Thursday, April 28, 2011
The Oklahoma City Thunder won their first-ever playoff series last night, defeating the Denver Nuggets 4 games to 1 and now await either the Memphis Grizzlies or the San Antonio Spurs in Round 2.
Connection to Catholic Legal Theory - well it's a stretch but here goes. Kevin Durant signs himself before the start of each half. And here is a great story on starting center Kendrick Perkins who served Mass from 7th grade through high school at Our Mother of Mercy Parish in Beaumont, Texas.
Jeremy Waldron keeps producing a treasure trove of work on topics at the heart of the MoJ conversation. Here's his latest, from recent lectures at Princeton's James Madison Program, titled A Religious View of the Foundations of International Law. From the abstract:
Lecture 1 begins the task of considering law beyond the state from a specifically Christian point of view, though it also addresses the difficulties of sustaining a viewpoint of this kind in a multi-faith and indeed increasingly secular world. Lecture 2 considers nationhood, sovereignty, and the basis for the division of the world into separate political communities. Clearly a religious approach to order in the international realm will endorse the position of most modern international jurists that sovereign independence is not to be made into an idol or a fetish, and that the tasks of order and peace in the world are not to be conceived as optional, which sovereigns may or may not support at their pleasure. At the same time, sovereigns have their own mission, ordering particular communities of men and women; and this task, too, should not be slighted. Finally Lecture 3 will consider the rival claims of natural law and positivism in regard to the sources of international law Natural law is no doubt important in any Christian jurisprudence. But the most telling part of natural law jurisprudence from Aquinas to Finnis has always been its insistence on the specific human need for positive law. This holds true in the international realm as much as in any realm of human order - perhaps more so, because in the international realm law has to do its work unsupported by the overwhelming power of a particular state. So this final lecture will address, from a religious point of view, the sources of law in the international realm: treaty, convention, custom, precedent, and jurisprudence. It will focus particularly on the sanctification of treaties.
Wednesday, April 27, 2011
Increasing religious pluralism in society is a major factor in causing societies to move toward greater religious freedom. (For an excellent book exploring this and related factors, see Anthony Gill, The Political Origins of Religious Liberty). In a recent post at Balkinization, Andy Koppelman recommends a new book by Kevin Schultz entitled Tri-Faith America: How Catholics and Jews Held Postwar America to its Protestant Promise. Koppelman observes that, “Schultz shows how a deliberately fashioned coalition of Protestants, Catholics, and Jews (which eventually became the National Conference of Christians and Jews) worked together in a movement to refashion national identity so that all three faiths were understood as equally American.” He describes it as riveting reading. (In addition to Koppelman’s discussion, I would look at an essay by Schultz at the Huffington Post which provides additional support for the view that his book is worth reading).
Koppelman maintains, however, that if the Tri-Faith America notion met American needs in the 1940’s, it cannot possible meet the needs of our country now because of the increasing pluralism implicated by rising populations of Hindus, Buddhists, Muslims, New Agers, atheists and agnostics. He specifically chides Justice Scalia for suggesting that we live in a monotheistic society. As a sociological matter and as a matter of political equality, I agree with Koppelman: “Theism is no better as a basis for social unity than the generalized Protestantism that prevailed at the time of the founding. If the aim is shared agreement, then it is counterproductive to propose unifying principles that large numbers of citizens cannot possibly agree to. If we are going to find bases of social unity today, they will have to be broader than this.”
I would point out, however, that monotheism is still a dominant strain in the culture. More important, if Koppelman is making a constitutional argument, (I am not sure), I believe he is wishing for a constitution we do not have. God is not only inscribed on our currency and our coins, mentioned in our Pledge of Allegiance and asked to bless America at the end of every Presidential address, God is mentioned in the constitution of virtually all, if not all, of the 50 states. God is used to legitimize our governments and often their policies. (I am quite sure that Koppelman and I agree this is bad for religion).
Ironically, as our country becomes more pluralistic (by the year 2050, Muslims are expected to be the second largest denomination in the United States (see Charles Lippy, Pluralism Comes of Age)), the Court in my view has moved to restrict religious liberty. Instead, I believe increased pluralism should lead us to increased religious respect toward others and increased religious liberty. But those who have been dominant will circle the wagons for a long time before they are persuaded or forced to retreat.
We are honored that Oklahoma City's new Archbishop, Paul Coakely, will celebrate Mass for our conference at St. Thomas More University Parish at 5:30 pm on Tuesday, May 17. The Mass is scheduled to take place right after what promises to be an enriching discussion with Paul Griffiths on the Essential St. Augustine for 21st Century Lawyers and Law Professors.
If you are attending the conference and haven't registered, please do so soon. Thanks!
Joe Carter reflects on the question that has haunted conscientious evangelicals for more than 100 years. I post it here for two reasons: 1) to express thanks for the fact that, while many questions haunt conscientious Catholics, this is not one of them; and 2) I have an excuse to bring up my favorite explanation of how Jesus was a teetotaler: the unfermented wine theory.
