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, June 30, 2009

Congratulations and Best Wishes to Dean Patricia O'Hara

Today is the last day of Dean Patricia O'Hara's deanship at the Notre Dame Law School.  I joined the faculty of the Law School in the summer of 1999, at the same time that she became our dean.  Ten years later, my colleagues and I are in a beautiful new building, working with outstanding students among excellent scholars, and we are as strongly committed as ever to the project of building a law-school community that is interesting and important, and preeminent, precisely because it is distinctively Catholic.  Everyone who thinks the "Catholic legal education" project is a worthy one -- and I hope many do! -- have many reasons to be grateful to Dean O'Hara for her leadership and good stewardship.  Best wishes to her, and God's blessings.

June 30, 2009 in Garnett, Rick | Permalink | TrackBack (0)

Can property crimes be "extraordinarily evil?"

Hofstra law prof (and MoJ-friend) Ron Colombo and his friends at The Conglomerate are having an interesting debate about whether Bernie Madoff's actions are properly labeled "extraordinarily evil."

June 30, 2009 in Vischer, Rob | Permalink | TrackBack (0)

President (Obama) Will Soon Meet Pope (Benedict XVI)

Doug Kmiec's reflections on the upcoming meeting are here.

June 30, 2009 | Permalink | TrackBack (0)

"Discrimination Under God"

Wendy Kaminer has an essay, at The Atlantic, about the various lawsuits involving challenges to the application of schools' and universities' non-discrimination rules to religious associations and clubs that restrict leadership or voting privileges to co-religionists.  As she puts it,

On college and university campuses and in high schools, Christian student groups risk being denied official school recognition because their religious beliefs conflict with anti-discrimination policies.  These controversies often involve groups that bar gay students from qualifying for voting membership or leadership positions if they don't acknowledge the alleged sinfulness of their ways.   Liberal advocates of equality applaud the denial of official status to conservative groups deemed hostile to gay people; conservatives and some traditional civil libertarians decry the denial of fundamental associational and religious rights to Christian groups.

Several of us have blogged in the past about these cases, and most MOJ readers are familiar with the issues they raise.  Kaminer does a pretty good job, though, of boiling things down:

The harm to a sectarian religious group of conditioning official recognition on a change in its membership rules and message is obvious.   How might others be harmed if groups like the Christian Legal Society or Truth were recognized without altering their messages?  Students who disagree with Truth that the Bible is the only infallible word of God or who consider CLS's beliefs about sexual conduct intolerant, anachronistic, or utterly unrealistic are free not to seek CLS or Truth membership, which would probably not offer them many like-minded colleagues anyway.  But critics of these membership requirements are not content simply to take their business elsewhere; they want to deny the offending clubs official recognition partly because recognition generally entails financial as well as in-kind support and what some consider a symbolic endorsement.  . . .

Conservative Christian groups convinced that they tread the one and only path to eternal salvation and liberals insistent that only their notion of diversity advances public welfare on earth obviously diverge ideologically, but they share a mistrust of dissent.  What's troubling about the liberal mandate for equality reflected in these cases is the ideological conformity it demands.  High school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn - excluding people who will not pledge allegiance to official views.  The difference is that private religious groups have essential First Amendment rights to exclude heretics; public officials have an obligation to protect them.

In my view, as I've suggested before, the word "discrimination" has acquired a meaning that renders it inapplicable to a decision by a religious organization to limit membership or leadership to co-religionists.

June 30, 2009 | Permalink | TrackBack (0)

What the Nixon tapes tell us

According to Christopher Hitchens (here), the recently-much-remarked recording of Pres. Nixon discussing Roe and abortion are instructive with respect to the Republican Party.  Perhaps.  It seems to me (and maybe this is Hitchens's point) Nixon's (loathesome) statement, "There are times when an abortion is necessary. I know that. When you have a black and a white", ought to make uncomfortable not just those in the Democratic Party who support both racial equality and expansive abortion rights but also those who insist that the recipe for Republican electoral success is to return to the "moderation" of Whitman, Rockefeller, . . . and Nixon.  The message of the tape is not, it seems to me, that today's pro-life Republicans are secret racists, or hypocrites who talk a good game on abortion but don't really mean it.  It is, instead, that the old, "moderate", establishment, Planned Parenthood, pro-choice position -- i.e., Nixon's position, and the GOP's position before Reagan -- is not easily separable from Sanger-esque (loathesome) eugenicist and racist views.

June 30, 2009 in Garnett, Rick | Permalink | TrackBack (0)

A life “not worth living”?


I would like to follow up on Rick’s comment to Rob’s post regarding the recent Cahn-Carbone posting on Prawfsblawg.


I have read this posting, and it appears that the Cahn-Carbone argument rests in large part on the attempt to justify the abortion on the grounds that one person can determine that another’s life is not worth living. This justification is premised on the integrity and coherence of the rationale that one person has the right, the ability, the competence, etc. to conclude that another’s life is not or will not be worth living. This is flawed reasoning that is premised on a problematic subjectivity rather than objectivity.


