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, June 27, 2011

Richard Stith on de-defunding Planned Parenthood

As Wesley Smith reports (here), a federal district court judge has issued an opinion blocking Indiana's recently enacted effort to withhold state funding from Planned Parenthood.  In my view, the opinion is unfortunate, and mistaken.  Richard Stith, asks, at the University Faculty for Life blog, a question that, it seems to me, often gets overlooked:

The best reason not to fund Planned Parenthood is never mentioned in the newspapers. (Could it also have been overlooked in the briefs?)

Numerous undercover investigations have shown that Planned Parenthood prefers money to the interests of women. But even without that evidence, it would be unwise to entrust pregnancy prevention and pregnancy counseling to Planned Parenthood as long as it is profiting from abortion. No organization that is supposed to prevent pregnancy, or counsel pregnant clients on their options, should be making money from a particular post-pregnancy outcome, i.e. abortion. Fair and neutral pregnancy prevention and counseling will be much more likely with organizations or agencies that do not have such a built-in conflict of interest. (German constitutional law, for example, requires the separation of abortion counseling from abortion provision, and South Dakota has wisely moved in this direction recently.)

The above rationale should easily withstand both constitutional and regulatory challenges, for it focuses solely on benefits to clients, not on the pros or cons of abortion.

June 27, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Saturday, June 25, 2011

Political History of Law and Religion Scholarship

I am just back from a useful and interesting conference organized by Nelson Tebbe, Paul Horwitz, and RMOJ (that's Rector of Mirror of Justice) Rick Garnett, convened at Northwestern Law School with Andy Koppelman's gracious hospitality.  The conference brought together scholars from an extraordinarily broad range of perpspectives, and it was a pleasure for me to see and speak with MOJ family members Steve Shiffrin, Tom Berg, Mike Moreland, and Susan Stabile.

The various projects that people presented were very interesting -- some highlights for me were an Augustinian project in political and legal theory by John Inazu and a paper on freedom of the church (as distinguished from "religious" freedom) by Steve Smith, as well as a panel discussion of the Hosanna-Tabor case by deeply informed and insightful folks, but there were many others.  But I was also impressed by the distance of the projects from each other -- distance in perspective, in tone, and most especially in weltanschauung.

That got me wondering about something that might sound a little like navel-gazing, though in my defense it's really more about gazing at other people's navels than my own.  What would a political history of law and religion scholarship look like?  Would it show consistency with respect to the range of world views espoused by scholars in this area?  Or would it show expansion?  Or something more complex?

My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics.  It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective.  Of course I don't mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.

What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars -- folks who read both the Free Exercise and Establishment Clauses in a 'strong' way.  Many of the most important scholars of that generation held that general view, even as there may have been intramural differences among them.  Indeed, some of those very same folks were in attendance at our conference.  Of course there were dissenters from that general position 30-40 years ago too -- but the point is that there existed such a majority view, and that it was considered, for lack of a better term, mainstream, or eminently reasonable within the academic world -- a mid-20th century academic moderate liberal's view (which is not the same as a non-academic moderate liberal view).  Part of the power of the view was that a strong reading of the Establishment Clause gave these scholars a kind of bona fides -- certainly within academic circles -- when arguing for a strong reading of the Free Exercise Clause.  If you are against majoritarian religion, the chances might increase in the academy that people will listen to you when you argue in favor of anti-majoritarian religion. 

But today, I think it is much more difficult to identify any mainstream or consensus-like position.  There are those who like a strong EC and a weak FEC, those who prefer weak readings of both, those who go for a strong FEC and a weak EC, and those who hold to the strong reading of both.  But even those who prefer the dual strong reading aren't necessarily coming at the issue from the point de depart of mid-century academic moderate liberalism.  Some are coming from traditions of faith; some from radical political perspectives; some from rather specialized policy engagements; some from distinct philosophical traditions, and so on.  That variety of background has generated a broadening of normative preferences.  And so too, perhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was.

Whether these developments are good or bad is not a particularly interesting question when framed in those stark terms.  Like all developments and changes, there is both gain and loss.  But sometime, somewhere down the road, it might be enjoyable and interesting for someone more capable than I to write a piece about the trajectory of law and religion scholarship -- what its political and cultural history looked like at inception, how it appears now, and how it may appear in years to come. 

