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.

Thursday, February 28, 2008

Buckley, hope, and faith

When I was young -- about 15 or so, I think -- my mother took me to an event, in Anchorage, Alaska (where I lived), at which William F. Buckley was the speaker.  (I think it was a Rotary-type civic organization's meeting.)  After the talk, during the Q & A, an elderly woman asked him (something like), "Mr. Buckley, most conservatives are gloomy and pessimistic.  But you seem happy and hopeful.  Why?"

"Because," he said, "I know that my Redeemer lives."  That was it.  Perfect.

February 28, 2008 in Garnett, Rick | Permalink | TrackBack (0)

What's Wrong With This Picture?

New York Times, 2/28/08

1 in 100 Americans Are Behind Bars
By Adam Liptak

For the first time in the nation’s history, more than one in 100 American adults is behind bars, according to a new report.

Nationwide, the prison population grew by 25,000 last year, bringing it to almost 1.6 million. Another 723,000 people are in local jails. The number of American adults is about 230 million, meaning that one in every 99.1 adults is behind bars.

Incarceration rates are even higher for some groups. One in 36 Hispanic adults is behind bars, based on Justice Department figures for 2006. One in 15 black adults is, too, as is one in nine black men between the ages of 20 and 34.

The report, from the Pew Center on the States, also found that only one in 355 white women between the ages of 35 and 39 is behind bars, but that one in 100 black women is.

The report’s methodology differed from that used by the Justice Department, which calculates the incarceration rate by using the total population rather than the adult population as the denominator. Using the department’s methodology, about one in 130 Americans is behind bars.

Either way, said Susan Urahn, the center’s managing director, “we aren’t really getting the return in public safety from this level of incarceration.”

“We tend to be a country in which incarceration is an easy response to crime,” Ms. Urahn continued. “Being tough on crime is an easy position to take, particularly if you have the money. And we did have the money in the ’80s and ’90s.”

Now, with fewer resources available to the states, the report said, “prison costs are blowing a hole in state budgets.” On average, states spend almost 7 percent on their budgets on corrections, trailing only healthcare, education and transportation.

In 2007, according to the National Association of State Budgeting Officers, states spent $44 billion in tax dollars on corrections. That is up from $10.6 billion in 1987, a 127 increase once adjusted for inflation. With money from bond issues and from the federal government included, total state spending on corrections last year was $49 billion. By 2011, the report said, states are on track to spend an additional $25 billion.

It cost an average of $23,876 to imprison someone in 2005, the most recent year for which data is available. But state spending varies widely, from $45,000 a year for each inmate in Rhode Island to just $13,000 in Louisiana.

The cost of medical care is growing by 10 percent annually, the report said, a rate that will accelerate as the prison population ages.

About one in nine state government employees works in corrections, and some states are finding it hard to fill those jobs. California spent more than $500 million on overtime alone in 2006.

The number of prisoners in California dropped by 4,000 last year, making Texas’s prison system the nation’s largest, at about 172,000 inmates. But the Texas legislature approved broad changes to the state’s corrections system, including expansions of drug treatment programs and drug courts and revisions to parole practices.

“Our violent offenders, we lock them up for a very long time — rapists, murderers, child molestors,” said John Whitmire, a Democratic state senator from Houston and the chairman of the state senate’s criminal justice committee. “The problem was that we weren’t smart about nonviolent offenders. The legislature finally caught up with the public.”

He gave an example.

“We have 5,500 D.W.I offenders in prison,” he said, including people caught driving under the influence who had not been in an accident. “They’re in the general population. As serious as drinking and driving is, we should segregate them and give them treatment.”

The Pew report recommended diverting nonviolent offenders away from prison and using punishments short of reincarceration for minor or technical violations of probation or parole. It also urged states to consider earlier release of some prisoners.

Before the recent changes in Texas, Mr. Whitmire said, “we were recycling nonviolent offenders.”

