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.

Tuesday, June 26, 2007

Bush and Blair . . . Still Wrong on Iraq

If anyone still wonders whether Pope Benedict shares his predecessor's steadfast opposition to our invasion of Iraq, the answer appears to be a resounding yes.

June 26, 2007 in Vischer, Rob | Permalink | TrackBack (0)

More on Jesus of Nazareth and CLT

This follows my earlier posts on the questions raised by Joseph Ratzinger's book, Jesus of Nazareth, for the CLT project. As in my earlier posts, the question for me (us?) is what is my (our) response to the text.

p.118 - The "communion of will with God given by Jesus ... frees men and nations to discover what aspects of political and social order accord iwth this communion of will and so to work out their own juridical arrangements. ... The concrete political and social order is released from the directly sacred realm, from theocratic legislation, and is transferred to the freedom of man, whom Jesus has established in God's will and taught thereby to see the right and the good." 

On p. 119, he identifies the current social and political problem - "In our day, of course, freedom has been totally wrenched away from any godly perspective or from communion with Jesus.  Freedom for universality and so for the legitimate secularity of the state has been transformed into an absolute secularism, for which forgetfulness of God and exclusive concern with success seem to have become guiding principles."  In response, he proposes that "for the believing Christian ... the search for God's will in communion with Jesus is above all a signpost for his reason, without which it is always in danger of being dazzled and blinded."

More later...

June 26, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)

Special Olympics vs. Plastic Surgery

I think most of us would agree that equal access to health care is a pressing social justice issue (e.g., Lisa Sowle Cahill's Theological Bioethics).  I had an experience of severe cognitive dissonance this past weekend that raised some questions about the allocation of our nation's health care resources. 

I spent four hours Saturday afternoon at my son's State Special Olympics gymnastics meet.  I was particularly captivated by many of the young women athletes.  Various forms of mental retardation are associated with low muscle tone and various metabolic conditions that can lead to body shapes and sizes that are very different from the images of women athletes we're accustomed to seeing in televized sporting events.   Yet the athletes that I watched on Saturday were uniformly graceful, confident, and so evidently proud of themselves as they soared over vaults and performed their floor exercises all afternoon in their gym.  They were in their element, performing physical feats that they had practiced for years with their supportive, capable, and loving volunteers, and they KNEW they were truly beautiful, and they truly WERE beautiful.

Later that evening, I went out to dinner with some friends at the outdoor patio of a restaurant on the shores of a lake near where we live.  It's a dockside restaurant, where boaters can pull up to the dock, hop on shore, and eat dinner.    As we ate, we couldn't help but notice the conspicuous parade of, shall we say, "surgically-enhanced" female bodies in bikinis popping in and out of the boats docking for dinner.  The basic tenor of the conversations I overheard in a visit to the ladies' room revealed that, for all the conventional physical beauty on display on that dock, many of these women seemed to be suffering an inordinate amount of insecurity and lack of confidence about their appearance.

Surely, whatever it is that the Special Olympics volunteers do with their athletes every weekend in their practice sessions must cost society a fraction of what is spent on plastic surgery in the U.S.   And, based on my observations last Saturday, it's much more effective in promoting self-esteem and self-confidence.  Isn't there some sort of CST argument for reallocating some of our nation's health care resources from the plastic surgery business to a Special Olympics-type program for people with too much money?

June 26, 2007 in Schiltz, Elizabeth | Permalink | TrackBack (0)

