Mirror of Justice

Conference on "The Future of Marriage"

The Notre Dame Journal of Law, Ethics, and Public Policy is hosting a symposium on "The Future of Marriage," Wednesday, February 25, 2004 (Ash Wednesday). Speakers and participants include Professor Gerard Bradley (Notre Dame), Professor Andrew Koppelman (Northwestern), Alan Sears (Alliance Defense Fund), and Professor Paul Griffiths (University of Illinois, Chicago). This is an excellent, and genuinely diverse, array of speakers. The Journal has done well, and should be congratulated.

Reflecting back on my exchange (below) with Rob, I note that Professor Griffiths contributed a provocative essay on same-sex marriage to Commonweal magazine (October 2003) recently, in which he concluded that "In cases of this sort, public argument cannot resolve disagreement. This is not to say that there is no truth of the matter, or that there are no good arguments about it. It is only to say what is also true, which is that public argument will not succeed in producing consensus in this matter. To think that it could is to overestimate its capacities. Catholics should not, therefore, advocate the embodiment of the orthodox view in U.S. marriage law because we think there are persuasive public arguments about the question. There aren't." To which Margaret O'Brien Steinfels responded: "Paul Griffiths seems to me mistaken in his claim that the Catholic view of marriage is so markedly different from that of others that political prudence counsels that Catholics not insist it be reflected in civil law. ...Withdrawal from public debate on the definition of marriage, or any other publicly contested issue is the gesture of sectarians--a perennial temptation of certain Protestant groups, and now of some Catholics, both right and left, as well as the newly self-styled "orthodox Catholics.'" (Thanks to Maggie Gallagher's web site for the quotes).

Rick

Conference of Religiously Affiliated Law Schools

More information is available here about the biannual "Conference of Religiously Affiliated Law Schools," to be held this year at Notre Dame Law School on March 25-27. The conference features six different sessions, each exploring an aspect of the challenge of integrating religious faith and commitment into the mission, curriculum, hiring, and administration of a law school. Speakers include Dean Tom Mengler (St. Thomas), our own Dean Mark Sargent (Villanova), co-blooger Amy Uelman (Fordham), and many others.

Rick

Abstract: Who is My Neighbor?

You will find a link to my article, Who is My Neighbor: An Essay on Immigrants, Welfare Reform, and the Constitution, on the right hand side of this page. This article, which was my first attempt to write explicitly about Catholic Social Thought and the law, uses the Welfare Reform Act of 1996 as an occasion to explore how our constitutional community ought (from a Christian perspective) to act towards the aliens among us. It concludes with a short meditation on the Book of Ruth.

Pledge Case Resources

The Pew Forum on Religion and Public Life has put together a collection of "resources" -- including many of the relevant briefs -- relating to the Newdow case (a.k.a the "Pledge case") that the Supreme Court has agreed to hear this Term. One brief in particular might be of interest to Mirror of Justice readers. In a brief filed by the Christian Legal Society, the argument is advanced that the use of the term "Under God" in the Pledge is not an unconstitutional "establishment" of religion but is rather an "affirm[ation] of this Country's system of limited government." "This country's founders," CLS contends, "grounded limited government in the proposition that inalienable rights come from God." Professor Thomas Berg, of the University of St. Thomas, has developed this article in detail in a recent article published in the Texas Review of Law and Politics, "The Pledge of Allegiance and the Limited State "(Vol. 8, No. 1, Fall 2003). The brief, and the article, are worth a read.

Rick

Trousered Apes: Abstract

I have added a link on the sidebar to my essay Producing Trousered Apes in Dwyer's Totalitarian State. This essay reviews James Dwyer's book Vouchers Within Reason: A Child Centered Approach to Education Reform (Cornell 2001). Dwyer argues that vouchers for religious schools are both constitutionally and morally required so that the state can step in and regulate religious schools in order protect children from the educational and psychological harm inflicted on the young by religious (specifically Catholic and fundamentalist) schools and parents.

In this essay, I take Dwyer to task on three grounds. 1) Dwyer's project fails under the weight of his own criteria for a proper education because he refuses to consider "the full range of human interests and moral and legal considerations at stake" in formulating an educational policy. Specifically, he rejects the spiritual realm and dismisses the role of the family and intermediary institutions in forming the cultural life of the community. 2) Dwyer envisions a liberal version of a totalitarian state where the sole voice in educating the young is a secularist state. 3) Dwyer's educational method is fundamentally flawed and is aimed at producing what C.S. Lewis called trousered apes.

Dwyer wants children to be educated for freedom, and he thinks this requires freedom from what he views as oppressive religious communities. I close the essay by suggesting an alternative education for freedom, rooted in a Catholic anthropology. In proposing this alternative, I borrow heavily from Luigi Guissani (The Risk of Education), Jacques Maritain (Education at the Crossroads), and C.S. Lewis (The Abolition of Man).