February 28, 2008 in Perry, Michael | Permalink | TrackBack (0)

Wednesday, February 27, 2008

The Presidential Election and Abortion Politics

There is an especially interesting and important post over at dotCommonweal--a post that could not be more relevant to us here at MOJ in the political season now upon us.  I've pasted it below.  (The author of the post is an associate editor of Commonweal.)  After you've finished reading the post, be sure to go to dotCommonweal to read all the interesting comments that the post is now eliciting/provoking!  (Here.)

Hudson, Kmiec, and Abortion Politics

February 27, 2008, 2:39 pm

Posted by Matthew Boudway

[This is a revised and somewhat shortened version of a letter I wrote to Deal Hudson last week; he has posted his own summary of the letter on the InsideCatholic website and promises to respond.]

Dear Deal,

I just read your latest response to Douglas Kmiec’s article in Slate about the possible appeal of Barack Obama to Catholics. You argue that Obama’s position on abortion should keep all faithful prolife Catholics from supporting his candidacy, even if they agree with other parts of his platform. You write that it is a mistake for Kmiec to suggest that voting for Obama is even an option.

I agree with you that the church’s position on the morality of abortion is non-negotiable, and that this fact should have some bearing on every Catholic voter’s deliberations. But in your rebuke of Kmiec–and more generally in your dogged defense of the Republican party–I think you are making a serious category mistake. If this were merely a matter of logic, I wouldn’t mention it, but I think it has important consequences for the way we think and talk about politics.

You lean hard on the legitimate distinction between the church’s non-prudential, non-optional teachings, and prudential political judgments. This is a real and important distinction, which has been invoked and helpfully developed by many Catholic theorists and pundits.

But those who insist on this distinction need to be very careful about it; they should not push it further than it really goes. The distinction between non-prudential and prudential is the distinction between what is simple and unconditional and what is complicated and contingent. It is not the distinction between the more important and the less important. Clarity and gravity are not the same thing. This is why the predicament of Catholic voters in the U.S.is not as easy to resolve as you seem to think. One can make a strong (but not unanswerable) argument that a Catholic should not vote for a prochoice Presidential candidate–at least not now, when the reversal of Roe v. Wade seems to be within reach. (For what it’s worth, I don’t plan to vote for a prochoice candidate until Roe v. Wade is reversed, or until there seems no immediate chance of its being reversed.)

You write as if the priority of the abortion issue should mean the same thing for all Catholics no matter what they think about other issues. Your easy confidence on this point would be more persuasive if you did not happen to agree with the Republican Party on most other issues as well. This is not a trivial coincidence. If your only options were, say, a rigidly prochoice Republican and a prolife socialist who believed that the United States should give up its national sovereignty and join a world government, I suspect your abortion-trumps-all rhetoric would change somewhat. As it is, your position involves few trade-offs. This is not the way it is for many, perhaps most American Catholics. If you believe, as I do, that the invasion of Iraq was a terrible mistake and also a grave injustice, and that universal, state-sponsored health care is not only the most efficient and rational medical system but also an obligation for a society as rich as ours, then you will not find it so easy to settle for a Republican presidential candidate just because he says he is prolife. (Here, too, we face prudential questions, questions that require us to calculate consequences. We must ask ourselves how prolife a self-described prolife politician really is–how willing is he to invest real political capital in this cause? We must also ask ourselves about circumstances: What possible–or likely–effect will a politician have on abortion law now? His opinion, merely as an opinion, is of little political consequence until it is translated into legislation or judicial appointments. And these may have no consequence, or the wrong consequence, in a democratic society that refuses to accept the prolife premise. Kick it back to the states. Good. Then what?)

Of course the church has no non-prudential teaching about the details of health-care reform or this or that particular war, but that tells us nothing about the importance of the Iraq war or health-care reform as political issues. The church says nothing about the priority of the U.S. Constitution or the viability of nation states in the twenty-first century, but I doubt you consider these things to be of marginal importance.

