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, February 26, 2015

"He is Catholic, so there is a moral component to his position on the issue" ... which is, what?

Virginia's Terry McAuliffe is "personally opposed, but ..." And he has recently taken this mainstay of Catholic political life to a new level.

In his push for lethal injection drug secrecy legislation during this year's General Assembly session, Governor McAuliffe simultaneously proclaimed his personal opposition to capital punishment while pushing for new legislation to make sure that other people's moral opposition would not get in the execution team's way through the free choice of third parties not to participate publicy in the execution process. 

After the McAuliffe Administration's lethal injection secrecy bill was defeated in the House of Delegates this week, the administration took steps to try to get the House to reconsider, as reported by Jenna Portnoy of the Washington Post. But the Governor took no public responsibility for these efforts (mirroring his public hands-off approach to Virginia Attorney General Herring's stance on the federal unconstitutionality of Virginia's constitutional definition of man-woman marriage):

Brian Coy, a spokesman for McAuliffe (D), declined to comment on the agency’s efforts to flip lawmakers’ votes and referred to his earlier statements on the issue. Coy has said the governor does not support capital punishment but it is his responsibility to uphold the law.

“He is a Catholic,” Coy has said, “so there is a moral component to his position on the issue, but he’s governor, and he will enforce the law.”
The problem with this is that the new lethal injection secrecy law would have been precisely that ... new law. Governor McAuliffe was not seeking simply to "enforce the law," but to change it--and for the worse. Meanwhile, where was Mr. Coy's proclamation of Governor McAuliffe's commitment to "enforce the law" when it comes to marriage? 

February 26, 2015 in Walsh, Kevin | Permalink

Wednesday, February 25, 2015

Parody -- and (scarily) not-parody -- in San Francisco

So, I gather that this piece, "San Francisco Parents Shocked to Learn that Catholic Schools are Catholic," is a parody.  (Funny reading.)   This one, though -- "Lawmakers want investigation of San Francisco Catholic High Schools Over Teacher Morality Clauses" -- is not.  That it is not would still be funny, though, if it were not so worrisome:

Assemblymembers Phil Ting (D-San Francisco) and Kevin Mullin (D-San Mateo) are urging the Assembly Labor and Employment Committee and Assembly Judiciary Committee to launch an investigation.

“California cannot become a laboratory for discrimination under the guise of religion,” the lawmakers wrote in a letter sent Monday. They said the rules “set a dangerous precedent for workers’ rights through manipulations of law that deprive employees of civil rights guaranteed to all Californians.”

But, the question is precisely whether "all Californians" really do have a "civil right" to -- regardless of what they believe, say, do, or teach -- play a leading role in the formation of Catholic high-school students.  These lawmakers' statements reflect, one could say, a "confusion about discrimination."    

February 25, 2015 in Garnett, Rick | Permalink

Anthony Annett joins dotCommonweal

Anthony Annett ("Morning's Minion," to many Catholic-blog-readers) has joined the crew at dotCommonweal.  Welcome!   Here is an early post of his, "Papal Economics:  Why the Church Rejects Both Collectivism and Individualism."  As MOJ readers know, I think that invocations of a "resurgence of laissez-faire individualism over the past three decades" are less-than-helpful and that "laissez-faire individualism" does not meaningfully exist (except, of course, in the policy program of organizations like NARAL-Pro Choice America).  In any event, I look forward to more interesting conversations with him about where, case-by-case, we should draw the line -- "inspired," both of us, "by Catholic Social Teaching" -- that separates particular market-regulations that serve the common good (as many do) from market-regulations that do not (as many do not).

February 25, 2015 in Garnett, Rick | Permalink

Remembering (and regretting) Blaine and Locke v. Davey

Joe Carter reminded me (sigh) that we are around the 11th anniversary (!) of Locke v. Davey.  And, in the course of reminding his readers about that case, he reminds them also about James Blaine, his proposed amendment, and the ways that similar laws in the states continue to (a) reflect our country's once-very-strong anti-Catholicism and (b) stymie education reform.  