CST Paper Abstracts

Now that I've gotten links to my CST papers up on the sidebar, I thought I'd provide abstracts. In chronological order:

1. Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law:

   Participatory management--the philosophy of involving employees in corporate decisionmaking--arguably is the most important industrial relations phenomenon of the last three decades. It has been endorsed by such disparate figures as President Bill Clinton and Pope John Paul II. Thousands of U.S. firms have adopted one form of employee involvement or another. Insofar as the academic literature on participatory management is concerned with normative questions, it is dominated by calls for some form or another of government-mandated employee participation in corporate decisionmaking. Normative analyses of participatory management by pro-mandate scholars have developed two justifications for government intervention: One sounds in the language of economics, typically arguing that participatory management is an efficient system of organizing production that is nevertheless being thwarted by various market failures requiring governmental correction. I have explored this argument elsewhere, concluding that government-mandated employee involvement cannot be justified on economic grounds [Stephen M. Bainbridge, Privately Ordered Participatory Management: An Organizational Failures Analysis, Del. J. Corp. L. (1998)].

   In this Article, I evaluate the other set of pro-mandate arguments; namely, the claim that employees have a right to participate in corporate governance. On close examination, much of the normative literature on employee participation amounts to little more than "rights talk," i.e., political rhetoric dressed up in legal and/or moral rights terminology. For ideologically motivated proponents of employee participation, this is a useful debating tactic because our culture's fixation with individual rights imbues any rights-based claim with an air of legitimacy and incontrovertibility. Using rights-based terminology to phrase the question, however, often impedes or even precludes meaningful analysis. The task before us is thus two-fold. First, we must subject the claim that employees have a right to participate in corporate governance to a rigorous process of specification and assessment. Second, we must ask whether this right--as so specified--merits codification into positive law. I have two principal foils in this article. The first is Roman Catholic social teaching on work and capitalism, which offers the most fully realized statement of natural law principles applicable to the problem at hand. The second is a body of literature to which I will refer as secular humanist. This literature consists mainly of rights talk drawing on precepts of humanistic psychology. Although scholars approaching the problem from this angle thus are not working within a natural law paradigm, their work deserves examination both because it has certain superficial similarities with Catholic social teaching and because it represents the other dominant theory upon which rights-based claims are made in support of government-mandated participatory management. Although both the relevant Catholic social teachings and secular humanist arguments are complex and nuanced, both fairly can be said to emphasize two basic claims. First, participation is asserted to be an essential mechanism for full development of human personality. Self-realization and self-actualization are the conceptual engines driving this claim. Second, participation is posited to be an essential feature of human dignity. I have identified three basic ways in which participation might be related to human dignity: Participation may promote trust between employers and employees. Participation promotes workplace democracy. Participation rights protect employees from opportunistic conduct by employers. I argue only the latter theory rises to the level of plausibility, and it cannot justify government-mandated employee participation.

2. The Bishops and the Corporate Stakeholder Debate:

   This essay critiques Catholic social teaching on corporate social responsibility. Specifically, the essay focuses on one of the policy recommendations made by the U.S. Bishops in their pastoral letter on economic justice, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy. In that letter, the Bishops addressed the so-called stakeholder debate; i.e., whether decisionmaking by directors of public corporations should take into account the interests of corporate constituencies other than shareholders. This essay focuses on the Bishops' position as matter of public policy rather than as a matter of theology. The essay evaluates three ways in which the Bishops' position might be translated into public policy: (1) directors could be given nonreviewable discretion to make trade-offs between shareholder and stakeholder interests; (2) directors could be given reviewable discretion to make such trade-offs; or (3) directors could be required to make such trade-offs subject to judicial (or regulatory) oversight. None of these approaches is an improvement on current law; to the contrary, all are worse. The first approach would be toothless, the second would increase agency costs, and the third would either prove unworkable or pose an unwarranted threat to economic liberty (or both).

3. Catholic Social Thought and the Corporation:

   This brief essay explores Catholic social thought on corporate governance. Human dignity and freedom are central principles of Catholic social thought. This essay argues that preserving the economic freedom of corporations to pursue wealth is an essential part of effective means for achieving human freedom. To the extent prudential judgments about corporate regulation are required, the Church and civil society should strive towards a nuanced balancing of freedom and virtue.

Ensuring security, human rights and the U.N.

