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.

Thursday, September 27, 2012

Live Webcast: Paulsen and Koppelman Debate on Religious Liberty in the 2012 Election at St. John's

Professors Mike Paulsen and Andy Koppelman will have a debate today at 4:00 at St. John's Law School on Religious Liberty and the 2012 election.  If you are not fortunate enough to visit us in fair Queens today but would like to listen in, please follow this link to a live webcast of the event.

September 27, 2012 in DeGirolami, Marc | Permalink | TrackBack (0)

Eugene Genovese R.I.P.

Yesterday I lost a dear friend and the academic world lost one of its most gifted scholars and teachers:  Eugene Genovese, the great historian of slavery and the American South.  Although born into a Catholic family, Gene was for most of his adult life a Marxist.  Under the influence of his beloved wife Elizabeth Fox-Genovese, an eminent historian in her own right and a late-in-life convert to the Catholic faith, he eventually returned to the Church.  But even in his Marxist days, he was driven by a passion for truth---and it was that passion that eventually brought him out of the errors into which he had been led by a passion for justice. I tell a bit of the story in this video of a tribute to Gene I gave at a conference at Princeton held in his honor a couple of years ago.  http://vimeo.com/25560271

September 27, 2012 | Permalink | TrackBack (0)

Wednesday, September 26, 2012

Lecture in Chicago: "Religious Freedom in America Today"

I'm doing a public lecture -- sponsored by the Lumen Christi Institute and Chicago's Catholic Lawyers Guild -- in Chicago today, called "Religious Freedom in America Today."  (More information is available here.)  Come say "hello"!

September 26, 2012 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2012

The Potential for a Catholic Community to Be a Saving Grace

Weekly, The Washington Post Magazine presents a small piece entitled "First Person Singular" in which the subject of the piece shares select reflections written in the first person. This week, the reflections of U.S. Treasurer, Rosie Rios, were densely filled with food for thought for MOJ readers and legal educators.

Ms. Rios confesses that, as a younger person, she thought she would become a lawyer. More important, however, is her reason for considering the profession. After describing some of the challenges of growing up in poverty and the strong work ethic instilled in her, she states:

I always thought I'd be an attorney…. I had it in my mind — and probably not unlike many of my friends who are raised in disadvantaged neighborhoods who focus on areas of social injustice, whether it's neighborhood crime or other issues that come from being from a disadvantaged background — I always thought that I'd go into law. We tend to want to fix things.

This insight serves as an important reminder of the role of the attorney in its most basic sense: one who fixes social injustice.

However, even more intriguing were her comments on the importance of her Catholic upbringing. A highly successful person, Ms. Rios shares with refreshing candor some of the positive influences on her life while growing up in some trying circumstances. Here is an excerpt:

We obviously relied very heavily on our Catholic community and upbringing. I actually saw a very interesting picture of the world. I was very comforted in this village concept.

Our Catholic community is what helped us. It saved us financially. It helped us with access to education. Literally, our Catholic community was our saving grace.

The entire piece is worth a read.

September 25, 2012 in Leary, Mary G. | Permalink | TrackBack (0)

The Natural Law and Fair Play: Protesting Incompetent Officiating in the NFL


From a very early age, children exhibit an innate appreciation for equity and fairness.  As a rather powerful illustration of the natural law, a young child without training or prompting will protest violations of the demands of simple justice: “It’s not fair.”

To build character in our children and to strengthen their sense of fair play, we often play games.  We teach our children that games have rules, which should be applied evenly to all, with wisdom and discretion, and with competence.  Those who play by the rules should be rewarded.  Those who do not should be penalized.

The appeal of, some might say the obsession for, sports in our society reflects not merely a desire for recreation and release (which are legitimate human desires) but an internal need to see good human traits modeled.  Against the sometimes random imposition of harms and garnishing of goods, sports at its ideal elevates quality above mediocrity, hard work above laziness, skill above chance, and even right above wrong.

As with any human endeavor, our ideals fall short.  But if a sports activity fails to comport with expectations of fair play on a regular basis, the pattern of inequity undermines our sense of integrity.  When the rules are not faithfully applied, we are discouraged.  If the rules are constantly flouted – or misapplied – we are demoralized.  Indeed, if those who apply the rules lack proficiency and the outcome of the contest then is determined by incompetent application, the effect over time can undermine character, because the worst of human traits are then modeled.

Such is becoming the case in the National Football League.  As the owners’ lockout of the officials stretches past the third week of the regular season, the incidents of obvious failures in application of the rules and embarrassingly poor calls continue to multiply.

Last night, the game between the Green Bay Packers and the Seattle Seahawks was decided on a bad call by the officials that will be remembered in football history.  But not only was the game-deciding call a travesty, it followed close on the heels of two other questionable rulings by the officials that set the stage for the closing errors.