Since both of us consider ourselves prolife, and since both of us acknowledge that the profile cause is, among other things, an important political movement, you may think the rest is hair-splitting. It is not. Your position–or, at least, the rhetoric in which it is couched–entails a terrible constriction of the political imagination. And it gives American Catholics a way to let themselves off the hook: they do not have to question the GOP’s economic and foreign-policy positions because the church offers no official pronouncement on these positions–those issues are up for grabs and therefore relatively unimportant. That kind of sectarian minimalism is really not a very Catholic way to think about politics. If the church’s social teachings are about any one thing, they’re about solidarity: solidarity between the born and the unborn, but also between the rich and the poor, the healthy and the sick, the powerful and the powerless. Not every part of the “seamless garment” is of equal importance, and not every stitch is clear, but we make a terrible mistake in clutching at one sleeve and forgetting about the rest. Prohibiting abortion is an important goal of the pro-life movement, but it is not the only goal. We want to prevent as many abortions as possible. To do this we will have to persuade our non-Catholic neighbors, people whose opinions are not changed by appeals to the church’s authority, and that will mean persuading them to think differently about what we owe the most vulnerable members of our community.

February 27, 2008 in Perry, Michael | Permalink | TrackBack (0)

William F. Buckley, Jr., Is Dead at 82

May he rest in peace.

An obituary is here.

February 27, 2008 in Perry, Michael | Permalink | TrackBack (0)

Soft-core atheism

John Haught criticizes the spate of recent "God is evil/dead/non-existent" books for espousing a much softer, blander atheism than the bold atheist frameworks of the past:

[T]he recent atheist authors want atheism to prevail at the least possible expense to the agreeable socioeconomic circumstances out of which they sermonize. They would have the God-religions—Judaism, Christianity and Islam—simply disappear, after which we should be able go on enjoying the same lifestyle as before. People would then continue to cultivate essentially the same values as before, including altruism, but they would do it without inspired books and divine commandments. Educators would teach science without intrusions from creationists, and students would learn that evolution rather than divine creativity is the ultimate explanation of why we are the kind of organisms we are. Only propositions based on evidence would be tolerated, but the satisfaction of knowing the truth about nature by way of science would compensate for any ethical constraints we would still have to put on our animal instincts.

This, of course, is precisely the kind of atheism that nauseated Nietzsche and made Camus and Sartre cringe. For them, atheism of this sort is nothing more than the persistence of life-numbing religiosity—it is religiosity in a new guise. These more muscular critics of religion were at least smart enough to realize that a full acceptance of the death of God would require an asceticism completely missing in the new atheistic formulas.

The blandness of the new soft-core atheism lies ironically in its willingness to compromise with the politically and culturally insipid kind of theism it claims to be ousting. Such a pale brand of atheism uncritically permits the same old values and meanings to hang around, only now they can become sanctified by an ethically and politically conservative Darwinian orthodoxy. If the new atheists' wishes are ever fulfilled, we need anticipate little in the way of cultural reform aside from turning the world's places of worship into museums, discos and coffee shops.

He makes a good point.  When I compare the worldview of Christopher Hitchens, for example, with the worldview expressed by the actions of Islamic militants, I'm tempted to believe that the naked public square is not such a bad thing, and that a future in which cultural norms are grounded more firmly in a collective agnosticism about God's existence (or at least relevance) appears much rosier than the alternative.  But then I catch myself, remembering that Islamic militants are not inescapably the sole occupants of the religion-friendly public square, and that the world in which Hitchens provides such wonderful conversation-starters may look quite different if his worldview ultimately holds sway.

February 27, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Tuesday, February 26, 2008

Immigration Symposium at Dayton

If you are in the Dayton, Ohio area this Wednesday or Thursday (Feb. 27-28), check out the Gilvary Symposium on Law, Religion, & Social Justice at the University of Dayton School of Law.  This year's conference is entitled "Justice for Strangers?  Legal Assistance and the Foreign Born."

