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.

Monday, June 30, 2008

What Teenage Girls Read

A post on the Feminist Law Professors blog reported the author's experience of looking for a book to give a 12-year old girl as a gift.  What she found in her local Barnes & Noble bookstore, "were shelves of books promoting vanity, consumerism and sex. The titles were things like Gossip Girl and Cheetah Girls. After reading the cover summaries it seems that in order to encourage reading in our teen girls we have to expose them to the promotion of celebrity worship, buying designer handbags, gossiping about your friends, and having sex to be popular."

I asked my 15-year old daughter her reaction to this.  She reports that it is the case that the bulk of books in the teen section of our local Barnes and Noble consist of things like Gossip Girl and Cheetah Girls.  Fortunately, she also reports that one can, in fact, find wonderful books the encourage and inspire girls beyond the sorts of things promoted in the teen series.  Why it takes such work to find such books is another matter.

For those looking for some good books for teen girls, I share some of Elena's suggestions: Chinese Cinderella, by Adeline Yen Mah; The Great Good Thing, by Roderick Townley; The Book Thief, by Markus Zusak; and The Beekeeper's Apprentice, by Laurie R. King (one of Elena's favorites)

June 30, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Church Autonomy and the Virginia Episcopalian Unpleasantness

          A Virginia trial judge has ruled that conservative breakaway congregations from the Episcopal Church in Virginia should keep their property.  (HT: Christianity Today)  The judge relied on and upheld the constitutionality of an 1867 Virginia statute providing that whenever church property involving a congregation is held in the name of trustees, the majority of the congregation determines who gets the property.  This, the court held, was a permissible "neutral principle of law" for resolving intra-church property disputes, of the sort approved by the Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979).
          In these disputes over property arising from a schism, the issue for churches in which congregations belong to larger bodies with religious authority over them -- the Catholic Church quintessentially, but others as well -- is how to ensure that such an authority relationhip is respected by a civil court.  Jones v. Wolf had said that this was no problem because higher bodies or denominations could use general legal rules to put title in their name or create trusts in their favor.  The Episcopal Church created such an express trust for its parishes in favor of the diocese and general church.  But according to the Virginia court, trusts for religious denominations are invalid under state law.  Instead the general church should have put title in the name of the diocesan bishop, as Catholics do, or perhaps incorporate every parish.
          I'm not up on all the details of this litigation, but the decision raises several concerns.  The idea that it's no burden to be blocked from the express-trust route of maintaining control because you can put title in the bishop's name seems a dangerous restriction on churches' ability to structure themselves to reflect their religious understandings about polity.  In Virginia, the logic may force all churches to organize themselves either like Baptists (congregation wins) or like Catholics (bishop has formal title), when other churches may have religious reasons for preferring the route of local control but subject to a trust.  More generally, a restrictive rather than flexible attitude toward how religious organizations can reflect their polity in legal terms is bad for religious autonomy in general, and should be of concern to Catholics too.
          The trigger for these cases, of course, is the withdrawal of conservative congregations from the national church because of its liberal decisions, particularly but not only the ordination of an openly gay bishop.  My final worry is that theological traditionalists, cheering these property cases based on their immediate effect, will make law that is bad more generally for the autonomy of religious organizations from state restrictions.  That could well harm traditionalist Christianity more in the long run, since, as we are quite aware here on MOJ, traditionalist churches often run up against liberal- or secular-oriented regulation and look to constitutional autonomy doctrines to protect them.
          ADDENDUM:  I meant to congratulate Steffen Johnson and Gene Schaerr, my friends at Winston & Strawn, who won this case for the breakaway congregations.  They have been strong defenders of church autonomy over the years, and they made arguments that would preserve some options for higher church bodies/denominations to use legal rules to retain control over property.  But I still remain concerned about state rules that cut off certain kinds of organizational options, like trusts, for the higher body.

June 30, 2008 in Berg, Thomas | Permalink | TrackBack (0)

Justice Breyer and the "culture wars"

Orin Kerr has an interesting post, at the Volokh Conspiracy, comparing Justice Breyer's opinions in the school-voucher and gun-control cases.  In the former, remember, Justice Breyer concluded that, even conceding that the relevant legislature could reasonably have thought there were good policy reasons for school choice in Cleveland, the threat of "political divisiveness along religious lines" was too great, and so the voucher program was unconstitutional.