I cannot agree with Cahn and Carbone that the parent can “profoundly appreciate” the value of the child’s life but nonetheless proceed to terminate the life of the child for the child’s “own good.” This decision is not based on logic but sophistry.


RJA sj

June 30, 2009 in Araujo, Robert | Permalink | TrackBack (0)

Abortion as the "pro-life" option, cont'd

Following up on Rob's post, it seems to me that Naomi Cahn's proposed "redefin[ition]", at Prawfsblawg, of the abortion debate is one that involves excising from that debate precisely the matter in controversy, i.e., whether or not a human being in the womb is entitled, by virtue of his or her human dignity (or something else), to the same legal protections against violence (even violence that is purportedly done for the victim's own good) that human beings enjoy after birth. 


We do not regard it as constitutionally protected, let alone "profoundly moral", for a parent to kill his two-year-old daughter, on the ground that the world is not arranged in such a way that the daughter is going to enjoy, going forward, a "decent opportunity to flourish."  If the suggestion is that we *should* so regard the decision to have an abortion, then the question has to be considered -- it cannot be defined out of the debate -- *why* it is sensible, or justifiable, for us to regard these two decisions differently.

June 30, 2009 | Permalink | TrackBack (0)

Monday, June 29, 2009

Marriage equality: what should we expect from government?

In the past, I've expressed skepticism about reasons offered for excluding same-sex couples from the institution of marriage.  I've also expressed concern that same-sex marriage brings a potentially expansive role for the state given the lack of social, cultural, biological, and religious support for same-sex marriage (in comparision to traditional marriage).  A quote from yesterday's Frank Rich column in the New York Times perfectly captures my concern:

One gay leader invited to the Oval Office . . . was Jennifer Chrisler of the Family Equality Council, an advocacy organization for gay families based in Massachusetts. She showed a photo of her 7-year-old twin sons, Tom and Tim, to Obama. The president cooed. “I told him they’re following in Sasha’s footsteps, entering the second grade,” she recounted to me last week. “It was a very human exchange between two parents.”

Chrisler seized the moment to appeal to the president on behalf of her boys. “The worst thing you can experience as parents is to feel your children are discriminated against,” she told him. “Imagine if you have to explain every day who your parents are and that they’re as real as every family is.” Chrisler said that she and her children “want a president who will make that go away,” adding, “I believe in his heart he wants that to happen, his political mistakes notwithstanding.”

I think the bullying experienced by children of same-sex couples is a problem that should be addressed (and is being addressed in the schools with which I'm familiar).  But if we're at the point of expecting the federal government to ensure that everyone treats every family form as being just "as real" as every other family form, we have a problem.

June 29, 2009 in Vischer, Rob | Permalink | TrackBack (0)

Abortion as the "pro-life" option

Over at PrawfsBlawg, Naomi Cahn and June Carbone assert that women who have abortions do so not because of concern that the pregnancy will interfere with their own life paths, but because they care deeply about the unborn child's future, and they are unable to make the commitments needed to ensure the child's flourishing.  Cahn and Carbone suggest that the pro-choice case needs to be reframed in these terms.  I'm skeptical on the empirical claim (I'm sure that some women do have abortions for that reason, but is there any empirical evidence that most or, as Carbone and Cahn seem to suggest, virtually all do?), and I'm doubtful on the normative claim -- i.e., that non-existence is preferable to an existence that lacks a decent chance for "flourishing" (whatever that is supposed to mean in this context).

June 29, 2009 in Vischer, Rob | Permalink | TrackBack (0)

Deference, Authority, and Human Frailty

Rob's post raises important questions and points to a tension that has been present since the beginning of the Church.  The Gospel reading for today, on this Solemnity of Saints Peter and Paul, brings part of the picture into bold relief.  In Matthew 16:18-19 Jesus gives Simon a new name - Rock, Peter, Petros, Kephas, Kepa and says:  "You are Rock (Kepa) and upon this rock (kepa) I will build my church and the gates of the netherworld shall not prevail against it.  I will give you the keys..." The picture is complete only four verses later when Jesus says to Peter:  "Get behind me, Satan!  You are an obstacle to me.  You are thinking not as God does, but as human beings." (Mt. 16:23).

Peter, the other apostles, and their successors have been given authority by God.  But, they are frail human beings, slow to understand and sometimes lacking in courage, wisdom, and even goodness, I suspect.  How do we pay proper respect to their god-given authority while also challenging them to see and act with Christ's spirit, mind, and body.  I don['t have a good answer to this question except that both extremes - blind adherence to or willful denial of this authority is destructive not only for the individual but also society.  As I mentioned to Rob in an email, my models for dealing with his question are Francis of Assisi, Catherine of Siena, and Dorothy Day to name three.

June 29, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)