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.

Monday, January 31, 2005

Catholic Legal Education?

As one possible starting point for realistic dreaming about where we can go with Catholic legal education, I recommend Jesuit Education 21: Conference Proceedings on the Future of Jesuit Higher Education (2000) and (2) the review thereof appearing at 70 Archivum Historicum S.I. 181 (2001).  The book includes this at p. 446:  "I don't know about your Jesuit institution, but I can tell you that at mine, if you want to talk about hiring Catholics for mission, it is about twenty-five years too late. . . .  If you were to tell the faculty tomorrow to 'hire for mission' with an emphasis on Catholic rather than, or over and above Jesuit, I know what will happen -- even if the definitional problem can be solved (and it cannot), and even if there were an adequate number of candidates (and there are not), the present faculty simply will simply not do it."  The background to the quote concerns Catholic and Jesuit universities writ large, and the question of specifically legal education in the Catholic tradition and Church only raises the stakes, not least because in law we lack the historical images, templates, and touchstones that, at least in part, still inspire and test some attempts to revivify undergraduate (and some graduate) education in the American Catholic scene.  Rick is right, I think, that the possibility of making truth claims has to be faced at the threshold -- embarrassing though this may be.  (Try fitting this notion into the current mission statement of the Georgetown University Law Center, satellite enterprise of that Jesuit University that could not locate a Jesuit to succeed to its presidency).  I am inclined to agree with Father Burtchaell that, though it won't necessarily help the "Catholic" universities and colleges in the eyses of the obsessive rankers of this and that, they need to be subjected to the test of the Gospel and tradition(s) that brought them forth and, until the other day, refined them.  And who other than the Church itself can, and perhaps will, see that this comes to pass?                            

January 31, 2005 in Brennan, Patrick | Permalink | TrackBack (0)

Taxing Churches

According to this article (thanks to Domenico Bettinelli), some officials in Lowell, Massachusetts believe that "local Catholic churches shuttered as part of the Archdiocese of Boston's parish consolidation process should no longer be exempt from city property taxes. . . .  Last week, [city] councilors voted unanimously to prepare a schedule for assessing property taxes against eligible church buildings as soon as possible."  Mayor Armand Mercier commented, "The taxpayers of Lowell have been subsidizing these tax-exempt entities and were very willing to do so because of the benefit of the churches toward the faithful," he said. "However, that's no longer the case, and the city of Lowell taxpayers should no longer be subsidizing these buildings."

What is interesting (to me) about this story, from a "legal theory" perspective, is what it reveals about the basis for churches' exemption from taxation.  That is, Mayor Mercier's view is that the tax exemption is extended, as a matter of grace, to churches because and to the extent that these churches provide a public benefit that justifies the "subsidization" in question.  Churches are not tax-exempt because of anything in constitutional law or political theory that either insulates churches from taxation or disables government from taxing them.


January 31, 2005 | Permalink | TrackBack (0)

Club Evangelical

[The item below, from Martin Marty's "Sightings," deals with an issue with which some recent MOJ postings have dealt.  --mp]

Sightings 1/31/05

Club Evangelical
-- Martin E. Marty

James Madison, who had a thing or two to do with constitutional matters in the early republic, wanted a "line of separation" between "the rights of religion and the Civil authority."  At a recent workshop where I elaborated on that theme, a colleague persuaded me that my views on this line are "messy."  That's not a bad description for what I think the nation's Founders brought to the matter and what they left us with.  We did not have, do not have, and will not have "absolute separation," nor will we ever clearly and permanently "solve" issues along that line.  Fierce as one may be (and as I indeed am) about "non-establishment" of religion and other such issues, it is not realistic to think one can draw an "absolute" line.  A person wanting to do so would start tomorrow by legally ending tax exemption for religious properties and institutions.  Not a single member of Congress could get re-elected with that in her platform.

Sometimes cases reaching the U.S. Supreme Court achieve clear resolutions and definitions, but usually things are messy.  That calls to mind the newest messy-lined case, detailed best in Burton Bollag's recent story "Choosing Their Flock" in the Chronicle of Higher Education (January 28, 2005).  The article's subhead says that "conservative Christian groups have forced colleges to allow them to bar gay students and nonbelievers."  But now major institutions are fighting back.  It would be a good time to be a lawyer on either side, though this is the kind of battle for which the concept of "pro bono" was invented.  Voluntary associations of conservative Christian legal experts are on the front line.  Want to take them on?  Be prepared for rough-and-ready argument.  Prefer to side with the opposition?  You must not have met the informed and motivated legal and activist agents of pro-gay groups.