For my own take on the matter, check out "The Theology of the Blaine Amendments" (here).  Abstract:

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called "Blaine Amendments" - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom. 

First, the Article considers what might be called the "federalism defense" of the provisions. It concludes that even full-throated support for the Rehnquist Court's so-called federalism "revival" does not require one to regard the Blaine Amendments as courageous efforts by particular communities to provide greater protection to religious freedom, by insisting on a sharper, and more rigid, "separation of church and state." In fact, these provisions might better be seen as representing the failures of particular communities fully to appreciate the nature and implications of religious freedom and liberal pluralism. 

Second, the Article sounds a cautionary note concerning the fact that the Blaine Amendments were in large part the product of widespread concern about the political and cultural effects of Roman Catholicism. While it is true that the Blaine Amendments - like much else in the American experience - were anti-Catholic, they are best understood as reflecting more than mere "bigotry." Rather, the Blaine Amendments can usefully be situated in the context of the rich and growing scholarly literature on "civic education," and on the challenges posed by religious faith, teachings, and communities to certain conceptions of political liberalism. Although we are at present confronting the Blaine Amendments primarily as constraints imposed by positive law on local policy choices about school funding, these provisions take us to the heart of perennial questions about statecraft, and soulcraft. They represent, among other things, the enactment into law of certain claims about the aims of education, the prerogatives of the liberal state, the proper scope of religious obligation, and even the nature and end of the human person. 

Finally, the Article proposes that Blaine Amendments might most profitably be engaged not simply as rules of positive law, but as theological arguments. The point of this observation is not to assert that the Blaine Amendments' religious meaning is a constitutional strike against them, but rather to enrich our conversations about them. After all, if the Blaine Amendments are not merely legal constraints on state legislatures' funding options, but also claims about the content and proper sphere of religious beliefs, obligations, and loyalties, then it would seem perfectly appropriate to raise constructive, yet unapologetic and unbracketed, religious counter-claims about these matters in response.

February 25, 2015 in Garnett, Rick | Permalink

Dr. Seuss in Justice Kagan's Yates dissent

I rarely laugh out loud when reading Supreme Court decisions. One exception occurred a few minutes ago as I read Justice Kagan's dissent in Yates v. United States. As authority for the proposition that a fish is a discrete thing that possesses physical form, Justice Kagan throws a "see generally" to Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). Demonstrating some restraint later in the dissent, Justice Kagan did not provide the obvious Dr. Seuss citation ( "cf. Horton Hatches the Egg") for the assertion that "Congress said what it meant and meant what it said."

February 25, 2015 in Walsh, Kevin | Permalink

Eating crow in today's fish case

Well, I was wrong again.

The Supreme Court decided Yates v. United States today. This is the case about whether undersized fish are "tangible objects" within the meaning of a federal criminal evidence-destruction prohibition. A majority of the Court ruled for the petitioner, a fisherman who argued that the fish he threw overboard were not covered by the statute. The vote was 5-4. Justice Ginsburg wrote for a plurality consisting of herself, Chief Justice Roberts, Justice Breyer, and Justice Sotomayor. Justice Alito wrote separately concurring in the judgment. Justice Kagan authored a dissent that was joined by Justice Scalia, Justice Kennedy, and Justice Thomas. 

In my initial MOJ post on the case, I predicted that the petitioner would lose unanimously. After oral argument, I acknowledged that my initial prediction appeared "unsustainable." Noting the criminal law professors' brief signed by Rick Garnett and endorsed by Greg Sisk, I wrote that if their arguments "end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split." Although there was no opinion for the Court, the outcome resulting from the plurality plus Alito plainly rests on adoption of the arguments advanced by petitioner and underscored by petitioners' amici curiae.

In light of Greg Sisk's post-argument post describing Yates as "a door that led to a large stadium populated by a multitude of controversial legal issues," I look forward to the post-decision commentary and analysis. I don't know that I'll have much to say given the lingering taste of crow in my mouth. I will take consolation, however, in Justice Kagan's dissent and the good company she kept in that opinion. For whatever it's worth, the fisherman petitioner did not get the duck-hunters' vote.

