Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, March 25, 2004

Discomfort with the Pledge

I think one way to approach the pledge issue is to separate it into two distinct questions: first, do I think the Establishment Clause gives room for the democratic process to produce "religious" expressions like "under God" in the pledge? Second, would I vote to include the phrase "under God" in the pledge? On the first question, I believe the answer is yes (but like Rick, I have a hard time articulating a justification that does not "dumb down" religious commitment), but on the second question, I would undoubtedly say no.

My discomfort was driven home by observing my daughter in her first days of Catholic preschool. The teacher painstakingly taught the students how to recite the pledge, sing "God Bless America," and make the sign of the cross. Now each class begins with all three being done as one blended exercise -- leaving the distinct impression that the three are inherently connected and equal in importance. Isn't the same thing going on when students are led in a pledge of allegiance to the country, but also asked to tie that allegiance to a (rather vague) articulation of allegiance to God? By no means do I believe that love of country and love of God are inconsistent, but I do believe they are entirely separate states of devotion of distinctly unequal importance. This may be Stanley Hauerwas's (or Tom Shaffer's) impact on me, but I'm growing less comfortable with the civil-religious-patriotic strains of public life -- not because of constitutional concerns, but because of concerns over the continued vibrancy of religious devotion.


March 25, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Wednesday, March 24, 2004

Government and Charity: Just Say No?

Mirror of Justice reader Michael S. Oswald agrees that government funding threatens to compromise religion's mission in society. (See Government Aid and Religion's Mediating Function, below) He goes a step further, though, and urges us to "get the government out of the charity business." In Michael's view, "if the government isn't funneling money from taxpayers to persons in need, it will have no standing to dictate how the providers of charity go about their missions. The church needs to be free from the threat of government interference." Michael explains that his views have been shaped by Marvin Olasky's The Tragedy of American Compassion, which demonstrates "that government's usurpation of the traditionally private institution of charity has been a dismal failure because it turned charity into an entitlement," and because "private organizations, using voluntary contributions of time and money, were and are the only ones that can deal with the spiritual dimension of poverty."

I can't comment fully on these points because I haven't read Olasky's book. I confess, though, that I've always been skeptical of this line of argument. If Catholic social thought were simply a deontologically driven blueprint for society, there might be some merit to the notion that human needs should be met strictly in the sphere of the voluntary. But there is a substantial instrumentalist core to Catholic social thought: we care not just how needs are met, but that the needs are met. Would I prefer that individuals who cannot help themselves are cared for by neighbors who choose to care for them, rather than through a faceless government agency? Of course. Do I think that volunteers could adequately fill the void left in 21st century America were the (admittedly imperfect) welfare state to abdicate its role in the charity business? No.

Michael's comments, though, have convinced me that I need to read Olasky's book, and I will endeavor to maintain an open mind if someone wants to show me how I've underestimated the "armies of compassion."


March 24, 2004 in Vischer, Rob | Permalink | TrackBack (0)

A Thought about the Pledge Case

In arguing the Pledge case, plaintiff Michael Newdow opined that:

His daughter would be singled out by not saying the Pledge, and would be coerced to participate. "Imagine you're a third-grader in a class of 30 kids. That's enormous pressure to put on a child" to conform, Newdow said.
I wonder if he's given any thought to how his daughter would feel if she goes down in history as the kid who took down the Pledge of Allegiance? Talk about being singled out! I wonder if he knows the story of William Murray, whose mother Madalyn Murray O’Hair got the Supreme Court to throw prayer out of the schools?
Today, William Murray is a born-again Christian, “the No. 1 spokesman for prayer in the schools,” in the words of U.S. Sen. Jesse Helms. He is also the author of five books, the most recent being "Let Us Pray."
Before his mother died, Murray observed of his family that:
Jesus says that “following me will cause brother to hate brother and separate mother from son.” In the case of my family, that is an absolute truth. Most people who study that passage see it abstractly, but in the case of my family … it has been split in a variety of ways because of my desire to follow Jesus. My brother, my oldest daughter, and my mother.…
[I originally posted this observation over at my regular blog, but since Rick opened the discussion here, I thought our readers and my fellow bloggers might find it of sufficient interest to justify crossposting.]

