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.

Tuesday, February 28, 2012

Garnett "Dialogues" about Hosanna-Tabor

Courtesy of Mars Hill Audio, here is a link to a "dialogue" / podcast between Ken Myers and me about the ministerial exception, religious freedom, and other things.

February 28, 2012 in Garnett, Rick | Permalink | TrackBack (0)

Bradley, "The Law as Therapist"

The HHS mandate has "nothing to do with health," writes my colleague, Gerry Bradley, in this piece.  And, he points out -- correctly, I think -- that this controversy is just the tip of the iceberg, in terms of the effort to secure protections through law for the human right to religious freedom:

. . . The contraception mandate is a pressure point created by broad and powerful social currents, but there are many such points (abortion and same-sex “marriage” among them), because the tectonic plates that underlay the mandate extend way beyond the Pill. Their momentum is far from spent, and their clash with religion will settle the meaning of religious liberty for some time to come. . . .

Later, he writes:

The emerging picture, and the force behind today’s recurring challenges to religious liberty, is this: So long as one remains in the strictly “private” sphere of home, social club, and sanctuary, one is free to hold misguided opinions about contraception, abortion, and marriage. But once one sets foot in “public” — defined expansively to include the workplace, shops, any place that receives state funds, and religious ministries that serve persons outside the faith — the rule is no discrimination, full stop. (RG:  I tried to make the same point, in my own op-ed a few days ago, here.)  It is all aboard for the new “equal sexual liberty” orthodoxy.

In the new dispensation, invisible fencing will be enough to corral “religious doctrine.” The public sphere is — so the story goes — the home of rational discourse. Church doctrine is the realm of irrationality and superstition and of fantastic theories about the unknowable. “Doctrine” does not need to be kept out, so much as it must be disqualified from entering.

This lengthy reconnaissance allows us to see both the raw power of the ideological threat to religious liberty and the reasons why courts are beguiled by it. In this worldview, there is nothing special or distinctive about religion. Religious acts have the same dignity and value — according to this vision — as do the various choices, relationships, and acts by which other people express their deepest selves, or actualize their deepest desires, or display their most self-defining thoughts or emotions. (Perhaps even less value: Religions tend to be — in this construal — morally judgmental and politically divisive.) Religious liberty is one way of exercising the super-liberty of Casey. Having sex and getting an abortion are other ways. They are all species of the same genus. . . .

(Read the whole thing.)

February 28, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

How did the advocacy of legalized infanticide become respectable?

Here is a link to the text of "After-Birth Abortion: Why Should the Baby Live?" by Alberto Giubilini and Francesca Minerva:



Perhaps it would be worth pausing to ask, from the bottom of the slope, how we came to such a pass that infanticide could be defended without a hint of shame by respectable people writing in a respected journal of medical ethics. ". . . but by that logic, infanticide would be acceptable," used to be the knock-out punch in a reductio ad absurdum argument. No more, at least in the intellectual sector of the culture. What does that say about the intellectual culture? And is there any reason to suppose that it can be contained there? Already the vast majority of children diagnosed in utero with Down's Syndrome are killed by abortion. So, if a Down's child or a child with some other handicap somehow slips through the screen, "why should the baby live?"

February 27, 2012 | Permalink | TrackBack (0)

It's No Longer Just Peter Singer - It's Jonathan Swift

Many thanks to Robby for bringing to light, just below, the scandal that is this Giubilini and Minerva paper.  Surely what is most shocking about said paper, apart from the fact that one of its authors is named 'Minerva,' is the sheer ... well, wastefulness that it seems so cheerfully to countenance.  How in heaven's - oh all right, earth's - name do our authors reconcile themselves to the  monumental opportunity cost that they propose we incur, with no offsetting benefit (!), here in this world of both great and still-growing scarcity?  Are they blind, or are they just cavalier about costs in the manner of over-indulged children?  

I am going to hope that our authors soon come to their senses and consider revising the paper along some such fiscally more prudent lines as the following ...


