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.

Saturday, May 27, 2006

Excommunicating Judges: Fact or Fiction?

In response to my earlier query, Commonweal's Grant Gallicho reports that he has been unable to find any statement by Church officials amounting to a threat to excommunicate the Colombian judges responsible for recognizing a limited right to abortion in that country.  The closest he could find is the archbishop of Bogota's statement that "[t]he person who is directly or indirectly . . . responsible for the abortion will be excommunicated."  I'll try to give the New York Times the benefit of the doubt that this is not the only basis for its assertion in an editorial that "Catholic Church leaders have threatened to excommunicate the judges."


May 27, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Climb every mountain…

I have discovered that over the past several days, there have been a number of expeditions on Mount Everest in which explorers have passed by the “bodies” of other recent explorers who did not make it to the summit. A major problem that quickly arises is this: why did some recent passers-by not stop the check those who seemed dead? In fact, one of those passed by was not dead at all but very much in distress. He was left behind by his own group of “brave” explorers. Our Blessed Lord reminds us in his farewell discourse that there is no greater love than to give one’s life for one’s friends. I believe that Sir Edmund Hillary was of the school that reaching the summit was far less significant and noble than saving someone along the way. I wonder what has happened to his wisdom?    RJA sj

May 27, 2006 in Araujo, Robert | Permalink | TrackBack (0)

Why Tolerate ....?

I have read Professor Leiter’s draft essay “Why Tolerate Religion?” for which Rob gave us the link and published the abstract. I was disappointed that the Leiter essay does not refer to many thoughtful discussions going back for centuries, even millennia, about religion, religious belief, and religious faith that could offer rationales why religion needs more than simply toleration, but certainly toleration will do for the time being. I then re-examined his essay and the abstract provided and began to substitute other topics such as “abortion” and “same-sex marriage” for “religion” and wondered how these and other contemporary topics might weather a Leiter-like scrutiny?     RJA sj

May 27, 2006 in Araujo, Robert | Permalink | TrackBack (0)

Friday, May 26, 2006

Kmiec responds

Doug Kmiec offers this response to my criticism of his op-ed supporting the federal marriage amendment:

On FOX News Sunday recently with Chris Wallace, John McCain said something similar, though less well anchored in the Catholic tradition. McCain proclaimed his opposition to the amendment, explaining it as deference to the states, and secondarily, on the ground that it is legally unnecessary. There are reasons -- unfortunately -- to question both propositions.

McCain rightly wants his home state of "Arizona [to] make [its own] decisions about the status of marriage . . . just as the people in Massachusetts and other states should make their decisions." Fair enough, local decision making is a core principle of federalism (and Catholic subsidiarity), but judges, not the people in local or even state-wide communities, seem to be getting the last word. By contrast, the very process of considering a constitutional amendment returns the issue to the people. Before a single word can be added to our federal charter, three-fourths of the states must agree. So while I agree with you that the perfect case would have been "bottom-up" without any federal intervention, I think four justices in Massachusetts and regrettably more to come have no intention of letting the people back into the conversation.  The proponents of the amendment are merely asking for Congress - by a two-thirds vote of both houses - to let the people in their individual states engage in civil discourse and decide for themselves.

As for legal necessity, Senator McCain is under the misimpression that the Massachusetts mistake can be confined to the Bay state. That is unlikely. Similar litigation by gay activists from New Jersey to California is underway. If the activists prevail even in one or two venues, same-sex couples will migrate in greater numbers and press the courts of other states to recognize these judicially-invented licenses, and that, too, is another potential blow to localism. The Constitution's "Full, Faith and Credit" Clause was recently construed to require something comparable when an Oklahoma federal court invalidated a state constitutional amendment restricting recognition of out of state gay adoption. Congress in the 1990s passed the Defense of Marriage Act to allow individual states to maintain traditional marriage as a matter of public policy, but the federal judge in Oklahoma at least held there is no "roving public policy exception" to another state's legal judgments. The FFC clause is enigmatic and under-interpreted on this question, and, in my judgment, it simply cannot be counted on to protect the local voice.

Senator McCain is a thoughtful man, and I bet he, like you, is sincere when he raises the associational good of deferring to local discernment.  Most in opposition to the federal marriage amendment, however, do it on a less reasoned basis; typically, out of a mistaken "live and let live" toleration. The witness of the Catholic faith, I believe, requires more of us.  Subsidiarity does not deny the occasional help of the higher order, and this is one of those times. There is nothing intolerant in joining with one's neighbors assembled in state ratifying conventions -- a pretty decent approximation of the "marketplace of ideas" -- for the purpose of affirming, with the Bishops of the Church, that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife.


May 26, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Leiter on Religion

Texas law prof Brian Leiter has posted his paper, Why Tolerate Religion?  Here's the abstract:

Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such—or so this paper argues.


