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.

Monday, January 31, 2011

Modern Day Admirers of Henry II

I appreciate Rick’s post (here) concerning British MP Frank Field’s efforts to require the General Synod of the Church of England to approve the consecration of women bishops by ending the C of E’s exemption from the county’s gender equality laws.

Sadly this sort of interference in ecclesial and episcopal affairs is not an isolated incident.

Of course China tops the list when it comes to arranging for the consecration of bishops not approved by the Holy See and interfering with the ministry of those bishops in communion with Rome of whom the Chinese authorities do not approve. (See here, here and here).

While China may be the most conspicuous offender in this regard it is by no means the only one. 

The State of Israel attempted to interfere with the appointment of two Melkite Greek Catholic bishops, Msgr. Botrus Muallem and Msgr. George Haddad.  (See here, here and here).

The Turkish government reserves the right to approve the election of Orthodoxy’s Ecumenical Patriarch.  This is bad enough, but it insists that the Patriarch be a Turkish citizen and the Turkish state closed the only seminary in Constantinople (a/k/a Istanbul) a number of years ago.  This is wrong in itself but it also has the effect of severely curtailing the pool of possible candidates.  (See here and here).

The Israeli government likewise reserves the right to approve the Greek Orthodox Patriarch of Jerusalem, a prerogative that Jordan and the Palestinian Authority also claim to exercise.  (See here and here).

Like almost everything in the Middle East, the role of the Patriarchate in the Orthodox Christian community in the Holy Land is complex (e.g. The 65,000 member Orthodox community is ethnically almost entirely Arab with only a few hundred Greeks, yet the latter hold all of the key positions of power.  The Patriarchate holds large tracks of land in Jerusalem, and is inclined to engage in land transactions with Israelis that may be lucrative for the Patriarchate but which Palestinian Christians may find problematic).  (See here).

Of course state interference with the clerics of a particular religious group can take forms that are more subtle than claiming a veto over the appointment of a bishop or patriarch.  (See here).

This is to say nothing of the severe restrictions on Christian practice and even atrocities committed against Christians in Muslim countries throughout the Middle East. 

Needless to say, religious freedom, “the source and synthesis” of all basic human rights (Centesimus Annus ¶ 47), is under great strain throughout the world.

January 31, 2011 | Permalink | Comments (3) | TrackBack (0)

Does a health care provider have a constitutional right not to participate in abortions?

Mark Rienzi has posted a fascinating new paper, The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Health Care Providers.  Here's (a portion of) the abstract:

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.

Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.

I have only had a chance to skim the article, and though it is well worth reading, I admit feeling some skepticism toward the constitutionalizing of professional conscience claims.  Whether or not providers were allowed to refuse to participate in abortion over the course of our nation's history, I still think the constitutional question has to take a back seat to questions about the definition of the professional role.  If a state hospital posted a job description for an "abortion provider," I have a hard time imagining the doctor hired for that job successfully challenging the state's decision to fire him for refusing to provide abortions.  Let's say that the state wants, via its professional licensing authority, to establish a category of abortion providers as a subset of the broader category of obstetricians.  Would it be constitutionally permissible for the state to require a willingness to provide abortions as a condition of licensing for that category?  It's difficult for me to see where the constitutional violation kicks in -- perhaps when the state sweeps too broadly with the requirement, forcing all obstetricians to provide abortions as a condition of licensing, for example?  In any event, I need to spend more time with this article, and you should too.

January 31, 2011 in Vischer, Rob | Permalink | Comments (12) | TrackBack (0)

Kristof on Bishop Olmstead

NYT columnist Nicholas Kristof has, more than a few times, waded into what seem to me to be intra-Catholic matters about which he has not much knowledge or standing.  In my view, he's doing it again. 

Now, I understand that delicate and difficult questions are in play with respect to the abortion that seems to have triggered the confrontation between Bishop Olmstead and St. Joseph's Hospital.  But Kristof is not really engaging these hard questions.  Instead, he suggests that the "battle" -- which he enjoys comparing to a "95 theses" moment -- "illuminates two rival religious approaches, within the Catholic church and any spiritual tradition. One approach focuses upon dogma, sanctity, rules and the punishment of sinners. The other exalts compassion for the needy and mercy for sinners — and, perhaps, above all, inclusiveness."

It is not clear, though, how, exactly, "inclusiveness" is at stake, or even implicated, in all of this.  If the hospital *is* doing things that are immoral, then it's not a matter of "inclusiveness", but integrity, for the Bishop to tell the hospital, "stop doing those things," and for the hospital to pay attention.  If the hospital is not actually doing things that are immoral, then, well, the mistake is not one of inclusiveness, but of thinking-about-morality. 

