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.

Sunday, November 27, 2011

Religious Freedom and the HHS mandate

Here is my op-ed piece, appearing today in USA Today, on the HHS mandate and religious freedom.  I humbly submit that my arguments are more-sound than Dionne's or Kmiec's.  A bit:

[G]overnments hoping to make good on Madison's promise will sometimes accommodate religious believers and groups by exempting them from rules and requirements. This sounds like special treatment for religion, and indeed it is. Our country's founders believed that such compromises are sometimes necessary and justified, even when the rules in question are popular or seem sensible, because religious freedom is both fundamental and vulnerable.

It is true that the administration's proposed mandate includes an exemption for some religious employers, but it is so stingy as to be nearly meaningless. It does nothing for individuals or insurers, and it applies only to employers whose purpose is "the inculcation of religious values" and that hire and serve primarily those of the same religious faith. The vast majority of religious educational, social-welfare and health care organizations — not to mention the ministry of Jesus on earth — do not fit this crabbed definition.

The proposed exemption covers only inward-looking, members-only, religious-instruction organizations while excluding those that respond to the call to feed the hungry, care for the sick, house the homeless and share the good news with strangers. Religiously affiliated hospitals, charities and universities that serve people of other religions would be vulnerable. The exemption assumes that religion is only about belief and values, not service, sacrifice and engagement. It purports to accommodate religious believers, but it actually would confine their belief.

We should hope, again, that the administration changes course. . . .

November 27, 2011 in Garnett, Rick | Permalink | Comments (2) | TrackBack (0)

Saturday, November 26, 2011

Marilyn Monroe and a Model Professional

Last night Maureen and I saw the new film My Week with Marilyn, which has generated buzz because of  Michelle Williams' portrayal of an alternately alluring and wigged-out Marilyn Monroe (in England shooting a film with Laurence Olivier in 1956; the film is based on the diary of one of the production staff).  But another female role stuck with me: Judi Dench playing Dame Sybil Thorndike, the famous British Shakespearean and tragic actress, 75 years old in 1956, for whom George Bernard Shaw had written Saint Joan back in the 1920s.  As this biography apparently details, Dame Sybil was sort of a saint herself: a suffragette and labor activist, a Christian believer who prayed before every performance and wrote a short book called Religion on the Stage, and a warm and caring person who "visited leper colonies, held the hands of dying children in Belsen after the war," and as an actor always did her best to make those around her comfortable.  In the new movie, Dench as Dame Sybil understands her co-star Monroe's insecurity and tries to build her confidence with repeated acts of kindness.  When Marilyn messes up her line (as happens frequently) in a scene they have together, Sybil (who is always consummately prepared) says so everyone can hear, "I must have given you the wrong [cue] line, dear."  She stands up for Monroe by telling Olivier to stop "bullying" the young star.  And when Sybil notices that another character, a young production staffer, is shivering in the cold studio, she arrives the next day with a new red scarf for him.

Lawyers, other professionals--all of us--can draw on many persons as models.  In Dame Sybil's model, the professional does her work with care and skill and also goes out of her way to make those around her the best they can be, by paying attention to the things that burden them and those that encourage them, and by actively affirming their worth as persons.  It's a fine model for any of us.


November 26, 2011 in Berg, Thomas | Permalink | Comments (1) | TrackBack (0)

Thursday, November 24, 2011

A blessed Thanksgiving

A blessed Thanksgiving to one and all!

Having just spent a wonderful time with the fratelli in the Order at Mass and dinner, I began to think about the words that have been and are being spent to discuss and critique the upcoming implementation of the Third Edition of the Roman Missal this Sunday for the first week of Advent.

I think for those who are or may think they are upset about these liturgical text changes, we need to take honest stock of the liturgical license that some priests and some laity have exercised over the past three-plus decades in presenting their own texts for canons of consecration and the other prayers associated with the Second Edition of the Roman Missal. If we can do this taking stock honestly and objectively, I think we will reach no other conclusion but this: the Third Edition is a long expected and welcome reform that has been called for in these thirty-some years of liturgical experiment that had no end in sight.

It may well be that if these ongoing experiments with the Eucharist had not been pursued, the Second Edition of the Roman Missal might still have been around for some time to come. I do think the Third Edition is a wonderful reform of authenticity, but I am confident that the Second Edition was the unfortunate test subject of unrestrained creativity in subjectivity.

