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, December 23, 2008

Is the Inauguration prayer an exercise in pluralism?

Michael envisions the Christian prayer and oath-taking at the Inauguration as an exercise in American pluralism, and I find that vision to be very attractive.  But I'm not sure if we're far enough along in our national sense of religious pluralism for that vision to be accurate today.  I don't have sound empirical data on this question, but at least judging from my conversations with many friends and relatives, a lot of Americans cherish the Christian prayer and oath-taking at the Inauguration not as an expression of the President's personal faith, but as a collective expression of our nation's faith.  The majority's view of these ceremonial exercises directly informs the minority's view.  Witness the storm caused a couple of years ago when my congressman, Keith Ellison, decided to take the (ceremonial) oath on the Qur'an.  Many non-Christians respond to the Christian prayer at the Inauguration as a message of exclusion because many Americans view the prayer as the nation's prayer, not Barack Obama's prayer. 

I'm not quite ready to offer a coherent or compelling framework for resolving this issue, though.  I would be troubled if prayer was banished from the Inauguration completely, even though I admit that any prayer is bound to alienate the agnostic/atheist citizen.  Perhaps our diversifying religious landscape will make Michael's vision (and mine) a reality sooner than we think.

December 23, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Responsibilities of Religious Majorities

There are varieties of thin pluralism in Michael Scaperlanda’s sense.  I believe, for example, that citizens properly act on their religious views in arriving at political opinions and actions, and that children should be taught about religion including the ways in which religion affects politics and about world religions in general. In addition, I regard it as obvious that an incoming President should be able to swear on the religious text of his or her choice – or to affirm instead of swear. On the other hand, I wish I lived in a country in which civic occasions were not marked by prayers to God that inherently discriminate against Buddhists, Hindus, atheists, and agnostics. I do not, but I believe religion would be better off if it were not so used.
Michael says that, “Since religion is not a purely private matter, faith will have (and should have) some public expression.” As I suggested in the last paragraph, I agree, but it does not follow that that public expression should take the form of Christian prayer in an inauguration. “In God We Trust” appears on our coins; that is no warrant for “In Christ We Trust” on the coins. That Christians are in the majority is all the more reason for them to respect the concerns of religious minorities.   Religious minorities are often reminded that they are outnumbered. Their noses should not be rubbed in it on inauguration day.

December 23, 2008 | Permalink | TrackBack (0)

When does a conscience claim look like a "conscience" claim?

Rick wonders why some journalists feel the need to put scare quotes around "conscience" when it comes to claims by pro-life health care providers:

My own impression is that many in the press -- specifically, those who insist on putting "scare quotes" around "conscience" (when they surely would not do so in a story involving, say, a placard-making company that did not want to provide anti-gay hate-signs to Fred Phelps) -- simply do not concede that conscience could ever lead one to conclude that one ought not to cooperate in the provision of a particular product or that, if it ever does, it is, to that extent, not worthy of protection.

I share Rick's skepticism, and I would guess that most journalists' use of scare quotes reflects more about their view of the substantive merits of the particular claim at issue, rather than some overarching understanding of what an authentic view of "conscience" might look like.

That said, in some cases, a journalist might be justified in wondering -- and in feeling a corresponding need to signal their uncertainty regarding -- whether a given provider's claim should be treated as a conscience claim.  Traditionally, conscience claims within the American legal system have been claims of negative liberty invoked on an individual's behalf against the government.  We do not allow the state to force a student to recite the pledge of allegiance, for example. 

But the label "conscience" has been expanded far beyond the individual-versus-state-negative-liberty paradigm.  Many providers are invoking a right of conscience to compel non-state entities to accommodate their moral convictions to an extent that changes the basic expectations and responsibilities of the jobs for which they've been hired.  If we're using conscience as a positive liberty against non-state entities, is it still a "conscience" claim?  Should a Scientologist pharmacist be able to demand that a pharmacy hire him even if he won't fill any prescriptions for anti-depressants, thereby forcing the pharmacy to keep an additional pharmacist on duty or losing the anti-depressant revenue stream?  Should an evangelical Christian bus driver be able to choose which bus he operates based on whether he has a moral objection to the content of the bus's advertisements?  Should a Muslim cashier be able to keep her job at a grocery store even if she refuses to handle pork products? 

