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, August 20, 2010

The Becket Fund stands up (to ACLU) for Catholic hospitals

As was observed the other day by David Gibson at the Commonweal blog, Catholic hospitals do a "better job".  They are important for society.  And, as Jody Bottum explained a few months ago, authentically Catholic hospitals are important not only to America, but also to the mission of the Church.  So, it's too bad that the ACLU is pressuring the government to, in turn, push Catholic hospitals to perform abortions.  (Read this letter regarding the "denial of reproductive health care" at Catholic hospitals.)

The merry band of religious-freedom defenders at the Becket Fund have, in turn,threatened to sue HHS if it gives in to the ACLU's pressure.  According to the Becket Fund:

“The ACLU has no business radically re-defining the meaning of ‘emergency health care,’” writes Becket Fund President Kevin “Seamus” Hasson.  "Just as it has no business demanding that religious doctors and nurses violate their faith by performing a procedure they believe is tantamount to murder. Forcing religious hospitals to perform abortions not only undermines this nation’s integral commitment to conscience rights, it violates the numerous federal laws that recognize and protect those rights.”

Forcing Catholic or any religiously-affiliated hospital to perform abortions will only result in nationwide closures, thereby reducing access to healthcare for everyone, a blow the healthcare system could not weather. Legally forcing doctors and nurses to perform abortions in violation of their consciences would constitute a large step backwards for religious freedom and would turn this nation’s foundational commitment to conscience rights on its head.

August 20, 2010 in Garnett, Rick | Permalink | TrackBack (0)

Rob's Helpful Taxonomy

Rob's post considering potentially non-bigoted arguments against the construction of a mosque near ground zero highlights how problematic those arguments really are.  Arguments 1 and 4 rely on inaccurate and essentialized views of Islam.  Argument 2 is similarly inaccurate and is also an insult to those Muslims, like Imam Feisal Abdul Rauf, who have opposed violence and supported interreligious dialogue. Argument 3 is more complicated, because it does not appear to rely on bigoted assumptions and because it appears to be rooted in concern for the good of others.  As a moral argument, I suppose that it ought to be considered by the developers of the Park51 project.  However, there is a risk that assuming collective guilt actually contributes to the tendency to overgeneralize and villify Muslims.  Despite the furor raised by this controversy, it has created an opportunity for Muslim leaders to distinguish between the Islam practiced by the vast majority of Muslims and the actions of al-Qaeda.  It has also helped to refute the notion that Islam is monolithic.  I doubt that most Americans opposed to the contruction of Park51 would use an essentialized lens when considering Christianity.

August 20, 2010 in Powell, Russell | Permalink | TrackBack (0)

Reaching closure (at least as to substance of the anti-mosque arguments)

I do not want to turn MoJ into the "mosque near Ground Zero blog," but I do think this is an issue that is close to the heart of this blog's mission, so I want to take one more stab at clarifying the potential (non-bigoted) opposition arguments.  It seems to me that there are four:

1) Muslims share some degree of collective guilt for 9/11 due to some element(s) within their tradition's teaching, the failure to sufficiently condemn 9/11 using resources wtihin the tradition, or some other reason related to the nature, teachings, and/or practice of Islam. 

2) The particular Muslims who are proposing Park51 share some degree of guilt for 9/11, not due to their status as Muslims, but due to some specific acts or omissions that they have committed as Muslims. 

3)  Even if #1 and #2 are false, fallible human beings, when faced with evils committed in the name of a religion / group / movement, will tend to attribute guilt to other members of that religion / group / movement, and thus those other members should exercise self-restraint in a way that would be more consistent with #1 being true, even if it is not actually true.  

4) Even if Muslims in general, and these Muslims in particular, do not share in the guilt for 9/11, there is something about Islam that exacerbates, in an ongoing way, the hurt Americans feel as a result of 9/11, and Americans are justified in feeling this way.  Unless someone can articulate that justification, I think #4 veers directly into bigotry. 

As for the other three, I reject #1, and I have not seen evidence to persuade me of #2.  The unjustified attribution of guilt under #3, though not necessarily bigoted, seems to be a dicey ground for moving the mosque, as actions consistent with collective guilt would seem to be bolster the perception of collective guilt.  Are there any other non-bigoted arguments against the mosque?   

