving "state/local government action against Muslims, or against some other group that everyone agrees is a religious minority." That is because "liberal opinion" has accepted the various third-party-harms theories being floated about, and because of the expansion of the idea of harm "that modern welfare-state liberalism regards as 'public.'"

I think I agree with most of Tom's description here. Tom is probably right that, e.g., Christians with certain specific beliefs about sexuality are not and will never be, in the "liberal opinion" he refers to, the sort of viable "minorities" thought to deserve FEC protection. That "liberal opinion" is powerful now, growing, and likely to influence the ideological profile of the Supreme Court directly and indirectly for years to come. If that is true, then perhaps we should root for atrophy, if not death. Better the Smith rule, which at least has the advantage of being clear and reasonably predictable, than the rule of "liberal opinion" masquerading as constitutional law. Indeed, perhaps religious accommodation has always been infected by something of this quality. We accommodate when we don't really care--for prison beards, oddballs, and tiny, exotic sects to which nobody really pays attention. When we do care, we find ways not to accommodate (harm! third parties! dignity!). And as the ambit of the "public" increases, it becomes easier and easier to make claims about third party harms, particularly when those harms cut to the quick of "liberal opinion."

A participant in our colloquium in law at St. John's this spring, and a noted critic of religious accommodation (someone, as it happens, whose views in general don't often match up with my own), suggested that if given a choice between non-discriminatory religious persecution and religious discrimination, he'd opt for religious persecution. I can't say I agree. But this exchange makes me understand that view much more clearly.

July 6, 2016 in DeGirolami, Marc | Permalink

On churches' tax exemptions

Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions.   A bit:

But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them. 

The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .

. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.

The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.


July 6, 2016 in Garnett, Rick | Permalink

Cosmopolitanism, tribalism, and Catholicism

I thought this piece, by Ross Douthat, was excellent.   My own sense is -- and the post-Brexit commentary has pretty much confirmed this sense -- that Catholics (or, Catholic intellectuals anyway) tend to be at least warm to, and even enthusiastic about, trans- and international groups, structures, and initiatives (e.g., the United Nations, the E.U., etc.) and so are often concerned about what they perceive as particularistic nationalism (which can, certainly, sometimes be cause for concern).  Still, I think Douthat is spot-on when he says (and this is just a taste of the piece): 

. . . Genuine cosmopolitanism is a rare thing. It requires comfort with real difference, with forms of life that are truly exotic relative to one’s own. It takes its cue from a Roman playwright’s line that “nothing human is alien to me,” and goes outward ready to be transformed by what it finds.

The people who consider themselves “cosmopolitan” in today’s West, by contrast, are part of a meritocratic order that transforms difference into similarity, by plucking the best and brightest from everywhere and homogenizing them into the peculiar species that we call “global citizens.”

This species is racially diverse (within limits) and eager to assimilate the fun-seeming bits of foreign cultures — food, a touch of exotic spirituality. But no less than Brexit-voting Cornish villagers, our global citizens think and act as members of a tribe. . . .

I'll only add, echoing Douthat, that I experience more of what seems like genuine human diversity through my (beloved) youth baseball-softball program (rec league, not "travel") than I do at academic conferences in our global super-cities.

July 6, 2016 in Garnett, Rick | Permalink

Social Justice Defies Simple Political Categorization

As a needed reminder that Christian values and social justice cannot comfortably be forced into neat partisan packages, two recent newspaper editorials may appear to point in opposite directions but actually illustrate that neither end of the political spectrum today may capture Gospel values or reflect genuine social justice.

One editorial suggests that the reliance of the political left on government-centric solutions fails to advance social justice on prudential grounds, while the other pointedly reveals that the presumptive nominee of the party that has been the bastion of the political right is now professing a "theology" bearing no resemblance to the Gospel of Jesus Christ.  Herewith a sample of each:

Jay Miller in the Milwaukee Journal-Sentinel writes:

The idea of slapping the wealthy around and righting all perceived injustices sounds terrific. Putting it into action through the heavy-handedness of government intervention often tells a different story: Economic stagnation that punishes the least well-off first, exactly the ones who are supposed to benefit from populist policies.

One need look no further than Venezuela, Brazil and Argentina to see what current or former populist leaders of those countries have wrought with their so-called egalitarian policies.

For all the faults one can find with capitalism and free trade, they work better than any other system and that's something we should never forget.

Peter Werner writes in the New York Times on “The Theology of Donald Trump”:

Time and again Mr. Trump has shown contempt for those he perceives as weak and vulnerable — “losers,” in his vernacular. They include P.O.W.s, people with disabilities, those he deems physically unattractive and those he considers politically powerless. He bullies and threatens people he believes are obstacles to his ambitions. He disdains compassion and empathy, to the point where his instinctive response to the largest mass shooting in American history was to congratulate himself: “Appreciate the congrats for being right.” ***

Mr. Trump’s entire approach to politics rests on dehumanization. If you disagree with him or oppose him, you are not merely wrong. You are worthless, stripped of dignity, the object of derision. ***

The calling of Christians is to be “salt and light” to the world, to model a philosophy that defends human dignity, and to welcome the stranger in our midst. It is to stand for justice, dispense grace and be agents of reconciliation in a broken world. And it is to take seriously the words of the prophet Micah, “And what does the Lord require of you but to do justly, and to love kindness and mercy, and to humble yourself and walk humbly with your God?”