The paper advances two theses, accompanied by a modest two-part proposal upon which both theses converge.  The first thesis is that abortion is largely accepted even for reasons that do not have anything to do with the fetus' health. The second thesis is that as the global population increases certain resources, notably those that afford nourishment to human organisms and fuel for transport and manufacturing purposes, will rapidly come under increasing and ultimately unsustainable strain.  By showing that (a) both fetuses and newborns do not have the same moral status as actual persons, (b) the fact that both are potential persons is morally irrelevant and (c) adoption is not always in the best interest of actual people, the authors argue that (d) what we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled, and (e) the leftover infant material should be sold for use in the production either of biofuel or of a nutrient for human consumption (including in infant formula) that we call 'soylent green,' the precise allocation to be determined by market prices.    

(Eds: As the adage has it, 'you [almost] can't make this stuff up.'  I actually think that the more people who see this paper, the better - for reasons implicit in the Podhoretz 'Road to Damascus' story.  Many thanks, Robby.)


February 27, 2012 | Permalink | TrackBack (0)

It's no longer just Peter Singer

It wasn't that many years ago that Peter Singer and Michael Tooley stood virtually alone in defending infanticide. But in recent years they've been joined by others on the left, following out (as they rightly see it) the logic of their commitment to a right to abortion. This week, the Journal of Medical Ethics, a peer reviewed journal for health professionals and researchers in medical ethics, has published an article by two Australian philosophers, Alberto Giubilini and Francesa Minerva, entitled "After-Birth Abortion: Why Should the Baby Live?" Their answer, of course, is that the baby should not live---he or she should be killed if his or her parents desire it because they feel his or her existence is a burden to them and will harm their well-being or the well-being of the family.
It doesn't matter to the authors whether the baby is physically and psychologically healthy. As a mere "potential person" (sound familiar?), the infant has no right not to be killed at his or her parents will. Of course, most parents of healthy newborns won't be interested in killing them (though they should have the right to). But parents who find themselves with a newborn afflicted with, say, Downs Syndrome, might find the child to "be an unbearable burden on the family and on society as a whole."
What if others are willing to adopt the baby so that he or she won't be killed? Well, the parents might decide to give the child up, and that is certainly their right; but they may prefer to kill him or her, since they may find it psychologically difficult to have a child of theirs out there in the world somewhere. Here is the abstract of the paper posted by the Journal of Medical Ethics:


Abortion is largely accepted even for reasons that do not have anything to do with the fetus' health. By showing that (1) both fetuses and newborns do not have the same moral status as actual persons, (2) the fact that both are potential persons is morally irrelevant and (3) adoption is not always in the best interest of actual people, the authors argue that what we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.

So there we are. Who will raise their voices against this madness? Plenty of conservatives will, of course. Will liberal voices be raised? I hope so. Surely if respected philosophers were arguing for a right to kill members of a racial or ethnic minority group, as opposed to infant children, there would be denunciations from left and right alike. But the left's having tied itself to the abortion license creates an obvious problem. Giubilini and Minerva, like Singer and Tooley before them, and like more than a few others in between, alas, really are simply following out the logic of their commitment to "abortion rights." Or so it seems to them, and to me.

It is interesting to think back to 1972 when Michael Tooley published "Abortion and Infanticide." In those days, the pro-choice position on abortion had not yet hardened into an orthodoxy on the left. The pro-life cause was embraced by Edward M. Kennedy, Jesse Jackson, and other notable liberals. Many, including Kennedy and Jackson (and Al Gore), eventually caved. Others, such as Senator Frank Church and Governor Robert P. Casey, stayed faithful but their party and movement left them behind. On the conservative side, there were supporters of abortion, such as columnist James J. Kilpatrick and New York talk radio guru Bob Grant. One of them was Norman Podhoretz. He remained faithful to the pro-choice cause until he enountered friends at a cocktail party who were arguing in favor of the infanticide of handicapped newborns. When he expressed shock at their view, one of them replied, "well, you are in favor of legal abortion, aren't you?" "Sure," Podhoretz replied. "Then you should be on our side of this debate," argued his friend. "Infanticide is just a post-birth abortion, and surely birth can't be an event that transforms a non-person into a person." At that moment, Podhoretz recalled a discussion he'd had with a pro-life person a few years before. The pro-lifer had made exactly the same argument: Birth is an event of no moral significance; if abortion is permitted, its logic takes us to the approval of infanticide. Reflecting on the two conversations caused Podhoretz to shift to the pro-life camp.