March 24, 2004 | Permalink | TrackBack (0)

The Pledge

The Supreme Court is hearing arguments today (as I type, I believe) in "the Pledge Case," a/k/a Elk Grove School District v. Newdow. (The Ninth Circuit's opinion under review is available here). The Pew Forum on Religion and Public Life has produced a very helpful "Issue Backgrounder" on the case (link).

Although the case raises a number of provocative, high-profile constitutional questions -- about "standing," "endorsement," "coercion," etc. -- I am afraid I have not yet been able to muster much interest. I'm not sure why. I believe that the Court will almost certainly conclude (assuming that it reaches the merits of the Religion Clause question) that the Ninth Circuit got it "wrong," and that neither the Pledge itself, nor its recitation in public schools, violates the First Amendment's "Establishment Clause." At the same time, I suspect that the reasoning provided in support for this result will be hard to take seriously. "This is ceremonial deism, not an 'establishment of religion,'" the Court will probably say. "Even with the words 'under God,' the Pledge is a patriotic, and not a religious affirmation. The term 'under God' no longer has -- if it ever really did -- any religious content or meaning."

This is, in my view, not a particularly attractive line of argument. I do not look forward to explaining to my students what I expect will be the Court's efforts to explain away the precedents on which the Ninth Circuit not unreasonably relied. ("Ten Commandments? Bad. Pledge? Good. Chaplain prayer? Good. Graduation prayer? Bad.").

In my view, the Constitution -- properly understood -- probably permits us to proclaim that we are "one Nation, Under God." The Constitution permits, for better or worse, the government to profess a vaguely theistic civil religion. Whether we *should* presume to make such a proclamation is an entirely different, and more difficult, matter. What would it mean for us to take such a proclamation seriously, I wonder? As I expect my friend, Fr. Michael Baxter of Notre Dame, would say, it's not far from an aspirational statement, i.e., "we aspire to be one Nation, under God," with all the obligations and burdens such aspirations would entail, to an idolatrous one, i.e., "we are God's Nation, and isn't God lucky to have us?"

For a very interesting argument in defense of the Pledge in its current form, see this article, "The Pledge of Allegiance and the Limited State," by constitutional-law expert Professor Tom Berg, of the University of St. Thomas.


March 24, 2004 | Permalink | TrackBack (0)

What Is the Church's Function

Martin Grace has posted some very interesting comments, responding to our conversation here at Mirror of Justice about the sexual-abuse scandal, the Church, and the role of lawyers. Take a look.


March 24, 2004 | Permalink | TrackBack (0)

Tuesday, March 23, 2004

Government Aid and Religion's Mediating Function

Rick and Kathleen have insightfully identified a (perhaps the) major problem facing proponents of a vibrant role for religion in the social services arena. Often such proponents will reflexively favor government funding of religious associations as a way to level the secular/religious playing field and expand the scope of religion's mission-driven impact on society. Certainly government funds may allow groups to meet more needs, increasing their viability and attracting new members to a collective endeavor that previously may have seemed ineffectual or, at a minimum, peripheral to the government’s dominant social service role. But too much outside influence may negate the attributes that make groups valuable in the first place.

As Neuhaus and Berger recognized years ago, we value religious and other voluntary associations in significant part because they mediate between the individual and the surrounding society, empowering us to forge common identities that are separate from -- and even opposed to -- the identity reflected in the collective institutions of the state. By foregoing its core mission or watering down its identity as a condition of government funding, a previously independent association could be turned into, in essence, an arm of the government. Such a shift endangers any meaningful mediating function -- i.e., as allegiance to the government as a funding source increases, the association’s ability to serve as a mediating force between individuals and the government necessarily declines. (This prospect is explored further in my article, The Good, the Bad, and the Ugly: Rethinking the Value of Associations, posted in the sidebar.) This does not mean that the government should categorically preclude religious associations from obtaining the same funding that secular groups are eligible for, but it does mean that religious groups should think hard before taking their place at the government trough. It becomes even stickier, of course, when government funding becomes essentially a requirement of the industry, as is currently the case in health care and potentially with school vouchers (i.e., if every other private school has much of their tuition subsidized by the government, a religious school will be hard-pressed to compete effectively in the market without such subsidies).

