Mirror of Justice

Another Angle on Catholic Social Thought and Lawyering on Behalf of Catholic Institutions

Here is a different angle on the importance of integrating Catholic Social Thought principles into lawyering on behalf of Catholic institutions. In a recent article addressing the application of mandatory collective bargaining regimes to religious institutions, I argue that the National Labor Relations Act and state labor laws that resemble the federal statute are incompatible with the Church's vision for labor-management relations. While secular regimes presuppose and entrench an adversarial relationship between management and labor, the Church envisions a cooperative relationship based upon mutual concern and the common good. Lower courts addressing the application of these laws to religious institutions have, with only a handful of exceptions, found no burden on religious belief or practice, and in cases involving Catholic institutions, a number of courts have pointed to the Church's support for unions and labor rights. I have found no case where the Church's lawyers made the kind of theological argument that I suggest, and I believe that they have missed one of the Church's strongest arguments in a series of cases that, in my view, merit litigation. (I recognize that there are Catholics and Catholic scholars--indeed, Catholic legal scholars--who believe that Church institutions should be required to bargain under secular labor regimes. I agree that Catholic institutions have an ethical obligation rooted in the Church's social teaching to bargain with employees who so desire. However, this bargaining relationship should be defined by the Church's social teaching, not by a secular regime that cannot be expected to mirror the richness of the Catholic tradition). One of the lessons I draw from this is the importance of understanding and integrating the Catholic Social Thought into the legal defense of Church institutions when such defense is appropriate.

Along these lines, as I read the recent California Supreme Court decision in Catholic Charities of Sacramento v. Superior Court (March 1, 2004), I wondered 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. Catholic social teaching does not draw a sharp distinction between evangelization and serving the poor and needy. Church institutions that serve those in need are a model and witness of God's love manifest on the Cross and at work in the world. Through the Church's social mission, those who assist those in need proclaim the Gospel message as much as do preachers from the pulpit. Serving those in need IS the Christian message in deed. It IS the inculcation of religious values, and Catholic Charities recognizes as much when it seeks to promote a "just, compassionate society" that supports human dignity. So, why did the Church's lawyers buy into a distinction that is rooted in the California statute and not in the Church's social tradition? To be sure, 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, but why insist that the opposite is true?

Kathleen

Church Scandal Revisited: the elevation of client autonomy

The posts by Greg and Mark reminded me of a conversation I had several months ago with a friend who worked at one of the firms representing the Church in these lawsuits. I had given my friend an article I wrote calling for Catholic lawyers to do more to integrate the principles of Catholic social thought with their practice of law. (Catholic Social Thought and the Ethical Formation of Lawyers, posted in the sidebar) His response was, "Why should a Catholic lawyer feel obliged to pursue such integration when the Church itself doesn't even expect its own lawyers to do so?" Certainly the bishops' handling of the litigation sends a powerful message to the wider profession.

To the extent that the lawyers themselves are culpable for not helping the bishops bring the legal strategy into line with the Church's mission, this failure likely stems not from the fact that lawyers are concerned only with profit (though many are), nor from lawyers' tendency to avoid difficult client conversations (though many do), but from the legal profession's elevation of client autonomy as an absolute value. Lawyers who conceive of themselves as "amoral technicians" believe that they are nobly filling their societal role by providing their clients with unfettered access to the maximum set of rights and privileges that our legal system has to offer. To second-guess a client's stated objectives -- or even to suggest that a client reflect meaningfully on those objectives -- is widely perceived as threatening the fundamental client-directed quality of legal representation. As Tom Shaffer puts it, "In moral discourse, as in political and legal discourse, we don't talk about good people, we talk about rights," and we assume "that what citizens want for one another, and lawyers for their clients, is not goodness but isolation and independence." I do not know this for a fact, but I would guess that lawyers did not play a meaningful part in any conversations regarding the consistency between the bishops' tactics and the Church's mission, to the extent such conversations occurred at all. Further, I would guess that the lawyers involved would defend this omission as a prudent limitation on the lawyer's gatekeeping role.

Rob

The Right to Migrate

ZENIT, a Catholic news service, has published an interesting interview with Andrew Yuengert, of Pepperdine University, on Catholic Social Thought and the "Right to Migrate." In addition to providing food for thought on immigration-related policy (something I know my co-blogger Michael Scaperlanda has written about), Yuengert offers some interesting thoughts on the use and function of "rights talk" in conversations about the common good.

I'd welcome Michael's (or anyone else's!) thoughts on the interview.

