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, April 29, 2008

"The Supreme Court at a Crossroads"

The cover of the April 28 issue of America caught my eye:  The cover photo depicts the intersection of "church" and "state" streets, and adds the caption, "The U.S. Supreme Court at a Crossroads."  Dale Recinella has a piece called "The Court and the Death Penalty" and Antony Barone Kolenc contributes an essay entitled "A New Majority and the Culture Wars."

Recinella discusses what "one Catholic Justice could do" to "end[] the death penalty".  Now, I would also like to see an "end[ to] the death penalty", but I was not moved by Recinella's assertion that "there is manifest legal justification" for "one of the five Catholic justices" to "change his position on capital punishment".  Nor is it clear to me why it should be relevant to a Catholic Justice, when he or she is deciding how to vote in a death-penalty-related case, that "U.S. death penalty jurisprudence contravenes the explicit commands of Scripture", assuming that it does.  Recinalla also contends that, if just one of the Catholic justices changes his mind, "the use of the death penalty would end in the United States."  It is not at all clear to me, though, that the four non-Catholic Justices believe they are constitutionally authorized, or are themselves inclined, to outlaw entirely the death penalty.  (Would they impose increased limits on its use?  Certainly.)

Like Recinella, I welcome the possibility that Catholic arguments and commitments will, soon, re-shape our crime-and-punishment practices.  But, I'm hesitant to agree with Recinella that this re-shaping will, or should, come about because it is imposed by Catholic Justices.

In "The Court at a Crossroads", Kolenc writes that "big change may be coming in America's culture wars -- a legal shift that could alter the so-called separation of church and state."  Could be.  Kolenc is right, I think, that the departure of Justice O'Connor creates an opening for revisions to the Court's doctrine -- specifically, for de-emphasizing her "endorsement test" -- but I don't really expect any dramatic change in outcomes.  (If one of the "conservatives" is replaced by President Obama or Clinton, I would think that we might well see some backtracking, particularly when it comes to public-funding cases.)

A quibble:  In one place, Kolenc says that "Scalia is often joined in his campaign [for a greater tolerance of religion in the public arena] by Roberts, Thomas, and Alito."  I can't think of any religion-in-public-life cases, though, decided since Alito joined the Court, so this claim would have been better phrased as a prediction than a description.

April 29, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Culture Watch: "Gossip Girl"

I'm aware of the Miley Cyrus photo controversy, but I was more taken aback by a billboard and television ad campaign for a show called "Gossip Girl."  The campaign utilizes the well-known (and obscene) "OMFG" with a photo of two young people in a pretty unmistakable sexual pose.  Just how young are they?  It was not until tonight that I learned that the show is about high schoolers, and the marketing is aimed at high schoolers.  I'm not all that old (though my students will say that the content of this post is evidence that I indeed am old), but I'd like to note how quickly social norms have changed, even since I was in college and Beverly Hills 90210 debuted as the teen show of choice.  Yes, the characters on 90210 had sex.  But the marketing images are dramatically different, and I'm pretty sure that images matter.  (You can see the images below the fold.)  What norms do these images establish for teenagers today?

UPDATE: Denise Hunnell answers my question from the perspective of a CCD teacher.  For her seventh graders, she writes, the most difficult sacrament to understand is Holy Matrimony.  The cultural messages kids have received by seventh grade make the Catholic image of marriage "extremely counter cultural and almost unbelievable."  Indeed, "It is easier for them to believe that the Eucharist is the Body, Blood, Soul, and Divinity of Christ than it is for them to believe that sex belongs in marriage and marriage is a life-long commitment."  She has written more on her experience here.

Continue reading

April 29, 2008 in Vischer, Rob | Permalink | TrackBack (0)

The return of Rev. Wright

Rev. Jeremiah Wright's appearance today at the National Press Club has sparked more commentary than one person could ever read, but I was especially struck by the reaction of Andrew Sullivan, a noted Obama supporter who was willing to overlook the sound bites plucked from years of Wright's sermons:

But what he said today extemporaneously, the way in which he said it, the unrepentant manner in which he reiterated some of his most absurd and offensive views, his attempt to equate everything he believes with the black church as a whole, and his open public embrace of Farrakhan and hostility to . . . Zionism, make any further defense of him impossible. This was a calculated, ugly, repulsive, vile display of arrogance, egotism, and self-regard.

