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.

Saturday, April 25, 2009

More on Conscience Protection




I should like to begin by thanking my MOJ friends Rick Garnett and Tom Berg for their great work, and that of their colleagues, for preparing their responses to the Connecticut legislative initiative to codify the decision in the Kerrigan case. Both Kerrigan and its codification, in my estimation, are mistakes. No surprise there regarding my viewpoint, which I believe is reflective of the Church’s teachings on these issues.


Having said this, what is to be done? To borrow an expression… As Tom suggested a while back, there is an urgent need to enact and implement appropriate and effective conscience protection. In the past, I, too, have argued the need for appropriate conscience protection to serve as a counterpoint to the totalitarian appetites of the present age. So, I am most grateful to Rick and Tom for their skillful labor to maximize conscientious objector protection.


I would now like to offer a few thoughts about what the current legislative protections appear to imply and what they may not. First of all, it is satisfying that religious organizations are the logical beneficiaries of the conscience protection. But, we need to take stock of the inevitable fact that organizations (be they churches, fraternal organizations, other associations, etc.) while being juridical persons are, in fact, an association of natural persons, i.e., individual human beings who are members. It strikes me that if the conscience protection afforded the organization may not apply to the individual member, what protection, in fact does the organization really enjoy if its members are exposed to liabilities under the law? It is a protection that becomes easily forfeited if the protection clause is without substance and cannot be relied upon by the organization’s members.


But let us assume that the conscientious objector protections also extend to the individual members of the organization. What claim to conscience protection can be made by the person who is not a member of an organization that is the beneficiary of the conscientious objector protection clause? We need to remember what Christopher Dawson noted in the 1930s when he predicted that the insistence for uniformity imposed by the totalitarian authority which demands universal adherence to some problematic idea can push the Christian or other believer out of physical existence. Our friend and MOJ colleague Michael Scaperlanda has offered parallel thoughts in his 2002 essay in the Texas Review of Law and Politics concerning the resistance or opposition from the state that families who wish to rely on voucher programs to ensure a proper education to their children encounter. In short, recognition of same-sex marriage is not enough unless it is embraced by one and all. And this outcome is not representative of democracy but of the totalitarian state. The religious liberty protection offered may, in fact, be no protection at all if it cannot be relied upon by those to whom it should logically apply. If the same-sex marriage advocate persists in seeking nondiscrimination for his or her clientele, why should the advocate for religious liberty not be able to do the same?


In considering the harassment question, I agree that harassment of persons seeking same-sex marriage is morally objectionable. But I hasten to add that so is harassment of those who on religious or any other ground wish to exercise their proper liberty to protest or object to same-sex marriage within the mechanisms of our democratic and juridical institutions. It is tragic to see those citizens who have assembled to support Proposition 8 (California) be harassed by those citizens who opposed the initiative. It is tragic to see Miss California publicly harassed for giving a candid and respectful response to the issue of same-sex marriage during the Miss USA pageant.



RJA sj



April 25, 2009 in Araujo, Robert | Permalink | TrackBack (0)

Friday, April 24, 2009

A Jesuit Law School: What's the Difference

Yesterday I participated in a program at Loyola Law School that aimed at dialogue over what it means for a law school to be Jesuit and Catholic.  MOJ'er John Breen organized and moderated the event, which included myself, Vince Rougeau (Notre Dame) and Tom Kohler (Boston College).  We each reflected on the broad topic of what it means to say that a law school is Catholic and shared how the Catholic tradition is reflected in our own work at the Catholic law schools with which we are affiliated.  Tom started us off with a talk that addressed, among other things, the integral relationship between law and religion and between religion and higher education.  Vince then talked about the influence of Catholic Social Thought on his teaching, ideas of service and scholarship.

I expressed my view there are two separate aspects to what is (or ought to be) distinctive about a Jesuit and Catholic law school as opposed to a secular one, the first having to do with formation and the second having to do with the transmission of the Catholic intellectual tradition.

With respect to the former, from a Jesuit or Ignatian perspective (which views God as present in all things and our task as determineing what is our role in God's plan of salvation for the world), I think law school needs to be viewed as a 3-year process of discernment of who our students will be in the world and how they will participate in God’s plan for the salvation of the world. That means that a Catholic and Jesuit law school is about more than simply producing fine lawyers. (Of course it has to also do that, but it can’t be doing just that.) The implication is that those of us involved in Catholic and Jesuit law schools need to continually ask ourselves: what are we doing to help students discern their place and their vocation? What are we doing to help them discover who they are and how they should live their lives.  During my presentation, I talked a little about some of the things we do at the University of St. Thomas to do just that.