Let me offer a brief summary for those who missed the game (the closing minutes of which are available on the embedded videos):  As the Seahawks began the final offensive possession of the game, the Packers led by a score of 12 to 7.  The game abruptly came to what effectively should have been an early end when the Packers intercepted a pass.  But the turn-over was then turned-over by a penalty on the Packers for roughing the passer, a dubious call as the Packer defender was in pursuit and already in the air to make a tackle on the Seahawk quarterback when the ball was thrown (and the tackle was clean and certainly not a hard hit).

A few plays later came an egregious example of offensive pass interference.  As the Packer defender turned to catch the thrown pass, the Seahawk receiver grabbed his shoulder pad and jerked him away.  But the resulting call by the official went in the opposite direction –- defensive pass interference.  This gave the Seahawks a first down and keeping their hopes alive.

The last play of the game, as time ran out, was the classic “Hail Mary” pass by Seahawk quarterback Russell Wilson into the end zone.  Golden Tate, committed offensive pass interference by pushing Green Bay cornerback Sam Shields to the ground.  Even the NFL’s later announcement defending the officials acknowledged that this should have resulted in a penalty for offensive pass interference and ended the game with a Packer victory.  But the errors didn’t stop there.

Packer safety M.D. Jennings leaped up the highest, caught the ball with both hands, and pulled it to his chest –- an obvious interception, which also should have ended the game with a Packer victory.  After Jennings had caught it and taken full possession, Tate managed to insert a single hand on to the ball as they wrestled to the ground.  One official came to the pile-up and signaled interception/time expired, but another official signaled a touchdown.  After review, the later call was endorsed.

Continue reading

September 25, 2012 in Sisk, Greg | Permalink | Comments (14) | TrackBack (0)

Monday, September 24, 2012

Morr-Fitz, Inc. v. Quinn

The Illinois Court of Appeals has affirmed the lower court's invalidation of the state's administrative rule requiring pharmacies to dispense emergency contraception.  The basis of the ruling is the Illinois Health Care Right of Conscience Act, not RFRA or the First Amendment.  Two issues on which the ruling turned: first, the Conscience Act applies to pharmacists; and second, the provision of emergency contraceptives does not qualify as "emergency medical care" under the Conscience Act because "unprotected sex does not place a woman in imminent danger requiring an urgent response."

September 24, 2012 in Vischer, Rob | Permalink | Comments (0) | TrackBack (0)

Sunday, September 23, 2012

The Musical Canon: The Sanctus from Bach's B Minor Mass

Since MOJ readers may be tiring of my occasional musical interjections, I thought it might be fun to create a little structure and inaugurate a tradition.  So here's something new about something old: each Sunday, I'll post about a work that belongs in the musical canon of classical religious music.  What is the canon?  It's comprised of the pieces that are on my list!  I invite informed and elegantly composed comments about the music.

Here's a worthy lead-off hitter: Bach's magnificent, soaring, mighty Sanctus from his powerful B minor Mass, finished late in his life for the services at St. Thomasschule in Leipzig.  (It says in one of my reference works that Bach left his previous post as Kappelmeister at Cöthen because his patron's marriage "brought about a change of musical values.  The serious and the artistic were now shunned.").  His time in Leipzig was not happy, and included the death of no less than six children.  Somehow neither his industry nor his sheer brilliance ever flagged.  As my book says, "He lived but to worship God and to write music."

My favorite part of the Sanctus is right at the beginning, before the six-parts break out into the typical Bach beauty.  The B minor Mass is, in my view, the greatest Mass ever written and one of the greatest works in all of music.  This recording is by Otto Klemperer (himself a very interesting figure), who conducts it a little bit faster than you sometimes hear it, which is a good thing.  

September 23, 2012 in DeGirolami, Marc | Permalink | Comments (4) | TrackBack (0)

Saturday, September 22, 2012

Adventures at Harvard

I've spent my career so far teaching philosophy of law, constitutional interpretation, civil liberties, and political philosophy to undergraduates and graduate students in the arts and sciences.  From time to time, I've been offered teaching positions in law schools, and on a few occasions I've been approached to be a law school dean. Until three weeks ago, however, I had never actually taught law students. I'm doing that now as a visiting professor at Harvard Law School.  I'm grateful to Dean Martha Minow for her kind invitation to do so, and to my old friend the Dean of the Faculty at Princeton for granting an exception to Princeton's rather stringent rule against teaching for other institutions, even when on unpaid leaves of absence.