Contrast Breyer's Zelman dissent with his dissent in Heller. Here, the polarity of the culture wars has been reversed. And so has Justice Breyer's approach: Now he reasons that the possibility of a positive social impact of the law makes it constitutional. The political philosopher of Zelman is replaced with a careful and cautious social scientist who runs over pages and pages of statistics and scientific studies in Heller. So long as the legislature had a possible basis for thinking that restricting the constitutional right was a good idea, Breyer explains, the law should be upheld . . .

It's an interesting mirror image, I think. When the culture wars pointed one way, Justice Breyer thought that a "risk" of a "potentially harmful" adverse result was enough to strike the law down. When the culture wars pointed in the other direction, so did the burden of proof: now Justice Breyer must have his "confidence" in the reasonableness of the legislature "convincingly" "destroyed" before he would vote to strike down the law.

  To be clear, I'm not suggesting that Justice Breyer is alone in taking different approaches depending on which side of the culture wars the challenged law happens to fall. Plainly he is not. At the same time, I do think the contrast between these two dissents provides an unusually clear case of the difference.

All the more reason to think (as I've argued) that judges should not decide constitutional cases on the basis of predictions about "divisiveness".

June 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

"Methodist Retreat Against Gays"

"Civil Union Dispute Pits Methodist Retreat Against Gays Who Aided in Its Rebirth," announces the headline of this New York Times piece.  The "Ocean Grove Camp Meeting Association" does not want to permit "civil union ceremonies from taking place on its property."  And so, it is being investigated by the state's Division on Civil Rights.  More:

Since 1989, Ocean Grove’s beach, boardwalk and oceanfront road have received tax-exempt status under the New Jersey Department of Environmental Protection’s Green Acres Program, which was created to encourage use of privately owned space for public recreation and conservation. In its original application for the exemption — which saves the group about $500,000 a year and is up for renewal on Sept. 15, according to Bernard Haney, the Neptune Township tax assessor — the association noted that the properties were open to the public and that the pavilion had been used by outside groups.

Some see an inherent conflict between the association seeking tax-exempt status as a public open space with one state agency while suing another state agency for violating its rights as a private religious group.

This story suggests, it seems to me, that it is not unreasonable to be uneasy about, at the very least, the future tax-exempt status of religious institutions that refuse to assimilate same-sex relationships and marriages.

June 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Babies and Europe's future

An interesting read -- "No Babies?" -- in the Times magazine this weekend.  A bit:

There is no shortage of popular explanations to account for the drop in fertility. In Athens, it’s common to blame the city’s infamous air pollution; several years ago a radio commercial promoted air-conditioners as a way to bring back Greek lust and Greek babies. More broadly and significant, social conservatives tie the low birthrate to secularism. After arguing for decades that the West had divorced itself from God and church and embraced a self-interested and ultimately self-destructive lifestyle, abetted above all by modern birth control, they feel statistically vindicated. “Europe is infected by a strange lack of desire for the future,” Pope Benedict proclaimed in 2006. “Children, our future, are perceived as a threat to the present.”

Sigh.  Does the writer really think the Pope is thinking, "I feel statistically vindicated!"  This will likely ring true to many MOJ-ers:

The broad answer to the “Where are all the European babies?” question thus begins to suggest itself. Accompanying the spectacular transformation of modern society since the 1960s — notably the changing role of women, with greater opportunities for education and employment, the advent of modern birth control and a new ability to tailor a lifestyle — has been a tension between forces that, in many places, have not been reconciled. That tension is perfectly apparent, of course. Ask any working mother. But some societies have done a better job than others of reconciling the conflicting forces. In Europe, many countries with greater gender equality have a greater social commitment to day care and other institutional support for working women, which gives those women the possibility of having second or third children.

