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.

Friday, February 13, 2009

"Hands Off" Religious Doctrine

In January 2008, the AALS Law and Religion Section's program examined the rule, or claim, that the Constitution requires government to adopt a "hands off" approach to religious doctrine.  The papers -- by Kent Greenawalt, Sam Levine, Andy Koppelman, Chris Eisgruber & Larry Sager, Bernie Meyler, and me -- have been published in the Notre Dame Law Review, and are available here.  Take a look!

February 13, 2009 in Garnett, Rick | Permalink | TrackBack (0)

"Best practices" in health care

Last month the UK's Department of Health issued a guide on religion for British health care providers.  Much of it is unobjectionable and unsurprising (proselytizing=boo! raising awareness=yay!), but one section stopped me in my tracks.  In the section headed "trans people," the Department notes that because some religions "do not embrace" "trans people," providers "may be faced with a situation where a member of staff objects to working with or treating a trans person on the grounds of their religious beliefs."  In such cases, "anti-discrimination and bullying and harassment policies should be equally applied."  Fair enough, but then the Department gives the following "Good practice example," quoting from a recent news story:

"A bishop gave his blessing yesterday to a vicar who is to have a sex change operation before resuming his ministry as a woman.  The Rev Peter Stone, 46, who will be known as Carol, is the first priest serving in the Church of England to have 'gender redesignation' treatment.  The Bishop of Bristol, Rt Rev Barry Rogerson, said there were 'no ethical or ecclesiastical legal reasons why the Rev Carol Stone could not continue in ministry in the Church of England.'  He said he had researched the issue of trans and consulted Lambeth Palace before approving Mr. Stone's continued ministry.  Mr. Stone has the 'overwhelming support' of his congregation . . . ."

Why exactly is the Church of England's decision to allow a transgendered priest to continue his/her ministry an example of best practices cited by the government to guide all British health care providers?  Seems to be a not-so-subtle suggestion that providers who have religious objections to sex change procedures are not just potential threats to patient autonomy (which is the traditional concern), but that their religious objections are groundless.

February 13, 2009 | Permalink | TrackBack (0)

The wisdom of repugnance . . .

. . . should cause one to recoil, it seems to me, from this

Want a daughter with blond hair, green eyes and pale skin?

A Los Angeles clinic says it will soon help couples select both gender and physical traits in a baby when they undergo a form of fertility treatment. The clinic, Fertility Institutes, says it has received "half a dozen" requests for the service, which is based on a procedure called pre-implantation genetic diagnosis, or PGD.

It is a familiar story:  Moralists warn about dehumanization-through-technology, the smart set tut-tuts, shakes its head, and chides the moralists for being alarmist.  "It won't come to that; we care about human dignity too, you know."  And then, it comes to that.

February 13, 2009 | Permalink | TrackBack (0)

Thursday, February 12, 2009

"Adios" y "Salud", Eduardo. Que te vaya bien.

Eduardo takes a parting shot at me, but one that has significance for America today. Are those who foment hatred of religion responsible in some way for ensuing violence, especially if they later seem to condone and even endorse it?

Here's what Eduardo writes: "Richard has not provided any evidence to support his repeated assertion that the republican government somehow approved of the violence directed at the Church, even the violence that occurred in the months leading up to the military's uprising.  It's ludicrous to me to suggest that the republican government somehow bore the blame for violence that resulted from its inability to maintain order when that inability was calculatedly fostered by its enemies, including those on the far right and the far left, who wanted to see it fail...."