I wondered if the experience of teaching law students would be a lot different from the experience of teaching graduate students in philosophy, political theory, religion, and related fields.  So far, I'm finding that it's not.  Of course, I expected Harvard law students to be bright and hard working.  But I guess I didn't expect that there would be a lot of enthusiasm for the rather "impractical" courses I teach:  philosophy of law and philosophy of civil liberties.  I had a concern that all but a few students would be narrowly focused on preparing for the practice of law, and that the students who did sign up for my classes might be impatient with my admittedly rather abstract approach.  I needn't have been concerned.

In addition to the courses I'm offering for credit, Mary Ann Glendon and I are running an informal weekly luncheon seminar on social issues.  Participants include faculty and students from across the University, from the Divinity School to the Business School.  (No jokes, please, about trying to serve both God and Mammon.)  Of course, it's a treat to be working with Mary Ann, with whom I am also serving on the U.S. Commission on International Religious Freedom, and with whom I previously served on the President's Council on Bioethics.  Our theme song for the year is the Buck Owens classic:  "Together Again."

September 22, 2012 | Permalink | TrackBack (0)

Friday, September 21, 2012

Gerson for President!

I think he gets it:

[A] Republican ideology pitting the “makers” against the “takers” offers nothing. No sympathy for our fellow citizens. No insight into our social challenge. No hope of change. This approach involves a relentless reductionism. Human worth is reduced to economic production. Social problems are reduced to personal vices. Politics is reduced to class warfare on behalf of the upper class.

A few libertarians have wanted this fight ever since they read “Atlas Shrugged” as pimply adolescents. Given Romney’s background, record and faith, I don’t believe that he holds this view. I do believe that Republicans often parrot it, because they lack familiarity with other forms of conservatism that include a conception of the common good.

September 21, 2012 in Vischer, Rob | Permalink | Comments (2) | TrackBack (0)

Live-blogging from Georgetown

I'm participating in a symposium today at Georgetown Law regarding the HHS contraception mandate.  The current panel is an all-star interdisciplinary lineup: John Langan, S.J., Cathy Kaveny, Lisa Sowle Cahill, Bob Tuttle, and Patrick Deneen.  A very quick (and undoubtedly imperfect) synopsis of their remarks:

Cathy Kaveny – After providing a basic overview of formal versus material cooperation with evil, she observed that the primary concern of Catholic institutions is not focused narrowly on who has to pay for what, but on the compulsion of their broader participation in the normalization of contraception.  She is also concerned, though, about how Catholics have been approaching the debate in terms of modeling ethical discussion.  She thinks we have lost an opportunity to discuss the issue as rights arising in the context of responsibilities and the common good, rather than following along with the frequent invocation of rights as trumps.  In the debate over the mandate, there has been a tendency among some Catholics to use rights as trumps.  There should be more attention paid to questions about an employer's obligations to their employees to provide certain types of health care, what constitutes health care, etc.

Patrick Deneen – He believes that the real debate is over what constitutes a religious organization.  The government, through its exemption for some religious employers, acknowledges that the mandate constitutes a burden, just has a narrow understanding of religious organizations that should be exempt from the burden.  He does lament that the debate has proceeding in largely individualist terms, and he looks forward to the opportunity to have more substantive moral conversations after the lawsuits are resolved.

Lisa Sowle Cahill – for Catholics, the relevant question is not just whether opposition to the mandate arises from a sincerely held religious conviction, but what does prudence warrant regarding the common good and the nature of health care.  Simply to claim religious freedom without giving substantive arguments about requirements of the common good itself leads to scandal because it creates impression that Catholic moral convictions are simply products of religious dogma.  Resorting to religious liberty as the primary focus of the conversation short-circuits the moral tradition by making the debate focus on religious beliefs, rather than on the conditions necessary for human flourishing.

Bob Tuttle – He points out that government defines religion in many different ways in different contexts -- e.g., for purposes of broadcasting, paying taxes, and individual religious liberty exemptions –- as a matter of political prudence, not as a theological judgment.   He is not a fan of RFRA, and he is not a fan of a "church autonomy" approach to religious liberty.  Given the sexual misconduct cases, he can’t say words “church autonomy” without a deep sense of embarrassment because that was used so often as a defense in those cases.  We don’t operate in a world of separate sovereigns; it's just that the government recognizes its own limitations and lack of competence in certain areas. 

John Langan, S.J. – He outlined the Catholic understanding of religious liberty as freedom of the church, which was neglected in the HHS regulations.  The importance of the freedom of the church is not simply about the self-protection of church, but about contributing to the development of the Western understanding of liberty.   A more Protestant understanding of religious liberty is focused more on individual conscience, which lends itself to an easier harmonization with the mandate.

September 21, 2012 in Vischer, Rob | Permalink | Comments (1) | TrackBack (0)