I then spent some time talking about the ways in which my scholarship in recent years has addressed the intersection of Catholic thought and the law.  After the three presentations, we had some lively discussion (followed by a wonderful dinner and great conversation). 

I hope this program was the beginning of continuing dialogue at Loyola on this important subject.  As I said at the end of my talk, there are a lot of ways a Catholic and Jesuit law school and implement its tasks re formation aand transmission of the Catholic intellectual tradition.  The Catholic and Jesuit identiy can mean a lot of things.  But it can't mean nothing.  There has to be some intentional effort to live out the religious mission of the school.

April 24, 2009 in Stabile, Susan | Permalink | TrackBack (0)

More on Interrogational Torture

[Philip Zelikow, a professor of history at the University of Virginia, was the counselor of the State Department from 2005 to 2006 and the executive director of the 9/11 commission. He contributes to the Shadow Government blog at ForeignPolicy.com.  Zelikow writes, in an op-ed in today's NYT:]

That is one reason the methods of torment do not stack up well against proved alternatives that rely on patience and skill. In setting up this program, officials do not seem to have thoughtfully considered those alternatives. The Intelligence Science Board, a federal advisory group, published a report in 2006 illustrating how those in charge of interrogations could have more thoroughly looked at options. The Israelis and British also have a huge amount of painfully acquired experience in using those alternatives, including in some cases where they really did have ticking bombs, either Palestinian or Irish. Neither of those countries can lawfully adopt the C.I.A. program revealed in the Justice Department memos; the Israeli Supreme Court has spoken to these issues in exceptionally eloquent opinions.

The United States has plenty of its own experience to consider, in law enforcement (remember the frenzy a generation ago over the Supreme Court’s Miranda decision requiring suspects to be read their rights?) as well as in war. In World War II, the United States and Britain had special programs for “high value” captives. Thousands of lives were at stake. Yet, even in a horrifyingly brutal war, neither government found it necessary to use methods like the ones in this C.I.A. program. George Marshall would not have needed a lawyer to tell him whether such methods were O.K.

More recent history is also revealing. America inadvertently carried out an experiment in how best to question Qaeda captives. On the one side there was the C.I.A. effort, while on the other there was the military-run program against Al Qaeda in Iraq. The Iraq program, organized by the Joint Special Operations Command, was reformed after the Abu Ghraib scandals. It respected basic international standards. It used teams made up of experts from the military, the C.I.A. and law enforcement. The F.B.I. did not have to stay away, as it did from the C.I.A.’s “enhanced” interrogations.

Qaeda captives in Iraq were hard cases, often more seasoned in violence than captives taken elsewhere. Yet the program in Iraq was and remains highly successful. I was impressed when I observed it in 2005 as part of a wider look at our intelligence efforts. I know that Joint Special Operations Command leaders told the White House that they could interrogate captives effectively under the higher standards.

There is another variable in the intelligence equation: the help you lose because your friends start keeping their distance. When I worked at the State Department, some of America’s best European allies found it increasingly difficult to assist us in counterterrorism because they feared becoming complicit in a program their governments abhorred. This was not a hypothetical concern.

A thoughtful inquiry parsing the pros and cons is necessary — but it may not end up finding much, if any, net intelligence value from using extreme methods. It should also consider the future of the C.I.A.: over the long haul, it might be best for the agency if its reputation rested on outstanding professional standards and patient expertise.

April 24, 2009 | Permalink | TrackBack (0)

SSM and Religious Liberty: Response to Dale Carpenter

In response to the proposal of four of us for a broad religious-liberty exception in same-sex marriage bills in Connecticut and elsewhere, Dale Carpenter at the Volokh Conspiracy welcomed but also raised some questions about our proposal.  Below is our response, which I expect will be up soon at the VC.  (Note that the governor today signed the Connecticut bill, which did broaden the exemption substantially for nonprofit religious organizations but didn't explicitly protect individuals like the wedding photographer who might refuse to photograph a same-sex marriage ceremony.). 


Dear Dale,

Thanks very much for noting our proposal for a religious-liberty exemption to same-sex marriage laws in the context of the Connecticut debate and elsewhere, and thanks too for your questions about the proposal.