February 27, 2012 | Permalink | TrackBack (0)

JFK in Houston

I appreciate Steve posting on the JFK speech to the Houston Ministerial Association, September 1960. Many recall the significance of his speech with either their adulation or critique. However, as we consider the import of what then Senator Kennedy said in his formal remarks, we should also take stock of the answers he gave during the formal question-and-answer session that immediately followed the speech. We also need to consider the fact that this was a political speech geared not to losing votes but, more likely, to gaining them.

One of the first questions he had to contend with was whether, as a public official, he would attend a service in a church other than one that was Catholic. In this regard, Kennedy replied in the affirmative. But then he was pressed on why he cancelled an acceptance to attend the dedication of the Chapel of the Chaplains in Philadelphia in 1947. The Chapel was located in the lower level of a Protestant church and was designed as an interfaith place of prayer that commemorated the four brave chaplains (Protestant, Catholic, and Jewish) aboard the USS Dorchester who gave their life vests to other service members as the ship was sinking. Kennedy’s answer was that if he were invited as a public official or simple citizen who had served in the Navy, he would have still gone to the dedication. But it appeared that he had been invited as the “Catholic spokesman,” and in this context he “did not feel [he] had very good credentials to attend” in this capacity. In the later analysis, it appears that Kennedy understood he was not in a position to speak for or bind the Catholic Church in whatever he said or did at the dedication. Moreover, as a fledgling office-holder, he indicated that his expertise was not theology and related matters.

That was a simple question—even though he was contentiously pushed with a hard follow-up question—with a relatively straightforward answer given again by Kennedy. But some of the ministers pressed on with more difficult questions. Several, seemingly encouraged by Kennedy’s position that he would not take instruction on public matters from his religious authorities, asked the senator if he would “appeal” to Catholic authorities in the US and in Rome with the plea “relative to the separation of church and state in the United States and religious freedom as separated in the Constitution of the United States, in order that the Vatican may officially authorize such a belief for all Roman Catholics in the United States.” Kennedy’s response demonstrated that he understood that the “separation of Church and State” was to benefit the Church as much as it was to benefit civil society, including the government. In his reply to this “appeal,” the senator said this:

“May I just say that as I do not accept the right of any, as I said, ecclesiastical official, to tell me what I shall do in the sphere of my public responsibility as an elected official, I do not propose also to ask Cardinal Cushing to ask the Vatican to take some action. I do not propose to interfere with their free right to do exactly what they want.”

When he was asked another question about the ability of the Catholic Church “to direct its members in various areas of life, including the political realm,” Kennedy provided a careful, prudential, and nuanced answer that indicated he understood a distinction between an “improper” influence and one that may well be proper. In this context, he may well have anticipated what Pope Paul VI was to say to the temporal leaders of the world five years later at the conclusion of the Second Vatican Council when he honored and respected their authority and sovereignty:

“What does the Church ask of you today? She tells you in one of the major documents of this council. She asks of you only liberty, the liberty to believe and to preach her faith, the freedom to love her God and serve Him, the freedom to live and to bring to men her message of life. Do not fear her.”

By Kennedy reminding the audience of the facts that the United States had previously had two Catholic Chief Justices of the Supreme Court, that Canada had previously had two Catholic Prime Ministers, that France had the Catholic De Gaulle, and that Germany had the Catholic Adenauer, it might be said that the words of Paul VI had already been in place during the Presidential campaign. If there was no reason to fear the Church in these instances cited by Kennedy (two of which included the United States), there should be no reason to fear John Kennedy now in 1960 solely on the basis that he was a Catholic.

