Mirror of Justice

Religion and the New Urbanism

Here is an article, from the Chicago Tribune, about religion's inroads into the New Urbanism conversation.

Eric Jacobsen speaks passionately about things like sidewalks and storefronts. But he's not an architect or developer. He's a Presbyterian pastor.

As Jacobsen sees it, city planning has an important influence on religious experience. He is an advocate for New Urbanism, the architecture movement that calls for interdependence among residents, with neighborhoods where shops and homes co-exist, streets that are pedestrian-friendly and parks that are gathering places for residents.

New Urbanism has become a mantra for those interested in restoring urban centers and reconfiguring suburban sprawl. Its designs have sprouted from new towns like Seaside, Fla., to redevelopment in existing places like Gaithersburg, Md., or West Palm Beach, Fla. The Congress for the New Urbanism started small 12 years ago and now has more than 2,300 architects, developers, planners and urban designers.

Now Christian leaders are adopting the movement. They say the philosophy behind New Urbanism is a possible antidote to the isolation experienced by many churches and Christians. Across the country, influential Christians are thinking theologically about urban design and applying its principles to the church. They advocate for New Urbanist concepts because they force people to share with one another, dwell among their neighbors and allow for a healthy exchange of ideas.

This is, I think, a good thing.  And, it's good not just for the churches about which people like Jacobsen are concerned; it's also good for the New Urbanism.  Too often, the New Urbanists have proceeded as if religion did not exist.  Of course, Catholicism is home to a rich tradition of urbanism that -- maybe we can hope? -- the New Urbanists will learn to appreciate.

Rick

More church-property disputes

This article describes a "momentous" church-property ruling involving a dispute over homosexuality and property between an Episcopal church in Newport Beach, California and the Episcopal Diocese of Los Angeles.  Perhaps it is because the article appears in World magazine -- a publication that is, I believe, Evangelical in orientation -- that the piece appears quite sanguine about the developments it reports:  "California courts appear to be the most aggressive in applying the neutral-principles doctrine."  Apparently, the local church even filed an "an anti-SLAPP motion against the diocese.  In legal jargon, a SLAPP (Strategic Lawsuit Against Public Participation) is a suit aimed at intimidating and silencing a critic by making defense so expensive the critic abandons it."

Judge Velasquez agreed with St. James: The diocese had sued only after the parish rejected its pro-homosexual doctrinal positions and the leadership of Bishop J. Jon Bruno. (Bishop Bruno had voted for the consecration of a noncelibate homosexual as bishop and endorsed blessings for same-sex couples.) The judge reasoned this made the case also a free-speech matter for the purposes of a SLAPP ruling.

Even if one is inclined -- as I probably am -- to sympathize with the dissenting, "conservative" parish, it seems to me that the law is reaching awfully far (and many believers are inviting the law awfully far) into internal church matters.

Rick

St. Maximos' Hut

Law prof Andy Morriss and several others have started a group-blog, "St. Maximos' Hut" (check it out to learn about the name!) dedicated to the conflicts and connections between religion and economics.  It looks to be very interesting.  This post, "Orthogonality", serves up an interesting taste of what's to come . . .

Rick

Neutrality and Free Exercise

My new colleague, Nelson Tebbe, has recently published a piece in the Hastings Law Journal that will be of interest to MOJ readers.  The article, "Free Exercise and the Problem of Symmetry" (56 Hastings L.J. 699 (2005), parts company with the critics of the Supreme Court's decision in Employment Division v. Smith whose claim is that that Court should have adopted a principle of substantive neutrality rather than one of formal neutrality.  Because of tensions with what he terms the problem of symmetry, Tebbe argues that "neutrality of any stripe will insufficiently protect free exercise."  He thus proposes the addition of a liberty principle for evaluating free exericse claims, finding a liberty principle both easier to defend and one that "better captures the affirmative value of free exercise" and avoids the symmetry problem.  The article elaborates on his "substantive liberty" principle and defends it against anticipated objections, including the claim that the principle violates the Establishment Clause.

More on Stare Decisis and Cooperation with Evil

On the blog Democracy of the Dead, Justin Dziowgo posts about our discussion whether affirming Roe and Casey as a matter of stare decisis -- say, because the societal reliance on abortion rights has become so great -- would be "culpable cooperation with evil" and thus create a conflict with fundamentals of Catholic faith.

Would such cooperation make him culpable? I would argue that it depends upon the obligations of a judge to the stare decisis principle. If a judge has a moral obligation to that principle due to natural law or civil law, and if it is clear that stare decisis must be applied in this particular case, then it seems that Roberts would not be culpable, for one must still do what they are morally obliged to do even if the consequences may be bad. Any argument that Roberts would still be culpable in these conditions would then seem to rest on a false idea about the power of a Supreme Court justice.