Barring gays and non- or other-believers clearly violates institutional rules and, almost as clearly, the laws behind them.  Those rules and laws prohibit discrimination on the grounds of race, religion, sex, disability, and other factors.  Exclusion on the basis of sexual orientation is barred on hundreds of campuses, especially public ones.  And since almost all private colleges also receive tax funds in one form or another, the same rules and laws apply there.  If the world were not messy, the schools and the law would simply draw a bold, clear, and unwavering line between "the rights of religion" and "the Civil authority," and here see the civil side winning.  Ah!  But then come profound religious reactions: What happens to "free exercise" if "we" are not permitted campus locations, acknowledgments, and sanctions?

You haven't seen anything yet.  Wait until the Muslim student causes get activated on this front.  There are, after all, many "out" evangelical gays and many more closeted ones, and there is room for debate -- indeed, there is debate -- on this issue among Christians.  But the Muslim rejection of homosexuality and homosexuals is absolute and vehement.  Will the campus laws support them?

The Chronicle story tells of some efforts by thoughtful leaders, for instance at Ohio State University, where conversations on this matter occur even when there is no basis for agreement.  They are trying to remain civil and humane across the messy line.

Do not envy the judges who have to decide this issue as it makes its way up, as it surely will, to the U.S. Supreme Court, which stands very little chance of getting a "civil" and "humane" response from publics, whichever way it rules.

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

January 31, 2005 in Perry, Michael | Permalink | TrackBack (0)

Catholic Social Justice on the Radio

I just learned about a new radio program, PROVOKE, which is archived and available on the web.  The host--Stephen Spahn, SJ--is a Jesuit priest and currently serves as associate pastor to the parish of The Holy Trinity Catholic Church in Washington, DC.  I lifted the following information from the website.  To go to the website, click here.


About The Show

     We thought, “wouldn't it be great if there was a program that  discussed critical social issues not merely from a pundit's perspective, but from a religious perspective?”  Yes, religion--that part of us we aren't always comfortable talking about, yet admit to its crucial importance in our lives.  So, we created Provoke radio - intended not only as a forum for reflection, but reflection from the vantage of faith. As you listen to Provoke and visit the website, we invite you to do so from the distinct perspective of your own religious tradition.  We'll illustrate how the principles we all embrace--principles found in every religion and culture--can be lived out in every day life.  Principles as basic as the Golden Rule, compassion, equality, justice, and a conviction that each individual person has inherent, God-given dignity.  Standing on this common ground, we then thought, “Wouldn't it be great if we not only engage people in an exploration of real issues, but offer practical ways to get involved?  Wouldn't it be great if we provoke people not merely to thought and reflection…but to action?”  To that end, at the close of every show, we mention area programs --faith-based and secular, advocacy and outreach--which are in need of volunteers and support.  In addition, you can consult our website database for a more thorough list of such organizations.            

About The Host

     Father Stephen Spahn, SJ, is a Jesuit priest and currently serves as associate pastor to the parish of The Holy Trinity Catholic Church in Washington, DC. Father Spahn received his Certificat d'Etudes Politiques from the Institut d'Etudes Politiques in Paris, France; B.S. and M.S. degrees in International Politics and Foreign Policy Studies from Georgetown University School of Foreign Service, Washington DC; his M.A. in Philosophy from Fordham University, New York; and his Masters of Divinity and Theology from Weston Jesuit School of Theology in Cambridge, Massachusetts.  He recently taught philosophy and political science at Loyola College in Baltimore. His time at Loyola involved work in their Center for Values and Service where he came to know and understand the complicated problems of the Baltimore community.  In addition, Fr. Spahn has done case studies of the U.S. foreign policy in the Sudan and has traveled to and worked in Mexico, Haiti, and China among others.  Father Spahn serves as the host for Provoke in between all his other ministries!                  

About The Database

     Provokes’s database is meant as a guide to anyone looking for different ways to get involved in social justice, charity, and other worthwhile causes in the Baltimore/Washington DC area.  While lengthy and diverse, it is by no means meant to be completely comprehensive.  But if you have been provoked to action by our program, this database is a good place to start!

Provoke Radio is brought to you by Radio Mass of Baltimore,  www.st-ignatius.net

January 31, 2005 in Perry, Michael | Permalink | TrackBack (0)

Just War: Beyond Pragmatism

Reader Jeff Drocco has forwarded an article by Michael Baxter, CSC to serve as a contrast with the James Turner Johnson article discussed earlier.  Drocco is concerned by:

Johnson's peculiar assertion that there are actually two distinct (and manifestly incompatible) Catholic just war ethics: one for religious life that deals with "ultimates" and another for secular life that deals with "historical realities."  This resonates with Baxter's claim that modern just war theorists are often led astray by an "ideal/real antinomy" that leads to a prevailing philosophy of pragmatism.