For Kristof, though, it's just too much fun, in a high-school kind of way, to cheer the "grassroots" against those out-of-touch, careerist authoritarians in the "Vatican."  Forget the Bishop, listen to Anne Rice, "the author and a commentator on Catholicism," who "sees a potential turning point. 'St. Joseph’s refusal to knuckle under to the bishop is huge,' she told me, adding: 'Maybe rank-and-file Catholics are finally talking back to a hierarchy that long ago deserted them.'”  Kristof, for his part, is excited about the possibility of a "new vision of Catholicism":

“Though they will be denied the opportunity to celebrate the Eucharist, the Eucharist will rise out of St. Joseph’s every time the sick are healed, the frightened are comforted, the lonely are visited, the weak are fed, and vigil is kept over the dying.”


Hmmm.  I'm pretty sure there's nothing "new," in Catholicism, about healing the sick, comforting the frightened, visiting the lonely, or feeding the weak.  It is also getting old, being told by non-Catholic commentators what it really means, or should mean, to be Catholic.

January 31, 2011 | Permalink | Comments (0) | TrackBack (0)

"Church must make women bishops, say MPs"

Fascinating.  It's obvious (I hope!) that it would be Sedition-Act-level unconstitutional if a government in the United States purported to require a religious community to make anyone a bishop whom that community did not want (for any reason) to make a bishop.  But, of course, in the United Kingdom, things are more . . . complicated.   

January 31, 2011 | Permalink | Comments (11) | TrackBack (0)

The NYT on the importance of funding constitutional rights

The New York Times, not surprisingly, opposes  those "House Republicans [who] are preparing to push through restrictions on federal financing of abortions far more extreme than previously proposed at the federal level."  According to the Times, there is something . . . off about the fact that "[l]awmakers who otherwise rail against big government have made it one of their highest priorities to take the decision about a legal medical procedure out of the hands of individuals and turn it over to the government."  How restricting funding for X amounts to taking away from individuals, and turning over to government, the decision about whether or not to do X is not made clear.

Does anyone recall the Times expressing concern that the persistent refusal of most legislatures in America to make it possible for low-income Americans to exercise their constitutional right to choose religious (and, as it happens, usually better) schools for their children amounts to a denial of that right?  To a "taking away" from parents of the decision about education?  Anyone?  . . . Anyone? . . .  (Bueller?)

January 31, 2011 in Garnett, Rick | Permalink | Comments (10) | TrackBack (0)

Sunday, January 30, 2011

"Varieties of Religion Today: William James Revisited"

Over the weekend I've been reading around a very slim book by Charles Taylor based on a lecture series connected with his Gifford Lecture in 1999 (the book was published in 2002 under the title above).  Taylor marks the occasion by "revisiting" William James's The Varieties of Religious Experience (given as the Gifford Lecture nearly a century earlier).  Many of the arguments in the middle of the book clearly presage Taylor's lengthier claims in A Secular Age -- for example, Taylor introduces here arguments from what he calls the neo-Durkheimian dispensation and the post-War development of the "expressivist" (or post-Durkheimian) religious model.

But what is special about the book is Taylor's attempt to situate James's understanding of religious "experience."  James was particularly (exclusively) interested in individual experience, not corporate life (which he disdained).  A different but related idea is that James was concerned to explore what he called religious "feelings" and decidedly not what he thought were the rationalizations and justifications which later proceeded from those feelings and, he belived, diluted and adulterated them.

It has been remarked before that the emphasis on experience and feeling places James as the relatively late descendent of a distinctively Protestant philosophical family tree.  In thinking about the connections of James's thought to modern sensibilities about religion, Taylor says something, again, related, but distinctive: he contrasts the outward, ritualistic, practice-oriented model of religious experience with an inward, personal, devotional model, a model in which people "take their religion seriously."  James's intellectual interests fit neatly within the presuppositions of the latter conception, and it was part of his project to vindicate interior religious experience against the slings and arrows of secular skepticism.   

But, says Taylor, the move from external to interior model was in fact very much of a piece with the march toward secularism: "[T]he drive to personal religion has itself been part of the impetus toward different facets of secularization . . . . Moreover, many of the secular moralities that have taken the place of religion place the same stress on inner commitment," one of which is of course Kantianism.  (13-14).  Some further thoughts after the jump on Taylor's characterization of James. 

Continue reading

January 30, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

A Tale of Two Governors

Jody Bottum has written what is to my mind the most powerful commentary yet to appear on the indictment and coming prosecution of Philadelphia abortionist Kermit Gosnell. 


Having carefully gone through the lengthy grand jury report, Jody notes the following:

Many people knew what was going on at his Philadelphia clinic; several filed complaints with state and local agencies. But nothing was done, and at the time of his arrest, he hadn’t been visited by a medical examiner for 17 years. As the grand jury noted, with the change of governors in Pennsylvania in 1995—when the pro-abortion Tom Ridge replaced the pro-life Bob Casey—”the Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all,” as “officials concluded that inspections would be ‘putting a barrier up to women’ seeking abortions.”