RJA sj


November 24, 2011 in Araujo, Robert | Permalink | TrackBack (0)

Wednesday, November 23, 2011

"Keeping Faith" interview with Martha Himmelfarb

Here is my interview with Martha Himmelfarb, the William H. Danforth Professor of Religion at Princeton, in the Daily Princetonian's six-part series of interviews entitled "Keeping Faith":


Toward the end of the interview we talk a bit about Professor Himmelfarb's father, the late Milton Himmelfarb, long-time editor of the Jewish Yearbook for the American Jewish Committee.  He was one of my intellectual heroes, and deeply influenced my own thinking about religion and society.  People not familiar with his writings might want to have a look at a collection of his essays edited by his sister, the distinguished historian Gertrude Himmelfarb, under the title Jews and Gentiles (Encounter Books, 2007). I particularly recommend "Modernity and Religion," "Judaism is Against Paganism," "No Hitler, No Holocaust," and "Church and State: How High a Wall?"

November 23, 2011 | Permalink | TrackBack (0)

Tuesday, November 22, 2011

Exposing the Cracks in the Foundations of Disability Law

I've recently posted the paper I gave at the symposium John Inazu organized at Duke Law this past September on "Theological Argument in the Law:  Engaging with Stanley Hauerwas."  In my article, Exposing the Cracks in the Foundations of Disability Law, I discuss Hauerwas' diagnosis of the inconsistencies in contemporary society's attitudes toward the disabled as evidence of the flaws of the presumptions of modern humanism around which our society is organized.  I analyze Sam Bagenstos' book, Law and the Contradictions of the Disability Rights Movement, as being largely consistent with Hauerwas' critique, and argue that this convergence of theological and legal arguments on this topic might provide a powerful platform for cooperation in helping shape a less contradictory -- and more inclusive -- set of practices and laws for persons with disabilities.  Below is the full abstract; you can download the paper here.

The papers from this symposium will be published in Vol. 75 of the Journal of Law and Contemporary Problems, so any comments on this draft would be appreciated. 

The theologian Stanley Hauerwas has described people with intellectual disabilities as “the crack I desperately needed to give concreteness to my critique of modernity. No group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped.” Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite the fact that advancing maternal ages should be resulting in an increase in those numbers. On the other hand, laws that express a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted – from the Individuals with Disabilities Education Act in 1975, ensuring the education of children with disabilities in our public schools, to the Americans with Disabilities Act in 1990, prohibiting discrimination against people with disabilities in public accommodations and employment, to the Genetic Information Nondiscrimination Act in 2008, prohibiting employers or health insurers from discriminating based on information from genetic tests.

Hauerwas diagnoses these puzzling inconsistencies in contemporary society’s attitudes toward the disabled as evidence of the flaws of modern humanism. Humanism’s emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. But the pretensions of the humanism on which Hauerwas focuses his critique are two different corollaries – namely, that autonomy and the ability to freely create one’s own identity constitute equally fundamental markers of humanity.

In his book LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT, disability law scholar Samuel Bagenstos identifies and tries to explain a series of contemporary contradictions in disability law, including recent case law restricting the scope of the ADA and the debate about abortion after a prenatal diagnosis of a disability. A careful analysis of these arguments reveals that Bagenstos’ explanations for the contradictions he notes are compatible with many significant aspects of Hauerwas’ critique of modern humanism, although Bagenstos does not characterize his critiques that broadly. Bagenstos’ arguments could be strengthened by incorporating more completely Hauerwas’ full critique. Appreciating how Bagenstos’ arguments are underpinned by these Haeurwasian insights does more, however, than simply clarify and strengthen Bagenstos’ arguments. More significantly, it is evidence of a growing and potentially powerful convergence of theological and secular reflection on the thorny conundrum posed by contemporary society’s treatment of the significantly disabled. By joining forces, proponents of these arguments might be able to work together for the development of a less contradictory – and more inclusive – set of laws and practices for people with disabilities.

November 22, 2011 in Schiltz, Elizabeth | Permalink | Comments (0) | TrackBack (0)

Gratitude for What Is Old

On Michael's recommendation a few months ago, I am reading Gilead by Marilynne Robinson.  The book is a series of letters from an aged and increasingly infirm minister to his young son about his family's past (the boy's "begats") and many other nuggets of advice, personal observation, and internal meditiation.  The writing is powerful and moving.  With the arrival of Thanksgiving, I thought to share a short passage that I found affecting and to the purpose:

I am also inclined to overuse the world "old," which actually has less to do with age, as it seems to me, than it does with familiarity.  It sets a thing apart as something regarded with a modest, habitual affection.  Sometimes it suggests haplessness or vulnerability.  I say "old Boughton," I say "this shabby old town," and I mean that they are very near my heart. 

I do not give thanks for the blessings of my life often enough.  Among the dearest of these are the "old."  Thank God for them. 

November 22, 2011 in DeGirolami, Marc | Permalink | Comments (4) | TrackBack (0)

"At peace with religious freedom"?