Monday, June 25, 2007

More on Standing and the Establishment Clause

                 Thanks to Rick for getting "first to the post," so to speak, on the Supreme Court's Hein decision today limiting taxpayer standing to challenge the government's conduct of religious programs.  I agree that the limited allowance of taxpayer standing in Flast v. Cohen, reaffirmed but limited today by (what is likely) the controlling three-justice opinion, is a compromise that has conceptual difficulties.  Justice Scalia's concurring opinion, which calls for overruling Flast -- and in which is (no surprise) the most enjoyable opinion to read and discuss -- describes the problem well.  If the injury in question is suffering an extra tax burden from the particular program, the plaintiff can almost never prove that connection and should never have standing; but if the injury is offense at the government's having supported religion, then the plaintiff always has that and should always have standing.  Either way, limited Establishment-Clause standing seems to make no sense.
                However, Justice Scalia's opinion seems to me to duck a couple of important arguments.  First, if there is no taxpayer standing at all for the Establishment Clause, there would be no federal-court enforcement on issues at the heart of even the narrowest understanding of the Establishment Clause: for example, the funding of clergy of only one denomination.  Without taxpayer standing, there would be no plaintiff to challenge such an action, which though unlikely now was a real concern of the framers.  Unlike the case with school prayers or creche, there is no person affected by the action in the sense of having to listen to or view the activities of the funded clergy and who could sue on that basis.  Given the centrality of "no preferential funding of clergy" to the Establishment Clause, can't one plausibly argue, as Flast did, that the Clause implicitly amended previous Article III limits on taxpayer standing?  (It's true that many state courts have broader taxpayer-standing rules, but many don't; plus if Article III standing is absent, the Supreme Court cannot  review the case coming from state court to ensure uniformity of federal law -- unless it happens to be the government petitioning for cert (see ASARCO v. Kadish, 1989).)  At the least, I think, Justice Scalia should have dealt with this argument.
               Second, it has been argued by Carl Esbeck and others -- and I think Rick actually has considerable sympathy with this view -- that the Establishment Clause is not so much an individual-rights provision as a structural provision, meant to keep the state from intruding into the religious sphere (in certain ways, at least) and thus to preserve some kind of separation that (though its scope is a matter of debate) is healthy for both the churches and the civil society.  If that's true, then it may make perfect sense to permit standing for a broader class of individuals not directly or substantially affected by the government's conduct but still acting as sort of private attorneys-general to enforce a proper structural state-church relationship.  (Again, let me emphasize that that's not to say anything about whether the plaintiff should win on the merits of any particular Establishment Clause claim: for example, a plaintiff challenging a school voucher program might have standing but should lose on the merits because it is a permissible program of "true private choice" under the 2002 Zelman decision.)
                Finally, I want to be somewhat careful about embracing the idea that constitutional issues concerning religion -- in this case, Article III bars to taxpayer standing -- should always be treated the same as other constitutional issues.  That reasoning, for example, has led courts too often to dismiss constitutional claims for the freedom of religious organizations and individuals on the ground that the religious interest gets no extra weight, in spite of the presence of the Free Exercise and Establishment clauses.
                I therefore have sympathy for the three-justice opinion that refuses to overrule Flast, but that also restricts it so as to avoid permitting taxpayer standing in every Establishment Clause case.  Scalia is right, though, that the distinction these three justices (Roberts, Alito, Kennedy) adopt doesn't serve the underlying purposes well.  They seem at times to say that executive-branch actions taken under a statute affording discretion to the executive branch cannot be challenged, that only legislation that specifically orders the disbursement of  money can be challenged.  This makes sense in the context of the Hein case, where the executive officials weren't disbursing funds, but were only making speeches and conducting their own programs, and the only connection to a legislative expenditure was that Congress had funded the agencies' general operations.  But if the executive branch gets a free pass altogether, then it could simply give its discretionary funds to Baptist (and no other) clergy, violating the core of the Establishment Clause, with no (or very limited) federal-court policing.
                A distinction that would better reach the core cases while restricting federal-court lawsuits and involvement, it seems to me, would be to limit Flast to cases of government disbursement of funds to private, religious parties.  This would allow challenges to the core cases like (at the extreme) preferential funding of clergy or churches -- whether done by the legislature or by the executive -- while eliminating taxpayer standing as a basis for challenging government's own religious programs or symbols.  In the latter cases, people who actually have to be exposed to the exercise or symbol should be the ones, and the only ones, able to sue.  The Christian Legal Society, following Professor Esbeck's lead, recently advanced this distinction in an amicus brief filed supporting Notre Dame's cert petition in a case challenging federal teacher-training grants to the university (Notre Dame v. Laskowski).

June 25, 2007 in Berg, Thomas | Permalink | TrackBack (0)

Standing, religion, and judicial power

Today, the Supreme Court handed down its decision in the Hein case, which presented a question involving "taxpayer standing" to challenge, on Establishment Clause grounds, certain features of the White House's faith-based initiative.  Here is a link to the opinion.  For my own part (and like Justice Scalia, who -- along with Justice Thomas -- concurred separately), I am inclined to think that the whole Flast enterprise of permitting taxpayer standing in Establishment Clause cases (but only in Establishment Clause cases) is misconceived.  That said, I'm pleased that the majority did not extend Flast in today's decision.  Yes, the state-of-the-law that results is (to put it mildly) conceptually muddled, but . . . that's life.

