Mirror of Justice

Racial segregation in America

As a college freshman, I remember lecturing my southern roommate about his region's race problem -- as only an 18 year-old who grew up in the predominantly white Chicago suburbs could do -- and he responded by asking how many blacks went to my high school.  Well, not many at all, a phenomenon underscored by this interesting (and depressing) slide show of the ten most racially segregated metro areas in the country based on new census data.  I don't have any easy solutions to offer, but especially in light of how much time I've spent recently with Martin Luther King Jr.'s body of work regarding the "beloved community," the pervasiveness of segregation is lamentable.  It is difficult to live in solidarity with "the other" when "the other" is largely out of sight.

Stolen Valor Act case headed to the Supreme Court

That's the speculation in this Washington Post article. The article praises Judge Kozinski's opinion in the Alvarez case as an "entertaining treatise." I thought, rather, that Kozinski's opinion was one of the more depressing judicial opinions I've read in some time. Kozinski states--"Saints may always tell the truth, but for mortals living means lying." I don't think Judge Kozinski knows much about saints. Saints are persons who have sinned, just as the rest of us do. But they were able to live lives of great holiness, maybe because they recognized when they failed.   

In contrast, Kozinski's opinion seems to celebrate our moral failings. Maybe that's just because he's trying for the quotable rhetorical flourish. But the tenor of the opinion seems to reflect the judge's deeply held beliefs. (Strangely, the opinion contains an offhand critique of the First Amendment law on pornography.) He maintains that "white lies, exaggerations, and deceptions ..are an integral part of human existence." This doesn't seem just a factual recognition of our fallen natures. This seems to reflect his view that untruthful speech is valuable for its own sake, because of its essential role in "human self-expression" and the pursuit of "personal autonomy."

Richard M.

   

A Reflection on the Life of Bill Stuntz

A number of us have commented on the life and work of Bill Stuntz, and I would like to offer my own reflection.  Bill was a professor at Virginia while I was there in law school.  As a Catholic student I was involved both in the Catholic student organization and the Law Christian Fellowship.  As a faculty advisor, it was important to Bill that LCF be ecumenical and inclusive, which is one of the reasons I felt so welcomed.  I found a home there and even served as president of the organization.  As a mentor, Bill challenged me to think critically about scripture, the law, and my own tradition.  Perhaps more importantly, he encouraged me to be attentive to the Holy Spirit working in my life and to be completely authentic, as he strove to be.  I am sad that we have lost Bill, but I am thankful for his work and his example of faithful integrity.

Happy to Be Here and Jeremy Waldron at Princeton

Thanks to Rick and company for including me. I first came across Mirror of Justice when I was a young associate at Williams & Connolly and have followed it ever since, so it's a delight to be part of the discussion finally. As Rick mentioned, I regularly teach at Villanova, but I'm spending the current academic year as the Forbes Visiting Fellow in the James Madison Program in the Politics Department at Princeton University.

Speaking of which, Jeremy Waldron is with us for several days delivering the Madison Program's Charles Test Lectures, and his topic is religion and the foundations of international law. (Details here.) I'm an admirer of Waldron's earlier book on the foundations of equality in Locke and his recent work on public reason and religion, and these lectures look to be extending a broadly similar and exciting argument to international law. Stay tuned.

Penalver and Strahilevitz on Judicial Takings

Lawrence Solum, who produces the Legal Theory Blog, has commented on MOJ friend Eduardo Penalver's and Lior Strahilevitz's essay, "Judicial Takings or Due Process?" The essay argues for a deliniation of the boundaries between judicial takings and due process that is "narrower and more coherent". The link to Legal Theory blog is here and to the SSRN page is here. Solum highly recommends it, and so do I.

Secularism and Self-Identity

Greg had a post the other day titled "The Pro-Life Generation", in which he expressed hope for the future based on the activities of Students for Life.

There is another story about young people that is far less hopeful.  Psychology Today reports that, whereas in the past the secular identiy of atheism/agnosciticm was incidental to their identity, today college students increasingly "consider their secularism to be an important, primary aspect of self-identity."  The article continues:

Nothing demonstrates this point more clearly than the rapid growth of the Secular Student Alliance, the umbrella group for organized atheism and humanism on college campuses (and now high schools as well). SSA chapters have grown from less than 50 in 2007 to over 250 today, and there is no sign of slowing down....

In recent years, however, that has changed, as nonreligious identity has become increasingly important to many.

"After the September 11 attacks, I began thinking that perhaps I should speak out against what I felt was a mindset that is not only wrong but dangerous," says Ian, who was a student at the University of Wisconsin in 2001 when the religiously motivated 9-11 terrorists took the lives of 3000 innocent victims.

Ian expresses the sentiments of many young adults who increasingly have come to see traditional religion as having little value in the modern world. A secular lifestance, to many of these students, is not secondary or incidental, but a primary aspect of their self-identity.

It seems to me religion is not doing a very good job if we can't convey to young people how it is meaningful to them in today's world.

