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.

Saturday, August 27, 2011


Mood music by Matthew Arnold for this soppingly bleak day.


A region desolate and wild.
Black, chafing water: and afloat,
And lonely as a truant child
In a waste wood, a single boat:
No mast, no sails are set thereon;
It moves, but never moveth on:
And welters like a human thing
Amid the wild waves weltering.

Behind, a buried vale doth sleep,
Far down the torrent cleaves its way:
In front the dumb rock rises steep,
A fretted wall of blue and grey;
Of shooting cliff and crumbled stone
With many a wild weed overgrown:
All else, black water: and afloat,
One rood from shore, that single boat.

August 27, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Friday, August 26, 2011

More analysis, and critique, of the contraception-coverage mandate's exemption

Chris Haley has a very good essay, "Creating a Catholic Ghetto," at the First Things blog, in which he focuses nicely -- in a way that complements the Alvare essay to which I linked in an earlier post -- on the marginalizing (and, therefore, socially and otherwise undesirable) effect that the mandate (with its at-present very narrow exemption) would have on Catholic institutions . . . and not only, it should be emphasized, on Catholic hospitals:

The actions of the administration are in keeping with the prevailing secularist ideology: religious beliefs, practices, and institutions are seen as essentially private matters, best kept out of public discourse and away from the public sphere. While I have focused here on the Catholic Church, this mandate would affect not only the Catholic Church, but every church, every religious community, every individual believer. It must be opposed.

And, as it happens, it is being opposed, and also by Catholics who otherwise have been supportive of President Obama's election and Administration.  As Michael Sean Winters reports, here,  a number of "prominent Catholics [including many who had supported Sebelius's nomination and many who signed a letter, a while back, criticizing Speaker Boehner for, in the signers' view, not adhering closely enogh to Catholic Social Teaching] released a letter to Health & Human Services Secretary Kathleen Sebelius recommending that she amend the proposed rule on mandated health care coverage to provide for more expansive conscience protections for religious organizations."  The letter says, in part:

Catholic charities and Catholic hospitals do not fit the rule’s definition of religious organization. Catholic schools, colleges, and universities also might not fit the current definition. In light of the First Amendment’s protection of religious practice and of the 1964 Civil Rights Act’s forbidding of discrimination for religious belief and insistence on accommodation of religion in the workplace, we propose expanding the definition of religious organization in the final rule to extend conscience protection to religious charities, religious hospitals, and religious schools in regards to mandated health insurance coverage. . . .

Kudos to Prof. Schneck for organizing the letter, and to the signers for signing it.  I hope Sec. Sebelius listens.  I confess, though, to not being very optimistic.  She is, after all, almost certainly also receiving letters (or has received letters) and lobbying to the effect that exemptions for religious organizations and believers from generally applicable mandates -- think, for example, of non-discrimination mandates -- are inappropriate, even pernicious.  Unless one believes that religious freedom is a positive good, and not merely a concession one makes, when not too inconvenient, one is not likely to see why an otherwise good law (which the Secretary believes, I assume, the contraception-coverage mandate is) should yield to the preferences or prejudices of those who don't like it.

August 26, 2011 in Garnett, Rick | Permalink | Comments (5) | TrackBack (0)

Alvare on religious freedom and conscience protection

In this Public Discourse essay, Helen Alvare discusses the important connection between religious freedom -- in particular, the institutional / communal dimension of that freedom -- and the debate about conscience-protection in the health-care and health-insurance contexts.  I particularly liked this paragraph:

Over the course of our history, Americans came to understand that the state’s lack of jurisdiction over questions of ultimate meaning entailed not only allowing individuals to believe privately in a transcendent reality, or to worship as they believed, or even to pray privately and perform good works. Rather, it also entailed recognizing that religion is also exercised in the form of associations that provide services to vulnerable citizens of every background in accordance with religious principles. Throughout American history, religious citizens were not only permitted, but even encouraged, to let their religious convictions to inform their work, and their contributions to public debates were understood to have important consequences for our understanding of human rights and dignity.

Check it out.