February 26, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

"No Law Respecting the Practice of Religion"

A heads up from MOJ friend Andrew Moore on what looks to be a fantastic event in Detroit on March 18:

The University of Detroit Mercy School of Law welcomes Dr. Leslie Griffin, Larry and Joanne Doherty Chair in Legal Ethics, University of Houston Law Center to deliver the 10th Annual McElroy Lecture on Law & Religion, Tuesday, March 18, 2008 @ 5:30 PM

"No Law Respecting the Practice of Religion"

The First Amendment of the U.S. Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What if the drafters used the words “practice of religion” instead of “religion”? How would this change the jurisprudence surrounding this part of our Constitution? Dr. Leslie Griffin, Professor of Law at the University Houston Law Center will address this compelling question, focusing on government funding for religious organizations, public school prayer and free exercise claims. Through this exercise, Dr. Griffin will explore the meaning our courts have given to the term “religion” as they have addressed these critical issues. For more information please contact Prof. Andrew Moore, (313)596-0220 or [email protected]

February 26, 2008 in Uelmen, Amy | Permalink | TrackBack (0)

Monday, February 25, 2008

The faith of our childhood

According to an interesting piece in today's New York Times, "[m]ore than a quarter of adult Americans have left the faith of their childhood to join another religion or no religion, according to a new survey of religious affiliation by the Pew Forum on Religion and Public Life."

Well, some of us leave the faith of our childhood without ever leaving the faith of our childhood, if you know what I mean.

Americans Change Faiths at Rising Rate, Report Finds

More than a quarter of adult Americans have left the faith of their childhood to join another religion or no religion, according to a new survey of religious affiliation by the Pew Forum on Religion and Public Life.

The report, titled “U.S. Religious Landscape Survey,” depicts a highly fluid and diverse national religious life. If shifts among Protestant denominations are included, then it appears that 44 percent of Americans have switched religious affiliations.

For at least a generation, scholars have noted that more Americans are moving among faiths, as denominational loyalty erodes. But the survey, based on interviews with more than 35,000 Americans, offers one of the clearest views yet of that trend, scholars said. The United States Census does not track religious affiliation.

The report shows, for example, that every religion is losing and gaining members, but that the Roman Catholic Church €œhas experienced the greatest net losses as a result of affiliation changes.€

The survey also indicates that the group that had the greatest net gain was the unaffiliated. More than 16 percent of American adults say they are not part of any organized faith, which makes the unaffiliated the country'€™s fourth largest €œreligious group.€


The percentage of Catholics in the American population has held steady for decades at about 25 percent. But that masks a precipitous decline in native-born Catholics. The proportion has been bolstered by the large influx of Catholic immigrants, mostly from Latin America, the survey found.

The Catholic Church has lost more adherents than any other group: about one-third of respondents raised Catholic said they no longer identified as such. Based on the data, the survey showed, “this means that roughly 10 percent of all Americans are former Catholics.”

[Click here to read the rest.]

February 25, 2008 in Perry, Michael | Permalink | TrackBack (0)

Marriage and the State

My colleague John Witte, who directs Emory's Center for the Study of Law and Religion, had a terrific op-ed in yesterday's Atlanta Journal Constitution.  Many MOJ readers will be interested.

The future of marriage
State laws and religious laws cannot co-exist . . . can they?

Anglican Archbishop Rowan Williams set off an international firestorm this month by suggesting that some accommodation of Muslim family law was "unavoidable" in England.

His suggestion, though tentative, has already prompted more than 250 articles in the world press, the vast majority denouncing it. England will be beset by "licensed polygamy," "barbaric procedures" and "brutal violence" against women and children, his critics argued, all administered by "legally ghettoized" Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim Sharia with the common law, other critics added. The horrific excesses of their religious courts —- even calling the faithful to stone innocent rape victims for dishonoring their families —- prove that religious laws and state laws on the family simply cannot coexist. Case closed.

This case won't stay closed for long, however. The archbishop was not calling for the establishment of independent Muslim courts in England, let alone the enforcement of Sharia law by state courts. He instead wanted his nation to have a full and frank debate about what it means to be married in a growing multicultural society. What forms of marriage should citizens be able to choose, and what forms of religious marriage law should government be required to respect? These are "unavoidable" questions for any modern society dedicated to protecting both the civil and religious liberties of all its citizens.

