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.

Wednesday, June 30, 2004

Urban Design in His Kingdom

Here's more on the New Urbanism question (thanks to Stuart Buck) (quoting Christopher Leerssen):

"Consider, on the other hand, the community wrought by a currently popular retail format, the superstore building, also known as a “big box.” (Loosely defined, a big box is a standalone retail building having a floor area of greater than 50,000 square feet.) While the “big box” offers certain economic benefits and practical advantages (low prices, efficient distribution) it taxes our systems in other ways. There are the ecological issues: The big box is predicated on large parking lots that are inefficiently used most of the year . . . except Christmas. The design of these sites hardly ever takes into account preexisting natural features such as streams, fields, ridges, the nuances that cause each place to be distinct. Large expanses of asphalt create urban heat islands and significant pollution—with huge volumes of storm water runoff dumping harmful elements into our streams. Built to last 7-30 years maximum, these structures are essentially disposable. A big box’s location practically mandates the use of an automobile. But all this might be considered an aesthete’s fussiness, mere cultural preferences.

More to the point, maybe, pedestrian access is nearly impossible and prohibitively expensive. And so pedestrian traffic is almost non-existent. What kind of communion is this? (A friend recently described the virtues of being able to rotate from superstore to superstore, from strip mall to strip mall, all within 10-15 miles of home: “I can dress however I want, and I never have to worry about running into someone I know!”). To gain that anonymity and that lower price tag, consumers drive right past their neighbor, the local merchant who is rapidly disappearing from the American scene. Meanwhile, “format” stores such as WalMart and Costco are beating market expectations quarterly because Americans bend over backwards for the best price, and simply don’t value the things that well-thought-out urbanism can provide.

These days, sidewalks are the exception, the town square is a quaint and nostalgic idea, and public benches and places to sit are discouraged. The neighborhood park often is an enormous tract of land on the outskirts of town; some might drive there, but no one really owns it. Where, in today’s communities, are the places that parades are held and speeches given? Where is the special nook for young lovers to become engaged to be married? Where can neighbors be neighbors to one another, and where can rich and poor walk down the sidewalks as fellow citizens?

* * *
In terms of economic justice, there are in many communities, regulations and zoning laws that keep out the poor and working class. Some affluent counties currently prohibit developers from building a house smaller than 1200 square feet, or on a parcel of less than an acre. This drives housing costs so high that teachers, police, and postal workers—especially in large metro areas—cannot afford to live in the communities they serve. Minimum-wage workers are encouraged to commute long distances by public transportation just to serve in restaurants and offices. The Bible shouts its message of respect for the poor: “Do not scorn the poor man.”[iii] It would seem clear, then that design that scorns the poor and facilitates the rich is unbiblical. Does this pattern grow out of a sinful dislike and distrust of people with lesser standing?
* * *

I've said it before, I know: I really like urbanism, sidewalks, porches, narrow streets . . . but I really like Target and Best Buy, too.


June 30, 2004 | Permalink | TrackBack (0)

Child Online Protection Act (II)

Michael asks (below), with respect to the Court's recent decision concerning the Child Online Protection Act, "drawing from Catholic Social Thought, how should we resolve the tension between maintaining freedom of speech (and publication) and the desire to protect children (what about adults?) from the glut of pornography on the internet?"

For what it's worth, I tend to have an ACLU-ish view with respect to free-speech matters, not because this view enjoys much support (in my view) in the relevant history, but primarily because (unfortunately?) it strikes me that libertarian, individualist free-speech doctrine plays a useful role in protecting religiously grounded speech and activity, and in constraining -- to some degree -- the state's ideological ambitions. (That said, for me, the real travesty of this Term is that restrictions on core, fundamental political activity were upheld in the campaign-regulation case, McConnell, but a modest effort to channel internet porn was invalidated).

With respect to the internet-porn case, I wonder if there are any interesting connections between Justice Kennedy's emphasis on filtering technologies and self-help mechanisms, on the one hand, and Catholic ideas of subsidiarity, on the other?