Do all of these disputes implicate conscience?  I think they do.  Our traditional notion of conscience was unhelpfully cramped.  But I can sympathize with folks who are having a hard time navigating -- and articulating as objectively as possible -- the unfolding conscience landscape.  For Americans steeped in the image of conscience protecting the brave and lonely individual standing up to state power, it's no wonder why some of today's battles look more like "conscience" than conscience.

December 23, 2008 | Permalink | TrackBack (0)

More on conscience

My post, a few days ago, about the Administration's new regulations regarding the conscience-rights of health-care workers sparked a lively debate over at Prawfsblawg.  For more on the subject, check out this short essay, "Aborting Conscience", by Robby George, over at Public Discourse.  A bit:

In its recent report on the role of conscience in medicine, the American College of Obstetricians and Gynecologists discussed whether or not physicians should be allowed to follow their consciences in refusing to perform morally contested procedures like abortion. Perhaps most controversially, the report suggested that in some cases physicians should be compelled to perform abortions. Why is this problematic?

The first thing one notices about the ACOG Committee report is that it is an exercise in moral philosophy. It proposes a definition of conscience, something that cannot be supplied by science or medicine. It then proposes to instruct its readers on “...the limits of conscientious refusals describing how claims of conscience should be weighed in the context of other values critical to the ethical provision of health care.” . . .

In defending its proposal to compel physicians in the relevant fields to at least refer for procedures that physicians may believe are immoral, unjust, and even homicidal, the report said that such referrals “need not be conceptualized as a repudiation or compromise of one’s own values, but instead can be seen as an acknowledgement of both the widespread and thoughtful disagreement among physicians and society at large and the moral sincerity of others with whom one disagrees.”

So suddenly it’s the case that the underlying issues at stake, such as abortion, are matters of widespread and thoughtful disagreement, and I myself agree with that. And it becomes clear from the report that we should show respect for the moral sincerity of those with whom we disagree. But it seems to me that it follows from these counsels that thoughtful and sincere people need not agree that abortion, for example, is morally innocent or acceptable or that there is a “right” to abortion or that the provisions of abortion is part of good health care or is health care at all, at least in the case of elective abortions.

But then what could possibly justify the exercise of coercion to compel thoughtful, morally sincere physicians who believe that abortion is a homicidal injustice either to perform the procedure or make a referral for it, or else leave the practice of medicine? The report’s “my way or the highway” attitude is anything but an acknowledgement of the widespread and thoughtful disagreement among physicians and society at large and the moral sincerity of those with whom one disagrees. Indeed, it is a repudiation of it.

December 23, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Prayer at the Inauguration

Steve Shiffrin writes that "non-Christians will be alienated – as they should be" by prayers at the inauguration offered in the name of Jesus Christ.  I agree wholeheartedly with Steve S. that some will, like Steve, read the offereing of such a prayer as divisive, laced with an implicit message that non-Christians are in some sense outsiders.  But, my questions are why and how.  Why is this divisive?  How does it send an implicit message to non-Christians that they are outsiders?  Under this logic, isn't having a prayer at all alienating to the atheist? 

In this post, I am trying to think through what it means to live in a pluralistic society, especially when that society stages public pageants like the inauguaration of a president.  Perhaps Steve and others can help me think through this question.

In one form of pluralism, what we might call thin pluralism, the public square and especially public ceremony must be cleansed of anything that divides us so as to avoid offense.  I witnessed this (or at least I think I did) last week when I went to a public elementary school pre-"winter" break production.  When I was a kid in public school, we'd sing Christmas carols, including "Go Tell on the Mountain," etc. on these occasions.  But, in 2008 at this particular school, the production was K-5th graders performing "Willy Wonka and the Chocolate Factory."  A society embracing thin pluralism like this would not risk alienating anyone by offering a prayer in Christ's name.  Thin pluralism would, in fact, probably counsel in favor of skipping the inauguraton prayer altogether.

Another form of pluralism, what we might call thick pluralism, would more fully embrace our diversity, inviting people to bring themselves as whole and integrated persons into the public square.  This sort of pluralism would acknowledge a) that the majority of Americans profess faith in Christ and b) that that fact matters.  The faiths of others ought to be respected, but so should the majority faith.  Since religion is not a purely private matter, faith will have (and should have) some public expression.