Jewish law syllabus project

From Touro law prof Sam Levine:

On behalf of the Jewish Law Institute at Touro Law Center, I am pleased to announce the initiation of the Jewish Law Syllabus Project.

With the continuing emergence of Jewish Law as an area of focus in both the American law school curriculum and American legal scholarship, recent years have seen an expansion of law school courses and centers dedicated to exploring various aspects of Jewish Law.  The aim of the Jewish Law Syllabus Project is to help facilitate this increasing attention to Jewish Law in American law schools, through the compilation of a collection of syllabi from Jewish Law courses.  This collection will serve as a resource, for scholars who are interested in undertaking the teaching and study of Jewish Law, as well as for those who are currently pursuing these fields.

Toward that goal, I would like to invite you to participate in the Jewish Law Syllabus Project.  I would appreciate if you would send to my attention copies of Jewish Law syllabi, from both current and past courses, taught by you and/or others.  Please send email attachments, to: [email protected]; or printed copies, to: Touro Law Center, 225 Eastview Drive, Central Islip, NY 11722.

I thank you in advance for your participation, and I welcome any questions and comments you may have about the project.

Welcome to Michael Moreland!

I'm happy to announce that Prof. Michael Moreland (Villanova) is joining the MOJ-blog-crew.  Besides being an all-around good guy (notwithstanding his University of Michigan connections), Prof. Moreland knows a lot about many things.  Here's a bit from his bio:

Professor Michael Moreland joined the Villanova faculty in 2006. Professor Moreland received his B.A. in philosophy from the University of Notre Dame, his M.A. and Ph.D. in theological ethics from Boston College, and his J.D. from the University of Michigan Law School. His scholarly interests focus on torts, bioethics, and law and religion. At Villanova, he teaches Torts, Evidence, Bioethics and the Law, Advanced Torts, Justice and Rights (1L elective), and seminars in bioethics and in Catholic social thought. Following law school, Professor Moreland clerked for the Honorable Paul J. Kelly, Jr., of the United States Court of Appeals for the Tenth Circuit and was an associate at Williams & Connolly in Washington, D.C., where he represented clients in First Amendment, professional liability, and products liability matters. Before coming to Villanova, he served as Associate Director for Domestic Policy at the White House, where he worked on a range of legal policy issues, including criminal justice, immigration, civil rights, and liability reform. . . .

Welcome, Michael!

Carozza on Lautsi, and memory

The good folks at The Becket Fund have posted a discussion of the Lautsi case (about crucifixes in the classrooms of Italian schools), which features my colleague, and international-human-rights expert, Paolo Carozza.  A taste:

Professor Carozza points out that religious liberty “has some institutional and communal aspects that cannot be separated from it, without emptying religious freedom of its meaning and substituting it with the secularism of the State.”  He adds that

we cannot disregard the importance of history. Every population is attached to its history as well as to its current state. As the Judge from Malta, Giovanni Bonello, stated in his concurring opinion, … “The European Convention does not oblige us to have a collective ‘historical Alzheimer’s’”. The aspects of a culture cannot be abstractly separated from the history of a people.

Professor Carozza’s observations build on the unstated reality that Lautsi and cases like it are in the end arguments about baselines: What is the “neutral” position when it comes to relationships between religion and government? One view holds that the neutral position is the blank wall, a kind of tabula rasa. This view has something in common with the Hobbesian construct of an ahistoric “state of nature” that often presupposes a positivist conception of the law. There is also an analogy here to John Rawls’s imaginary “original position”. Both philosophies deliberately subtract history, contingency, and memory from the human situation in order to reach conclusions about the law.

The other view is that there can be no blank slate: Each nation, and even each community, has a history of interaction between religion and government against which any current government actions (in Lautsi, keeping or removing crucifixes) will be measured and will gain their meaning.  Cultural memory persists whether we want it to or not. In a real sense we cannot erase the slate and start over — we can only write over what is already there, because the “neutral” position is historically and culturally determined. Professor Joseph Weiler argued as much in his excellent presentation to the Grand Chamber in Lautsi.

Here we go! The Court grants cert. in the ministerial-exception case

Today, the Supreme Court agreed to hear (what I think is) the most important religious-freedom case in 20 years.  The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  (More here, at the Religion Clause blog.)

The case does not involve what’s become the usual stuff of the Court’s church-state caselaw:  prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks.  Nevertheless, again, this case is huge, and it is about, at its heart, what really matters.

The question in the case is whether antidiscrimination laws – like, for example, the Americans with Disabilities Act – allow courts to review hiring-and-firing decisions involving “ministerial employees.”  In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily secular subjects are not “ministerial employees”, and therefore are covered by the Act.

 The Supreme Court should reverse this decision.  Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines.  To be sure, not every employee of a religious institution is a “ministerial employee”, and religious institutions – like all employers – have many legal obligations to their employees.  The point is not that religious institutions and employees are “above the law” but rather that there are some questions – such as, who should be this religious community’s minister? -- that our Constitution’s First Amendment does not allow secular government to answer.