Here are the facts, as reported in Hugh Thomas's history of the Spanish Civil War, which Eduardo has accepted as reliable: By the time of the Republic, 1931, "Spanish liberalism had come to look on the church [sic] as a scapegoat for all Spain's ills." [p.73] "Religious education was to end." [id.] By the elections of 1833, in "hundreds of pueblos, the great issue was religion...Acting sometimes in anticipation of the government, local councils had often abolished certain processions." One priest was charged by a socialist magistrate with "public display" of religion, because he had said Mass in a church "whose roof had been destroyed by lightning." "Another priest was fined as a monarchist for alluding to the Kingship of God..." [101] After the leftist revolutionary uprising of 1834, to the Spanish middle class "it seemed that anything, even a military dictatorship, was preferable to disintegration." [138] Yet the first act of the new leftist prime minister was to sign an amnesty decree. [151] By 1936, the socialist leader and former Republican labor minister, Largo Caballero, had become known as the "Spanish Lenin". He "moved about Spain making declamatory prophecies to wildly cheering crowds that the hour of revolution was near." [155]  Since the government "needed the votes of the socialists to remain in power.. they could do nothing aginst the socialist youth... Day after day, the tension was maintained by news of a murder here, an attempted lynching there, a church, nunnery, or newspaper office burned down..." [159] When on July 13, 1936, Calvo Sotelo, the leader of the parliamentary opposition, was murdered by members of the regular police, after apparent threats by his leftist colleagues, "Republicans of the Right or center ...could not contemplate loyalty... The president of the Catholic student association..., who had previously upheld the line of non-violence, decided that St. Thomas would have accepted a rebellion as just." [198] (The military uprising began sporadically on July 18; by late 1936, Largo Caballero had become prime minister.)

Eduardo minimizes the martyrdom of the Church, writing that "the limited violence directed against the Church prior to the uprising can in no way explain or justify in any moral sense the utter brutality of the nationalists' tactics." I agree with Eduardo that even extreme anti-religious violence cannot "justify" the later brutality of many on the nationalist side, but i do think it helps "explain" it. Consider not only what Thomas has said above but also this: At about the same time that the military uprising was gradually gaining control in various cities, revolution "was sweeping through the towns where the nationalist uprising had either been defeated or where it had not occurred....Their passions were directed first against the church....Practically nowhere [however] had the church taken part in the uprising." [257] "At no time in the history of Europe, or perhaps even of the world,has so passionate a hatred of religion and all its works been shown." [261-62, emphasis added] "Rosary beads were forced into monks' ears till their eardrums were perforated....A crucifix was forced down the mouth of a mother of two Jesuits." One parish priest told his captors "'I want to suffer for Christ.' 'Oh do you,' they answered....They stripped him and scourged him mercilessly. Next they fastened a beam of wood on their victim's back, gave him vinegar to drink, and crowned him with thorns... His last request was to die facing his tormentors so that he might die blessing them." [260-61] Popes John Paul II and Benedict XVI have beatified nearly 1000 such martyrs, but (I believe) many more petitons await action.

Are there any parallels we can see developing today? Unfortunately, yes. Hatred and contempt for religion has become commonplace in the last twenty years or so, with a certain twist: The haters call the hated "haters." The new Administration has threatened to limit or eliminate conscience protections, forcing religious institutions to close  Persecution of Mormons and other opponents of gay marriage goes uncondemned by relevant authorities. And no one can suggest that  these developments are merely a reaction to some rightist military conspiracy to seize power.

February 12, 2009 | Permalink | TrackBack (0)

4th Annual Edith Stein Conference at Notre Dame, Feb. 13-14

The 4th Annual Edith Stein Conference will be held at Notre Dame Feb. 13-14.  The conference title this year is "Love:  What Hurts and What Works?  Engaging Self, Society and God."  News about the conference and a link to the conference schedule can be found here.  As a proud dad, I have to mention that my daughter Anamaria was a co-founder of the Edith Stein project and conference when she was an undergraduate at ND.  And, special thanks go to Elizabeth Kirk for helping the students organize a fantastic conference.

February 12, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)

Tom Berg Presents: "Obama's Theologian"

You can listen to (en edited version of) the Georgetown gathering this week on public radio's SPEAKING OF FAITH With Krista Tippet (here).  Check your local listings; the show plays in different locales on different days and at different times.

Obama's theologian, of course, is Reinhold Neibuhr.  One of the best scholarly interpreters of Niebuhr's "Christian relaism"--perhaps the best--is Robin Lovin, whose new book is available in paperback:  Christian Realism and the New Realities (Cambridge 2008) (here).

February 12, 2009 | Permalink | TrackBack (0)

Wednesday, February 11, 2009

"Religion and Respect"

Here is a very thorough account of a recent paper, given at the University of Chicago by Simon Blackburn, called "Religion and Respect."  A bit:

This paper explores the nature of respect and its boundaries, particularly when one is confronted with false beliefs or other beliefs that one does not share. Blackburn does not get into the political implications of his theory in this paper, but it should surprise no one that his views on the subject are that religion should not have a special place in the political sphere. . . .