July 6, 2016 in Sisk, Greg | Permalink

Are church services now "public accommodations" for antidiscrimination purposes?

The relevant regulators in Iowa, at least, think the answer is "sometimes" yes.   More here.  At the risk of being tut-tutted for "culture warrioring," I have to say that Rod Dreher's "law of merited impossibility" comes to mind.

July 6, 2016 in Garnett, Rick | Permalink

Looking at it from James Comey's perspective (some facts, inferences, and speculations)

Like everyone else, I'm trying in light of all the available information to process what happened yesterday. I believe or know the following propositions to be true. Regarding those that I believe but do not know for sure to be true, I would welcome evidence tending to undermine them. 

(1) FBI Director James Comey is highly intelligent.

(2) He is fundamentally honest.

(3) He is a patriotic American who wants what is best for the country.

(4) He is a Republican who supported McCain in 2004 and Romney in 2008.

(5) He is an establishment figure, albeit one who believes that the range of reasonable political choices is wide, extending from Ted Cruz and his supporters on the right to Barack Obama and his supporters on the left.

(6) He does not believe the range of reasonable political choices for the United States includes Donald Trump and his extreme nationalism or Bernie Sanders and his socialism.

(7) He believed he had an obligation to inform the public of what his agency's investigation revealed about Hillary Clinton's "extremely careless" handling of sensitive national security-related information and her other moral and possible legal delinquencies.

(8) He believed that, in the circumstances, he had some legitimate discretion about whether to recommend an indictment under the relevant federal statutory provisions. He believed that he was not legally required to interpret "extremely careless" as "grossly negligent" or "reckless." He believed he had similar wiggle room on other possible charges.

(9) He believed an indictment of Hillary Clinton would essentially force her out of the presidential race and that, whatever the pundits may think, as a practical matter the Democratic Party would not have been able to deny Bernie Sanders its presidential nomination by slipping in a more "respectable" person, such as Joe Biden or John Kerry. (NB: I believe he is right about this. It is not 1924 or even 1968. Party establishment elites no longer have the power they once possessed in the area of presidential nominations.)

(10) He believed that for him to trigger a chain of events that would in all likelihood have left the American people with a choice between Donald Trump and Bernie Sanders, where he could legitimately exercise discretion in such a way as to avoid that happening, would have been irresponsible.

So who has a right to complain?

Well, there are those (I'm one) who do not believe that the FBI Director's discretion legally extends as far as Mr. Comey evidently thinks it does. And there are the "purists" (again, I'm one) who believe that considerations of the impact on the election of a decision to recommend indictment should have played no role whatsoever. Then, I should think, there are supporters of Senator Sanders, who was, in my view, the person most immediately harmed by Comey's action. As I indicated a moment ago, a decision to recommend indictment--a decision supported by the facts presented by the FBI Director in the first 14 minutes of his 15 minute presentation--probably would have resulted in Hillary Clinton's political demise and Bernie Sanders' nomination and possible election as President of the United States.

July 6, 2016 | Permalink

Tuesday, July 5, 2016

The Targeting of Muslims is a Core Religious-Freedom Problem

This Crux article, by a researcher at a Georgetown initiative on Christian-Muslim relations, criticizes the USCCB for not emphasizing, in the Fortnight for Freedom, that the violent or harassing targeting of Muslims is a central religious-freedom problem. (Various Catholic groups, and prominent lay Catholics like our own Robbie George, have given it prime emphasis in recent months.) Here's what the article says about the USCCB:

At its most basic level, Islamophobia is a religious freedom issue. American families can’t go to their houses of worship without fear of them being sprayed with bullets or graffiti. Men and women feel they must change the way they dress to receive fewer stares and the threat of assaults. Children are bullied at school because they are Muslim.

This is a reality that should alarm all Americans, especially Catholics concerned about issues of religious liberty.

But Islamophobia is not an issue at the forefront of the USCCB’s agenda or the Fortnight for Freedom campaign. The only reference to Muslims in the materials on the USCCB’s Fortnight webpage was in an article reposted from National Catholic Register, which spoke about “militant factions of Islam” that “kill Christian believers” in the Middle East.

Is this accurate? I share the author's premise that religious-freedom claims of various faiths tend to stand or fall together, and thus the freedom of Muslims (and Christians) must be vigorously protected. But I haven't followed this year's Fortnight, or the bishops' statements generally. If the piece is accurate, what is the explanation?

July 5, 2016 in Berg, Thomas, Current Affairs | Permalink