June 30, 2004 | Permalink | TrackBack (0)

Nonestablishment Under God?

Here's the latest by Steve Smith: "Nonestablishment Under God? The Nonsectarian Principle":

Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the "public secularism" principle, the "neutrality" principle, and the "nonsectarian principle." The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.


June 30, 2004 | Permalink | TrackBack (0)

ECHR Decision re Religious Headscarves

According to this story, the European Court of Human Rights has "rejected an appeal by a Turkish student barred from attending an Istanbul university wearing a head scarf and said the ban was not discriminatory."

"In its decision, the Strasbourg-based court said that 'measures taken in universities to prevent certain fundamentalist religious movements from pressuring students who do not practice the religion in question, or those belonging to another religion, can be justified.' The judges also said bans approved in the name of the separation of church and state could be considered 'necessary in a democratic society.'"

I have not read the full opinion but -- at first blush -- the Court's willingness to authorize this burden on Muslim believers, on (what appears to be) the ground that the mere presence of headscarf-wearing Muslims in school will "pressure" other students, is troubling.


June 30, 2004 | Permalink | TrackBack (0)

Islam in German Classrooms

Here is a fascinating story, in today's New York Times, about the controversy surrounding Muslim religious education in Germany's schools:

"Unlike the practice in other German states, where classes in religion are part of the regular school curriculum, in Berlin, parents decide whether they want their children to have religious instruction or not, and outside groups, in the past almost entirely Protestant or Catholic, have the right to teach their religions inside the public schools.

For many years, the Berlin government tried to keep the Islamic Federation, which it plainly did not and does not like, out of its schools. But the federation went to court, and then went back to court again, and after 20 years of trying, it finally won a ruling identifying it as a 'religious community' with the right to do the same thing that the other religions were doing. It now holds classes in 28 schools in Berlin, and plans to expand to 15 more schools next year. . . .

So what's the difference between the Muslims and other religious groups, whose presence causes no alarm? Ms. Berning and those who share her view note several things - most important, perhaps, that the Islamic Federation does not allow outsiders like Ms. Berning to attend their classes, so the impression is given that something secret is taking place in them.

But beyond the specific worries is the more general feeling that the Islamic Federation's version of Islam is a very conservative one, possibly fundamentalist, and therefore at odds with German values."


June 30, 2004 | Permalink | TrackBack (0)

Tuesday, June 29, 2004

Agenda for Subsidiarity and the Law Conference

The agenda and electronic program brochure is now available for those interested in Villanova Law's Second Annual Conference on Catholic Social thought and the Law, to be held on October 8, 2004. This year's topic is "Principles and Practices of Subsidiarity: The Meanings of Subsidiarity for the Law." Presenters include MOJ bolgistas Paolo Carrozza, Rob Vischer and yours truly. For more info go here.

June 29, 2004 | Permalink | TrackBack (0)

Child Online Protection Act

I would be interested in hearing the reactions of our First Amendment scholars to today's Supreme Court decision in Ashcroft v. ACLU, which suggests that the Child Online Protection Act is likely unconstitutional. Specifically, drawing from Catholic Social Thought, how should we resolve the tension between maintaining freedom of speech (and publication) and the desire to protect children (what about adults?) from the glut of pornography on the internet?

Thanks, Michael

June 29, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Monday, June 28, 2004

Wills on Abortion

I would like to address the argument made by Garry Wills and posted by Mike Perry a couple of days ago. As a somehat left-of-center Catholic I am usually a a fan of Wills, although I think some of his stuff on the responsibility of the Papacy for the Holocaust is pretty unbalanced. But I found myself disagreeing with his argument in this editorial, at least so far as I understand it. His argument goes something like this (I think):

1. The Church's theologically-based condemnation of killing extends only to the killing of a "person."

2. Neither Scripture nor the Tradition, however, defines when a "person" comes to exist; both Aquinas and Augustine, for example, expressed uncertainty about the question. There is, therefore, no theological definition within Catholicism of when a fertilized ovum becomes a person.