And while I often disagree with Bob Herbert's column in the New York Times, in this case he seems to be right on the mark:

For Senator Obama, the re-emergence of Rev. Wright has been devastating. The senator has been trying desperately to bolster his standing with skeptical and even hostile white working-class voters. When the story line of the campaign shifts almost entirely to the race-in-your-face antics of someone like Mr. Wright, Mr. Obama’s chances can only suffer. . . .

Mr. Obama seems more and more like someone buffeted by events, rather than in charge of them. Very little has changed in the superdelegate count, but a number of those delegates have expressed concern in private over Mr. Obama’s inability to do better among white working-class voters and Catholics.

April 29, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Monday, April 28, 2008

More on China and Human Rights

My colleague Elizabeth Brown sent me the following comment regarding Rick and my posts (here and here) on human rights issues in China:

"When I was in Bhutan in 2002 and in China in 2006, I was told that China's solution to its minorities was to flood them with Han Chinese.  I was told that Tibet cannot escape China's grasp because too many Han Chinese have been given incentives to move into Tibet.   Tibet is no longer Tibet, any more than South Dakota is Lakota. This was certainly true in western China where the native Uighurs have been inundated with Han Chinese who are given the best jobs and substantial incentives to relocate. 

"China has been creating a Potemkin Village in Beijing to put on a good face for the 2008 Olympics.  One problem that they can't hide is their horrendous environmental pollution.  You can almost eat the air in Beijing.  I would not want to be a track and field athlete at the 2008 games.

"Engagement must mean something more than letting China get away with murder (or significant human rights violations) just because American companies are entranced with the possibility with selling to 1 billion plus Chinese.  Most of what American companies produce in China is sold outside the country, not in it.  Global trade is more of a mixed blessing than most free market conservatives are willing to admit."

April 28, 2008 in Stabile, Susan | Permalink | TrackBack (0)

China and Human Rights Violations

I'm with Rick in applauding H. Res. 821.  However, at the end of his post, Rick suggests that engagement may be a better course than condemnation. 

The problem with that is we have had years of engagement with little positive effect.  China pledged when it was bidding to host the 2008 Olympics was that it would improve human rights.  It clearly has not made good on that promise.  Indeed, as the House findings suggest, things have gotten worse there.  China's big achievement (although this was prior to its most recent crackdown on Tibetan dissidents) was that is was dropped from the list of the 10 most egregious human rights violators, which simply says it is not quite as bad as places like Myanmar and the Sudan.  That's not much to brag about.

I'm not sure I think boycotting the Olympics is that best course of action, although I think the decision to allow China to host the Olympics was a bad one.  I admit to being less than unbiased on this subject; the time I spent living in Tibetan communities has made me somwhat sensitive to China's treatment of the Tibetans in particular.  But, from any standpoint, I think it hard to come to a conclusion other than that the engagement strategy has been a failure.

April 28, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Bill Stuntz on America's Huge Prison Population


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

H. Res. 821 on China and religious freedom

Rep. Thad McCotter, of Michigan, has introduced H. Res. 821, "Condemning Communist China's discrimination, harassment, imprisonment, torture, and execution of its prisoners of conscience".  Here's the bill text.  Here're the opening paragraphs:

Whereas according to the United States Commission on International Religious Freedom's (`USCIRF') 2007 Annual Report, `All religious groups in China face some restrictions, monitoring, and surveillance, ... and religious freedom conditions deteriorated for communities not affiliated with one of the 7 government-approved religious organizations, ... and those closely associated with ethnic minority groups. Religious communities particularly targeted include ... `underground' Roman Catholics, `house church' Protestants, and various spiritual movements such as Falun Gong';

Whereas according to the USCIRF 2007 Annual Report, in Communist China, `There continue to be reports that prominent religious leaders and laypersons alike are confined, tortured, `disappeared', imprisoned, or subjected to other forms of ill treatment on account of their religion or belief';