As I see it, today's decision is not so much about the place of religion in public life, or the relationship between the institutions of faith and those of government.  Instead, it is about the limited role and power of the federal judiciary.  As Justice Alito described, in his plurality opinion, the task of federal judges is to resolve certain controversies between parties with a concrete stake in the outcome; it is not to use lawsuits as a vehicle for reviewing or second-guessing policies with which some taxpayers disagree.

UPDATE:  Here is a link to a conversation between Prof. Walter Dellinger and me about today's First Amendment cases, on the News Hour with Jim Lehrer.

June 25, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Does Dawkins Embrace Design?

Over at First Things, Robert Miller and Francis Beckwith are having a wonderful exchange about Richard Dawkins and the intelligibility of "wasting one's gifts" in the absence of a theistic worldview.  (Begin here, then read here and here.)

June 25, 2007 in Vischer, Rob | Permalink | TrackBack (0)

The Donors Have Spoken

A new survey has found that nearly 60 percent of infertility patients are willing to donate their frozen embryos for use in stem cell research.  This figure is roughly three times the percentage of those who are willing to donate their frozen embryos for adoption.  According to the researcher:

This provides additional support for the stem cell legislation and for how to think about the legislation. This will not change the view of people who hold the position that destroying embryos is immoral and never justifiable. That's a coherent position that these data cannot challenge. But for people who believe that there might be some circumstances in which early human life can be ethically destroyed to achieve another human end, this is important data.

June 25, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Jesus and CLT continued

Lisa's post has caused me to think that the early Church, in its encounter with the Roman Empire and other non-Christian cultures, proposes a model for us to consider in our encounter with the secular academy and secular society today.

On page 98 of Jesus of Nazareth, in exploring the Beatitudes, Joseph Ratzinger says: "As we witness the abuse of economic power, as we witness the cruelties of a capitalism that degrades man to teh level of merchandise, we have also realized the perils of wealth, and we have gained a new appreciation of what Jesus meant when he warned of riches, of the man-destroying Mammon, which grips larges parts of the world in a cruel stranglehold."  He then follows this up with the primacy of God, the centrality of the person of Jesus, and the face of Love.   If Ratzinger is correct, and I think he is, what are the implications for CLT?

More later...

June 25, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)

Saturday, June 23, 2007

Thoughts about the Early Christians

I haven't read Ratzinger's Jesus of Nazareth, but some of the points raised by Michael S's  post on it have been on my mind lately.  I'm in the extremely fortunate position of being able to spend much of my time over the next year as a student, working on a Master's Degree in Catholic Studies here at St. Thomas.  I'm taking two courses this summer, one an introductory survey, "Catholic Thought & Culture I" (covering the first 13 centuries of Christianity in one semester....), the other "The Church and the Biomedical Revolution."  In both classes, we started off with some reading and discussion of the beginnings of Christianity.  My imagination has been utterly captured by the struggle of the early Christians to define and explain this revolutionary new religion, both for themselves and for the rest of the world, the pagan world they were trying to live in and make peace with.

For the Catholic Thought & Culture class, we read an excerpt from Robert Wilken's The Spirit of Early Christian Thought.  The very first chapter talks about the efforts of Justin Martyr and Origen to respond to the pagan philosophers challenging this new religion.  Wilken makes the point that, despite the brilliance of the arguments these early Christians formulated to engage the philosophers on their own terms, they never lost their awareness that the truly revolutionary thing about this religion was that it was centered on the life of Jesus.  He writes:

What had been handed on in the church's worship and practice, in prayers and catechetical instruction, in the words and images and stories of the Bible was set on a firm intellectual foundation.  Yet, and this is the central point, the biblical narrative was not reduced to a set of ideas or a body of principles;  no conceptual scheme was allowed to displace the evangelical history.  Christianity, wrote Leo the Great, bishop of Rome in the fifth century, is a "religion founded on the mystery of the Cross of Christ."  Christian thinking did not spring from an original idea, and it was not nourished by a seminal spiritual insight.  It had its beginnings in the history of Israel and the life of a human being named Jesus of Nazareth, who was born of Mary, lived in Judea, suffered and died in Jerusalem, and was raised by God to new life.