June 25, 2011 in DeGirolami, Marc | Permalink | Comments (4) | TrackBack (0)

The Changing Tide

The passage of same sex marriage legislation in New York may represent a significant shift in the direction of electoral politics related to civil rights for sexual minorities.  Essays (here) by Luke Timothy Johnson and Eve Tushnet at Commonweal provide interesting Catholic perspectives on this issue.

June 25, 2011 | Permalink | TrackBack (0)

Thursday, June 23, 2011

Authoritarianism and Totalitarianism


Thank you, Robby, for your post about the liberal/conservative divide in present day “democratic” politics and culture. I am grateful for your cogent expression of some important points, and I think you have expressed them well including your acknowledgment that there are instances in which the divide does not prohibit people of good will who hold different perspectives from recognizing and acknowledging the valuable contributions that can be made by those with whom some views—be it political, social, cultural, economic, religious, etc.—are not shared but still appreciated.

I would like to offer a few complementary thoughts about the worry to which Robby refers. Is the worry real, or is it not? Is the present-day dominant Western culture that considers itself democratic inching toward authoritarianism? In this culture are the God-given rights of conscience and religious belief so vital to the foundation of democracy being pushed aside? Robby relies upon one example to reinforce his worry, the emerging case from Washington, DC.

I am sure that Professor John Banzhaf, III of the George Washington University Law School thinks he means well and is acting consistently with liberal and democratic ideals codified in the DC Human Rights Act by challenging The Catholic University of America’s decision to restore student residences to single-sex dorms.

Here it is relevant to take stock of something which CUA President John Garvey did while still Dean of Boston College’s Law School and President of the Association of American Law Schools when he raised the need for “institutional pluralism” in the American academy of the present age. Yet, Professor Banzhaf thinks otherwise by arguing that CUA will be violating the DC law presumably on the basis of discrimination in housing or public accommodation. The day that this kind of allegation against a Catholic institution could be taken seriously in one of the greatest Western democracies has been forecasted in the past.

In 1960 Christopher Dawson contended that even the Western democracies, which would include the United States, had the potential for becoming totalitarian states through an aggressive assertion of state authority. As he said:

the modern state exerts no less authority underground in the subway and the air raid shelter than it does on the earth and in the air. The totalitarian state—and perhaps the modern state in general—is not satisfied with passive obedience; it demands full co-operation from the cradle to the grave. Consequently the challenge of secularism must be met on the cultural level, if it is to be met at all; and if Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them.

It strikes me that John Garvey, a friend to many of us here at the Mirror of Justice, is doing the very thing that Dawson exhorted, that is, to defend the right to exist in the sphere of higher education in a Catholic, Christian manner. But he is not without opposition. Professor Banzhaf appears intent on denying him and CUA that very right that is logical, reasonable, and essential to the raison d’être of Catholic higher education by relying on the tools that the state has provided, perhaps unintentionally, to declare that student housing that is designed to cultivate the virtuous life is in fact discrimination in housing and/or public accommodation.

But the foreshadowing does not end with Dawson’s warning from over fifty years ago. Let us fast forward to the 1990s when Blessed John Paul II occupied the Chair of Peter and exercised his office. He understood the concerns that Dawson expressed in his 1991 encyclical letter Centesimus Annus wherein he said:

Authentic democracy is possible only in a State ruled by law, and on the basis of a correct conception of the human person. It requires that the necessary conditions be present for the advancement both of the individual through education and formation in true ideals, and of the “subjectivity” of society through the creation of structures of participation and shared responsibility. Nowadays there is a tendency to claim that agnosticism and skeptical relativism are the philosophy and the basic attitude which correspond to democratic forms of political life. Those who are convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view, since they do not accept that truth is determined by the majority, or that it is subject to variation according to different political trends. It must be observed in this regard that if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism. (italics supplied)

A few years later in 1995 in the encyclical Evangelium Vitae, John Paul reiterated his concern about the inopportune evolution of democracy when he stated:

In this way democracy, contradicting its own principles, effectively moves towards a form of totalitarianism. The State is no longer the “common home” where all can live together on the basis of principles of fundamental equality, but is transformed into a tyrant State...

So what is one to do regarding these and other developments in the great democracies of today where long-held values and traditions are merely tolerated if they are not, in fact, designated for annihilation?

First we must pray to our merciful God for guidance and His generous assistance. Second, we can muster the wisdom with which God abundantly blesses us to chart a prudent but firm course through the political, social, and cultural storms of our own times. And third, as Robby has suggested, we can reach out in friendship to those with whom we may not share Christian belief and certain values but nevertheless possess the same dislike of authoritarianism.