I don't have an easy solution by any stretch, but I am becoming more intrigued by the value pluralism espoused by Isaiah Berlin (and others) to see if it could inform the civil society debate in a way that would protect social service providers' identies, even if that necessitates giving up some of liberalism's gains in the process. At a minimum, I think that civil society proponents (a category in which I count myself) need to be cognizant of the significant dangers that accompany the government's efforts to harness our "armies of compassion."


March 23, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Church Scandal Revisited: The Lawyer's Proper Role as Moral Catalyst

One of our readers, attorney and judicial clerk John Doe, writes with appreciation for our the Mirror of Justice and our ongoing discussion about the shameful role of lawyers in what Richard John Neuhaus has described as our Church’s “Long Lent” since the priest sex abuse scandal seized public attention. While agreeing that lawyers should not neglect the moral counseling aspect of our role, Mr. Doe remarks that, in the specific context of this Catholic Church scandal, this might have been a “tall order.” He quite rightly points out that it might be rather presumptuous for a lawyer, even a Catholic lawyer, to act as a moral advisor to a bishop or other high church leader. Mr. Doe thoughtfully asks whether the lawyer, at least in this particular context, is really qualified or justified in offering moral advice to the client.

I do regard it as fundamentally important for the lawyer to begin every attorney-client relationship by asking the client a basic question: “Who are you?” The lawyer should not presume the answer, but neither should the lawyer allow the representation to stumble along unguided and without insisting upon the client’s answer to this question. By framing the inquiry in a manner that invites the client to draw upon the client’s own values, the lawyer assists the client to be true to the client’s own best self.

In other words, what I mean to encourage here is the initiation between the lawyer and the client of a moral conversation. This should not be a lecture by the lawyer nor serve as the vehicle by which the lawyer arrogates the position of moral dictator. Rather, this should be a cooperative process in which the lawyer and the client work together to achieve the best outcome for the client, including a humane outcome that is consistent with the client’s own moral compass. The lawyer thus would serve a catalytic role, encouraging the client to think more deeply about what the client should do, both legally and morally.

Would it have been presumptuous for an attorney to instruct the princes of the Church on morality? Perhaps, especially if the lawyer was not also trained in theology or canon law. But would it have been presumptuous for the lawyer to inquire whether the Church’s nature and mission demanded a different approach to this problem? Would it have been inappropriate to ask pointed questions that forced Church leaders to confront the possible disconnect between the mission of Christ’s Church and the legal tactics employed to deflect embarrassing disclosure of priestly failures? I don’t think so.

As Rob Vischer writes in his recent post here, the legal profession tends to elevate client autonomy to an absolute, regarding lawyers as amoral technicians who simply implement in legal terms the client’s stated objectives. Even worse, I want to emphasize here, most lawyers assume that their clients have no ideals, no values, no moral calling that would be relevant to the legal task. As Rob says, lawyers too often fail “even to suggest that a client reflect meaningfully on those objectives.” In so doing, the lawyer encourages the client to regard the world of legal affairs as devoid of values. In this way, the legal profession makes those who enter into this world comfortable with amoral attitudes and ethical neglect, thereby lowering the quality of moral discourse and interaction in society.

In sum, if we as lawyers fail to provoke the client to consider the moral implications of legal problems, we encourage the client to divorce the essential moral dimension of the client’s identity from the client’s responses to legal problems. The legal profession for too long has told clients, at least implicitly, to leave their values at the door when entering the lawyer’s office. Not surprisingly, that way lies disaster. And that danger inherent in amoral legalisms were tragicly realized in the role played by lawyers in the Church sex abuse scandal.

