Mirror of Justice

Another Student Religious Group in Trouble

Expect to see more and more student religious groups excluded from student-organization status at public and private universities, partly as fallout from the Supreme Court's poor decision in Christian Legal Society v. Martinez. The latest case is at the (public) University of Buffalo, where the chapter of the evangelical Intervarsity Christian Fellowship (IVCF) has been suspended for requiring officers to sign a "faith-based agreement" subscribing to certain beliefs. There is disagreement whether the precipitating event, the resignation of IVCF's student treasurer under some pressure from other officers, happened because he was gay or because he no longer subscribed to the statement of biblical inerrancy (in particular the passages on homosexuality). But it doesn't matter, according to a lawyer for the university's Student Association (quoted in the same student-newspaper story):

"SA clubs – even religiously focused clubs – may not deny membership or participation on the basis of a student not professing a belief in a particular faith advocated by that club, and may not require students to sign a statement of commitment to pray and participate in a local church," Korman's letter reads.

As an academic lawyer, I'm supposed to be able to see both sides of disputes. But I confess I remain unable to comprehend the argument that a "religiously focused club" (or any club) should be unable to require that officers "profess [the] belief[s]" the club advocates.

The facts reported so far provide an interesting window into features of these cases. The IVCF's suspension has already caused it to miss one meeting--suggesting it may have trouble meeting on campus without student-group status--and (again according to the lawyer) "could result in the Senate mandating that IVCF abolish the policy, imposing financial sanctions upon IVCF, suspending IVCF further, derecognizing IVCF altogether, or some combination of the above."

Then, from an earlier story, there is the intolerance by other students in the name of tolerance:

"Intervarsity Christian Fellowship was given a budget of $6,000 this year," [one named student] said in an email. "Divide that by 20,000 undergrads. I will not tolerate discrimination. I feel like asking for my 30 cents back. I have talked to several people over the past few weeks and have discovered that some students, my friends, have felt personally targeted by [IVCF]. If someone has felt personally threatened by any entity on this campus, I would encourage them to call the University Police to report the incident."

What the "personal targeting" was, I don't know. But it would hardly surprise me if simple evangelistic witnessing by IVCF members were blown up into "threats."

Finally, there's this howler published in the newspaper's first story:

Because UB is a public school, the IVCF's "basis of faith" may be illegal as a result of the U.S. Supreme Court's 2010 Christian Legal Society v. Martinez decision, which established that a student cannot be barred from participating in a club because of his status or beliefs.

Martinez did not prohibit clubs from barring students because of their beliefs; it only said that a university could prohibit clubs from doing so if it wished. And it said this only in the context of a policy that applied to any belief espoused by any club, not a policy (as Buffalo's seems to be) that makes a religious group's defining belief--religion--the only kind of belief that cannot be the basis for "discrimination" in selecting officers. Many of us worried that student governments and university officials would run with the Martinez decision far beyond its boundaries. The situations at Buffalo and Vanderbilt suggest, "Yup."

Alexander, "Pluralism and Property"

A very interesting piece by Gregory Alexander involving value monism and value pluralism in property law (h/t Larry Solum).  The influence of value pluralism on legal theory has been somewhat sporadic by comparison with other theories of value -- Steve Shiffrin has made some excellent inroads primarily (though not exclusively) in free speech, as has Brad Wendel a bit in professional responsibility.  Paul Horwitz talks about incommensurability in his book.  And Alexander charts a course for property scholarship here.  Perhaps more soon.

A response to Tuesday's op-ed on Notre Dame, Fr. Jenkins, and the mandate

Tuesday's edition of The Washington Times included an opinion piece by Patrick Reilly ("Unholy abortion compromise"), who charges Fr. Jenkins and the University of Notre Dame (and others) with proposing to "replace what many consider to be an unconstitutional [HHS] mandate with language that, at best, is only marginally better for a select few[,]" thereby "threatening the rights of many religious organizations and insulting our Christian and Jewish brethren. By doing so, these prominent Catholic institutions undermine the interests of the Catholic Church and the defense of religious freedom."