If one argues that he’s morally obligated to follow stare decisis and at the same time is morally bound to overturn Roe even when stare decisis calls for it to be maintained, then they are effectively arguing that he should act beyond his capacity to overturn it. Reductio ad absurdum would suggest that this could cause many problems. Suppose that in addition to stare decisis, there is a legal principle found in the Constitution that upholds the wrongly decided Roe case. Should Roberts override that principle as well? If so, when should he stop? And what if Roberts decides that it is really our form of government that ultimately allows the Roe case? Should he then begin a revolution against the government? In other words, I think the culpability of Roberts has to be measured by the limits of his office.

One could argue that this is false because one is not obligated to follow the evil orders of a superior, and in this case the superior is stare decisis. I think, however, that Roberts would not be following an evil order, for stare decisis is not evil. It is a good principle – presumably – that is allowing an evil to happen, just as doing many other good things allow evils to happen. An example is that my following the good principle of respecting human life keeps me from killing abortionists even though I know that their existence permits other evils.

A few quick responses -- very abbreviated because of the press of other commitments.  First, I think that give more credence than Mr. Dziowgo does to the existence of conflicts between prima facie moral duties.  Second, as I said before, I don't think that a justice who votes to uphold Roe and Casey merely "allow[s abortion] to happen," as when one refrains from interfering with an abortionist (or, to take another example, when a judge refrains from blocking a death sentence, the ground that the death penalty is constitutionally permissible).  The justice actually blocks a legislative effort to stop abortion; the analogy is not to refraining from interfering with an abortionist, but to stepping in to block someone else from doing so.

Mr. Dziowgo also argues that "the Casey decision is slightly different because it makes arguments for why Roe was right and why the right to abortion must be maintained."  This is a distinction that, as I said before, I don't see.  If anything, it seems more justifiable to adhere to a constitutional decision whose result runs against religious faith because the decision is a correct interpretation of the Constitution than because the decision, though an incorrect interpretation, should be followed as stare decisis.

Finally, even if Mr. Dziowgo's arguments show that following stare decisis is ultimately justifiable and therefore creates no conflict with Catholic faith in this case, I don't think that this conclusion is so obvious -- note it takes several paragraphs to reach the conclusion -- that one should simply assume that Roberts would not feel the conflict.  Therefore, it still seems to me too simple to say that in no way would Roberts' religious beliefs ever be likely to have any bearing on the issue. 

Tom B.

Vincentian Chair of Social Justice Conference

On October 22, the St. John's University Vincentian Center for Church and Society will hold its biennial Vincentian Chair of Social Justice conference.  The biennial conferences convene academics, practitioners, church leaders and policy makers to explore perspectives on poverty in an effort to move toward systemic solutions.  In this 40th anniversary year of Gaudium et spes, the theological virtue of hope is celebrated. 

For additional information concerning speakers, sessions and registration information, see the conference web page here.

Commitments to Precedent and to Faith

I appreciate Rick's response to my suggestion that Roberts might well face a conflict between his judgment about Roe/Casey as stare decisis versus his Catholic conscience.  Like Rick, I'm not equipped to apply "cooperation with evil" principles to this particular situation (moral theologians out there, write and advise us!).  But my initial reaction is to disagree with his argument that there's no reason to question Roberts on Catholicism because "I [Rick] do not see how it would, or even could, 'conflict[] with the fundamentals of [his] faith' for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil."

Didn't Justice Kennedy do precisely that in Casey -- decline for stare decisis reasons to overrule the basic abortion right of Roe -- and hasn't he been excoriated for doing so as a Catholic?  I strongly expect (although I don't have specific quotes to support it) that many of Kennedy's vocal critics think very much that he committed culpable cooperation with evil by upholding the basic holding of Roe.

Or is the Kennedy situation different because the Casey joint opinion also included some passages defnding Roe on its merits?  That seems a very slender reed for distinguishing the two instances, since:  (1) The stare decisis reasoning was clearly very important to the joint opinion's conclusion (the opinion several times referred to the author's potential "doubts" about the original correctness of Roe).  (2) Whether the ruling rests on stare decisis or on the merits, in either case the justice votes to stand in the way of a law that seeks to prevent a very great evil (we're taking the great wrongness of abortion as a given, of course).  Can stare decisis really be sufficient to allow the justuce to take such an active step preserving and defending a great injustice?  Indeed, I would have thought that if there were any difference, stare decisis would be a less powerful justification for ruling to protect an evil than is the justification that the Constitution on the merits protects the evil.  So I don't think it's implausible at all to think that a justice's commitment to stare decisis could be overridden by (and therefore is in potential conflict with) the fundamentals of the faith, especially on a matter such as this.