The pro-life Casey and the pro-choice Ridge were both Catholics.  The first honored the principle of natural justice (and the teaching of the Catholic Church) that every human being, irrespective not only of race, sex, and ethnicity, but also irrespetive of age, size, stage of development, or condition of dependency, is the bearer of a profound, inherent, and equal dignity.  The second governed according to a very different set of commitments when it came to the question of unborn human life.  It is only fair to note that, in this case, the defender of the rights of the weak and vulnerable was a Democrat.  His successor---whose administration, in the name of protecting women from "barriers" to seeking abortions, effectively made it possible for Gosnell to carry on his grisly business---was a Republican.

Governor Ridge, of course, went on to be appointed Secretary of Homeland Security in the Bush administration, and he remains a significant figure in the Republican Party.  Indeed, he is sometimes spoken of as a possible vice presidential, or even presidential, nominee.  If there is justice in the world, the grand jury report's revelations of the Ridge administration's delinquencies that enabled Gosnell to operate, and their source in Ridge's own pro-abortion ideology, will put an end to such talk.

January 30, 2011 | Permalink | TrackBack (0)

Friday, January 28, 2011

"Abortion, Reason, and Science"

"Abortion, Reason, and Science" is the name of this essay, by David Harsanyi, published at the Reason (a libertarian magazine) website.  (My advice, for what it's worth, is that one resist any temptation to read the comments.)  He says:

 How many Americans instinctively turn to the pro-choice camp because pro-life proponents aggravate their secular sensibilities?

As Nat Hentoff, the noted civil libertarian journalist, once remarked, when he turned pro-life, his cohorts at The Village Voice wondered when he had "converted to Catholicism—the only explanation they could think of" for his "apostasy."

It's unfortunate that abortion is a social issue, because it is science and reason that can turn the debate. . . .

[If] the pro-life movement is going to win the hearts and minds of the rest of the nation, it's not going to need more God. It's going to need more reason.

On the one hand, the piece made me want to roll my eyes and grumble a bit.  After all, the pro-life side of the argument (at least, in my experience) has been asking all along to have the abortion question subjected to the tests of reasoned argument.  Bring them on!  On the other hand, though, it seems hard to dispute the author's suggestion that many people (fairly or no) embrace abortion rights because they believe (incorrectly, in my view) that a "secular" orientation requires it.  If Harsanyi can get a few people to re-think that embrace, more power to him.

UPDATE:  This post, at First Things, has prompted some interesting discussion in the comments box. . .

January 28, 2011 in Garnett, Rick | Permalink | Comments (5) | TrackBack (0)

Brian Leiter on the Law of Religious Liberty

Prof. Brian Leiter (Chicago) has posted this item regarding his current project:

This (relatively early) draft essay is available on SSRN for readers who might be interested; the abstract:

This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as "Why Tolerate Religion?" (Constitutional Commentary, 2008) and "Foundations of Religious Liberty: Toleration or Respect?" (San Diego Law Review, 2010) (the account of religion has changed somewhat since these two papers). The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of "religious" conscience; and (2) there are claims of conscience that are not "religious" in character (however precisely religion is understood). "Principled toleration" requires that a dominant group, with the means to stamp out or repress disfavored beliefs of others, nonetheless recognize that there are good moral reasons to permit such beliefs to be held and expressed (subject to the limits imposed by the Harm Principle). The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified? The relation between toleration and religious establishment is also discussed.

This version benefitted from extremely helpful feedback from colleagues at a Work-in-Progress workshop here last week, as well as from written comments by our Law & Philosophy Fellow Ben Laurence.   Additional feedback would be welcome.  Thanks.

January 28, 2011 | Permalink | Comments (0) | TrackBack (0)

John Allen on the "priority" of religious freedom

Here (thanks to a friend) is an as-per-usual interesting essay by John Allen, in which he explains (among other things) that and why "[r]eligious freedom is destined to be the towering diplomatic and political priority of the Vatican and the global church in the 21st century."  A bit:

As the 21st century rolls on, the leadership tone in Catholicism will increasingly be set by [those] . . . who live in neighborhoods where the battle for religious freedom isn’t about an alleged “war on Christmas” or the latest exhibit in an art gallery. It’s a matter of life and death, as recent events in Iraq, Egypt and Nigeria, as well as India, eloquently illustrate.

As leaders from those parts of the world exercise greater influence on the Vatican and on global Catholic consciousness, religious freedom will be set in stone as the church’s top diplomatic and geopolitical priority.

In English-speaking Catholicism, India in particular will be a force. By mid-century there will be 25 million Catholics in India, more than the Catholic populations of England, Ireland and Canada combined. Since English is the primary language of Indian theological and public policy debate, Indian Catholics will exercise a gravitational pull in Anglophone Catholic circles.

The pride of place assigned to religious freedom may frustrate some Catholic social justice activists, who would like to see a greater share of time and treasure invested in anti-poverty crusades, campaigns against war and the arms trade, environmental struggles, and so on. Those issues won’t disappear, but as long as Catholics have to fear for their lives precisely in those parts of the world where the church is experiencing its most dramatic growth, defending religious freedom will remain at the top of the to-do list. . . .

January 28, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)