Critics may argue that the Church is authoritarian and what is asked in my third point is therefore nonsense. But is it, is it really? I suggest that the Church is not authoritarian. She is an authority without question, but she is the Body of Christ who seeks that which is good for all members of the human family by propostion rather than imposition. On the other hand, it seems that, for the time being, Professor Banzhaf is intent on imposing his understanding of democracy, which seems an awful lot like a thinly disguised totalitarianism, on the Christian community that calls itself The Catholic University of America.


RJA sj


June 23, 2011 in Araujo, Robert | Permalink | TrackBack (0)

More on More

For a very interesting reflection on the life of St. Thomas More, one that draws connections between various aspects of More’s family and public life and Familiaris Consortio, Chesterton, Waugh, Tolkien, and the movie Braveheart, see the essay “The Uncompromising Man” by Omar Gutierrez available here.

June 23, 2011 | Permalink | Comments (0) | TrackBack (0)

General Discrimination vs. Religiously Based Moral Objection to an Act: A Question for Steve Shiffrin

In his discussion of religious exemptions to same-sex marriage legislation (here) Steve Shiffrin draws a distinction between “general discrimination” on the one hand, and on the other hand “declining to participate in an act that you think is immoral.”  Employing this distinction, Steve says that one could adhere to some foundational principle of equality such that a caterer would be prohibited from refusing to serve gays and lesbians generally but would be allowed to abstain from providing catering services at a same-sex wedding based on a conscientious, religious objection.

Steve foresees that adhereing to this distinction might lead to the case in which a caterer might refuse to participate in an inter-racial wedding.  Steve would allow a religious exemption in such a case, though he would demand the satisfaction of some kind of religious sincerity test – while acknowledging the likely difficulties in  implementing such a test.

My question, however, is whether the distinction between impermissible “general discrimination” vs. permissible discrimination based on sincere religious objection to an act can be maintained.  Does the school which does not wish to admit black students object to African-Americans “in general” or do they object to the “act” of inter-racial education?  Do the owners of a lunch counter which is happy to serve African-Americans in a designated space but unwilling to seat them next to white customers discriminate against blacks “in general” or do they object to the “act” of inter-racial dining?

Moreover, if the distinction can be maintained – if discrimination against the person as such can be distinguished from moral objection to the act that the person engages in – isn’t this precisely the distinction employed by opponents not only of same-sex marriage but of intimate same-sex relations?  If so, then doesn’t the question become whether such moral objections can be founded on non-religious premises in a way that is convincing to a broad public?

June 23, 2011 | Permalink | Comments (27) | TrackBack (0)

No one is more keenly aware than am I that there are many honorable, fair-minded, and non-fanatical liberals. Since there were very few conservatives at Princeton when I was hired, granted tenure, and installed in the professorial chair I hold (and since my socially conservative views were at no point a secret), I know that I am the beneficiary of the honesty and integrity of many liberal colleagues. But I worry, as I know some liberals themselves do, that there is an authoritarian impulse in some liberal circles that threatens to undermine the historic commitment of liberalism to individual and institutional freedom and the rights of conscience.

Traditional liberals, such as the late John Rawls, viewed liberalism as a "political" doctrine--one that did not propose and seek to impose what he called a "comprehensive view," that is, an integrated set of beliefs about the human good, human dignity, and human destiny.  It's role was not to compete with the various comprehensive doctrines held by citizens in a pluralistic society, or to attempt to undermine reasonable comprehensive doctrines (such as Catholicism, as Rawls explicitly noted) or displace them.  Its ambition was to establish a framework in which "deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime."  Although I have in my own writings criticized various aspects of Rawl's theory of justice (especially his conception of of "public reason"---a conception I believe is too narrow to be compatible with his notion of liberalism as a political, rather than comprehensive, doctrine) this central ambition represents, I think, something laudable in the liberal tradition.

But as liberals around the country---not all, but many, and indeed increasingly many, it seems---abandon support for conscience protection and seek to force pro-life and pro-marriage citizens and institutions to comply with liberal ideological beliefs by, for example, referring for or even participating in abortions and providing facilities or services for celebrations of same-sex sexual partnerships, it seems clear that the Rawlsian ambition has been thrown over in favor of a crusade to establish what might be called (following Rawls himself) "comprehensive liberalism" as the official pseudo-religion of the state.  The impulse to crush the rights of conscience (where conscience is considered in its classical sense of what Newman called a "stern monitor," and not in the degraded sense of a faculty for writing moral permission slips) to ensure conformity with what have become key tenets of the liberal faith (abortion, "sexual freedom," "same-sex marriage") is the authoritarian impulse I mentioned.  (I want to emphasize the words "have become." Such ideas were no part of the liberalism embraced by such great figures in the tradition as Cesar Chavez, Hubert Humphrey, or Sargent Shriver, just to name some leading liberals from the quite recent past.)