This charge, in my view, is not fair.  (I responded earlier, here, to what I regarded and regard as other misplaced criticisms of Fr. Jenkins's letter.)

First, and in a perhaps-futile effort to head off suggestions in blog-world that I am merely slavishly defending my employer or that I've gone wobbly on the injustice of the mandate:  Yes, Notre Dame has, in my view, made some mistakes with respect to living out its Catholic character and mission, and yes, the mandate is unjust.

That said, I think Mr. Reilly's op-ed proceeds from a too-quick reading of Fr. Jenkins's letter to Secretary Sebelius, while neglecting his other public intervention on the matter.  In Fr. Jenkins's letter, he did not simply call for the replacement of the current (clearly inadequate) religious-employer exemption with Section 414(e) -- which deals with pension plans -- of the Internal Revenue Code.  True, that provision was cited as a guide, but Fr. Jenkins's focus was on the "principles" that he sees underlying that provision.  And, discussing these principles, he emphasized the importance of protecting generously those institutions or organizations that share “common religious bonds and convictions with a church" and "all organizations that work in the ministries of the church.”  In addition, he insisted that "an institution inspired by faith to serve beyond the limits of its religious denomination should not be judged less religious and hence less worthy of an exemption.”

As Mr. Reilly points out, Section 414(e) has been interpreted by the U.S. Court of Appeals for the Fourth Circuit in a narrow way -- a way that, in my view, would not be consistent with the "principles" mentioned in Fr. Jenkins's letter.  But, the fact that one court has used a particular, and inadequate, three-factor test to operationalize Section 414 hardly does not mean that Fr. Jenkins and Notre Dame are proposing to settle for this particular (and, I agree, inadequate) three-factor test in the contraception-mandate context or that such a test would be authoritatively adopted and employed in the enforcement of a broader religious-employer exemption to that mandate.  (My understanding is that the Fourth Circuit's interpretation has not even been adopted by the I.R.S.)

What's more, even if the Fourth Circuit's interpretation of 414(e) were what Fr. Jenkins is proposing as a substitute for the religious-employer exemption to the HHS mandate, I think Mr. Reilly overstates the "similar[ity]" between that court's third factor -- "whether a denominational requirement exists for any employee or patient/customer of the organization" -- and the current HHS exemption, which applies only to organizations that "hire and serve primarily people of the same faith."  (My emphasis).  The former actually is much broader.

At the end of the op-ed, Mr. Reilly adds to the charge that Fr. Jenkins is proposing a course that is "insulting [to]our Christian and Jewish brethren" with the suggestion that he is "simply working to protect [his] institution[].  But the practical effect of their proposed compromise would be to slam the door on most religious organizations while providing political cover to the Obama administration."  Certainly, I believe that it is not just Notre Dame's religious freedom that matters, and I hope that neither of these "practical effect[s]" comes to pass.  Still, the suggestion is not fair.  Here is the concluding paragraph of Fr. Jenkins's other public intervention on the matter, which appears on the USCCB's web site and which is signed by, among others, Carl Anderson of the Knights of Columbus (hardly a squish when it comes to life issues) and Archbishop Dolan:

The HHS mandate puts many faith-based organizations and individuals in an untenable position. But it also harms society as a whole by undermining a long American tradition of respect for religious liberty and freedom of conscience. In a pluralistic society, our health care system should respect the religious and ethical convictions of all. We ask Congress, the Administration, and our fellow Americans to acknowledge this truth and work with us to reform the law accordingly.

This is not, in my view, a statement that is either self-serving or insulting to non-Catholics or to institutions other than Notre Dame.