This is an interesting and provocative piece by a professor at the John Jay College of Law and a former police officer. Whether the author is truly serious about flogging is less clear than the larger point that he is making -- that the rehabilitative model of punishment was itself a cause (not the cause, but a cause) of the proliferation of penitentiaries (where one ought to be, of course, penitent) and later (round about the 1950s) "correctional institutions." I suppose the argument fits neatly with the claim that we entertain politely, comfortably, liberal ideas that by incarcerating the offender we are improving him, we are communicating to him his moral wrongdoing with the hope that he internalize the message, we are righting some sort of mystical imbalance in the universe which he created. But really what we are doing is using the force of law (it is always the force of law which in the end matters) to remove him from our midst and congratulating ourselves that we are treating him with the "respect" that the liberal state purports to owe its villainous subjects.
Corporal punishment, says the author, would return the punished to the public eye -- it would make the rest of us, for whom the world of crime is a shadowy specter that we hide from compulsively, that we tremble to see, confront it after a fashion. I once heard Judge Alex Kozinski say that if we are to retain capital punishment, executions ought to be publicly broadcast, so that we can see and sense and feel what we are doing. Here's James Fitzjames Stephen on the subject (from the piece, Pain, in his collection, Essays by Barrister):
It should not be wished that whatever is wrong and bad should be penned off from the rest of the community in a moral cesspool . . . . A somewhat more precise acquaintance than is commonly possessed with some of the secrets of prisons and hospitals would make many of us sadder, and most of us wiser.
Tuesday, April 26, 2011
Talking Points Memo has more background on King & Spalding's decision to drop the DOMA defense. This part jumped out at me:
Sources with knowledge of the backlash confirm that one of King & Spalding's top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case.
Maybe I'm wrong, but it doesn't seem to me that clients have traditionally chosen their lawyers based on the moral standing of the lawyers' other clients. I do support lawyers making moral decisions about the cases they'll take -- or more accurately, acknowledging the moral dimension of those decisions, which is present whether or not they admit it -- and I suppose it's only natural that the moral accountability extends to other clients, but law firms need to be careful here. Coca-Cola's objective is to avoid offending anyone; if lawyers adopt this by giving in too easily to client demands, they will have abandoned a key quality of the lawyer's traditional role: the willingness to offend.
Should the transgendered be permitted to marry? Texas is apparently on verge of saying "no." From a Catholic perspective, how should the secular law respond to a transgendered person's desire to marry? The Church's position (I think) is that gender is not susceptible to reassignment through surgical procedures. As such, let's say a person born a man but living as a woman after surgery desires to marry a man. Would the Church deny that marriage (as essentially a same-sex union) but affirm the person's marriage to a woman (which would be, judging by outward appearances, a same-sex union)? How should a Catholic advise the Texas legislature on this issue?
Monday, April 25, 2011
Today superstar appellate lawyer Paul Clement resigned from King & Spalding after the firm withdrew as counsel representing the U.S. House of Representatives in defending the Defense of Marriage Act. I assume that the firm feared financial blowback from taking on a case like this, much as Ropes & Gray feared being hurt on the hiring front for its decision to help Catholic Charities find a way around the Massachusetts law forbidding discrimination against same-sex couples as adoptive parents. Though I would defend both of these representations, I reject the suggestion that lawyers are somehow beyond moral reproach for the cases and causes to which they devote themselves. There is a moral dimension to accepting a representation. Justifying the representation does not mean that the case or client itself has to be morally justified; there is a moral case to be made for the profession's long tradition of defending unpopular causes. We are, and should be, morally accountable for how we spend (and don't spend) our time -- there is nothing wrong with calling lawyers out for their decisions in that regard. (I think it's a different story entirely when a government official calls lawyers out.) The best response to such criticisms is not to pretend that morality has nothing to do with it, thereby feeding into the lawyer-as-amoral-technician paradigm, but to offer a moral defense of the decision.
Here is my take, on the Hosannah-Tabor case, in today's USA Today:
[I]t is well established that a “ministerial exception” to job-discrimination laws prevents secular courts from jumping into religious disputes that they lack the authority to address or the competence to solve. The question in the Hosanna-Tabor case is not so much whether the exception exists — it does, and it should — as how it should be understood and applied.
As the court of appeals recognized, this exception is “rooted in the First Amendment’s guarantees of religious freedom.” Indeed, a religious-liberty promise that allowed governments to second-guess religious communities’ decisions about what should be their teachings or who should be their teachers would be a hollow one.
To be clear, the ministerial exception is constitutionally required and valuable, but it does not rest on assumption that religious institutions and employers never behave badly. Certainly, they do. Its premise is not that churches are somehow “above the law.” They are not, and should not be. Its point is not “discrimination is fine, if churches do it.” It is, instead, that there are some questions secular courts should not claim the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach, and some relationships — such as the one between a religious congregation and the ministers to whom it entrusts not only the “secular” education but also the religious formation of its members — that government should not presume to supervise too closely.
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. Although there are 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.
Last October, many enjoyed a laugh at the expense of Christine O’Donnell, then a candidate for one of Delaware’s U.S. Senate seats, when she questioned the constitutional pedigree of the “separation of church and state.” Her critics were a bit too quick to poke fun. In fact, “separation of church and state” does not appear in the Constitution. Still, and even though it is often distorted and misused, the idea is a crucial dimension of religious freedom. We wisely distinguish, or “separate,” the institutions and authorities of religion from those of government. We do this, though, not so much by building a “wall,” but by respecting the genuine autonomy of these different spheres. We do this not to confine religious belief and practice but to curb the ambitions and reach of governments. . . .