In a society embracing thick pluralism, a Christian president ought to be allowed to take the oath of office on a Christian Bible and ought to be able to invite Christian ministers to pray publicly in the name of Christ for him and the country he is called to lead.  If Joe Lieberman had been elected president, I would have hoped that he would take the oath on a Jewish Bible and invite rabbis to offer public prayer for him and the nation.  And, if we ever elect a Muslim president, I would hope and expect him to take the oath on the Qur'an (if that is allowed by Islamic faith?) and that the prayers offered would be offered to Allah.  In each of these cases, the President is, I hope, bringing himself fully and publicly before God and placing himself under the authority of God as he understands God, and that ought to bring the rest of us some comfort.

What do you think?

December 23, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Thoughts on the Inauguration

While many think President elect Obama made a mistake in inviting a polarizing preacher like Rick Warren (of course, there are many who are worse and his emphasis on the poor is laudable) to deliver a prayer at the inauguration.  Gays and lesbians reasonably feel insulted when a preacher who has compared same sex relations to incest and bigamy (http://www.washingtonpost.com/wp-dyn/content/article/2008/12/22/AR2008122201848.html?hpid=opinionsbox1) is invited to lead the nation in prayer at a vital public event.  I realize that many on this site espouse Warren’s views, but, for all their many fine qualities, they should not lead a prayer at the inauguration either.
There is another aspect of the inauguration that will receive less commentary, but it should not go unnoticed.  If the coming inauguration is like the inaugurations of George Bush and Bill Clinton, the preachers will make their prayers in the name of Jesus Christ.  In a ceremony that should have the function of bringing a divided nation together, the implicit message will be sent that Jews, Muslims, Hindus, and Buddhists are outsiders, not full fledged members of the polity.  No evangelical purpose will be served; indeed, non-Christians will be alienated – as they should be. Christian prayers at a government ceremony like the inauguration are unnecessary, insensitive, and counterproductive.

December 23, 2008 | Permalink | TrackBack (0)

Monday, December 22, 2008

A Consistent Ethic of Life

'Seamless garment' marks 25th anniversary
Fr. Richard McBrien

National Catholic Reporter
December 22, 2008

December 22, 2008 in Perry, Michael | Permalink | TrackBack (0)

Sunday, December 21, 2008

A Sign of Respect and Civility: President-Elect Obama’s Selection of Pastor Rick Warren to Deliver the Invocation at the Inauguration

President-Elect Obama’s choice of Saddleback Church Pastor Rick Warren to deliver the invocation at Obama’s upcoming inauguration has engendered considerable controversy among many of his supporters, especially in the gay community.  For those of us who encourage the integration of faith and values in public life and who regularly participate in civil and principled dialogue with those who disagree passionately with us on certain questions of public moment, Obama’s choice is an inspired one.

By selecting Warren, Obama is reaching out to and expressing public respect for a person with whom Obama parts ways on one of the hottest burning embers in the culture wars.  While candidate Obama said that he opposed same-sex marriage, no one really believed that he was genuinely so opposed, notably among his backers in the gay community who understood his professed opposition as a political necessity rather than a sincerely held stance.  Indeed, after the California Supreme Court legalized gay marriage, Obama spoke favorably of the decision and then later opposed Proposition 8.

By contrast, Rick Warren has been a clear, principled, and compassionate voice in support of traditional marriage and thus in support of Proposition 8.  Consistently emphasizing God’s love for every human being as created in the image of God, Warren has been just as speaking against what he perceives as a threat to marriage and thus to the future health of our society.  Warren upholds what he sees as the central role of marriage in joining a man and woman together in raising the next generation.

People of good faith and good hearts find themselves on opposite sides of the question of whether marriage should or even may be extended beyond one man and one woman.  Here on the Mirror of Justice, good friends of a common Catholic faith disagree passionately, but civilly, on this question.  In accord with that sentiment, President-Elect Obama has selected Pastor Rick Warren to give the opening invocation and Rev. Joseph Lowery to give the closing benediction, thereby bringing together in civic unity two persons of faith with polar opposite views on this particular question.