Unconservative evangelicals

Jordan Hylden highlights a new book by D.G. Hart on "Evangelicals and the Betrayal of American Conservatism," noting that evangelicals haven't betrayed conservativism because "they were never very conservative in the first place."  Evangelicals "tend to sit crossways to traditions and established institutions, to get impatient with gradualism and compromise, and to trouble the status quo with sweeping, radical reforms drawn directly from the pages of Scripture."  At bottom, the tension between evangelicals and conservatism is theological, according to Hart's thesis, as evangelicals need to embrace "not only conservatism but the Augustinian anthropology and ecclesiology that undergird it," along with the awareness that "there is no redeemer nation, only a Redeemer's church." 

Though the book may paint evangelicals with a fairly broad brush, and though I believe that the lack of tension between any particular Christian community and any particular political orientation should be taken as a dangerous sign of a potentially compromised witness, the book sounds like a worthwhile read.  On Hart's theological point, I was reminded of the "redeemer nation" vs. "Redeemer's church" distinction last summer, as I attended an evangelical worship service with my family.  The music morphed from a praise chorus to a patriotic anthem and back, complete with an American flag waving on the big screens.  Having grown up in evangelical circles, this hardly fazed me, but my 11 year-old daughter shot me a confused look to signal that something had gone terribly awry in her view.  Having grown up Catholic, she has no experience with a "redeemer nation."  I will maintain that evangelicals have many things they can teach Catholics, but the more-than-occasional blending of patriotism and worship is not one of them.

Defining deviancy away altogether

At Public Discourse, sociologist Anne Hendershott, author of The Politics of Deviance, has a powerful piece on efforts to provide academic respectability to "intergenerational intimacy," i.e., adult-child sexual relationships.  Here is the link:  http://www.thepublicdiscourse.com/2011/12/4440  The article reports a number of disturbing facts, including this one:

“The Vagina Monologues,” for example, is still part of the standard dramatic repertory in student productions on college campuses—including Penn State and Syracuse. The original play explores a young girl’s “coming of age,” beginning with a 13-year-old girl enjoying a sexual liaison with a 24-year-old woman. Later published versions of the play changed the age of the young girl from 13 to 16 years old, and the play continues to be performed. Last year’s February production at Syracuse was enhanced by inviting an “all-faculty” cast to perform the play on campus.

North Korean Grief Over Death of Kim Jong Il

In an article in today's Chronicle of Higher Education (link here but password required), Tom Bartlett ask this question:

In the wake of the announcement of Kim Jong Il’s demise, the above [I've inserted it below] video of hysterically grieving North Koreans has been making the rounds. Why are the people of North Korea so upset over the death of the horrible despot who has starved and enslaved them?

 

Most people in the world, including South Koreans and Americans, are stunned by this out-pouring of apparently genuine grief by the North Korean people (or at least those pictured by state-run television).  After all, we all know about the abject poverty and ruthless daily control experienced by the North Korean people, imposed by the tyrannical Kim dynasty.  We also know of the cold calculation of the North Korean leadership in regularly committing acts of violence and terrorism against others in the world, and especially in South Korea, to gain internal political advantage and demonstrate their supposed leadership strengths.

There is much we could say about how ineffably sad this misplaced sorrow strikes us, how it illustrates the folly of assuming that human beings with their faults can create a perfect society through totalitarian systems, and how substituting a human being for God and worshipping the creature rather than the Creator is tragic and hollow.

For the moment, let's hold up our North Korean brothers and sisters in prayer.  We might pray that this shock to the North Korean system, together with the installation of a new dynastic ruler who is not yet engraved into the minds of the North Korean people, might crack the facade.  We know that God is at work in human hearts during times of uncertainty.

Because what we observe in North Korea under this dictatorial regime is so unnatural and inhuman, and because the plight of the ordinary person in that country is so dire (especially as compared with the economic strength and comparative well-being of South Korean), the North Korean cult of personality and dictatorship almost certainly cannot survive forever.  Such a system is inherently unstable (which of course also makes it so very dangerous).