At the outset, just a few words about the necessity for religious-liberty protections.  We agree with most of what Doug Laycock says on that score.  The memo accompanying our proposal details the range of conflicts that have arisen or may arise.  You're right that in some such cases, sexual-orientation nondiscrimination laws might already conflict with the religious objection.  Nevertheless we believe that same-sex marriage increases the risks to religious liberty.  Some of the effects are direct.  It's partially, but only partially, that SSM increases the number of occurrences in which traditionalist religions or believers might be asked or pressured to facilitate same-sex ceremonies as organizations or business owners.  Beyond that, SSM eliminates the argument, which has sometimes been successful, that a traditionalist organization does not engage in sexual-orientation discrimination as such, but acts against all extramarital sexual conduct.  See, e.g., Christian Legal Society v. Walker (7th Cir. 2006) (accepting this argument for CLS's limits on holding leadership positions).  Therefore traditionalists in some places will be newly subject to the claim that they are committing sexual-orientation discrimination -- or committing marital-status discrimination, if they act based on an objection to an individual's having entering into a same-sex marriage.

In addition to the direct effects in the marriage-related contexts, there are spillover effects in other contexts such as employment or adoption.  SSM with weak religious-liberty exemptions increases traditionalists' exposure to already-existing sexual-orientation nondiscrimination laws in those other contexts.  This is in part because it might (as you suggest) weaken the public regard in general for religious liberty.  But more specifically, it would likely weaken defenses under state religious-freedom provisions, constitutional or statutory (state "RFRAs"), that require a compelling interest to override religious freedom.  Without religious exemptions, SSM may well be perceived by courts as strengthening the assertion that the government has a compelling interest in eliminating sexual-orientation discrimination in all contexts, not just marriage-related ones, with no religious exemptions.  This was precisely the Supreme Court's logic in the Bob Jones University case:  the government had prohibited race discrimination in multiple contexts without exceptions for religiously based discrimination, therefore no exception should be made for a tiny college to keep its tax-exempt status.  Thus, in contrast with you, we think that passage of SSM with weak or nonexistent exemptions might very well have a significant negative effect on Catholic Charities' argument -- a meritorious argument, as you've said -- that forcing it out of special-needs adoption work serves no sufficient purpose when many other agencies are available to assist gay couples.  

Including a significant religious exemption in a SSM bill, on the other hand, sends the message that the state's policy in general is to value religious liberty as well as nondiscrimination norms.  It bolsters this more balanced resolution of the gay-rights / religious-freedom conflict not only in the marriage context but elsewhere.  And it's in the interest of SSM supporters to back generous exemptions, which address an objection to SSM that you and the four of us all seem to agree is real, but which in most cases (the four of us think) will not erect significant barriers to gay couples.

On your questions about interpretation of our proposal:

1.  Religious exemptions should include individuals, not just nonprofit religious organizations, as all of us seem to agree with the wedding photographer case (unfortunately, VT and CT haven't protected them).  We are open to hardship exceptions from exemptions in cases where the exemption would, as you put it, impose "substantive (as opposed to symbolic) hardship on married gay couples and families."  But we doubt that this substantive-symbolic distinction can be squared with your suggestion that individual state employees should be categorically excluded from exemption.  If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm that's not merely symbolic?  We think that putting a state employee to a choice between her faith and her job should require something more.

   We also think that a hardship exception to a religious exemption should mean real "hardship" as opposed to mere inconvenience.  To take some of the examples in our letter: If a marriage counselor is dismissed or sanctioned for refusing to counsel same-sex couples, or a small landlord is subject to fines or injunctions for refusal to rent, or a religious college is forced to provide housing for same-sex intimate couples, these objectors suffer loss of livelihood or other real hardships that should only be imposed, if at all, in cases of greater hardship on the other side.  So we agree with you that the devil is in the textual details here, and we'd be interested in hearing your proposed standard.

2.  We agree that a religious exemption should not protect harassment, provided that the definition of "harassment" is cabined to respect rights of free speech and non-coercive criticism along the lines Doug Laycock sketches.  We don't think the language "refusing to provide services, refusing to solemnize, or refusing to treat [a marriage] as valid" can plausibly be read to protect active harassment as opposed to, in Doug's words, the right to be left alone.