February 25, 2015 | Permalink

Proust, "The Death of Cathedrals"

I am late in posting a notice for this wonderful short piece by Marcel Proust (yes, that one), The Death of Cathedrals, first published in Le Figaro in 1904 and translated for the first time into English (John Chartres Pepino). As the introduction explains, the context of Proust's essay was the strict separationism afoot in France in the early 20th century (culminating in the 1905 "Law of Separation"), and in specific what would happen to France's cathedrals under the new secular dispensation. Proust was an Agnostic and in some ways that makes his reflections on the subject all the more interesting. But what is truly fascinating is how completely different his views are from the typical American separationist position. Like from another planet (albeit a perfectly inhabitable one). A bit from the beginning:

Suppose for a moment that Catholicism had been dead for centuries, that the traditions of its worship had been lost. Only the unspeaking and forlorn cathedrals remain; they have become unintelligible yet remain admirable.  
Then suppose that one day scholars manage, on the basis of documentary evidence, to reconstitute the ceremonies that used to be celebrated in them, for which men had built them, which were their proper meaning and life, and without which they were now no more than a dead letter; and suppose that for one hour artists, beguiled by the dream of briefly giving back life to those great and now silent vessels, wished to restore the mysterious drama that once took place there amid chants and scents—in a word, that they were undertaking to do what the Félibres have done for ancient tragedies in the theatre of Orange.
Is there any government with the slightest concern for France’s artistic past that would not liberally subsidize so magnificent an undertaking? Do you not think that it would do what it did in the case of  Roman ruins for these cathedrals, which are probably the highest, and unquestionably the most original expression of French genius? After all, one may well prefer the literature of other peoples to ours, prefer their music to ours, their painting and sculpture to ours, but it is in France that Gothic architecture created its first and most perfect masterpieces.  All other countries have done is to imitate our religious architecture without ever matching it.
And so, to return to my hypothesis, here come scholars who have been able to rediscover the cathedrals’ lost meaning. Sculptures and stained-glass windows recover their significance, a mysterious odor once again wafts in the temple, a sacred drama is performed, and the cathedral starts to sing once more.  When the government underwrites this resurrection, it is more in the right than when it underwrites the performances in the theaters of Orange, of the Opéra-Comique, and of the Opéra, for Catholic ceremonies have an historical, social, artistic, and musical interest whose beauty alone surpasses all that any artist has ever dreamed, and which Wagner alone was ever able to come close to, in Parsifal—and that by imitation.
Caravans of swells make their way to the holy city (whether it is Amiens, Chartres, Bourges, Laon, Rheims, Rouen, Paris, or whatever town you please, we have so many sublime cathedrals!), and once a year they experience the feeling they once sought in Bayreuth and in Orange: enjoying a work of art in the very setting that had been built for it. Alas, here as in Orange, they can only ever be curious dilettantes; try as they might, the soul of times past does not dwell within them. The artists who have come to perform the chants, the actors who play the role of priests may be learned, they may have imbued themselves with the spirit of the texts, and the Secretary of Education will lavish medals and compliments upon them. Yet, in spite of it all, one cannot help but think “Alas! How much more beautiful these feasts must have been when priests celebrated the liturgy not in order to give some idea of these ceremonies to an educated audience, but because they set the same faith in their efficacy as did the artists who sculpted the Last Judgment in the west porch tympanum or who painted the stained-glass lives of the saints in the apse. How much more deeply and truly expressive the entire work must have been when a whole people responded to the priest’s voice and fell to its knees as the bell rang at the elevation, not as cold and stylized extras in historical reconstructions, but because they too, like the priest, like the sculptor, believed. But alas, such things are as far from us as the pious enthusiasm of the Greeks at their theater performances, and our ‘reconstitutions’ cannot give a faithful idea of them.”
That is what one would say if the Catholic religion no longer existed and if scholars had been able to rediscover its rites, if artists had tried to bring them back for us. But the point is that it still does exist and has not changed, as it were, since the great century when the cathedrals were built. For us to imagine what a living and sublimely functioning thirteenth-century cathedral was like, we need not do with it as we do with the theater of Orange and turn it into a venue for exact yet frozen reconstitutions and retrospectives. All we need to do is to go into it at any hour of the day when a liturgical office is being celebrated. Here mimicry, psalmody, and chant are not entrusted to artists without “conviction.” It is the ministers of worship themselves who celebrate, not with an aesthetic outlook, but by faith—and thus all the more aesthetically. One could not hope for livelier and more sincere extras, since it is the faithful  that take the trouble of unwittingly  playing their role for us. One may say that thanks to the persistence of the same rites in the Catholic Church and also of Catholic belief in French hearts, cathedrals are not only the most beautiful monuments of our art, but also the only ones that still live their life fully and have remained true to the purpose for which they were built.