August 20, 2010 in Vischer, Rob | Permalink | Comments (25) | TrackBack (0)

Michael Winters lets us know just what kind of guy he is

Last night, one of my former students sent me a link to Michael Winters' blog at the National Catholic Reporter, where Winters has posted a response to my MoJ post about his most recent attack on me. Here is the link:  http://ncronline.org/blogs/distinctly-catholic/professor-george-ground-zero-mosque.  If anyone has the slightest doubt that what I said about Winters and his modus operandi is true, please open the link and see if you don't find what I said more than amply confirmed. Winters' own words fully reveal the kind of person he is.  He offers no apology for the ugly smears and taunts that prompted my criticisms of him.  He retracts nothing.  He admits no error.  On the contrary, he engages in more of his vile innuendo---suggesting that he merited no rebuke from me, and that I criticized him only because I am "hurting" from a family tragedy ("souls that are hurting tend to say hurtful things")---while purporting to applaud me for speaking up for religious liberty.  The comments following his post make it plain that his readers have no difficulty seeing through this ploy.  They are on to the guy.  Evidently, a few of them have been on to him for some time now.

August 20, 2010 | Permalink | TrackBack (0)

Thursday, August 19, 2010

Mosques and Military Funerals

We can be grateful for the accelerating chorus of commentary to the effect that there is a constitutional right to build a mosque near the site of the world trade center attacks even if it is offensive to many people. One should not confuse this right with the idea that there is an absolute right to offend people through speech.

The question is nicely presented to the Supreme Court in Snyder v. Phelps this term. Phelps and his church group appeared at a military funeral (some distance from it, but close enough to be seen) carrying signs saying “Thank God for Dead Soldiers” and “God Hates Fags.” As Mike Dorf sardonically observes this morning, “The fallen Marine, Mathew Snyder, was not gay, but [Phelps’ church] believes that 9/11 and the wars in Iraq and Afghanistan are God's punishment for America's failure to address sin.  Lovely.” See Dorf on Law here.

The lower court found that Phelps was guilty of intentional infliction of emotional distress and invasion of privacy. The Fourth Circuit, knowing more about crazy ways to apply the First Amendment than common sense, reversed. The Fourth Circuit is supported in many briefs by people with  absolutist views (which I regard as a First Amendment fetish) including Eugene Volokh, Martin Redish, and Nadine Strossen.

In Hustler Magazine v. Falwell, The Court held that the tort of intentional infliction of emotional distress could not be applied to a public figure without a showing that the statement in question was a knowing or reckless falsehood. The Fourth Circuit’s extension of Falwell is likely to be disapproved by the Court and rightly so. It will be a dark day if the Court declares that the tort of intentional infliction of emotional distress  has secretly been unconstitutional all this time.

cross-posted at religiousleftlaw.com

August 19, 2010 | Permalink | Comments (12) | TrackBack (0)

What's the Argument Against the Mosque Location, A Reader Asks

In the comments to my "at" or "near" post of yesterday, a reader asks the following question.  Since it is an important question, I thought I'd pull it from the comments where it might go unnoticed and ask for thoughts in reponse. 

"Both Rick Garnett and John Breen have now claimed that there are arguments against the location of Park51 which have nothing to do with Islamophobia or the--implicit or explicit--questioning of American Muslims' patriotism. I still have not heard what these arguments are. They certaintly are nowhere to be found on major media outlets or political blogs. From the excerpt of Robby George's not-yet-published op-ed, I anticipate one such argument, which is grounded in "considerations of the sensitivies of families of victims of the 9/11 attacks". But I submit that as soon as you begin to explain *why* a certain sensitivity is enjoined upon the builders of Park51 and no one else, you end up in the position of Islamophobia, or at least in the position of imputing collective guilt on all Muslims (who must be more sensitive than everybody else) for the actions of a few religo-political maniacs."

[Upated to open comments, which I inadvertently neglected to do when I first posted.]

August 19, 2010 in Stabile, Susan | Permalink | Comments (43) | TrackBack (0)

Wednesday, August 18, 2010

Building a Mosque and Rebuilding a Church at Ground Zero

I am glad that the conversation concerning the mosque near Ground Zero has been clarified here on MOJ.  The question of religious liberty in this case really is so simple and obvious as to be almost uninteresting.  Of course the sponsors of the mosque have a constitutional right to build a place of worship on the site they have acquired, within the legitimate parameters of the state’s non-discriminatory regulatory authority.