Rick

Church Scandal Revisited: Reminding the Client of Its Mission

In terms of the continuing discussion of how our legal profession generally failed to serve a positive role in the context of the priest sexual abuse scandal, Randy J. Heinig kindly cites to our discussion here at the Mirror of Justice and then offers the following thoughtful summation:

“Lawyers can be analyzed to MSG (salt is, by and large, a little too flattering for us as a class) -- they more or less accentuate what's already there. But we do bring a distinctive way of viewing things to the table that can, by and large, be good for the client to hear. In this case, it clearly wasn't. The lawyers at issue appeared to understand the law (its language, its strictures, the way it functions -- too much so) in counseling the client, but had missed the essential purposes of the client. While this is rare, sometimes the lawyers need to remind the client of its own purposes. In this case, the lawyers forgot to do that and forgot, therefore, to ultimately and truly serve the client's interests. They lost sight of their larger tasks and became to pre-occuppied with their own limited professional discourse to provide real counsel.”

(You can read the entire message at: http://www.news-sheet.net/archives/000201.html.)

Using Mr. Heinig’s point as a spring-board to continue this discussion, I’d suggest that the “need to remind the client of its own purposes” ought not to be so rare. Indeed, by making the lawyer’s appreciation of the unique purpose or mission of every client a centerpiece of legal practice, we might revitalize the role of the attorney as an adviser, that is, as a true professional and not merely a legal handyman. If such a conversation between lawyers and clients were to become a standard part of the initial retention arrangement, the opportunity for the lawyer and client to work together toward a mutually fulfilling moral as well as a legal end would be greatly enhanced, and many misunderstandings might be avoided as well.

Let me propose this, as a plan of action or at least a subject of further dialogue: We as lawyers ought to put the “mission” question on the table upfront, asking the client who he, she, or it really is; what is the client’s mission,that is, its reason for being; what are the long-term goals as well as the short-term ends of the client; if we were to look back in twenty years, what legacy would the client wish to leave behind; how may the client reach its goals in a manner that strengthens the clients attachment to others and to society; etc. By being purposeful about the mission of the client or the moral terms of the retention from the very inception of the attorney-client relationship, the lawyer then can shape the nature and content of that relationship throughout its duration.

Consider the example at hand: had every lawyer retained by every Catholic bishop confronted by a suit against a diocese for improper conduct by a priest with a minor paused to inquire whether the Church deserved a different kind of legal advising, before plunging in to provide an ordinary legal defense according to the letter of the law, isn’t it likely that the results would have been different on at least some occasions? To be sure, some bishops might still have insisted upon treating the sex abuse problem as a legal distraction and demanded a zealous and legalistic response thereto. But isn’t it likely that some Church leaders, when encouraged by their own legal counsel to do so, would have been moved to reconsider their approach, rediscover the true nature or role of the Church in society and in relationship with others, and reorient the trajectory?

In fact, given the disastrous consequences that often attended the representation of the Church by its lawyers in the sex abuse scandals, might not one argue that the failure to raise questions of mission and the proper contextual role of legal counse for that client was itself a failure of competence? In conclusion, then, could it not be that extending an invitation to the client to engage in moral reasoning together is not merely advisable but the essence of professional responsibility?

I’ll close this posting with these words from Gerald J. Postema, which seem to me particularly pertinent here:

“[C]ut off from sound moral judgment, the lawyer’s ability to do his job well—to determine the applicable law and effectively advise his clients—is likely to be seriously affected. . . . [T]he lawyer who must detach professional judgment from his own moral judgment is deprived of the resources from which arguments regarding his client’s legal rights and duties can be fashioned. In effect, the ideal of neutrality and detachment wars against its companion ideal of zealous pursuit of the client interests.”

A New Blog Worth Reading

A new group blog, "De Novo," has a number of interesting and -- in my view -- sound posts up about the nature of legal education and the purpose of law schools. The blog includes mini-essays by a number of well-known law-blog folks, including that force of nature, Howard Bashman, and Slate.com's Dahlia Lithwick. Law students in particular are urged to check it out.

Rick

More Thoughts on Blogging

Amy Uelmen’s “thoughts about blogging” should serve both as a reminder to readers of the inherent limitations of this unique medium, and as a catalyst for those of us participating here to consider again what we would hope to accomplish through the particular venue of the Mirror of Justice.