August 26, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

A great opportunity to defend religious freedom with the Becket Fund

Senior Legal Counsel

The Becket Fund is seeking an attorney to serve as senior legal counsel in Washington, DC. Becket Fund attorneys litigate cutting-edge cases involving religious liberty across the country and around the world. The ideal applicant will have an appellate clerkship, at least 2-6 years of top-level litigation experience, including experience in a supervisory capacity or working with minimal supervision, and a strong personal commitment to defending religious liberty for people of all faiths. Applicants should send a cover letter, CV, writing sample, and references to Marie Peralta at [email protected]

August 26, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Two Short Pieces by Stephen Morse

Catholic readers who are interested in issues of criminal responsibility should be paying attention to the work of Stephen Morse.  One kind of currently fashionable criticism of the idea of criminal responsibility comes from those who are interested in applying the insights of neuroscience and genetics to criminal law, in some cases ostensibly to make the larger claim that we ought no longer to rely on ideas of moral blame in criminal law; human behavior is sufficiently biologically determined that the law ought to move beyond primitive ideas of mens rea. 

In this little article, Professor Morse briefly states the case against this position.  These debates are obviously not new; in fact, it's interesting to me that they tend to recur in different forms across time.  Indeed, it was Morse who first brought to my attention that Sir James Fitzjames Stephen (I know, I know...one-track mind) convincingly took the view that Morse now champions (with appropriate changes for contemporary circumstances, of course), in this excellent short piece.

August 26, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Bill Keller tees one up for Paul Horwitz

The NYT's Bill Keller poses, here, what he characterizes as some "tougher" questions for the (Republican) presidential candidates about "their religious beliefs."  In my view, the questions (that were not partisan and snarky) actually weren't very tough, but, whatever.  And, as some of the commenters point out, Keller seems to be overlooking the fact that a number of his questions could just as well be posed to (or have been posed to) Pres. Obama.  Still, some of the questions themselves -- again, the ones that are not partisan and snarky -- are ones that Paul Horwitz has thought and written a lot about, including in, well, The NYT. 

Keller's lead ("lede"?) question is, whether it is "fair" to ask candidates about the details of their faith.  In my view, the question invites another:  Why is one asking?  Sometimes, such questions are asked because it is thought by the asker that the content of a candidate's professed religious faith actually tells her something about the candidate's character, loyalties, priorities, loves, commitments, etc., that -- it is honestly thought by the asker -- is relevant to the enterprise of the office the candidate is seeking.  (Example:  Gov. Smith, you are a Quaker.  Given your sincere beliefs about the immorality of violence, could you serve effectively as Commander in Chief?)  Who could object to such a question, assuming it was asked in good faith, and asked -- when relevant -- of both parties' candidates?

At other times, though, it seems to me that the question is asked in order to elicit what the questioner hopes will be an answer that can be presented superficially (after all, not every question about religion can be answered propositionally, or in two sentences), out of context, or in a way that will (the asker hopes?) strike those who hear the answer as just "weird."  (Example:  "Rep. Jones, you are a Mormon.  Tell us about your garments."  Or, "Rep. Johnson, you are a Lutheran.  Doesn't that mean you are anti-Catholic?")  Our shared political life could get along pretty well without these latter sorts of questions, it seems to me. 

August 25, 2011 in Garnett, Rick | Permalink | Comments (11) | TrackBack (0)

Serious talk about religion and politics (especially Mormon undergarments and those crazy evangelicals)!

Bill Keller, executive editor of The New York Times, wants to dig deeper into the religious faith of the GOP candidates.  He explains:

This year’s Republican primary season offers us an important opportunity to confront our scruples about the privacy of faith in public life — and to get over them. We have an unusually large number of candidates, including putative front-runners, who belong to churches that are mysterious or suspect to many Americans. Mitt Romney and Jon Huntsman are Mormons, a faith that many conservative Christians have been taught is a “cult” and that many others think is just weird. (Huntsman says he is not “overly religious.”) Rick Perry, Michele Bachmann and Rick Santorum are all affiliated with fervid subsets of evangelical Christianity, which has raised concerns about their respect for the separation of church and state, not to mention the separation of fact and fiction.

I honestly don’t care if Mitt Romney wears Mormon undergarments beneath his Gap skinny jeans, or if he believes that the stories of ancient American prophets were engraved on gold tablets and buried in upstate New York, or that Mormonism’s founding prophet practiced polygamy (which was disavowed by the church in 1890). Every faith has its baggage, and every faith holds beliefs that will seem bizarre to outsiders. I grew up believing that a priest could turn a bread wafer into the actual flesh of Christ.