January 31, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Sunday, January 30, 2005

During World War II, German prisoners of war often received better treatment than African-American soldiers who were guarding them, particularly when the POWs were being imprisoned Stateside.  It seems to me that the Allies knew, certainly late in the war, what kinds of atrocities German soldiers were committing, and they knew that many German soldiers were fiercely committed to Nazism and willing to die for their cause. 

Should German soldiers have been subjected to more "extreme" forms of interrogation so that we could have prevented some of the Nazi slaughter?  We certainly had more, and better, information about what the Nazis were doing than we have about the plans of today's terrortists.  I think it is also fair to say that the evils attributed to the Nazi regime far surpass anything we have yet seen from Islamic fundamentalists, and Germany's capacity to inflict harm was infitely superior to anything Al Qaeda has at its disposal. 

Although the Allies were subject to their own serious laspses during the war (Dresden comes immediately to mind), I certainly applaud them for resisting the impulse to stoop to more generally to savagery in order to combat it.  I say this despite the fact that I have a great uncle who ate outside while German POWs were served at table.  The fact that he was often mistreated and dehumanized in his own country did not in his mind justify mistreating the Germans.



January 30, 2005 | Permalink | TrackBack (0)

Ribstein on Corporate Governance and Social Responsibility

Corporate law scholar (and blogger) Larry Ribstein has a new paper, "Partnership Social Responsibility," that will be of interest to many MOJ readers.  Our colleague Steve Bainbridge discusses this paper, and others, here.  I should add that Professor Ribstein also provides helpful movie reviews.  In this post, for example, he ties together the wonderful movie "Groundhog Day" with the corporate-governance debate.


January 30, 2005 | Permalink | TrackBack (0)

More on Interrogations

I've received a lot of e-mail in response to my earlier post, and to my question, "is it the case that an appropriate respect for human dignity absolutely rules out all interrogation tactics -- employed, let's assume here, on persons who are being otherwise humanely treated, where there is a reasonable basis to believe the persons have information about potential or past terrorist attacks -- designed to 'break a suspect's reliance on God'?"  I'd welcome more reactions.

I should note, by the way, that Marty Lederman -- a top-flight lawyer who is, I'm sure, already familiar to those in the law-blog world -- has contributed an enormous amount of work over at Professor Jack Balkin's blog on the questions surrounding the interrogation tactics used at Guantanamo, in Iraq, and elsewhere.  Check it out.

I also asked for, and was pleased to receive, Professor John Finnis's thoughts on the matter:

. . . There's nothing per se wrong with trying to shake a person's faith in God, if it is a false faith (and provided one isn't intending to replace it with a false belief such as that there is -- or may well be -- no God or no divine will and providence for human beings). If he thinks God is telling him to blow down the Twin Towers, or that his own scheme to do so has divine blessing or will be divinely rewarded, then trying to undermine and overthrow that faith is not per se wrong. The question then becomes one about means. If women behave towards prisoners with the intent to suggest that fornicating with them would be a good thing, or is an available possibility, that's an immoral means. If women behave towards prisoners with the intent to suggest that the prisoners' faith-guided belief that women are not equal to men, or ought to have no place outside the home, is a false faith, whose falsity is a clue to the falsity of their faith-guided decision to blow down the Towers and to maintain silence about that plan in interrogations, then I don't see anything wrong with their so acting. (I'm talking per se wrong . . . . What I've said has to be qualified by adding that, as always, one has to consider side-effects as well as what's intended, and so, if e.g. atheism and/or lust are likely side-effects, in the prisoner, of what one is doing, one needs to satisfy oneself that bringing about or risking these unintended but foreseeable and bad consequences is not unfair. I don't see why it should be thought to be so in cases where innocent people are at serious risk from the prisoner's or his colleagues' activities and there is a good chance that shaking his false faith will significantly diminish that risk.

Professor Gerard Bradley adds:  "In addition to what [Professor Finnis] says, it might further clarify matters to consider whether it would be right to limit a Muslim prisoner's diet in such a way (mostly pork?) that he is eventually sorely tempted to give  in, eat the forbidden food, recognize that by doing so he is a pretty poor Muslim, and maybe abandon his faith in jihad, and maybe in Allah altogether.  Unlike the case of female interrogators, we would here be going beyond refusing to adjust our practices (which presuppose equality of the sexes) to suit Islam, and acting so as to induce a kind of conversion.  I think this [tactic] -- consciously feeding the guys pork to break him -- might be wrong, as manipulation if not coercion in matters religious."