Today there is not one socialist endowed with taste who doesn’t deplore the mutilations the Revolution visited upon our cathedrals: so many shattered statues and stained-glass windows! Well: better to ransack a church than to decommission it. As mutilated as a church may be, so long as the Mass is celebrated there, it retains at least some life. Once a church is decommissioned it dies, and though as an historical monument it may be protected from scandalous uses, it is no more than a museum. One may say to churches what Jesus said to His disciples: “Except you eat the flesh of the Son of man, and drink his blood, you shall not have life in you” (Jn 6:54). These somewhat mysterious yet profound words become, with this new usage, an aesthetic and architectural axiom. When the sacrifice of Christ’s flesh and blood, the sacrifice of the Mass, is no longer celebrated in our churches, they will have no life left in them. Catholic liturgy and the architecture and sculpture of our cathedrals form a whole, for they stem from the same symbolism. It is a matter of common knowledge that in the cathedrals there is no sculpture, however secondary it may seem, that does not have its own symbolic value. If the statue of Christ at the Western entrance of the cathedral of Amiens rests on a pedestal of roses, lilies, and vines, it is because Christ said: “I am the rose of Saron”;  “I am the lily of the valley”;  “I am the true vine.”

February 25, 2015 in DeGirolami, Marc | Permalink

Tuesday, February 24, 2015

Death penalty drug secrecy bill defeated in Virginia

I'm happy to report that the Virginia House of Delegates a few hours ago voted down a proposed death penalty drug secrecy bill (SB 1393). I posted on MOJ a couple of weeks ago in opposition to this bill, and subsequently co-authored an op-ed with my colleague Corinna Lain that built on the MOJ post. I then testified before a House of Delegates subcommittee and committee. All of this seemed to be of little effect (as the subcommittee and committee vote counts show). But the tide somehow turned, and at least some of this must be due to persistent lobbying by the Virginia Catholic Conference, the Virginia ACLU, and Virginians for Alternatives to the Death Penalty, whom Corinna and I had been working with, as well as opposition by the Virginia Press Association and other open-government advocates.  It is impossible to know what would have happened without any push from all these groups. And it is nice to think that a bill so evidently flawed would have collapsed of its own weight when delegates were free to vote their conscience without regard to party discipline (as they were). But it is gratifying to see the outcome one has been pushing for reflected in the final vote, especially when the outcome comes as a surprise. (To show how surprising the outcome is, I've included below the draft post that I wrote this morning but was unable to finish before other matters demanded my attention. It seems my draft observations about the distorting effects of death-penalty politics were not across-the-board accurate. Happy to be proven wrong.)

Continue reading

February 24, 2015 in Walsh, Kevin | Permalink

Meilaender and Mumford on Ethics at the Beginning of Life

The New Atlantis (which I really enjoy) has a review up, by Prof. Gilbert Meilaender, of James Mumford's new bookEthics at the Beginning of Life, which the reviewer calls "a work of serious philosophical argument, well worth our taking seriously."  Check it out!

February 24, 2015 in Garnett, Rick | Permalink

Sunday, February 22, 2015

Event on Proselytism and Development at the Berkley Center

This event ("Sharing the Message:  Proselytism and Development in Pluralistic Societies") looks great.  Check it out.  (Here is a paper I did, a few years ago, on a similar topic.)

February 22, 2015 in Garnett, Rick | Permalink