Greg Sisk

March 23, 2004 in Sisk, Greg | Permalink | TrackBack (0)

The Downsides of Relying on Government Aid for the Provision of Social Services

I agree strongly with Rick that the participation of Catholic and other religious organizations in programs like Charitable Choice and school vouchers raise troubling issues for the religious participant. As the Virginia Association of Baptists wrote in 1776, "those whom the State employs in its Service, it has a Right to regulate and dictate to." I think precisely these dangers are present when the government funds social and educational institutions today. Already, we have seen strings attached to the vouchers programs upheld by the U.S. Supreme Court in Zelman v. Simmons-Harris and by the Wisconsin Supreme Court a few years earlier in Jackson v. Benson. The program in Zelman requires participating schools to "agree not to discriminate on the basis of race, religion, or ethnic background, or 'to advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin or religion.'" Such restrictions could be liberally construed to bar a Catholic school that approves of Operation Rescue or a fundamentalist Christian school that teaches that Satan is at work within Islam. The program in Jackson v. Benson required participating schools to permit voucher students to opt out of religious activities if their parents request. In the social services area, too, one can expect that the more governments privatize the provision of social services, the more they will seek to regulate the "private" sector they are funding. Indeed, a number of scholars are already advocating such regulation as a means of shaping deviant religious groups according to majoritarian "public values."

I have never written on vouchers or funding for faith-based social services programs because I cannot yet figure out how to address these problems adequately. On the one hand, if governments continue to move in the direction of privatizing social and educational functions and religious organizations do not or cannot participate, the resulting services will be skewed strongly in a secularist direction. Such skewing would be unfair and damaging to religion. But if religious organizations do participate, will they risk becoming part of a "private" sector heavily regulated by the government? Indeed, a sector that may take on more of the features of government bureaucracy as time goes on?

March 23, 2004 | Permalink | TrackBack (0)

Monday, March 22, 2004

"Choose Life" license plates and "Viewpoint Neutrality"

The United States Court of Appeals for the Fourth Circuit has held, in Planned Parenthood v. Rose, that South Carolina's "Choose Life" license plate violates the First Amendment. (The opinion is here; thanks to Howard Bashman for the link). Because I have the pleasure of teaching a course on First Amendment law, I will have to untangle the court's winding path through the Supreme Court's increasingly tricky caselaw on government speech, public forums ("fora"?), and viewpoint discrimination.

Because our blog is not so much about legal doctrine as it is about our efforts to better understand, and to critique, that doctrine from the perspective of the Catholic intellectual tradition, I'll spare my colleagues any thoughts on the court's selection, interpretation, and application of the relevant precedents. But because many who write and think about religious freedom (including Kathleen and others of my colleagues) also -- by necessity -- write and think about free-speech and public-forum doctrine, the Fourth Circuit's decision will likely be of interest to "Mirror of Justice" readers.


March 22, 2004 | Permalink | TrackBack (0)

Catholic Charities and "Direct Inculcation"

With respect to the recent Catholic Charities case, Kathleen asks (below) "why church lawyers so readily admitted that Catholic Charities was not involved in the 'direct inculcation of religious values' and, thus, failed the first of the four necessary criteria for exemption as a religious employer under the state's Women's Contraception Equity Act." As she notes just a few lines later, though, "insisting that Catholic social services agencies are involved in the direct inculcation of religious values may send off red flags for government funding vis-a-vis the Establishment Clause."

A reporter asked me recently if I agreed with "those" (who are they?) who think that "Catholic Charities is trying to have it both ways" (i.e., to receive large amounts of government funds, but also insist on a religion-based exemption to the WCEA). I'm not sure. But this case did start me thinking, again, about the potential downsides of policy experiments like "Charitable Choice" and even school vouchers. Now, I am quite confident that these kinds of experiments are "constitutional," if the Religion Clause is properly understood. And, I agree with Kathleen that "through the Church's social mission, those who assist those in need proclaim the Gospel message as much as do preachers from the pulpit" and that "serving those in need IS the Christian message in deed." Still, I wonder if the Catholic Charities case is a kind of wake-up call, reminding us that, if the Church wants to be the Church, at a time when the state would prefer that the Church not be so much the Church, then the Church might not be able to rely on government funds for its social mission. Any thoughts?


March 22, 2004 | Permalink | TrackBack (0)