3.  We wouldn't expect language in this proposal to broaden exemptions in other nondiscrimination laws beyond how courts have reasonably interpreted them.  Our concern regarding other laws, as mentioned above, was the opposite: that recognition of SSM with minimal religious-liberty protections would weaken or undermine religious-liberty arguments that objectors in other contexts were previously able to make.

4.  Our proposal covers all religiously based objections to marriages so as to respect the principle of neutrality among religious beliefs.  Like Doug Laycock, we think that other religious objections to marriages will be extremely infrequent.  For example, we searched on Westlaw for cases after Loving v. Virginia in which individuals refused to solemnize an interracial marriage and could find only 1 news story, and that dispute settled.  We think that conflicts of this sort are no more likely today.

Robin Fretwell Wilson, Carl Esbeck, Rick Garnett, and Tom Berg

April 24, 2009 in Berg, Thomas | Permalink | TrackBack (0)


Primary Wonder

Days pass when I forget the mystery.

Problems insoluble and problems offering

their own ignored solutions

jostle for my attention, they crowd its antechamber

along with a host of diversions, my courtiers, wearing

their colored clothes; cap and bells.

                                                And then

once more the quiet mystery

is present to me, the throng’s clamor

recedes:  the mystery

that there is anything, anything at all,

let alone cosmos, joy, memory, and everything,

rather than void:  and that, O Lord,

Creator, Hallowed One, You still,

hour by hour sustain it.

--Denise Levertov

April 24, 2009 | Permalink | TrackBack (0)

Can any form of torture be justified as "harm distribution?"

A quick reaction to Chris Eberle's response to Casey Khan's point regarding the information gap: Approaching torture as a means of "harm distribution" seems to have no logical or moral stopping point.  If waterboarding did not convince KSM to talk, it would still serve the cause of harm distribution to pull out his fingernails, place him on the rack, even boil him alive, wouldn't it?  This gets at my intuitive discomfort with Chris's approach: I associate harm distribution with redirecting the effects of others' harmful conduct, but here we're talking about avoiding the effect of others' harmful conduct by engaging in our own freestanding harmful conduct.  If KSM tosses a live grenade into a school bus, I would be justified in tossing it back out of the bus, even if it places KSM in harm's way by doing so.  That's redistributing the harm.  Pulling out his fingernails to find out where the bus is does not, in my estimation, redistribute the harm.  It avoids the harm to the kids by causing harm to KSM.  I don't think we can avoid consequentialist reasoning if we want to defend it.

April 24, 2009 in Vischer, Rob | Permalink | TrackBack (0)

Securing Religious Liberty in an Age of Growing Intolerance

Tom Berg among others has posted (here and here) on gay marriage and religious liberty. In one post, Tom writes: "It may be time for defenders of traditional opposite-sex marriage to shift some attention from trying to stop gay marriage to trying to secure religious liberty protections, at least in states where there is a significant prospect that the courts or the legislature will recognize gay marriage."  And, I agree wholeheartedly in the need to work tirelessly to secure religious and admire those persons who are called to labor in that vineyard.

But, I wonder if it isn't a tad naïve to think that religious liberty will really be secure without a fundamental shift in our nation's anthropological foundations. We might secure short-term protection, but my bet is that these protections erode over time – possibly very quickly.

I marvel at what seems to me the rigid intolerance of those who preach tolerance. Photographers cannot be left alone to decline a job involving photographing a same-sex civil commitment ceremony. Catholic Charities cannot be left alone to run its adoption agency according to its own moral compass. Doctors, nurses, pharmacists, and lawyers might be required to subordinate their consciences to the will of the state. J. Budziszewski gives us valuable insight into this phenomenon in his excellent book "The Revenge of Conscience." But, I want to suggest a different, but not necessarily inconsistent, explanation. Many people I talk to think the following. A) Individual autonomy seems to be the paramount good in our society. Each individual is an autonomous chooser who is free to choose among a smorgasbord of private ends for her life. B) One of the state's chief tasks is protecting the individual's ability and right to choose her own private ends. C) Public space is regulated, ordered, and controlled by the state at least partly toward the end of maximizing private autonomy. D) Most public activity (practicing law or medicine, running a business, taking pictures commercially, growing food for sale, etc) is licensed or supervised in some way by the state. E) Many who view private autonomy as the paramount good view those who hold state licenses as operatives of the state and not as independent moral agents. F) As state operatives, doctors, lawyers, photographers, adoption agencies can be required to subordinate their consciences to the will of the state. In this world, there exists only state space and private space; civil society is eviscerated. If those in power (now or in the future) have this view of the world, religious liberty may be secure for private worship but not much else. All the charitable, social, and educational works of religious bodies might be considered public and subject to state control. It is possible that some might even view worship, including the administering of the sacraments, as a public function subject to state discipline. I am not suggesting that any of this will happen in our future. But, as we attempt to secure religious liberty and conscience protection, we ought also to keep an eye on the underlying foundational shifts in society and the possible implications of those shifting sands.