These are quickly becoming "unavoidable" questions for America, too. We already have a lot more marital pluralism than a generation ago —- with a number of legal options now available. Massachusetts offers traditional marriage and same-sex marriage to its citizens. Several more states will likely follow suit. Vermont leads four states in offering straight couples marriage and gay couples civil union, with comparable rules governing each form. A dozen more states are considering this two-tier system. Six states, including California, offer domestic partner registration status, providing straight and gay couples with some of the benefits and protections of marriage. Louisiana, Arkansas and Arizona offer couples either a simple contract marriage or a covenant marriage with more traditional and rigorous rules of entrance and exit.

While these marital options remain firmly under state law, other options now draw in religious law, too, implicitly or explicitly. Utah and surrounding states, for example, house some 30,000 polygamous families. These families and the fundamentalist Mormon churches that govern them are openly breaking state criminal laws against bigamy, but the states will not prosecute unless minors are forced into marriage.

In New York, Orthodox Jewish couples cannot get a state divorce without first obtaining a rabbinic divorce. This privileges Jewish family law over all other religious laws, and it forces some New York citizens to discharge a religious duty to gain a civil right to divorce. In more than 20 states, marriages arranged by Hindu, Muslim and Unification Church officials have been upheld, with divorce the only option left for parties who claim coercion or surprise.

A number of religious couples now choose to arbitrate their marital and family disputes before religious courts and tribunals rather than litigate them in state courts. Courts generally uphold the judgments of Jewish and Christian tribunals in these cases. Muslims, Hindus and other religious minorities are now pressing for equal treatment for their systems of religious arbitration of marriage and family disputes.

Granting Muslims and others equal treatment in these cases does seem "unavoidable" if the parties have freely consented to this method of dispute resolution. To deny Muslims divorce arbitration while granting it to Jews and Christians is patently discriminatory.

[There is more.  To read the rest, click here.]

February 25, 2008 in Perry, Michael | Permalink | TrackBack (0)

Obama and Educational Reform

As has often been displayed in discussions on the Mirror of Justice, many of us believe that the most powerful engine for social justice and economic advancement for every class of Americans is high quality education. And many of us believe in turn that, especially for the disadvantaged, opportunities to attend private school through vouchers may be the only way out of a cycle of poverty (as well as allowing people to choose the kind of education that best supports their own values, including faith-based education).

Nor has it passed notice that the political elite — including every Democratic nominee for President in the past two decades (Clinton, Gore, and Kerry), as well as both current contenders for that nomination (Clinton and Obama) — have chosen to send their children to private schools, even as they close those doors to the poor.

Thus, although he was far from enthusiastic about vouchers, it was encouraging to hear Senator Obama say this recently while campaigning in Wisconsin (rest of article here):

“If there was any argument for vouchers, it was ‘Alright, let's see if this experiment works,’ and if it does, then whatever my preconceptions, my attitude is you do what works for the kids,” the senator said. “I will not allow my predispositions to stand in the way of making sure that our kids can learn. We’re losing several generations of kids and something has to be done.”

Well, this breath of fresh air in the increasingly stale education reform debate was nice while it lasted — which wasn't long. As soon as news attention was drawn to his departure from Democratic Party orthodoxy, the Obama campaign issued a statement titled “Response to Misleading Reports Concerning Senator Obama's Position on Vouchers” (Feb. 20, 2008):

There have been misleading reports that Senator Obama voiced support for voucher programs in an interview with the editorial board of the Milwaukee Journal Sentinel. Senator Obama has always been a critic of vouchers, and expressed his longstanding skepticism in that interview. Throughout his career, he has voted against voucher proposals and voiced concern for siphoning off resources from our public schools. . . . These misleading reports are particularly disturbing given that Senator Obama has laid out the most comprehensive education agenda of any candidate in this race — an agenda that does not include vouchers, in any shape or form.

The New York Sun offers wry comment, in a riff on the Obama campaign's theme:

The initial statement was change you can believe in. The follow-up message was the same old interest-group Democratic Party politics as usual. It was plainly designed to assuage the teachers’ unions, who are the enemies of change.


Greg Sisk

February 25, 2008 in Sisk, Greg | Permalink | TrackBack (0)