Again, I'm not saying that this stare-decisis possibility is enough to justify grilling Roberts about his Catholic conscience concerning abortion.  (As I said before, there are many reasons to presume against such religion-related questions.)  But I still think the issue is more complicated than Rick concludes.

Tom B.

Reply to Berg re: Roberts

I appreciate Tom's reply to my post on Judge Roberts, religion, and Governor Cuomo.  Tom highlights what he sees as two "complications" with my view, which Tom describes in this way:  "Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure").

I agree with Tom that the question of "stare decisis" will be at the heart of the Roberts hearings, but I don't think I agree that the stare-decisis problem complicates or undermines my claim that Gov. Cuomo's op-ed, calling for Senators to ask Roberts about the tension between the Constitution and Catholicism, is misguided.  I understand, of course, that the fact Roe was wrongly decided does not necessarily translate into the conclusion that it will or should be overruled.  (More specifically, I understand that Roberts could conclude that Roe was wrongly decided -- and, it strkes me that he is too clear-thinking to believe otherwise -- yet refrain, for stare decisis reasons, from voting to overrule it.)  Still, the question whether Roberts would move from a judgment about Roe's wrongness to a decision to overrule it -- which is, I admit, a subject that Senators are perfectly within their rights to wonder about -- is not a question that, in my view, is remotely likely to be answered through inquiries into Roberts's religious beliefs.  I do not believe the new question that Tom poses -- "If you reach [the] conclusion [that Roe, although wrong, should not be overturned] as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?" -- is materially different from the questions that Gov. Cuomo seems to want and that I think are misconceived.  I do not see how it would, or even could, "conflict[] with the fundamentals of [his] faith" for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil, and so I don't think the question is appropriate.  (Of course, if the better trained moral philosophers out there tell me that relying on stare decisis to not overrule Roe v. Wade would constitute culpable cooperation with evil, then I'll have to revise my view.)

Rick

UPDATE:   A friend writes with this comment: 

Recently, on the Mirror of Justice blog, you wrote that you didn't see how it would, or even could, conflict with the fundamentals of a Justice's faith for him to decline to overrule a wrongly decided case, even one that has contributed to great evil. It seems to me that, given the nature of stare decisis, there could be such a conflict. The Supreme Court has repeatedly stated, and the legal community seems to agree, that stare decisis is a prudential doctrine, rather than one required by the Constitution or the nature of the judicial function. When the Court declines to overrule a wrongly decided case, it does so not on the grounds that there is anything wrong in principle with overruling prior precedent, but because there are certain prudential concerns that favor upholding the decision. So, for example, in Casey the Court cited the need for stability in the law, the damage that "overruling under fire" would have on the institutional integrity of th e Court, the fact that people had come to rely on the availability of abortion when planning their futures, etc., as reasons not to revisit and possibly overturn the "essential holding of Roe." The problem I would see for a Catholic Justice is that, in the case of something like abortion, any such prudential concerns would be outweighed by the massive injustice and evil that comes from legalized abortion. So he (or she) would not simply be able to say "stare decisis - my hands are tied" as a way of getting out of the difficulty.

Another comment on the Compendium

Kevin Lee asked me to post his reaction to Alison Sulentic's reaction to my question about the use of the Compenium as a teaching tool.  (Sorry for the delay in posting - I just returned from picking up my daughter from summer camp.)  Kevin does not share Alison's sense that the Compendium overemphasizes the writings of Pope John Paul II, given the length of his tenure during a time of "radical development" in the Church's social teaching.  He observes:

"It may be that students will have difficulty grasping the accomplishments of this soon-to-be-canonized pope, but I think rather than presenting his thought against other less authoritative voices, it might be more productive to attempt to locate his thought in the fullness of the Catholic intellectual heritage by clearly articulating his reading of that tradition with as much hermeneutical good will as can be brought to the task. This is a very demanding task, indeed, because he was a complex thinker and the text tradition of his work is in a nascent stage. But, I would encourage all of us to read deeply of John Paul II’s thought in order to make a cogent critique of it, rather than to risk allowing the students to dismiss it without fully appreciating what it has to offer.