When the fall comes, whether soon or after more years of misery, we will likely see an entire nation of 24 million people suffering a psychologically traumatic encounter with a reality to which they have been blinded.  We know that God is with us in a time of need.  When that day of liberation comes, let us pray for God to be there (as we know He already is) and to prepare persons of faith in South Korean, Americas, and throughout the world to minister to this suffering people when the walls finally come down.

Greg Sisk

 

"Good minus God: The Moral Atheist"

Returning to an earlier-discussed matter, here is Louise Antony, in The New York Times, arguing with "those" who are alleged to argue that "[a] person who denies God . . . must be, if not actively evil, at least indifferent to considerations of right and wrong."  I have never heard anyone (who is in the arguing business) actually argue this, but put that aside.  She writes:

 It is only if morality is independent of God that we can make moral sense out of religious worship.  It is only if morality is independent of God that any person can have a moral basis for adhering to God’s commands.

Let me explain why.  First let’s take a cold hard look at the consequences of pinning morality to the existence of God.  Consider the following moral judgments — judgments that seem to me to be obviously true:

•            It is wrong to drive people from their homes or to kill them because you want their land.

•            It is wrong to enslave people.

•            It is wrong to torture prisoners of war.

•            Anyone who witnesses genocide, or enslavement, or torture, is morally required to try to stop it.

But, the the truth of these "moral judgments" (which are, I agree, true) is not, as I see it, actually "independent of God's existence."  It is only because God exists that the universe is such that we are what we are and that these "moral judgments" are (therefore) true.  The author writes: 

To say that morality depends on the existence of God is to say that none of these specific moral judgments is true unless God exists.  That seems to me to be a remarkable claim.  If God turned out not to exist — then slavery would be O.K.?  There’d be nothing wrong with torture?  The pain of another human being would mean nothing?

Why is this claim "remarkable"?  True, the claim makes some extremely uncomfortable, but that is because those people (i) do know that these moral judgments are true but (ii) don't know that God exists, or do believe that he does not.  But this comfort does not refute the point that, absent the existence of a God who loves and sustains the world and persons, these judgments would not be "true", no matter how strongly they were believed and no matter how conscientiously those who believed them committed themselves to living in accord with them.  The author writes, "Imagine telling a child: 'You are not inherently lovable.  I love you only because I love your father, and it is my duty to love anything he loves.'"  But, I don't think this is what I'm saying; I am saying, though, that my child is inherently lovable (and not merely that the "matter and force that seems to me -- whatever I am -- to constitute (however it does) me -- feels something strong and pleasant toward my child") because that child is loved by God. 

There's a lot in the piece, and most of it is taking issue, I understand, with "Divine Command Theory", which I don't and don't mean to endorse.  Still, and with apologies for being a broken record, I think there is a distinction between the obviously-not-true claim that "people who don't believe in God cannot act morally or come to correct moral judgments" and "the moral judgments which are, really, true would be no-less-true even if the universe were as Searle describes it."

Once again:  Philosophers, set me straight! 

Plover's Eggs

Perhaps you may have noticed scattered through some of Ronald Dworkin's egalitarian literature (in Freedom's Law, as well as in the first 'What is Equality'? piece) the reference to "plover's eggs."  Dworkin uses plover's eggs to indicate a hyper-cultivated sensibility or taste which counts for nothing in his equality-of-resources framework.

Why plover's eggs as an association with grand, even excessive, cultivation -- itself such an arcane and cultivated allusion?  It is no doubt a mark of my lack of true moral seriousness that I was always just as interested in the reference as the argument.  I chased down a lead to Kenneth Arrow, but that didn't really help much.  It did not explain the source of the allusion. 

I recently found a possible, and I think likely, answer.  The reference is to Evelyn Waugh's "Brideshead Revisited."  When Charles Ryder visits Sebastian Marchmain in his room at Oxford, Sebastian is peeling a plover's egg.  If this is the source of the reference, perhaps it gives the discussion of plover's eggs in these egalitarian treatments a special Catholic hue?  Here is a passage from Waugh that I have enjoyed.