Whereas according the United States Congressional-Executive Commission on China's 2007 Annual Report, `The Commission noted a more visible trend in harassment and repression of unregistered Protestants for alleged cult involvement starting in mid-2006 ...' and `an increase in harassment against unregistered Catholics starting in 2004 and an increase in pressure on registered clerics beginning in 2005';

Whereas according to the United States Department of State's 2006 Country Report on Human Rights practices in China, `Government officials continued to deny holding any political prisoners, asserting that authorities detained persons not for their political or religious views, but because they violated the law; however, the authorities continued to confine citizens for reasons related to politics and religion';

Whereas according to Chapter II Article 36 of the constitution of Communist China, `No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion';

Whereas according to Article 18 of the Universal Declaration of Human Rights, `Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance'; . . .

I don't know how "politic" this kind of stuff is.  Still, I say "bravo".  Also, I don't know whether it makes sense to boycott the 2008 Olympics entirely, or if the cause of human rights in China is better served through "engagement" (or, "massive transfers of money through consumer spending") or condemnation.  At the end of the day, perhaps the best course is the former.  Still, this is a powerful image:

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

Charles Taylor on religion and "critique"

Here is Charles Taylor, over at The Immanent Frame:

What are we to think of the idea, entertained by Rawls for a time, that one can legitimately ask of a religiously and philosophically diverse democracy that everyone deliberate in a language of reason alone, leaving their religious views in the vestibule of the public sphere? The tyrannical nature of this demand was rapidly appreciated by Rawls, to his credit. But we ought to ask why the proposition arose in the first place. . . .

The state can be neither Christian nor Muslim nor Jewish; but by the same token it should also be neither Marxist, not Kantian, not Utilitarian. Of course, the democratic state will end up voting laws which (in the best case) reflect the actual convictions of its citizens, which will be either Christian, or Muslim, etc, through the whole gamut of views held in a modern society. But the decisions can’t be framed in a way which gives special recognition to one of these views. This is not easy to do; the lines are hard to draw; and they must always be drawn anew. But such is the nature of the enterprise which is the modern secular state. And what better alternative is there for diverse democracies?

Now the notion that state neutrality is basically a response to diversity has trouble making headway among “secular” people in the West, who remain oddly fixated on religion, as something strange and perhaps even threatening. This stance is fed by all the conflicts of liberal states with religion, past and present, but also by a specifically epistemic distinction: religiously informed thought is somehow less rational than purely “secular” reasoning. The attitude has a political ground (religion as threat), but also an epistemological one (religion as a faulty mode of reason). . . .

There's a lot more.  At Balkinization, Andy Koppelman has posted some thoughts in response:

Taylor’s analysis implies that absolute neutrality is unattainable. Any state position will rely on some common ground, and no common ground is universal.

The answer to this puzzle, I think, is to note that there exist a large variety of possible modes of neutrality. The absolute neutrality toward all conceptions of the good proposed by Ronald Dworkin and Bruce Ackerman are only one available flavor of neutrality.

The range of possible justifications for any version of neutrality is broad. The following is a crude taxonomy of typical strategies of argument. It probably does not exhaust the possibilities, and arguments for neutrality typically rely on more than one of these moves.

One strategy is the argument from moral pluralism, which holds that there are many good ways of life and that the state should not prefer any of these to any other. Another is the argument from futility, which holds that some perfectionist projects are doomed to failure. The argument from incompetence holds that the state should be neutral about things that it is likely to get wrong. The argument from civil peace proposes that some issues be removed from the political agenda in order to avoid destructive controversy. Finally, the argument from dignity argues that some political projects fail to properly respect citizens’ capacity for free choice.

Different formulations of these arguments have persuaded different people. Everyone probably accepts most of these five arguments for neutrality, at least in some form, as applied to some question. Conceptual analysis cannot, of course, say whether or in what form you ought to accept them. There is probably an infinite number of ways in which any of them could be formulated, and an infinite number of ways in which those formulations could be combined. Shifting from any formulation of each rationale to a slightly different one will probably yield a slightly different prescription for neutrality. Neutrality is not a fixed point, but a multidimensional space of possible positions.