3. People of conscience, using the tools of natural reason, and the insights provided by philosophy and the sciences, can reach different conclusions about when a "person" comes to exist.

4. The bishops' opinion about when a fetus becomes a person, because it is not an expression of religious truth, is based only on natural reason.

5. The bishops' definition thus presumably is not binding on Catholics, because it does not express a truth of the faith, but only one of many different conclusions that people of conscience might reach using the tools of natural reason, and they have no right to impose their conclusions on anyone else, including Catholics.

6. Because Catholics are not obligated to adopt the bishops' position, there is no "church-state conflict", because Catholics are not obligated to oppose something that is legal (I think that's what he meahns, although his conclusion is expressed pretty telegraphically, and it is not clear how he uses the phrase "church-state.")

I think his argument fails for the following reasons:

1. I'm no theologian, but I don't believe Wills is correct when he argues that the bishops lack a theological basis for their assumption that life begins at fertilization. Theology has come a long way since Aquinas' notion of the "quickening" or infusion of the soul towards developing entirely religious arguments for the position that personhood begins at fertilization. Others can articulate those arguments better than I. Those arguments can be dismissed if one is a fundamentalist (which of course Wills is not, except when he tries to score debating points by invoking scripture), or if one believes that the teaching authority of the Pope and Bishops should not be privileged (which Wills might in fact believe). But I think it is a dramatic overstatement to argue that the Church's position on when personhood begins is not really a theological position or is "bad" theology, and hence has no claim on Catholics' fidelity.

2. Wills seems to have a very dualist conception of the Church's teaching authority: the Church can teach authoritatively about Revelation - everything else ("nature") is a matter of natural reason and individual conscience. Because he apparently assumes that the sphere of Revelation is very narrow (the subject matter of the Nicene Creed,maybe), the Church's teaching authority is quite limited. Everything else is a matter of the individual's conscience and legitimate disagreements based on natural reason, and the Church's voice is not privileged. That is a perfectly legitimate argument - it's just not a Catholic one. It resonates within the Protestant tradition and reflects the persisting difference between Catholics and Protestants over the locus of truth and authority. (I would love to hear from our Protestant readers here - I may have a pretty confused conception of how a Protestant would read Wills' argument - they may in fact NOT want to claim Wills' argument).

3. If one agrees that the bishops are making legitimate theological arguments over the nature of personhood, and that their teaching authority does extend to that question, then we cannot dismiss the problems Wells dismisses so blithely. First, Catholics have to think about their fidelity to Catholic teaching. Second, Catholics in public life have to think about how their obligation of fidelity constrains their behavior as public actors. In short, there is still a "church-state" problem, as Wills rather obscurely frames the issue. The question of how one resolves that problem is another topic: what I am trying to say here is that Wills' attempt to prove that there is no problem because Catholics can legitimately ignore the bishops is not convincing.

- Mark

June 28, 2004 | Permalink | TrackBack (2)

Wise Counsel in Today's Second Reading

The second reading at today's mass, taken from 2 Timothy, includes the following exhortation -- one that is likely helpful for all lawyers, and particular for law professors:

"Avoid foolish and ignorant debates, for you know that they breed quarrels. A slave of the Lord should not quarrel, but should be gentle with everyone, able to teach, tolerant, correcting opponents with kindness. It may be that God will grant them repentance that leads to knowledge of the truth, and that they may return to their senses . . . ."

I like to think that, at Mirror of Justice, we've done a good job of "modelling" efforts to heed this counsel.


June 28, 2004 | Permalink | TrackBack (0)

Evangelical Social Thought (?)

The National Association of Evangelicals has released a draft of its much-anticipated statement on civic engagement. Of particular note to MoJ readers is the degree to which the document reflects the influence of Catholic social thought, especially in its implicit embrace of subsidiarity and its recognition that jurisprudential, economic, historical, social, and political analyses are necessary in order to apply a Christian normative vision to matters of public concern, given that not all such matters can be resolved through a reference to scripture.


June 28, 2004 in Vischer, Rob | Permalink | TrackBack (0)