Others have alluded to the controversy regarding the location of crosses and the Carmelite convent of nuns near the Auschwitz death camp, but I don’t think anyone has referred to William McGurn’s thoughtful column on the subject (here).  As McGurn suggests, a proper resolution of the dispute requires not simply the blunt invocation of rights, but the calm and measured exercise of prudence.


I agree with what Chris Eberle has said by way of reply to Paul Horwitz’s comments.  I would only make explicit what I think is implicit in his comments by adding that, unlike the soup kitchen at the church or the proposed expanded church facilities in Paul’s hypotheticals, prayer and the dialogue of reconciliation can be advanced elsewhere.  You feed the poor where you find them and you serve parishioners where they live in the community.


If the presence of the mosque is intended to promote peace and inter-religious dialogue, as its proponents suggest, then perhaps that dialogue should begin with a frank discussion of its location, including a careful listening to the non-discriminatory, non-Islamaphobic voices who oppose it. 


There may, however, be an interesting question of religious liberty with respect to the rebuilding of a Christian church at Ground Zero.  St. Nicholas Greek Orthodox Church was destroyed in the 9/11 attacks (here), and although the Greek Archdiocese has been attempting to rebuild the parish church since that time it has encountered numerous bureaucratic hurdles that seem not to have impeded the construction of the proposed mosque (see here and here). 

August 18, 2010 | Permalink | TrackBack (0)

Robert George, the mosque, and religious freedom

Robby writes:

Across the country in recent months, from California, to Louisiana, to New York, anti-Muslim sentiment has become a prominent feature of opposition to new mosques.  At risk in this is religious freedom itself.  But not just religious freedom.  Also threatened is the respectful civility that enables constructive public discourse in religiously pluralistic democratic societies.  First, an attitude of "freedom for me but not for thee" rings the death knell for liberty itself.  Freedom of religion is a right of all human beings, including Muslims. People who oppose the building of mosques in their communities out of anti-Islamic animus are guilty of intolerance and a lack or respect for religious freedom.  Such hostility assaults the human dignity of both the hater annd the hated.

This is, as one would expect, compelling stuff.  I am reminded of the point that Thomas Farr (and others) have made often, namely, that religious freedom cannot be regarded by those who profess to care about political freedom and civic health as some kind of boutique or luxury item.  It is foundational.

August 18, 2010 | Permalink | Comments (1) | TrackBack (0)

The Mosque and Michael Winters

Dear Rick:

Because I've been dealing with a horrible family tragedy, I have not been reading or contributing to MoJ for the past ten days or so.  During a visit to South Africa, my brother Edward's fiance, Helen Elaine Hill, was thrown from a horse and severely injured.  After lingering in a coma for several days, this charming, beautiful, and brilliant young woman died.  Her obituary appeared in last Sunday's New York Times.  I returned to Princeton last night after attending her funeral in Lewisburg, West Virginia.  As you can imagine, my brother is utterly grief-stricken and our entire family is devastated.  It has been a rough period for us.

When I opened MoJ this morning to catch up, I found your report that Michael Winters, who seems to have some sort of obsession with me, has found a pretext for launching yet another vicious, flailing, personal attack at his blog.  Thanks for defending me, but, honestly, the guy is plainly not interested in reasonable debate.  You won't get anywhere with him.  I have no idea whether what is driving him is ideological or psychological, but it is certainly not devotion to truth.  He seems to have some sort of score to settle with me---what it is I can't say, since I don't know the man---and he's not going to let truth get in the way of settling it.

The last time you called attention to one of Winters' bizarre attacks, I posted a response on MoJ noting that "[w]e can go step by step to show how he willfully twists and misrepresents an interlocutor's words in order to create a false impression of what his opponent is saying."  This, as it turns out, is his modus operandi.  As his conduct consistently shows, he is a deeply intellectually dishonest person.  This time he is trying to smear me by drawing preposterous inferences from the fact that I haven't yet published anything on the New York mosque controversy.

As a matter of fact, I'm writing an op ed with Jennifer Bryson, an outstanding scholar of contemporary Islam with whom I've worked closely in the cause of Muslim-Christian understanding, concerning controversies about mosques not only in New York City, but across the country.  We are submitting our piece to the Wall Street Journal.  Although we have not yet finalized the draft (precisely because I have been occupied with my family's bereavement), here are the opening sentences:

Across the country in recent months, from California, to Louisiana, to New York, anti-Muslim sentiment has become a prominent feature of opposition to new mosques.  At risk in this is religious freedom itself.  But not just religious freedom.  Also threatened is the respectful civility that enables constructive public discourse in religiously pluralistic democratic societies.  First, an attitude of "freedom for me but not for thee" rings the death knell for liberty itself.  Freedom of religion is a right of all human beings, including Muslims. People who oppose the building of mosques in their communities out of anti-Islamic animus are guilty of intolerance and a lack or respect for religious freedom.  Such hostility assaults the human dignity of both the hater annd the hated.