Both of these posts are well worth reading in full.

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

Friday, April 25, 2008

John Green (Pew Forum) on Catholics and Obama

Apropos the Sisk/Shiffrin exhange on Obama's problems with Catholic voters, here are thoughts on the subject from religion and voting expert John Green of the Pew Forum on Religion and Public Life.

April 25, 2008 in Berg, Thomas | Permalink | TrackBack (0)

Spring and Fall and the Catholic Vote in the Presidential Race

In response to my post charting the trends in the Catholic vote during the Democratic Presidential primaries, Steve Shiffrin argues that “[w]hat the Democratic primaries show is that Obama loses the Catholic vote to Clinton. That data shows little about how Obama would do with the Catholic vote against McCain.” I appreciate his kind response to my posting (it's nice to know that someone actually read it), and I acknowledge his forceful point.

Looking at the data alone, Steve is right — mostly. How Democratic primary voters allocate themselves among Democratic candidates would not ordinarily tell us much of anything about how those Democratic primary voters would respond to a later general election between one of those Democratic candidates and the Republican contender. Still, looking only at the data in this remarkable case, the lop-sided distribution of the numbers — showing Senator Obama losing the Catholic vote by margins that now exceed 40 points — and the persistence and stability of similar numbers from state to state do suggest something quite powerful and enduring is at work here. An empirical scholar seeing such a dramatic slope of the data in one direction would hypothesize that a significant variable (or set of variables) is at work, some powerful influence that may serve as an explanatory model.

While the data by themselves are only descriptive — showing, as Steve rightly says, only that Senator Barack Obama loses the Catholic vote to Senator Hillary Clinton — the insistent and more interesting question is what has caused these sizeable loses. What has influenced Catholic voters to turn away from Obama in such overwhelming numbers and will those significant factors translate into influences on voting trends in the different context of the fall election? On this question of influence, we move away from empirical analysis (absent a better set of well-measured variables and a better specified model with which to work than is available through exit polling results at present) and into the realm of interpretation and judgment. Here our opinions and impressions, which may be better or less informed, will play a substantial role in our evaluation of what is happening on the ground in the Democratic primaries — and why.

So I’d invite our readers to ask the following questions and answer them for yourselves, based on your own observations of the candidates, information about the campaign, and knowledge of the Catholic electorate (which of course is hardly monolithic, as Steve rightly says):

• What are the variables giving rise to Clinton’s huge victories over Obama among Catholic voters? Are Catholic voters powerfully attracted toward Clinton, meaning that these primary results reflect little aversion toward Obama (and thus tell us little about how these voters will respond in the general election should Clinton then drop out of the picture)? Or are Catholic primary voters strongly turned-off by Obama, finding him unpalatable as a candidate?

• If it is the latter, are these causes of alienation from Obama likely to persist into the fall election? Indeed, is it possible that additional factors relevant to this estrangement will emerge or be emphasized in the fall campaign, factors that were not fully explored in the Democratic primaries or on which there was little contrast between the Democratic candidates?

• And, finally, even if the Catholic margin against Obama’s candidacy is a direct rejection of him as a candidate for reasons that have continuing resonance in the general election, is Senator John McCain likely to fare better on those factors and become an acceptable (or at least less objectionable) alternative for these voters?

If the answers to these interpretive questions are unfavorable for Obama, to a greater or lesser degree, then the large margins of defeat for Obama among Catholic voters in the primary may well presage a dismal outcome for him in the November election (at least among Catholic voters, who usually side with the winner).

In my prior postings (here and here), I’ve offered my own tentative analysis, impressions, and speculations on some of these matters. I won’t repeat that here. Yes, I do agree that every prognostication in such a dynamic phenomenon as a political campaign is risky, and thus my attempts to extrapolate from the data into the future are fairly subject to debate and disagreement or dismissal. Still, if those in the Obama campaign believe his landslide losses among Catholic voters in the primaries carry no message for the fall election, I gotta tell ya — I think they are whistling past the graveyard.

Greg Sisk

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