First, every reader of this blog would do well do begin by reading Amy Uelmen’s message, as it should an essential part of a virtual FAQ for the Mirror of Justice. Readers must appreciate that this weblog is a peculiar type of forum, in which the ideas expressed often are preliminary, tentative, and designed to advance discussion and raise questions both among ourselves and for the larger society. These postings are not the equivalent of a polished and carefully considered expression of firm views as as in a published journal article. This is not to say that any of us should be negligent in posting to the Mirror of Justice, that is, none of us should be careless or casual, because as Amy notes the words we speak do (potentially at any rate) have a broader reach to a larger segment of the population than an idle thought expressed in a coffee shop or faculty lounge. But at the same time, our readers should realize that not every word posted here reflects a fixed and determined point of view nor should the authors be held forever responsible for every provocative point offered or sincere query explored.

Thus, I regard the Mirror of Justice weblog as a conversation among friends and fellow disciples of Christ. Amy certainly is correct that it does not have the same features as a direct and personal connection made through a face-to-face contact. That is one of the limitations of this medium and can result in an artificiality to the conversation. Moreover, it is a conversation that unfolds before an audience. But in many respects, and here I turn to my second point, that is a very good thing.

By holding such a public conversation, we members of the Mirror of Justice attempt to model for others how people of diverse views sharing a common faith can interact with each other and seek common ground. By my reading of the blog postings thus far, we are accomplishing that purpose. In contrast with some listservs to which I belong (and these academic listservs are quite restrained in debating style compared to the deliberate heat generated by cable news and talk radio), the tremendous respect and desire to appreciate the other reflected in the posts thus far is most gratifying and also enlightening.

Moreover, the audience we are likely to attract (if the Mirror of Justice is successful in attracting any audience at all) will include many who will never attend an academic symposium and will never read what we submit as a finished publication product to a law review or other journal. The appeal of weblogs to an internet audience lies in their feel as an open dialogue unfolding almost in real-time. Thus, through the internet, and precisely because of the nature of the blog medium, we will have an opportunity to reach people we would not otherwise encounter with the message that Christ's Church has something to say about how we structure our legal system, make legal decisions, and use the law in society. By contrast, if we share our thoughts only through an academic journal article, or through a direct conversation with colleagues—valuable though those are (and the proper focus of most of our scholarly attention)—we will miss many of those nameless people. And some may searching and questioning and would value the chance to lurk on the sidelines of the debate, never revealing themselves but learning from the discussion.

Thus, I see the Mirror of Justice weblog as, yes, a good conversation among friends in the faith, but also as having the potential to be a missionary calling. Time will tell.

The Church's Lawyers

Greg raises some interesting issues in his description of the portion of the review board's report on the handling of sexual abuse by the clergy. This is an issue I have been thinking and writing about for a while, so I wanted to make a few observations about what should be considered "shameful" in the involvement of lawyers in these dreadful cases. Three different types of behavior have to be considered:

1. The behavior of bishops in treating complaints of sexual abuse as "legal" problems, i.e. as sources of potential legal liability for the diocese, and turning to lawyers as their principal advisers, rather than identifying the complaints as serious pastoral problems that must be remedied (and prevented in the future). Bishops themselves "legalized" the problem, or acquiesced in its being treated primarily (or exclusively) as a legal problem. Hence the large numbers of cases in which confidential settlement agreements "ended" specific complaints without any real consideration of the victims' suffering, and with no public exposure of the abusers -- and we all know the rest.

2. The behavior of lawyers, which had two aspects: failure as counselors and failure as litigators. As counselors: to what extent should lawyers have advised their bishop clients that treating a sexual abuse complaint as just another tort case, in which the principal goals should be minimization of financial damage avoidance of negative publicity, and deterrence of future claimants was: (a) wrong in light of the Church's spiritual responsibilities; and (b) not in the Church's institutional interest in the long run? As litigators: once claims were filed, to what extent did engaging in zealous advocacy (as one would for any client) in depositions, the court room and other litigation contexts itself undermine the Church's spiritual obligations?

3. The behavior of the Church's insurors: To what extent did hard ball litigation and scorched earth tactics take place once the insurance companies took over the litigation? It strikes me that many of the problems reported in the litigated cases sounded like insurance defense lawyers just acting the way they usually do. I do not have a good grasp, however, of when the insurance company was calling the shots, and when the bishps were.

It strikes me that the most "shameful" behavior here was really (1): the decisions of the bishops to treat these as legal problems that could be buried with a little money and lots of silence. That decision reflected their own desire not to deal with the problems in any serious way and to avoid any public scrutiny of either what happened or the way they dealt with it. To have expected lawyers to be the bishops' "conscience", as in (2), may have been a lot to expect from their lawyers, though this issue raises very interesting questions about a lawyer's ethical responsibilities, particularly when representing a religious organization that theoretically holds itself to a higher standard.