Now, Dr. Bryson and I recognize that many, many of our fellow citizens in New York, New Jersey, and elsewhere who oppose the location of the proposed Islamic center near Ground Zero, especially the families of 9/11 victims, are not bigots. They are not driven by animus against Muslims or the Islamic faith.  That is why President Obama is correct to distinguish the question of a right to locate the Center at Ground Zero from the wisdom of exercising that right.  And that is why many serious Muslims oppose building the mosque.  (See, for example, the comments of Abdul Rahman Al-Rashid in Al-Sharq Al Aswat here: http://www.aawsat.com/english/news.asp?section=2&id=21980. ) But there are other places in the country where opposition to the building of mosques is plainly not rooted in considerations of the sensitivies of families of victims of the 9/11 attacks. And that is something that Dr. Bryson and I believe all friends of tolerance and religious liberty should be deeply concerned about.

Since it is apt, I'll repeat here what I said the last time you called my attention to one of Michael Winters' vicious outbursts:  "Mr. Winters' behavior is, alas, very much in line with his conduct in the only other case in which I had dealings with him.  That was when he misrepresented what I had said in a public exchange with Douglas Kmiec at the National Press Club in Washington, D.C. regarding the Obama administration's policies on abortion and embryo-destructive research.  Since I don't know the man, I have no idea what's behind it or what he hopes to gain by conducting himself in this way.  It doesn't advance the discussion of points of disagreement and it makes him look bad."

You will know better than I, since you know him, but his pattern of misconduct---the vitriolic personal attacks, the falsifications, the leaping to unwarranted conclusions in an effort to smear people he doesn't like or disagrees with---leads me to suspect that there's just something wrong with the guy.  Now, I myself don't want to leap to any unwarranted conclusions, but the truth is that never in my nearly ten years of participation in efforts to promote Muslim-Christian understanding and cooperation have I heard anyone involved in the work mention Mr. Winters' name.  Could it be that, though he is happy to throw stones at others, he himself has done nothing to advance the cause?  Perhaps you know.  Has Winters' troubled himself to do anything to actually further the understanding of Islam among Christians and to promote mutual respect?  Or does the issue engage him only when he thinks he can seize on it as a pretext for smearing people he regards (for whatever reason) as his enemies?

August 18, 2010 | Permalink | TrackBack (0)

Another analogy?

Rob links, below, to Perry Dane's recent discussion of the analogy that some have proposed between the controversy over the convent at Auschwitz, on the one hand, and the Cordoba Project near Ground Zero, on the other.  Walking in to work this morning (ed.:  are we supposed to be impressed?  You live less than a mile from work), another not-an-analogy-but-perhaps-in-some-ways-instructive-case came to my mind, the other big law-and-religion controversy this summer:  The Christian Legal Society at Hastings.

As I see it, the Christian Legal Society was not recognized by the law school at Hastings because, at the end of the day, the Christian Legal Society's message of "exclusion" -- its practice of "discrimination" -- was offensive to the administration (and much of the community) at Hastings.  To be sure, everyone admitted that Christians at Hastings are welcome, and that they are allowed to meet . . . but they should meet somewhere else, out of respect for Hastings' very different values, and because the recognition by Hastings of the CLS would interfere with the messages that Hastings wanted to express.  Yes, all agreed, the Christian Legal Society has the "right" to discriminate -- to do something that many in the Hastings community find deeply offensive -- but Hastings wanted to avoid symbolically endorsing that discrimination, notwithstanding its affirmation of the right.

The cases are different, of course.  But are they entirely different?  I don't think, by the way, that it is enough to say, "well, in the Hastings case, it would, in fact, distort Hastings' message / vision to recognize officially a group that discriminates on the basis of religion, whereas in the New York case, it would not, in fact, detract from the meaning of Ground Zero if the Cordoba Project moved forward nearby", because the "in fact"-ness of these claims is, in each case, what is in dispute.


August 18, 2010 | Permalink | Comments (19) | TrackBack (0)