April 24, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)

Deirdre McQuade on the FDA's approval of the "Morning-After Pill" for minors wihout a prescription

The USCCB's pro-life spokesperson, Deirdre McQuade, had the following to say about this recent FDA action:

Much to the surprise of the morning-after pill’s early advocates, five years of research in Europe and the U.S. shows that increased access to emergency contraception has failed to reduce rates of unintended pregnancy and abortion. But it has led to greater sexual risk-taking among adolescent populations, in turn leading to higher rates of sexually-transmitted disease. In the unlikely event a teenager will bother to read the Plan B package insert all the way to the end, she will find sound advice: ‘Of course, not having sex is the most effective way to prevent pregnancy and stay free of STDs’.

For the full release, click here.

April 24, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)

Reducing-Abortions Information

The Democrats for Life have been the movers behind proposals for abortion-reducing policies both nationally (with the Pregnant Women Support Act) and in states.  I haven't mentioned before that the national organization's website has a document, for which I took the main drafting role, detailing various policy proposals in the so-called 95-10 Initiative and some of the evidence supporting them.  The document is from a while back (among other things it contains a contraception-policy element that has since been removed), and it's likely to be revised and updated.  But it still contains (IMHO) helpful information on this policy approach that offers some possibilities for consensus.

April 24, 2009 in Berg, Thomas | Permalink | TrackBack (0)

Updated Call for Papers: "Christian Realism and Public Life: Catholic and Protestant Perspectives"


November 20-21, 2009


The Terrence Murphy Institute for Catholic Thought, Law, and Public Policy at the University of St. Thomas will sponsor a conference titled "Christian Realism and Public Life: Catholic and Protestant Perspectives," on November 20-21, 2009, in Minneapolis.


An examination of “realism” in religious and political thought is timely indeed.  The term has been at the forefront of recent American foreign-policy debates over the role of moral values and the use of force.  Pope Benedict XVI has spoken in several contexts of a “Christian realism” that offers a more sober and solid hope for social life than do alternative views.  And President Obama has identified the Christian Realism of Reinhold Niebuhr as among his chief philosophical influences.  Niebuhr’s approach was in several ways distinctively Protestant.  But it is evident that the impulse for Christian public theology to be realistic—to be based in a clear-headed assessment of facts about God, human beings, and the world—cuts across Catholic and Protestant thinkers, although the themes and the definitions of realism vary.


The goal of the conference is to explore the role and meaning of “realism” in a Christian ethic of public life, with attention to topics of interest to both Catholics and Protestants. Committed plenary speakers include Jean Bethke Elshtain (social and political ethics-Chicago), Robin Lovin (social ethics-Southern Methodist), David Skeel (law-U Penn), John Carlson (just war thought-Arizona State),  William Cavanaugh (theology-St. Thomas), James Turner Johnson (just war thought-Rutgers), and Jeanne Heffernan Schindler (Catholic social thought-Villanova).

  This call for papers is for concurrent sessions.  Examples of relevant topics include:


- Theological assessments of human nature and its relevance to public policy

- Categorical approaches to moral reasoning vs. pragmatic approaches

- Loci of hope: for example, the extent to which it rests in the church or the world

- Assessments of Niebuhr or other thinkers who have emphasized realism

- The foundations or details of just-war thought

- Realism in Christian approaches to economic matters

- The place of Christianity in American public life


Abstracts of proposed papers should be one page and should include the author’s name, affiliation, mailing address, and e-mail address.  The deadline for submission of proposals is Monday, June 30, 2009.  Notification of acceptance will be sent by July 20, 2009.  Abstracts should be sent by e-mail to murphyinstit[at]stthomas.edu  or by first-class mail to


Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy

Re: Christian Realism Conference

University of St. Thomas

MSL 400

1000 LaSalle Avenue

Minneapolis, MN  55403-2015

April 24, 2009 in Berg, Thomas | Permalink | TrackBack (0)