Doug Kmiec writes, in NCR, that "Obama cannot be at war with Catholics if he is at peace with religious freedom."  It suppose that's right; that is, if the President correctly understands the content, foundations, and implications of religious freedom, he is not likely to be "at war with Catholics."  But, I am afraid I do not see the evidence that he does, and I do worry about the evidence -- for example, the government's brief in the Hosanna-Tabor case -- that he (or, at least, his Administration) does not.  Kmiec believes, I understand, that the President is a man of admirably deep religious faith.  But, this does not mean that he actually understands and embraces the constraints that a meaningful commitment to religious freedom places on government policy and power.

In the middle section of the piece, I read Kmiec as suggesting that it does not necessarily violate religious freedom for the public authority to allow people to make wrong choices.  ("To think that an authorizing statute or executive decision violates principles of religious liberty or free exercise merely because it allows a choice contrary to faith is to misunderstand the nature of democracy and individual freedom.").  This is generally true (though it could well be unjust to allow people to make some wrong choices, e.g., the choice to cause the death of a vulnerable person).  But, no one -- certainly not those who are opposing the HHS contraception-coverage mandate -- is suggesting otherwise.

At least one of the commenters on Kmiec's piece reads Kmiec as pushing back against the view of the Catholic bishops (including Archbishop Dolan, whom Kmiec cites on the question of the concerns of the middle class) that religious freedom is under attack, and by the present Administration, and against the decision to emphasize this matter by (among other things) creating a new Ad Hoc Committee on Religious Liberty (which I serve as a consultant).  But, Kmiec himself acknowledges that the religious-employer exemption in the proposed interim rule (regarding the contraceptive-coverage mandate) is too narrow and intrusive, and so I have to hope that, notwithstanding his continued enthusiasm for the President himself, he understands that the President's administration has not (so far) been one that understands well or is appropriately protective of religious freedom (which includes, as Kmiec and I agree, more than the freedom of individuals to believe). 

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

"They have this conscience thing"

Rep. Nancy Pelosi, chatting with the Post's "Lifestyle" section, on Catholics and abortion:

Catholic health-care providers in particular have long said they’d have to go out of business without the conscience protections that Pelosi says amount to letting hospitals “say to a woman, ‘I’m sorry you could die’ if you don’t get an abortion.” Those who dispute that characterization “may not like the language,’’ she said, “but the truth is what I said. I’m a devout Catholic and I honor my faith and love it . . . but they have this conscience thing’’ that she insists put women at physical risk, although Catholic providers strongly disagree.


November 22, 2011 in Garnett, Rick | Permalink | Comments (5) | TrackBack (0)

Monday, November 21, 2011

Democrats urge Pres. Obama not to expand religious-employer exemption

As MOJ readers know, Pres. John Jenkins (Notre Dame) and many others -- on "both sides" of the political spectrum -- have urged President Obama to re-think the very stingy exemption that exists for "religious employers" from the contraception-coverage mandate (which -- denials in some quarters notwithstanding -- will also include some abortion-inducing drugs) in the new health-insurance law.  On Sunday, the New York Times reported that many Democrats are urging the President not to agree to a "change that would grant a broad exemption to health plans sponsored by employers who object to such coverage for moral and religious reasons."

In my view, both the mandate and the narrow religious-employer exemption are objectionable.  I was struck, though, by this, in the NYT piece:

Senator Jeanne Shaheen, Democrat of New Hampshire, said: “It just doesn’t make sense to take this benefit away from millions of women. Americans of all religious faiths overwhelmingly support broad access to birth control.”

Sen. Shaheen thinks that it is relevant, apparently, to the question whether it "make[s] sense" to refrain from requiring objecting religious institutions to pay for abortion-causing drugs that "Americans of all religious faiths overwhelmingly support broad access to birth control."  Indeed, it appears that they do.  But, what work in the argument is "of all religious faiths" doing?

UPDATE:  Michael Sean Winters (who is, in my view, clear-eyed about the importance and foundations of religious liberty but mistaken in thinking that Pres. Obama is, too) notes

[T]here is something more than a little ironic about these liberal champions, the type of people who normally celebrate the “wall of separation” between Church and State, now clamoring over that wall as fast as they can to tell Notre Dame and Providence Hospital what they can and cannot do. Ironic, too, that liberalism which was founded on the principle of conscience rights, and at a time when the Catholic Church was unalert or hostile to the idea of conscience rights, has grown so indifferent to them while it is the Catholic Church today that champions them. But, irony is the coldest of comforts.

November 21, 2011 in Garnett, Rick | Permalink | Comments (18) | TrackBack (0)

The Supreme Court and the Field of Religious Studies

This is an essay by journalist Nathan Schneider with some interesting observations, but also some parts that I think are mistaken.  The point of the piece is to explain why religious studies is an important and useful field for the problems of our day.  The strangest and most anachronistic argument in it is that religious studies came into its own as an academic discipline pretty much as of 1963 with the US Supreme Court's decision in Abington v. Schempp

Continue reading

November 21, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)