The question of how lawyers should have acted in litigators in these cases is a tough one: surely they should not have been expected to treat every allegation of fact, legal theory and claim for damages in every plaintiff's Complaint as truth not to be contested. On the other hand, recognition of their client's special character and responsibilities should have led at least to avoiding brutal ad hominem attacks on the alleged victims. Greg's colleague, Pat Schlitz, has pieces in COMMONWEAL, America, and Litigation arguing for fairly broad latitude for the Church in defending these cases. While I generally agree with Pat, my own piece in COMMONWEAL (see sidebar) uges a somewhat more constrained role for the Church in defending these cases.

Federal Urban Policy, City Parishes, and CST

I just read, in The Weekly Standard, an interesting review of two new-ish books on the "decline of cities" and urban policy. (I'm very interested in this topic, about which my wife, Nicole Stelle Garnett, and our co-blogger Vince Rougeau write and teach).

As described by the reviewer, Harry Siegel, Douglas Rae's City: Urbanism and Its End, analyzes the process and causes of New Haven's fall "from a working-class manufacturing center to a cluster of dilapidated housing projects." This fall -- which, believe me, is real -- took place notwithstanding the fact that New Haven was the "flagship city of the Great Society's 'Model Cities' program" and "received far more federal dollars per capital than any other city."

E. Michael Jones's book, "The Slaughter of the Cities: Urban Renewal as Ethnic Cleansing," offers, Siegel reports, a "paranoid and disturbing perspective": Jones's argument is that "a WASP elite that ran the federal government used southern blacks as its unwitting pawns in a vast 'psychological warfare campaign' against unassimilated white ethnics, particularly urban Catholics and their parishes." Siegel makes it clear that Jones's arguments are uncautious, and often offensive -- particularly in his apparent insistence that urban Catholics who resisted integration were blameless victims, and not racists. With that caveat, though, Siegel suggests that "Jones is onto something significant": "The destruction of the working class," he says, "homeowning urban neighborhoods was not . . . just the necessary outcome of economic and demographic changes but also the result of ill-considered government policies written by urban planners often contemptuous of Catholics and patronizing towards blacks."

I have not read the books, and so cannot endorse them. Still, it strikes me that their subject -- and the ideas raised in Siegel's review -- are relevant to "Mirror of Justice" readers for at least two reasons: First, I kept thinking, as I read the review, about several exchanges we've had, over the past few weeks, about "subsidiarity," and what it really means. Next, and more generally, I'd love to hear others' thoughts about what CST has to say about "urbanism" -- not only about criminal justice, welfare policy, housing policy, etc., all of which affects life in our cities, but about "urbanism" more generally. Do Catholic claims about the person have any implications for how we *ought* to structure our cities and communities?

Rick

UPDATE: I received an e-mail from Tom Messner, a student of mine (who also contributes to the Christus Victor blog), commenting on this post. He writes:

I think Jones’ reflection on the disasters of urban/social planning . . . suggests we should . . . rephrase (your) question to read: "What we ought NOT to do in structuring our cities and communities, in light of Catholic Social Teaching?" I don’t know that much about subsidiarity, so I’ll use this definition: “As a person with an eternal destiny, man cannot find his fulfillment in the state or in any temporal order. From this arises the principle of subsidiarity, which denies the claim of the state to total competence.” (C. Rice). If ever the state has proved itself totally INCOMPETENT, surely it has done so in its “structuring of cities and communities” in certain neighborhoods in Detroit, Philadelphia, Chicago, and Boston (the four cities on which Jones focuses). So I think maybe one of the most basic things subsidiarity might "mean” with respect to urban planning is a very MINIMAL role for the state: it’s got a bad track record. This may be too obvious and simplistic; but maybe it’s not, at least not as some sort of baseline.

Tom also observes that "the purpose of civil society and of human law is to promote the common good, which is ‘the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily.’" He then goes on to offer some thoughts about what this statement means in the context of urban development and policy.

I've encouraged Tom to post his thoughts over at Christus Victor.

ANOTHER UPDATE: Another Notre Dame law student (and blogger) has noted her disagreement with Tom's take (supra) on CST and urban planning. Check out "View From the Dome," here. It sounds like VFTD would apply CST principles to the story described by Rae and Jones in a very different way. I'd love to hear more.