"I understand all too well the problems involved in trying to come to terms with the complexity of John Paul’s thought. I’ve been working for several years on my doctorial dissertation, which attempts to unfold the meaning of his conception of the human person for the Rule of Law. What I have found is that to understand his thought it is vital to get into the primary sources from his early life as a scholar of philosophical ethics. Here you can find a number of helpful works. In addition to the standard ones, Acting Person, Love and Responsibility, etc., what I have found most important for understanding his assessment of moral philosophy in the Catholic intellectual heritage is his collection of essays known as the “Lublin Lectures.” It is here that he takes up Aquinas, Kant, Scheler and several others in a robust discussion of the nature of the moral good and justice in the context of a magnificent discussion of the phenomenology of moral action. This is heady stuff, but well worth reading. That’s the rub. For all its value, there is no reliable and authoritative English translation of the Lublin Lectures on the market today. If you read German, they are available in Lubliner Vorlesungen, ed. Juliusz Stroynowki (Stuttgart-Degerloch: Seewald Verlag, 1981).  This translation seems very good, but my German is very bad. Kenneth Schmitz relied on this translation in his very useful book, At the Center of the Human Drama (CUA Press).  This text, along with Rocco Buttiglione’s Karol Wojtyla, The Thought of the Man Who Because John Paul II, are excellent background sources on John Paul’s thought and its relation to twentieth century Neo-Scholastic thought and phenomenological ethics. I think, given the relative innocence of most students of the Catholic intellectual tradition in general and Catholic moral philosophy, let alone secular moral philosophy, that picking and choosing among texts is quite difficult. Unfortunately, there is no single work on the market today with a sustained analysis of his Lublin Lectures, although I plan to have one out soon."

I don't disagree with the importance of John Paul II to the development of Catholic Social Thought (and did not read Alison as doing so either).  That does not mean, however, that having students read other sources in addition to his teachings risks the students dismissing his thought without fully appreciating it.  Certainly it can't be said that no other voices are worthwhile and important to the development of the Church's thought.  It is this that leads Alison (and several others whom I have read) to hesitate about overreliance on the Compendium.

More on Roberts and Conflicts

I think that Rick is probably right when he argues that the likelihood of a conflict between Roberts' religious views on abortion and his interpretation of what the Constitution properly requires is not great enough to justify sensitive inquiries into Robert's Catholicism (inquiries that should be at least somewhat disfavored because they are likely to stir up emotions and prejudices concerning other issues, etc.).

I do think, though, that it's a little more complicated than Rick's argument portrays it.  Here's his money quote:

The premise for Governor Cuomo's "I can't impose my personal religious beliefs on the Constitution" is, and has been for two decades, that the Constitution actually requires an near-unlimited abortion license.  But, it doesn't.  If we were talking about a conflict between religious belief and, say, the requirement that Representatives have attained the age of 25 years -- if we wondered whether Roberts's religion would compel him to require the seating of a 16 year old -- then the potential for that conflict might be worth exploring.  But we are not.

I.e., Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure").  I certainly agree with this judgment about the wrongness of Roe.  But two complications.

First, the issue of stare decisis.  There is some possibility that in applying his best understanding of the legal considerations concerning overruling of precedents, Roberts might conclude that there is a case for preserving Roe on stare decisis grounds, even if it was originally wrong.  A senator  might plausibly ask, "If you reach that conclusion as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?"  This possibility -- however unlikely  -- fits with my general sense that the extent and contours of Roberts' commitment to stare decisis is the most crucial single issue in the entire upcoming hearings.  (And it's a wild-card issue because theories of stare decisis are way underdeveloped compared with theories of constitutional interpretation on the merits.)  Perhaps the answer in return is, "Roe is so wrong that Roberts is not going to be drawn to upholding it based on stare decisis considerations."  That may be -- again, I certainly don't want to minimize the constitutional wrongness of Roe -- but it nevertheless seems to me that this is more complex than the argument as Rick puts it.

More broadly, the question put to the nominee is not precisely, "If your religious faith conflicts with what the Constitution requires, what will you do?" but rather, "If your religious faith conflicts with your best understanding of what the Constitution requires, what will you do?"  What the senators want (and should want) to know is that the nominee will follow his/her best understanding of constitutional method to its logical conclusion, notwithstanding any distortion or misdirection from extra-constitutional sources.  So the question is not so much whether Roe is right constitutionally (and a nominee's faith might misdirect him or her to the opposite result).  The question is somewhat more subjective:  whether the nominee conscientiously, after engaging in his best attempt to interpret the Constitution, would conclude it's right (but then be so misdirected).  Thus my reaction is that Rick, in simply pointing out the constitutional wrongness of Roe, is not quite asking the right question; you can't smuggle in your own evaluation of the merits of the issue (however correct that evaluation is).  Rather, since the question is whether the (prospective) justice's judgment would be distorted or misdirected, the question is what would Roberts conclude about Roe as a matter of constitutional interpretation.  (Again, the answer may be -- and this seems probably right -- that Roberts would himself think Roe wrong, as an original matter, for the same (good) reasons that Rick offers.  But again, although this may not change the ultimate conclusion, it does make the argument more complicated, it seems to me.)

Am I wrong about this, Rick or others?

Tom B.