May 26, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Kmiec on gay marriage and church autonomy

Pepperdine law prof Doug Kmiec has an op-ed in today's Chicago Tribune arguing that a federal marriage amendment is needed to protect the autonomy of churches who oppose same-sex marriage:

With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

I agree with Prof. Kmiec that it would be a very bad thing for churches to lose their tax-exempt status for opposing gay marriage.  But I disagree with his suggestion that the prudent solution is to enforce a top-down resolution of the issue, effectively shutting down any sort of localized marketplace of ideas, simply because we don't like the potential outcome(s).  I'm a full supporter of the Supreme Court's ruling in Dale protecting the Boy Scouts' associational autonomy, in part because the ruling facilitated a localized, bottom-up approach to the issue.  It's a good thing that other associations have staged boycotts and encouraged local governments to withhold support of the Boy Scouts -- that's how civil society should work.  (I've made this argument elsewhere.)  I think we're a long way from having traditional faith communities get the Bob Jones treatment from the IRS for not performing same-sex marriage.  But more broadly, if we want to keep associational life in this country vibrant, we should be very hesitant to start handing contested moral issues over for one-size-fits-all collective solutions.


May 26, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Thursday, May 25, 2006

An excerpt from the Holy Father in Warsaw

The faithful expect only one thing from priests: that they be specialists in promoting the encounter between man and God. The priest is not asked to be an expert in economics, construction or politics. He is expected to be an expert in the spiritual life. With this end in view, when a young priest takes his first steps, he needs to be able to refer to an experienced teacher who will help him not to lose his way among the many ideas put forward by the culture of the moment. In the face of the temptations of relativism or the permissive society, there is absolutely no need for the priest to know all the latest, changing currents of thought; what the faithful expect from him is that he be a witness to the eternal wisdom contained in the revealed word. Solicitude for the quality of personal prayer and for good theological formation bear fruit in life. Living under the influence of totalitarianism may have given rise to an unconscious tendency to hide under an external mask, and in consequence to become somewhat hypocritical. Clearly this does not promote authentic fraternal relations and may lead to an exaggerated concentration on oneself. In reality, we grow in affective maturity when our hearts adhere to God. Christ needs priests who are mature, virile, capable of cultivating an authentic spiritual paternity. For this to happen, priests need to be honest with themselves, open with their spiritual director and trusting in divine mercy.

On the occasion of the Great Jubilee, Pope John Paul II frequently exhorted Christians to do penance for infidelities of the past. We believe that the Church is holy, but that there are sinners among her members. We need to reject the desire to identify only with those who are sinless. How could the Church have excluded sinners from her ranks? It is for their salvation that Jesus took flesh, died and rose again. We must therefore learn to live Christian penance with sincerity. By practising it, we confess individual sins in union with others, before them and before God. Yet we must guard against the arrogant claim of setting ourselves up to judge earlier generations, who lived in different times and different circumstances. Humble sincerity is needed in order not to deny the sins of the past, and at the same time not to indulge in facile accusations in the absence of real evidence or without regard for the different preconceptions of the time. Moreover, the confessio peccati, to use an expression of Saint Augustine, must always be accompanied by the confessio laudis – the confession of praise. As we ask pardon for the wrong that was done in the past, we must also remember the good accomplished with the help of divine grace which, even if contained in earthenware vessels, has borne fruit that is often excellent.....

Stand firm in your faith! To you too I entrust this motto of my pilgrimage. Be authentic in your life and your ministry. Gazing upon Christ, live a modest life, in solidarity with the faithful to whom you have been sent. Serve everyone; be accessible in the parishes and in the confessionals, accompany the new movements and associations, support families, do not forget the link with young people, remember the poor and the abandoned. If you live by faith, the Holy Spirit will suggest to you what you must say and how you must serve. You will always be able to count on the help of her who goes before the Church in faith. I exhort you to call upon her always in words that you know well: "We are close to you, we remember you, we watch."

May 25, 2006 in Brennan, Patrick | Permalink | TrackBack (0)

The Court's next huge Religion Clause case . . .

. . . might just have been teed up by the U.S. Court of Appeals for the Third Circuit (thanks to Religion Clause blog):

Yesterday in Petruska v. Gannon University, (3d Cir., May 24, 2006), the U.S. Third Circuit Court of Appeals expanded the ability of ministerial employees to bring Title VII employment discrimination cases against churches and religious institutions that employ them. In this case, Lynette Petruska, the first female chaplain at Gannon University, a diocesan college, claimed that she was demoted solely because she was a woman. The Court rejected the defendants' claims that the suit should be dismissed under the "ministerial exception" doctrine. It held that the First Amendment exempts religious institutions from Title VII when gender or other illegal discrimination is based on religious belief, religious doctrine or internal church regulations. But if a church discriminates for reasons unrelated to religion, the Constitution does not foreclose a Title VII suit. The court said, "we decline to turn the Free Exercise Clause into a license for the free exercise of discrimination unmoored from religious principle." Judge Smith dissented on this issue.

In holding as it did, the majority disagreed with six other circuits that have found the ministerial exception to be broader. Inside Higher Ed today reports on the case.