Although this does not really answer the central question that Rick raises below, I do think that it is important to understand Archbishop Migliore's address in the context in which it was delivered. Among prominent Holy See diplomats, Migliore is certainly one of the ones who has a more sophisticated and nuanced understanding of the proper (subsidiary) role of international law and international institutions, and he would be likely to be much more careful than many to refrain from implicitly ascribing excessive authority to the UN. It should not be surprising, therefore, that although he does recognize the ontological basis of human rights, nevertheless in the forum in which he is speaking he stresses instead "ensuring security ... promoting peaceful coexistence of peoples ... effective conflict prevention and ... building of a lasting peace." These are the primary purposes for which the UN was established, and it decidedly was not ever intended to be an institution with plenary responsibility for the universal common good. There are very good reasons for being extremely cautious about using the UN to advance a "thick" understanding of the human person, including among others: the monumental difficulty of reaching genuinely common understandings across radically diverse cultures; respect for the freedom and integrity of human communities; and also the presence of prudential concerns analogous to the ones that Rob discusses below with respect to majority rule (made drastically more actute in an international context). For anyone who may be interested, I have written more about the contours of some these problems in Subsidiarity as a Structural Principle of International Human Rights Law, 97 Am. J. Int'l L. 38 (2003), to which there is a link in the right-hand column of this blog.

Religious Freedom and "Ensuring Security"

A few months ago, Archbishop Celestino Migliore -- the Holy See's permanent observer at the United Nations -- addressed a Committee of the General Assembly considering "alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms." The talk is available at ZENIT, at this link.

Archbishop Migliore opened with these observations:

"The universality of human rights springs from the unquestionable truth that all human beings are equal in nature and in dignity. It is for this reason, the Holy See has consistently defended and promoted respect for human rights and fundamental freedoms for all peoples. These rights and freedoms are not contingent upon the State or upon its recognition of any particular right. Rather, they are intrinsic to human nature itself and to what is essential to this nature."

He then -- as I understand his remarks -- shifted gears, and seemed to be trying to "sell" the idea of religious freedom to his audience by emphasizing its social utility:

"Countless examples in our modern times show and confirm for us that when religious faith is freely chosen and lived in a coherent way, religions play an essential role in ensuring security and in promoting peaceful coexistence of peoples, a condition for any effective conflict prevention and a powerful tool for the building of a lasting peace."

The talk continues in this vein. I'd be curious to know whether any of my colleagues have any reservations about the somewhat . . . Erastian nature of Archbishop Migliore's talk. In a way, the talk reminds me of our earlier (and ongoing) discussions about "anthropology." Although his opening paragraph grounds religious freedom firmly on the nature of the human person, Archbishop Migliore several times seems to tie the respect due to religious belief and practice to their status as "chosen" by believers (sounding almost like Justice Stevens).

Rick

Legislation, Objective Morality, and Majority Rule, cont'd

Rob's recent post (below) asks excellent questions: "Are American Catholics well-served in seeking top-down implementation of the common good on contested moral issues?" And, "is there an argument that Catholics’ own self-interest compels them, for example, to support, at least instrumentally, the Supreme Court’s morally agnostic reasoning in Lawrence v. Texas?" And, "shouldn’t Catholics be . . . hesitant to impose their conception of the common good in areas where the majority’s view currently comports with the moral anthropology?"

A few thoughts in response: If Catholics believe that the state (or, the "public authority") is morally obligated to pursue, promote, and protect the "common good," then I see no reason why Catholics should support the Court's "morally agnostic reasoning" -- or, indeed, any other government policy -- that undermines or attacks that "common good." (After all, as I understand it, the Catholic claim is that some state action in fact, and objectively, undermines the common good of all.) That some misperceive (or, perceive differently) the common good does not, in my view, meant that Catholics should not propose, in the public square, their moral claims. If the majority disagrees with these claims, then the claims will be rejected. Of course, in some (many?) cases, the common good is well served -- as Rob's post suggests -- by an acceptance, and even an embrace, of pluralism.

I'm reminded by Rob's post of the debate, in the First Amendment context, about "viewpoint neutrality" and public-forum doctrine. As most of us are probably aware, religious "speakers" and actors have won several victories in the Supreme Court in recent years, by framing religious faith as a "viewpoint" for First Amendment purposes, a viewpoint toward which the government must be "neutral." As some have suggested, though (if I remember, our colleague Professor Brady has written about this), this way of "framing" religious worship, prayer, evangelizing, etc., might actually be unfaithful to what the faith really is. In other words, "religion" has achieved some "wins" by using the tools of First Amendment neutrality and official moral agnosticism. But at what cost?

Rick

Parents' Rights

This article (thanks to Howard Bashman) describes a proposed parents'-rights amendment to Florida's Constitution. Although the article focuses primarily on the connection between the amendment and the specific issue of abortion (i.e., parental notification), I wonder what we ought to think about "parents' rights" more generally? Certainly, many of our colleagues in the legal academy regard arguments about parental rights with more than a little suspicion, noting that -- among other things -- such "rights" are inconsistent with liberal notions of autonomy and individualism. On the other hand, are robust protections for the rights of parents to (in the Supreme Court's words) "direct and control the upbringing of their children" an implication of the subsidiarity principle? I know that my co-blogger Mike Scaperlanda has written about this, in an excellent review of Professor James Dwyer's book on vouchers. Any thoughts?

Rick