But then, a twist:

one other factor affecting the higher U.S. birthrate stands out in the minds of many observers. “There’s much less flexibility in the European system,” Haub says. “In Europe, both the society and the job market are more rigid.” There may be little state subsidy for child care in the U.S., and there is certainly nothing like the warm governmental nest that Norway feathers for fledgling families, but the American system seems to make up for it in other ways. As Hans-Peter Kohler of the University of Pennsylvania writes: “In general, women are deterred from having children when the economic cost — in the form of lower lifetime wages — is too high. Compared to other high-income countries, this cost is diminished by an American labor market that allows more flexible work hours and makes it easier to leave and then re-enter the labor force.” An American woman might choose to suspend her career for three or five years to raise a family, expecting to be able to resume working; that happens far less easily in Europe.

So there would seem to be two models for achieving higher fertility: the neosocialist Scandinavian system and the laissez-faire American one. Aassve put it to me this way: “You might say that in order to promote fertility, your society needs to be generous or flexible. The U.S. isn’t very generous, but it is flexible. Italy is not generous in terms of social services and it’s not flexible. There is also a social stigma in countries like Italy, where it is seen as less socially accepted for women with children to work. In the U.S., that is very accepted.”


June 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Churches and Sprawl

Eduardo raises some interesting questions in his post, "Churches and Sprawl."  Among other things, he asks:

Would it make sense for the Church to impose a moratorium on opening new suburban parishes in an effort to avoid encouraging Catholics to move out to places where they are guaranteed to spend a lot of time driving?

As Eduardo himself notes, I suspect that, in the Catholic case, parishes are following people.  And, once Catholics are in the suburbs, it would be kind of, well, un-Catholic to tell them that they have to drive to "their" parishes for the sacraments.  Still, I'm a partisan for cities, and think the Church *does* have a role to play here.  It will not likely surprise any MOJ readers to learn that, in my view, the Church could help reduce sprawl by investing in urban Catholic schools.

June 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

The Death Penalty and Deterrence

Check out this op-ed by Cass Sunstein and Justin Wolfers on the death penalty and deterrence.  (We've discussed -- here and here, for example -- Sunstein's claims about these matters before here at MOJ.)  Here's the basic point:

A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.

We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?

We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.

I agree.  And, I think this is advice that those who write on crime and punishment for the Catholic bishops should take to heart.  That is -- as I explain here -- I worry about pastoral teaching on capital punishment that makes too much depend on contestible claims about deterrence.

June 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

A Breast Cancer Free Child! At What Cost?

The Sunday Times reports:

A woman has conceived Britain’s first baby guaranteed to be free from hereditary breast cancer.

Doctors screened out from the woman’s embryos an inherited gene that would have left the baby with a greater than 50% chance of developing the cancer.

The woman decided to have her embryos screened because her husband had tested positive for the gene and his sister, mother, grandmother and cousin have all had the cancer.

The couple produced 11 embryos, of which five were found to be free from the gene. Two of these were implanted in the woman’s womb and she is now 14 weeks pregnant.

For the rest of the story...

June 30, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Human Dignity, the Death Penalty, and Abortion

If I were a member of Louisiana's legislature, I would vote to repeal that state's laws that permit the death penalty for rape of a child. (As an opponent of the death penalty, I would vote to repeal all laws permitting the death penalty).  I would, however, be unhappy with the Supreme Court for taking that decision from the people of Louisiana because I am not persuaded by the reasoning in Kennedy v. Louisiana.  Exploring the reasons for these two positions may be for another day.

Here, I want to mention two sentences in the majority opinion.  Echoing (if memory serves me) the death penalty dissents of Justices Marshall and Brennan, Justice Kennedy writes:  "Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule" (Slip op. at 9) and "It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment" (Id. at 25).

I pray that the Court uses this same logic in future abortion cases. 

I sometimes feel like I'm in Wonderland with Alice.  In this strange land, state legislatures are prohibited in the name of human dignity from putting those who commit heinous crimes to death.  And, those same legislators are prohibited (in the name of a false notion of dignity?) from protecting the most innocent, weak, and vulnerable human beings. 

June 30, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

"Can Obama Do It for Catholics?"

Interesting article in this week's The Tablet, here.

June 30, 2008 in Perry, Michael | Permalink | TrackBack (0)