So does transubstantiation count as "baggage" or just bizarre?  And putting aside the fact that Rick Santorum is Catholic, why does evangelical Christianity raise concerns about the separation of fact and fiction?  I'm all in favor of more conversation about faith and politics, but let's be careful that the call for conversation isn't just an excuse for tut-tutting about those silly religious people.

August 25, 2011 in Vischer, Rob | Permalink | Comments (15) | TrackBack (0)

The *other* Finnis-fest, at Villanova Law

In addition to the great upcoming conference at Notre Dame  on the work of John Finnis, don't forget that other Finnis-fest to be held at Villanova Law School on September 30, 2011.  The schedule and registration details are here.  The conference is free and open to the public.  We have an incredible line-up:

-John Finnis, Professor of Law and Legal Philosophy, University of Oxford; Biolchini Family Professor, University of Notre Dame
-George Christie, James B. Duke Professor of Law, Duke University School of Law
-Michelle Madden Dempsey, Associate Professor of Law, Villanova University School of Law
-John Keown, Rose M. Kennedy Professor of Christian Ethics, Georgetown University
-Frederick G. Lawrence, Professor of Theology, Boston College
-Mark Murphy, McDevitt Professor of Religious Philosophy, Georgetown University
-Rev. Martin Rhonheimer, Professor of Philosophy, Pontifical University of the Holy Cross (Rome)
-Candace Vogler, Stern Professor of Philosophy, The University of Chicago
-Michael J. White, Professor of Law and of Philosophy, Arizona State University
In addition to the principal speakers, commentators will include our own Michael Moreland (Villanova Law), Anna Moreland (Villanova, theology), Matt Lister (a visiting assistant professor at Villanova Law), Kevin Walsh (U. of Richmond; sometime of Villanova Law), and Rev. Richard Munkelt, Ph.D.


August 25, 2011 in Brennan, Patrick | Permalink | TrackBack (0)

Wednesday, August 24, 2011

Strang's Virtue Ethics and Originalism

Readers at MOJ who are interested in constitutional theory will find Lee Strang's new article, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, well worth reading and thinking about.  As Prof. Strang says in the introduction, current influential originalist approaches tend to favor deontological (e.g., Randy Barnett) or consequentialist (e.g., John McGinnis & Michael Rappaport) underlying moral justifications.  Strang's is the first direct effort (so far as I know) to connect virtue ethics and originalism (Larry Solum has been ploughing both of these fields independently but not, I don't believe, together).

August 24, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011

China and the Vice President

I take the occasion to follow up on Rick’s post of yesterday concerning Vice President Biden’s unfortunate and misguided words about China’s one child policy. The Vice President said that he fully understands and would not second guess China’s course of action. Yet the Vice President spoke about human rights. I think he meant well by stating the following:

Maybe the biggest difference in our respective approaches are our approaches to what we refer to as human rights.  I recognize that many of you in this auditorium see our advocacy of human rights as at best an intrusion, and at worst an assault on your sovereignty.  I want to tell you directly that this is not our intention.  Yes, for Americans there is a significant moral component to our advocacy.  And we observed where we have failed, as well.  But it is who our people are. But President Obama and I see protecting human rights and freedoms, we see it in a larger context, as well.  Protecting freedoms such as those enshrined in China’s international commitments and in China’s own constitution—we see them as a key aspect of China’s successful emergence and the key continued growth and prosperity.  I know that some in China believe that greater freedom could threaten economic progress by undermining social stability.  I do not pretend to have the answer, but I believe history has shown the opposite to be true, that in the long run, greater openness is a source of stability and a sign of strength, that prosperity peaks when governments foster both free enterprise and free exchange of ideas, that liberty unlocks a people’s full potential.  And in its absence, unrest festers.

It strikes me that the Vice President chose not to throw down any gauntlets during his address and the answers he supplied to questions after he delivered his speech. Yet in the same address and during the follow up Q&A, he chose to identify a major difference between the United States and China in his remarks about the rights of the human person. In this regard his “fully understanding” and “not second guessing” China’s one child per family policy stands in conflict with the position he took and advanced on human rights.

In particular, there is a consensus in international human rights circles on the principle (but not on the means) which acknowledges that couples and individuals, not the state, must decide freely and responsibly the number and spacing of their children. China and other countries which have coercive measures that interfere with the rights of parents have been criticized for these measures by human rights advocates. It is a pity that the Vice President said what he did knowing that elsewhere in his address he made an important point about the rights of the human person.


RJA sj

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