Wait and see . . .

May 25, 2006 in Garnett, Rick | Permalink | TrackBack (0)

"Principled Immigration"

Prof. Mary Ann Glendon (Harvard law) has this essay, "Principled Immigration," in the current issue of First Things magazine.  Immigration is, as we have discussed on this blog several times, a hard, complicated issue -- one to which (in my view, anyway) our current political debates do not do justice.  Glendon's essay strikes me as reasonable, balanced, and clear. 

Among other things, she asks, "why isn’t the United States glad about Latin American immigration?"  To which she answers:

Part of the answer is the economic cost of large-scale immigration. American wage earners often fear that migrants will drive down wages and take the jobs that remain. This fear is sometimes exaggerated, but it is not unfounded: The consensus among labor economists is that immigration has somewhat reduced the earnings of less-educated, low-wage workers. Many Americans are also concerned about the costs that illegal immigration imposes on taxpayers, with its strain on schools and social services, particularly in the border states. The desire to protect the national security of the United States, especially after the trauma of September 11, has played a role as well.

There are also some in the United States who want to close the door to newcomers simply because they are outsiders. Over the course of the twentieth century, that attitude seemed to be fading away, but in recent years sleeping nativist sentiments have been irresponsibly inflamed by anti-immigration groups. A few years ago, I wrote of the financial and ideological connections among extremist anti-immigration groups, radical environmentalists, and aggressive population controllers. What unites that loose coalition in what I called an “iron triangle of exclusion” is their common conviction that border controls and abortion are major defenses against an expanding, threatening, welfare-consuming, and nonwhite underclass. (I never suspected when I wrote those lines that they would cost me a half-year’s salary. But on the basis of a promised grant from a foundation whose causes included environmental protection, I had taken an unpaid leave from Harvard. Shortly after my article was published, the foundation reneged on its promise. It turned out that their idea of protecting the environment included keeping out immigrants and keeping poor people from having children.)

This bit is also worth highlighting:

The five principles set forth in the 2003 Joint Pastoral Letter issued by the Mexican and U.S. bishops, Strangers No Longer: Together on the Journey of Hope, might be helpful in setting the stage for new approaches that could expand the pie for both sending and receiving countries. The letter asserts that (1) persons have the right to find opportunities in their homeland; (2) when opportunities are not available at home, persons have the right to migrate to find work to support themselves and their families; (3) sovereign nations have the right to control their boundaries, but economically stronger nations have a stronger obligation to accommodate migration flows; (4) refugees and asylum seekers fleeing wars and persecutions should be protected; and (5) the human dignity and rights of undocumented migrants should be respected.

To those five principles, a sixth should be added: a principle recognizing the need for a highly diverse, rule-of-law society to be careful about the messages it sends to persons who wish to become part of that society. And the bishops might have done well to note, as Pope John Paul II did in Solicitudo Rei Socialis, that solidarity imposes duties on the disadvantaged as well as the advantaged: “Those who are more influential, because they have a greater share of goods and common services, should feel responsible for the weaker and be ready to share with them all they possess. Those who are weaker, for their part, in the same spirit of solidarity should not adopt a purely passive attitude, or one that is destructive of the social fabric, but, while claiming their legitimate rights, should do what they can for the good of all.”

May 25, 2006 in Garnett, Rick | Permalink | TrackBack (0)

Religious freedom and "proselytization"

Professor Friedman (Religion Clause blog) has a very helpful post, chock full o' links, on the recent Holy See / WCC document, "Conversion:  Assessing the Realities."  Here is a bit:

Freedom of religion is a fundamental, inviolable and non-negotiable right of every human being in every country in the world. Freedom of religion connotes the freedom, without any obstruction, to practice one’s own faith, freedom to propagate the teachings of one’s faith to people of one’s own and other faiths, and also the freedom to embrace another faith out of one’s own free choice.

We affirm that while everyone has a right to invite others to an understanding of their faith, it should not be exercised by violating other’s rights and religious sensibilities. At the same time, all should heal themselves from the obsession of converting others.

Freedom of religion enjoins upon all of us the equally non-negotiable responsibility to respect faiths other than our own, and never to denigrate, vilify or misrepresent them for the purpose of affirming superiority of our faith.

Hmmm.  What, exactly, is or constitutes an "obsession with converting others"?  Put differently, what distinguishes this "obsession" from, say, the Great Commission:  "Go ye therefore, and make disciples of all the nations"?  Perhaps the drafters simply made an unfortunate word choice.  Certainly, the evangelization of those who are not Christian should proceed in accord with a Christian respect for persons and religious freedom.  That said, it seems quite wrong to suggest that there is something unworthy about wanting -- a lot -- others to embrace the Truth that is Christ.

It strikes me as a bigger problem that, in the name of constraining "proselytism", countries are limiting conversions and religious expression, than that some evangelists are behaving or speaking in an unworthy and non-"transparen[t]" way.

May 25, 2006 in Garnett, Rick | Permalink | TrackBack (0)