One other minister kept peppering the senator with long, partial quotations from different Catholic sources (some of which were mistakenly attributed to Leo XIII when they were probably from Pius IX, i.e., The Syllabus of Errors) and asked Kennedy if he agreed with them. Before Kennedy had much opportunity to say anything, another member of the audience shouted out, “I object to this. Time is running out!” However, the minister with the peppering questions managed to get in one question to which Kennedy responded. The question involved a statement attributed to John XXIII that “Catholics must unite their strength toward the common aid and the Catholic hierarchy has the right and duty of guiding them.” The concern of this questioner focused on the Catholic hierarchy’s “right and duty of guiding” the faithful. Kennedy gave the response of a good politician by reminding the minister that any Baptist or other minister “has the right and duty to guide his flock” in matters of morals and the faith, so why should the pope or any Catholic bishop or priest be different?

As I am currently undertaking a research project to discern the views of John Kennedy throughout his public life (1947-1963) on “the separation of Church and State,” I hope to be able to raise from time to time some of the results of this work with my friends here at the Mirror of Justice. I think it safe to say at this stage that what I discover may help us consider this issue and related matters as they apply to the current Presidential campaign and general election that we shall all face in a few months.


RJA sj


February 27, 2012 in Araujo, Robert | Permalink | TrackBack (0)

Pepperdine Law and Religion Conference

Following on Rob's posts from Saturday's plenary session, I wanted to praise the work of Bob Cochran and the other organizers of the Pepperdine Nootbaar Institute's law and religion conference over the weekend and the hospitality of Dean Deanell Tacha. In addition to many of the MOJ bloggers, it was great to be in the company of such a large number of generous and interesting colleagues engaged in law and religion. Mike Paulsen and Andy Koppelman started off the conference with a pair of provocative papers and that pace was sustained through the Saturday panel with James Davison Hunter and Steven Smith. I've often stolen the line from Stanley Hauerwas that I don't believe in California. But discussing law and religion in Malibu amid bright sunshine and 70-degree weather, enjoying Paco's Tacos with Kevin Walsh in West LA, and looking over Santa Monica Bay from the Getty Villa are enough to make me wonder if perhaps there really is a California after all.

February 27, 2012 in Moreland, Michael | Permalink | Comments (1) | TrackBack (0)

Wasserman on the Ministerial Exception and Jurisdiction

I noted previously the Supreme Court's determination in Hosanna-Tabor v. EEOC that the ministerial exception is a limitation on the merits of an employment discrimination claim, not a subject matter jurisdictional defense (and my agreement with Greg Kalscheur's ministerial-exception-as-jurisdiction argument). Howard Wasserman (FIU) has a thorough and interesting exploration of that topic here. Among Howard's basic moves is a distinction between prescriptive and adjudicative jurisdiction:

Prescriptive jurisdiction, and its corresponding enforcement jurisdiction, contrasts with adjudicative jurisdiction. The latter is a court’s root power to adjudicate—to hear and resolve legal and factual issues under substantive legal rules, and to provide the adjudicative and remedial forum to resolve claims of right. Adjudicative jurisdiction has nothing to do with the ultimate success of a claim on its merits, but rather focuses solely on whether the court has the power to provide a forum for considering and resolving the legal and factual disputes under those rules in either direction.

Failure to distinguish prescriptive jurisdiction from adjudicative jurisdiction is the fundamental flaw in the adjudicative jurisdiction approach to the ministerial exemption. Greg Kalscheur and others frequently emphasize the jurisdictional referent in church autonomy and in the religion clauses, speaking of limits on “federal jurisdiction” or “civil jurisdiction” or of constitutional limits on the jurisdiction of civil or secular government and authority.

Again, however, a court’s jurisdiction to adjudicate a case under existing substantive law is different from Congress’s jurisdiction to bring that substantive law into existence in the first place. The ministerial exemption is indeed a constitutional bar on civil jurisdiction. But the bar is not on the court’s civil jurisdiction to decide the case before it, but on Congress’s civil jurisdiction to enact legal rules regulating churches’ conduct toward ministerial employees. The nonexistence of an enforceable legal rule means the statutory claim to enforce that rule fails—on the merits.