The family history was typical of the Catholic squires of England; from Elizabeth's reign till Victoria's they lived sequestered lives among their tenantry and kinsmen, sending their sons to school abroad; often marrying there -- inter-marrying, if not, with a score of families like themselves, debarred from all preferment; and learning, in those lost generations, lessons which could still be read in the lives of the last three men of the house.

Mr. Samgrass's deft editorship had assembled and arranged a curiously homogeneous little body of writing -- poetry, letters, scraps of a journal, an unpublished essay or two -- which all exhaled the same high-spirited, serious, chivalrous, other-worldly air; and the letters from their contemporaries, written after their deaths, all in varying degrees of articulateness, told the same tale of men who were, in the full flood of academic and athletic success, of popularity and the promise of great rewards ahead, seen somehow as set apart from their fellows, garlanded victims, devoted to the sacrifice.  These men must die to make a world for Hooper; they were the aborigines, vermin by right of law, to be shot off at leisure so that things might be safe for the traveling salesman, with his polygonal pince-nez, his fat wet hand-shake, his grinning dentures.  I wondered as the train carried me farther and farther from Lady Marchmain, whether perhaps there was not on her, too, the same blaze, marking her and hers for destruction by other ways than war.  Did she see a sign in the red centre of her cozy grate and hear it in the rattle of creeper on the window-pane, this whisper of doom? 

Music for Christmas

Speaking of whether the state is supreme over the Church, if you're looking for some beautiful Christmas music but something different than the usual fare, I heartily recommend the 2010 CD “Puer Natus Est: Tudor Music for Advent & Christmas” by Stile Antico, an English early music ensemble. The CD features music by the great English recusant Catholic composers Thomas Tallis and William Byrd, including Tallis’s Christmas Mass, probably composed in 1554 for the arrival in England of Philip II of Spain to be married to Mary Tudor, daughter of Henry VIII and Catherine of Aragon. Put it on your iTunes this season while reading Eamon Duffy’s recent rehabilitation of Mary I's reign, Fires of Faith: Catholic England under Mary Tudor (Yale, 2009).

Hot Topics at the AALS: The Ministerial Exception

Our own Rick Garnett will moderate a "hot topics" panel discussion on Hosanna-Tabor and the ministerial exception at the AALS meeting in Washington next month:

Hot Topic Program: Church Autonomy, the Ministerial Exception, and Hosanna-Tabor v. EEOC

Saturday, January 7, 2012

10:30am-12:15pm

Moderator: Richard W. Garnett, Notre Dame Law School

Speaker: Caroline Mala Corbin, University of Miami School of Law

Speaker: Leslie C. Griffin, University of Houston Law Center

Speaker: Douglas Laycock, University of Virginia School of Law

Speaker: Christopher C. Lund, Wayne State University Law School

Speaker: Robert W. Tuttle, The George Washington University Law School

Over the past forty years, courts have developed the “ministerial exception,” a legal doctrine which has immunized churches from employment-based claims brought by their clergy (and others with significant religious duties). The lower courts have generally recognized the exception, though they have disagreed on when exactly it applies and what exactly it covers. The Supreme Court, however, has never clarified its boundaries or even said it exists at all.

 

This fall, the United States Supreme Court heard argument in Hosanna-Tabor v. EEOC, its first ministerial exception case. The case involves Cheryl Perich, a teacher at a Lutheran parochial school and commissioned minister in the faith, who brought state and federal retaliation claims against the church that had employed her. Hosanna-Tabor raises various issues about the ministerial exception itself—whether it exists, how it applies, and who it covers. It also raises larger questions about the right of church autonomy, the meaning of Employment Division v. Smith, 494 U.S. 872 (1990), and the intersection of equality and liberty.