Obama’s choice of Warren to stand before the nation and invoke God's blessings on a unified people appears to signal the incoming president’s disapproval of the increasing demonization by the political left of people of traditional faith and values.  In recent weeks, we have seen a growing tendency by some who were disappointed by the passage of Proposition 8 to smear their political opponents as bigots motivated only by malice.  Since election day, too many have wrongly characterized support for traditional marriage as “hate” and have spitefully sought to blacklist anyone who supported Proposition 8 as a bigoted deviant who should be excluded from society (and be economically punished by being fired from their jobs).  After years of criticizing the so-called religious right as “divisive” because of their political views (an accusation that demonstrated little understanding or appreciation for the principled reasons behind the positions of traditionalists on certain social issues), a publicly-prominent few on the other side have now resorted to truly divisive rhetoric and destructive scorched earth tactics.

Speaking with respect to Warren’s views, Obama defended his choice by saying:  “That’s part of the magic of this country, is that we are diverse and noisy and opinionated. . . .  That’s hopefully going to be a spirit that carries over into my administration.”  Of course, dialogue that is substantive and genuine, rather than simply for show, should inform decisions as well.  With respect to multiple imminent decisions that will affect human rights and dignity, we’ll soon see if President Obama walks the walk and does so as well as he has talked the talk.

Greg Sisk

December 21, 2008 in Sisk, Greg | Permalink | TrackBack (0)

Saturday, December 20, 2008

Lumen Christi / Law Professors' Christian Fellowship update

A slight change to the schedule of this (always great) conference:

Law Professors’ Christian Fellowship-Lumen Christi Institute

Conference on Christian Legal Thought

JANUARY 1O, 2009, 9:00 AM to 5:00 PM
Hilton Gaslamp Quarter, 401 K Street, San Diego, CA


9:00 PANEL ONE: Pluralism, Democracy and the Christian Citizen


Univ. San Diego  School of Law


Westminster Sem. California


Villanova Univ. School of Law

MARIE FAILINGER Hamlin Univ. School of Law


II:I5 PANEL TWO: Law, Disability, and the Human Person

ELIZABETH R. SCHILTZ Univ. St. Thomas School of Law

EDWARD J. LARSON Pepperdine Univ. School of  Law


Notre Dame Law School


2:00 PANEL THREE: The Mortgage and Credit Crisis from a Christian Perspective

ROBERT T. MILLER Villanova Univ. School of Law


Pepperdine University

ELIZABETH BROWN Univ. St. Thomas School of Law




FOR MORE INFORMATION, CONTACT 773-955-5887, [email protected] or [email protected]

December 20, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Who's scare(quotes)d of "conscience"

Dahlia Lithwick is not pleased with the Bush Administration's new rules protecting the conscience-rights -- or, as our leading news outlets insist on putting it, "conscience"-rights -- of health-care workers.  In her view, this solicitude is inconsistent with a South Dakota law that requires law requires abortion-providers to tell women, before performing an abortion, that they are about to "terminate the life of a whole, separate, unique, living human being" with whom she has an "existing relationship."  (I've blogged about the South Dakota law here.)  She says, "[r]eading the new HHS regulations together with the mandatory South Dakota 'script,' one can only conclude that those same health providers who cannot be compelled to perform an abortion may nevertheless be compelled to deliver misinformation about it." 

I agree that no one ought to be required to "deliver misinformation".  The question, I suppose, is whether there is a truth to the matter whether an unborn child is a "whole, separate, unique, living human being".

Emily Bazelon, who has also written often about this and similar disputes, contends, at slate.com, that we should "refrain from calling this 'the conscience rule,' as the administration urges. It's really a rule about why your conscience is better than my conscience."  This is not convincing.  The conscience of a person seeking an abortion, or Plan B, or some other procedure or product is not burdened by the refusal of a particular person to provide it.  (This is not to say that such a refusal might not cause inconvenience and even hardship.  But, that is not the same thing.)  

My own impression is that many in the press -- specifically, those who insist on putting "scare quotes" around "conscience" (when they surely would not do so in a story involving, say, a placard-making company that did not want to provide anti-gay hate-signs to Fred Phelps) -- simply do not concede that conscience could ever lead one to conclude that one ought not to cooperate in the provision of a particular product or that, if it ever does, it is, to that extent, not worthy of protection.

There are, of course, arguments that can be made, and that should be taken seriously, against regulations like the ones promulgated by the Administration.  (See the many posts by Rob Vischer on this and similar issues.)  But the constant "scare quotes" are a cheap shot, and Bazelon's "more important than" argument strikes me as weak.    

December 20, 2008 in Garnett, Rick | Permalink | TrackBack (0)