It just stuck me, reading that, how easy it would have been for all of these brilliant Church fathers to take the "sayings" of this historical person, Jesus, and take on the pagan world intellectually by reducing the words to a "set of ideas or a body of principles" or a "conceptual scheme."  But that's not what happened.  It's really a rather extraordinary thing, when you think about it on the human level of very smart people (not unlike, say, law professors) trying to explain themselves and their revolutionary faith to a secular world.

In my other class, "The Church and the Biomedical Revolution", I learned another fascinating thing about the early Christians, perhaps not really related to Michael's point, but something that has similarly seized my imagination.  We read a chapter from a book by Rodney Stark, The Rise of Christianity:  A Sociologist Reconsiders History.  In a chapter called "Epidemics, Networks, and Conversion", Stark suggests that contributing to the rapid rise of Christianity throughout the Roman Empire were two epidemics, one in 165 (probably smallpox) and another in 251 (probably measles).  One of many interesting points that Stark makes is that far greater numbers of Christians survived those epidemics than pagans, for the simple reason that they were living basic Christian values of love and charity.  The simple act of not abandoning the sick -- as their pagan neighbors generally did -- but instead sticking around and providing for their elemental needs for food and water, greatly reduced mortality.  (He writes "Modern medical experts believe that conscientious nursing without any medications could cut the mortality rate by two-thirds or even more.")  In addition to the higher survival rates of the Christians, the fact that the Christian ethic led them to care for pagans as well, and the power of the seemingly "miraculous" survival of so many Christians, affected the subsequent conversion of surviving pagans.  I'm not sure what that has to do with CLT, and I'm not sure why it has so seized my imagination, but isn't it fascinating?

And next week, we get to Augustine, organ transplantation, and the theological foundations of medical research ethics.  Am I not just the luckiest girl around?

June 23, 2007 in Schiltz, Elizabeth | Permalink | TrackBack (0)

Jesus of Nazareth and Catholic Legal Theory

I have just started Joseph Ratzinger, Benedict XVI's, book "Jesus of Nazareth," which I picked of at Loome's during our meeting of the Conference of Catholic Legal Scholars last week.  The first thing I noted is that the author is Joseph Ratzinger, Pope Benedict XVI and not Pope Benedict XVI.  He retains his given name, I suspect, because, as he explains in the foreward:  "It goes without saying that this book is in no way an exercise of the magisterium, but is solely an expression of my personal search 'for the face of the Lord' (cf. Ps. 27:8)." In other words, Ratzinger is inviting us to consider with him, the face of Jesus as he has encountered Him.  And, so far it is a great journey.

Since God's entry into the human condition in the person of Jesus, the Son, affects all aspects of our life, it should not be surprising that the book raises questions for our Catholic Legal Theory project. 

On page 29, in the chapter on the temptations, Ratizinger says:  "God is the issue:  Is he real, reality itself, or isn't he?  Is he good, or do we have to invent the good ourselves?  The God question is the fundamental question, and it sets us down right at the crossroads of human existence."  If Ratzinger is correct, and I think he is, what are the implications for CLT?

On page 33, he quotes the martyred (by the Nazi's) German Jesuit, Alfred Delp:  "Bread is important, freedom is more important, but most important of all is unbroken fidelity and faithful adoration."  Ratzinger presses the point:  "When this ordering of goods is no longer respected, but turned on its head, the result is not justice or concern for human suffering.  The result is rather ruin and destruction even of the material goods themselves."  He continues:  "The aid offered by the West to developing countries has been purely technical and materially based, and not only has left God out of the picture, but has driven men away from God.  And, this aid, proudly claiming to 'know better,' is itself what first turned the 'third world' into what we mean today by that term."  He agains returns to the theme:  "The issue is the primacy of God.  The issue is acknolwedging that he is a reality, that he is the reality without which nothing else can be good.  History cannot be detached from God and then run smoothly on purely material lines."  If Ratzinger is correct, and I think he is, what are the implications for CLT?

On page 39, he says:  "Without heaven, earthly power is always ambiguous and fragile.  Only when power submits to the measure and the judgment of heaven - of God, in other words - can it become power fro good.  And only when power stands under God's blessing can it be trusted."  If Ratzinger is correct, and I think he is, what are the implications for CLT?

And, that is as far as I have read.

June 23, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)