One quick observation: VFTD mentions her views on the "prudence of deregulation of housing." I take it that Rae and Jones are not discussing so much the question whether habitability rules, rent control, etc., actually help or hurt low-income persons and families, but broader issues of "urbanism," city planning, zoning, etc. That is -- and perhaps VFTD agrees -- one could believe (as I, tentatively, do) that many so-called urban-renewal policies have been disastrous in their aesthetic, social, economic, and moral effects, while *still* opposing the "deregulation of housing," or without also believing that, say, many features of landlord-tenant and housing-code law lead to the (unintended) consequence of shrinking the pool of housing available to poor people.

Rick

RG

Thoughts About Blogging

I log onto our blog, and have a few thoughts and some reactions - why can’t I bring myself to really jump in and post? At first I thought it was because up until recently I have been too busy to take the time to sufficiently think out my reactions. But now it’s Spring Break, and I do have some time. Perhaps I am overly cautious… Usually before I publish something I ask at least five or six friends to read it over and react, and then I usually make a heap of changes. The thought of “publishing” onto the anonymous world-wide-web what still feel like random thoughts goes against my cautious grain.

But then, musing a bit more, I realized my hesitation was even deeper than that. Perhaps the specific person to whom my thoughts may be addressed won’t have time for a while to listen - someone else may jump in, and the person to whom my thoughts were originally addressed may get lost in the shuffle. Or maybe my response is based on a misunderstanding of what the other person was trying to say - and the blog feels like an awkward and somewhat too public forum to work towards understanding one another.

And who know how else my approach to the conversation is shaped by the thought that other nameless folks may read our exchange? Then I realized what was bothering me was that it all had a sort of “reality-TV” feel - am I really talking to a specific person, or to an anonymous mass? If an anonymous mass is present, can we really have a conversation without being too self-conscious?

I’m sure I am over-thinking this… but perhaps it is a more feminine reaction to the medium. Before I talk to someone, I want to make sure they are ready to listen, and if not, I’d rather wait. (for this reason, I like personal email - it can wait). I want a personal connection - a chance to apologize if perhaps I wasn’t listening well enough, and ask more questions, get further clarification on your thoughts - all dimensions which seem to require a not-too-public forum. Then, when I publish something for a broader community, I hope what I write reflects an effort to think carefully about the audience and the anticipated questions, the need for further explanations and backgrounds, etc. - a process which strikes me as a very different forum than a personal exchange. So I’m having a lot of trouble with the way the blog medium merges the two.

Please don’t take this as a criticism - I think the blog is a wonderful idea as a way to keep each other informed about scholarship and events - and genuinely do want to understand how this kind of technology can further the conversation and exchange. But I just haven’t yet been able to put together how to use this kind of technology and still maintain a hoped for personal dimension and personal connection.

If anyone can help me with this (or has similar thoughts) I am all ears.

Thanks for listening, Amy

Seton Hall vs. Gonzaga: articulating the distinction

Here's an insightful response from Gerald J. Russello to my query as to whether there's a double standard if we insist that Gonzaga recognize the Christian Legal Society chapter, but don't insist that Seton Hall recognize the gay student group:

The difference between Gonzaga and Seton Hall, to my mind, is that between "old fashioned" liberalism and something new. Seton Hall presents the traditional academic freedom dilemma: should a Catholic institution allow students to advocate on an issue in a school-approved group that is not compatible with its self-understanding as a Catholic institution. I believe Seton Hall is right not to permit such groups, because from a Catholic perspective that issue has been discussed and a conclusion reached. The issue can be discussed in a classroom, but not treated as an "expression" equivalent with other approved student groups. (We had similar debates when I was a student at Georgetown over pro-choice student groups).

With Harvard and InterVarsity, the issue is different. The "expansive view of non-discrimination" you rightly identify as the motivating force here conditions the identity of the participants in the debate. The particular issue is, in some sense, irrelevant. In other words, the discrimination against InterVarsity is not because of the point of view (advocating Christian legal principles in law), but because of the internal structure of the group itself (restricting leadership to Christians). Harvard may publicly proclaim that it has no "bias" against Christianity, but it believes all groups should reflect the student body, i.e., Christian groups should be subject internally to non-discrimination as a condition to recognition, even if the self-understanding of the group does not permit such non-discrimination. The secular ideology controls the way groups can understand themselves, even if (as in the case with a secular university) it disclaims any interest in the outcome of the debate. If this analysis is right, I think we can develop a principled distinction between the way we approach these two forms of pluralism.

As to your point on liberalism-as-religion, I disagree, not because it is not true, but primarily because liberals do not see it that way. From the perspective of liberalism, there is no "religious level" truth except tolerance, which cannot press its own truth claims. Crediting liberalism with the conviction of religion imports our own religious values to a system that, while deeply held, cannot come to conclusive answers to ultimate questions.

Gerald J. Russello