Am I exaggerating the worry?  Is the word "authoritarian" or the phrase "crush the rights of conscience" out of line in this context?  Well, perhaps we have a test case emerging.  A George Washington University law professor who is well-known for bringing law suits to advance liberal causes has given notice to the Catholic University of America that he will be suing the university under the District of Columbia Human Rights Act.  And what is alleged to be Catholic University's mortal sin against human rights?  Are you ready?  It is the decision of CUA president John Garvey (himself an eminent legal scholar in the field of religious liberty and human rights, as MoJers know) to shift the university from co-ed dormitories to single-sex dorms. President Garvey's objective (of which this particular change of policy is only a small piece) is to promote moral integrity as the Catholic Church understands that virtue and to combat the culture of promiscuity and alcohol abuse on campus.  And what could possibly be wrong with that?  Well, for "comprehensive liberals," it seems, having separate dorms for young men and young women is "discrimination" based on "sexual stereotypes."  It simply can't be tolerated.  Institutions that would separate the sexes in living quarters are practicing the equivalent of racism by imposing on their students the equivalent of the Jim Crow system in the segregated South.  Oy vey.

So we'll see where liberals in general line up on this.  It will, I predict, be instructive.  Some, I hope and trust, will sniff the odor of authoritarianism and perhaps even speak out publicly against this effort to whip a private religious institution into line with liberal ideological tenets.  But how many?  Where will Catholic liberals (especially Catholic liberal academics) come down?  Will they speak out? 

June 23, 2011 | Permalink | TrackBack (0)

Same-Sex Marriage and Religious Exemptions

In a recent column here, Susan Thislethwaite (suggests that the push to provide religious exemptions in same-sex marriage legislation may simply be attempts to bog the legislation down. I do not doubt that some of that is going on. But it is possible to support same sex marriage and want to support freedom of conscience for those who oppose it, and many of the proponents of the exemptions that I know fall in that camp. The easy case is that ministers opposed to same sex marriage should not have to perform them.

But Thislethwaite focuses on a harder case: Should caterers who object to same sex marriage be exempt from providing food for them? She says no. Doing so would simply “cater to bigotry.” I do not agree. To be clear, I would not permit caterers or any other business to discriminate against gays or lesbians generally even if they claimed religious objections. In my view, businesses should be open to the public and permitting such discrimination on religious grounds would too frequently ratify prejudice. Setting up an administrative apparatus to sort through sincere religious claims and mere prejudice is a game not worth the candle.   

But there is a difference between general discrimination of this kind and declining to participate in an act you think is immoral. In this kind of case, it is likely that the religious claim is sincere (and misguided). Moreover, if challenged, I think the caterer should have to meet a sincerity test just as conscientious objectors were required to satisfy. Does this mean that a caterer should be permitted on religious grounds to refuse participation in an interracial wedding? I think so. But the suspicion of naked prejudice is greater here, and meeting a test of religious sincerity would be more difficult.

cross-posted at religiousleftlaw.com

June 23, 2011 | Permalink | TrackBack (0)

Wednesday, June 22, 2011

"His majesty's good servant, but God's first"

Here's the final scene from "A Man for All Seasons", when More expresses his confidence that God "will not refuse one who is so blithe to go to Him."

June 22, 2011 in Garnett, Rick | Permalink | Comments (2) | TrackBack (0)

St. John Fisher, pray for us

Here's the scene, from "The Tudors", of the execution of St. John Fisher.  And, a prayer he wrote:

A prayer by St John Fisher

Good Lord, set in thy Church
strong and mightly pillars
that may suffer and endure great labours,
which also shall not fear persecution,
neither death,
but always suffer with a good will,
slanders, shame and all kinds of torments,
for the glory and praise of thy holy Name.

By this manner, good Lord,
the truth of thy Gospel
shall be preached throughout the world.

Therefor, merciful Lord,
exercise thy mercy,
show it indeed upon thy Church.



June 22, 2011 in Garnett, Rick | Permalink | Comments (1) | TrackBack (0)