Professor Larry Solum -- who runs, among other things, the invaluable Legal Theory Blog -- says: "I would think that such tactics [i.e., questioning aimed at breaking a suspect's "reliance on God"] are inconsistent with the liberty of conscience and hence are (prima facie) contrary to the duty of respect for individual dignity owed to all humans.  You can make the usual consequentialist arguments about dire circumstances.  An interesting variant of the question concerns how one ought to treat this issue from within particular religious conceptions, GIVEN the assumption that the particular individual is NOT IN FACT relying on God, but is instead (perhaps unintentionally) relying on evil in religious garb."


January 30, 2005 | Permalink | TrackBack (0)

Saturday, January 29, 2005

Catholic legal education

I have a quick follow-up to Rick Garnett's post on Catholic legal education from a few days ago. I think the most useful starting place in these discussions is to reflect on Ex Corde Ecclesiae, the Apostolic Constitution on Catholic Universities. The title conveys an important insight. Many in Catholic institutions of higher education view themselves as independent of the Church and envision their task as somehow providing a bridge between the Church and the world (of higher education). Ex Corde's orientation is totally different. The Catholic university is born from the heart of the Church. The Catholic university is not somehow independent of the Church, it is a part of the Church. A university that wants to stop calling itself Catholic is of course in a very different position. But a university that wants to claim a Catholic identity is properly viewed as part of the Church and as Rick notes is necessarily committed to the cause of the truth and to the supreme Truth, who is God (as Ex Corde states in paragraph 4). It does this not with fear or embarassment but with enthusiasm and with an awareness that it has been preceded by Jesus Christ--the Way, the Truth, and the Life.

The Catholic university is one of the principal means through which the Church engages modern culture. In so doing, the Catholic university must, according to Ex Corde's paragraph 13, have 4 essential characteristics: "1. A Christian inspiration not only of individuals but of the university community as such; 2. A continuing reflection in the light of the Catholic faith upon the growing treasury of human knowlesge, to which it seeks to contribute by its own research; 3. Fidelity to the Christian message as it comes to us through the Church; 4. An institutional commitment to the service of the people of God and of the human family in their pilgrimmage to the transcendent goal which gives meaning to life."

A Catholic law school ought to begin reflections on its identity by considering the extent to which it is being faithful to this charge.



January 29, 2005 in Myers, Richard | Permalink | TrackBack (0)

Questions on "The Banality of Evil"

Vincent discusses (below) a news story about disturbing, sexually charged interrogation tactics employed on Muslim detainees at the U.S. prison camp in Guantanamo Bay.

I assume we all agree that respect for human dignity should constrain the activities of interrogators (and, indeed, all government officials), even (especially?) in war time, even in cases involving persons who -- like many of the Guantanamo detainees, I imagine -- mean us harm, and certainly without regard to whether persons "look Western."  (I'm confident -- though I understand that some of my colleagues disagree -- that the relevant officials in our government endorse these propositions, too).

Now, because we live in politically charged times and these are sensitive topics -- and because, in the academy and in the public square, it seems that people are often inclined to misread those with whom they disagree -- I want to emphasize that I do not at all endorse, condone, defend, or approve of the tactics described by Vincent or recounted in the news story to which I linked above.  That said, I would welcome thoughts on what I intend to be a serious question: 

Putting aside the specific sleazy tactics at issue in Vincent's post, is it the case that an appropriate respect for human dignity absolutely rules out all interrogation tactics -- employed, let's assume here, on persons who are being otherwise humanely treated, where there is a reasonable basis to believe the persons have information about potential or past terrorist attacks -- designed to "break a suspect's reliance on God"? 

Now, it seems clear to me that forcing someone -- anyone -- to perform an act or profess a belief against conscience or obligation, even in a pressing interrogation setting, should be off the table.  (Am I right about this?)  Let's put aside such tactics.  But is it the case that the purpose or desire to "break a suspect's reliance on God" -- where there is reason to believe that the suspect's "reliance on God" is strengthening the suspect's resolve not to provide information that, let's assume, the interrogator is within her moral rights to want -- itself renders an interrogation practice immoral?  For example, does it violate our obligation to respect human dignity to use female interrogators to question strictly observant Muslim suspects?  If not, does the answer change if the reason for using female interrogators is a hope that using women questioners will "break the suspect's reliance on God"?  If the answer does change -- and I cannot help thinking that it might -- can we articulate why it changes?


January 29, 2005 | Permalink | TrackBack (0)