For Blackburn, we can tolerate people who hold false beliefs and we can tolerate the fact that they hold them, in this sense we respect them. However, we cannot respect these false beliefs in any broader sense and if we respect those who hold them, it is despite their beliefs, not in virtue of them. Blackburn asserts both that it is not the case that any belief is as good as any other belief and that those who claim this do not really mean it. . . .

February 11, 2009 in Garnett, Rick | Permalink | TrackBack (0)

"The Catholic Church and Intellectual Freedom"

This is the title of Sandy Levinson's post, over at Balkinization, reacting to (the New York Times' typically not-exactly-right presentation of) Pope Benedict XVI's recent dealings with several formerly-schismatic Catholic bishops, including one who is clearly a loathesome Holocaust denier.  Sandy writes:

But I also confess to having very mixed views on reading that the "Vatican Secretariat of State said that Bishop Williamson 'must absolutely, unequivocally and publicly distance himself from his positions on the Shoah.'" . . .

"Recantation" or "distancing" would not only raise the most severe questions about Bishop Williamson's own intellectual integrity (assuming one can use such terms with regard to a Holocaust denier); it would also reinforce the view that the Church--especially under the current Pope?--does not intend to be friendly to anyone who fails to toe a given Vatican line.

The "under the current Pope . . . toe a given Vatican line" jab aside (this jab reflects, it seems to me, an understandable misunderstanding of this Pope's views and record), I'm not sure why the Secretariat's demand should necessarily be seen as demanding what Sandy (and I) regard as pretty-near impossible, i.e., willing away one's mistaken beliefs, or as threatening his "intellectual freedom." 

Williamson is a Catholic bishop (albeit, it seems to me, a very bad one).  Part of being a bishop, I would think, is avoiding scandalizing one's flock and refraining from teaching error.  It is, as it happens, entirely orthodox Catholic teaching that one's beliefs are, and can only be, one's own (see, e.g., Dignitatis humanae); but it does not strike me as remotely authoritarian or "[un]friendly" to say -- if one is, well, the Pope -- to a bishop, "given that you are a successor to the Apostles, charged with caring for the spiritual welfare of Christians, do not say and teach things, as bishop, that are grossly wrong and hateful, to say nothing of un-Christian."  The Pope (I would have thought this was obvious) was not telling Williamson to change his beliefs; but to stop teaching error and creating a scandal.

One's role constrains what one is supposed to say, in the context of that role, all the time.  This fact does not strike me as being in tension with "intellectual freedom."  (I assume that Sandy, like me, would not be moved by a public-school science teacher's argument that his "intellectual freedom" required that he be permitted not only to believe, but to teach in class, young-Earth creationism?)

February 11, 2009 in Garnett, Rick | Permalink | TrackBack (0)

A paper of interest

This, "Attempt by Omission," by Michael Cahill, looks interesting:

In addition to requiring subjective culpability, criminal offenses typically involve two objective features: action and harm. In the paradigmatic case, both features are present, but criminal law also allows for liability where either of them is absent. Rules governing omission liability enable punishment where the offender performs no act, while rules defining inchoate crimes (such as attempt) impose liability where the offender causes no harm. In different ways, these two sets of rules establish the minimum threshold of objective conduct-to use the classic term, the minimum actus reus-required for criminal liability.

The absolute floor for a criminal actus reus, then, would be defined by the intersection of these two sets of rules. The prospect of liability for inchoate omissions, involving no act and no harm, exists at the frontier of the state's authority to criminalize conduct and, whether allowed or rejected, effectively determines the outer boundaries of that authority. Accordingly, inchoate-omission liability raises fundamental issues about the nature and proper scope of criminal law.

This article considers those issues, asking whether criminal punishment for harmless inaction is legally possible, empirically observable, or normatively desirable and, perhaps surprisingly, answering all three of these questions in the affirmative. However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and should sometimes add up to a crime.

"For what I have done, and what I have failed to do . . .." 

February 11, 2009 in Garnett, Rick | Permalink | TrackBack (0)

"America's New Fundamentalists"

Chris Hedges, the author of the anti-"Christian right" tract, "American Fascists" has a new book out, taking on the new hipster atheists:  "When Atheism Becomes Religion:  America's New Fundamentalists".  Interesting.

February 11, 2009 | Permalink | TrackBack (0)