That said: 

But religious institutions remain special even if the ministerial exemption provides a merits victory. The Hosanna-Tabor Court insisted that the First Amendment “gives special solicitude to the rights of religious organizations.” It is, or should be, an equally powerful statement on the penultimacy of the state that the church lies beyond Congress’s prescriptive jurisdiction. The religion clauses function just as much as a structural protection for religion when they bar Congress’s exercise of its prescriptive regulatory authority and place religious organizations beyond the reach of secular law. The church’s status as a special competing and predominant sovereign is doing just as much work in placing church personnel and organizational decisions beyond congressional regulation. The broader symbolic point—that the church enjoys unique constitutional immunity from the state’s sovereign reach on some issues—remains. And that symbolic point can be made without logical, theoretical, and doctrinal incoherence.

As they say, go read the whole thing.

February 27, 2012 in Moreland, Michael | Permalink | Comments (0) | TrackBack (0)

Santorum, Kennedy, and Religion

Rick Santorum has recently attacked John Kennedy’s speech to the Houston Ministerial Association on separation of church and state. In some respects, if his interpretation of the speech is correct, he has a point. Santorum maintains that the separation of church and state should not be absolute, that there should be a role for people of faith in the public square, and that government should not be able to impose its views on people of faith. On these three points, he is at least partially correct. Separation of church and state has never been absolute in the United States. Religious arguments have always been made in the public square. “In God We Trust” appears on the coins. (Removing the slogan would be a political non-starter). In the absence of overriding reasons, government should not be able to restrict the actions of people of faith when it violates their free exercise of religion.

I assume that Santorum believes that there are limits on the free exercise of religion. I doubt that he would prevent government from restricting a religion that places human sacrifice at the heart of its liturgy. I do wonder whether he thinks that government should be able to give religious reasons for its actions. Our current system welcomes religious arguments in the public square, but requires that any government action responding to those arguments must be grounded in a fully adequate secular justification.

Finally, the reports of Santorum’s remarks do not discuss his position on the central issue in Kennedy’s speech. Kennedy was responding to the argument that as a Catholic, he would be taking his orders from the Vatican. In response, he took refuge in church and state constitutionalism. I think this was unsatisfactory. As a Catholic and as a President, he was required to act in a moral way as he understood morality so long as he could give a secular justification for his actions. The deeper question was what kind of Catholic he was. Most Catholics take the views of the Pope and the Bishops seriously, but if in conscience they cannot accept the teachings of church leaders, they do not. Kennedy’s speech should have emphasized that as President, he ultimately had to answer to his conscience, not the Pope’s. To put it another way, Kennedy’s speech should have emphasized freedom of conscience, not separation of church and state.

No doubt, Santorum rejects some statements of church leaders which he does not regard as official parts of the Magisterium. Perhaps he accepts all parts of the Magisterium. But I wonder if he believes he is required to accept all parts of the Magisterium regardless of what would otherwise be his personal views. Whatever the religious and moral merits of a position requiring acceptance of the Magisterium no matter what, it is a political cross that is rather heavy to bear. If Santorum believes that there is a strong role for moral conscience against church teachings (as Aquinas did, even if it led to excommunication), he should say so.  

cross-posted at religiousleftlaw.com




February 27, 2012 | Permalink | Comments (24) | TrackBack (0)

Sunday, February 26, 2012

Cardinal Wuerl: "Seek First the Kingdom"

Cardinal Donald Wuerl of Washington, DC has written a splendid new book entitled Seek First The Kingdom: Challenging the Culture by Living Our Faith. Here is a link to the book on Amazon.


The Cardinal is a master catechist. He has a wonderful gift for explaining Jesus's teachings, as understood by the Church, and their application to our lives today. The book includes a Foreword by Mary Ann Glendon and an Afterword by me. It is available in an inexpensive paperback edition, and can be read profitably by Catholics (and non-Catholics who are interested in what Catholicism teaches and why) from high school age on up.

February 26, 2012 | Permalink | TrackBack (0)