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.

Friday, December 18, 2015

Threat to Religious Liberty in MA

Andrew Beckwith with the Mass Family Institute writes in the New Boston Post today that a Superior Court judge ruled this week that an all-girls Catholic school in the area "cannot refuse to hire a man who is married to another man, despite the fact that Catholic teaching defines marriage as between a man and a woman." A 1989 religious exemption in the state employment non-discrimination law would seem to protect the school in this situation. But the judge determined that exemption was restricted to those schools that “limit membership, enrollment, admission or participation” to the faith community the school represents. (Sound familiar?) Moreover, the judge noted, in support of his ruling, that the school at issue “encourages debate, including on issues of same-sex marriage, and does not prohibit students from exploring and even advocating ideas and positions contrary to church teachings.” 

One hopes an appeal is forthcoming. 

December 18, 2015 in Bachiochi, Erika | Permalink

A contribution to the SCOTUSblog symposium on the Little Sisters case

The good folks over at SCOTUSblog are hosting a symposium on the Little Sisters case, this term's religious-freedom challenge in the Supreme Court to the contraception-coverage mandate. Here is my contribution, "Integrity, Mission, and the Little Sisters of the Poor."  A bit:

. . . What the Little Sisters and the other religious non-profits have done is simply invoked the protection of a near-unanimously enacted federal statute that reflects the longstanding values of our own (and any decent) political community and the foundations of human-rights law. The administration’s response, the Supreme Court’s response, and our response should not be resentment or disdain but a genuine willingness to ask, “well, why not?” We should spend less time interrogating, second-guessing, or criticizing as impertinent their assertion of religious-freedom rights and more time considering, in an open-minded way, whether it is possible – perhaps with a bit of effort and flexibility – to accommodate them.

Some religious employers, of course, have been accommodated by the administration. Religious houses of worship, and some affiliated institutions, have been exempted from the contraception-coverage mandate. The Little Sisters, however – like many religious hospitals, schools, universities, and social-welfare agencies – are engaged in the world. They heal, teach, serve, and employ some who do not share their religious faith, but theirs is nevertheless a religious mission. They aspire to carry out this mission, just as many of us aspire to live our lives, with integrity and character. The preventive-services mandate, they say, thwarts this aspiration by changing – indeed, by hijacking – their relationships with their employees.  

This claim about the character-distorting and integrity-undermining nature of the mandate – including the limited “accommodation” that the administration has provided – should not be difficult to understand. . . . 

Check out also the other posts from (so far!) Erin Hawley, Chip Lupu, Bob Tuttle, Leslie Griffin, Helen Alvare, Marcia Greenberger, John Bursch, Fred Gedicks, and Lyle Denniston. 

December 18, 2015 in Garnett, Rick | Permalink

Politics as a vocation, politicians as a mirror of society, and the two-way street of influence (Mary Ann Glendon)

I've been reminded recently of a lecture by Professor Mary Ann Glendon.

The lecture I attended was  in Richmond,  but Professor Glendon has given the lecture in many venues, and a version is available on YouTube (thanks Lumen Christi!).

The topic is Politics as a Vocation, and the lecture featured reflections from Cicero and Burke. Here is an excerpt from an interview with Professor Glendon about the topic that seems particularly timely now: 

Some argue that we should spend more time influencing politics, while others say we must first change culture. Ultimately, would you say that politics is upstream from culture or the reverse?

As Vaclav Havel once pointed out, politicians do, in a sense, mirror their society, and that’s why people sometimes say a country gets the kind of politics it deserves. But, he added, the words and example of a public figure can also influence society. It will always be a two-way street.

Classic Catholic answer: Both/and.

In this time of Trump, we must redouble our efforts to highlight the words and example of public figures who bring out the highest and best in our society. 

December 18, 2015 in Walsh, Kevin | Permalink

Thursday, December 17, 2015

Archbishop Fisichella, Justice Kennedy, and the Hermeneutic of Desire

Pope Opens Holy Doors

Last Tuesday, December 8th, the Holy Father began the Jubilee Year of Mercy by opening the Holy Doors at St. Peter’s Basilica.  In his homily opening the Year of Mercy (here) the Pope commented on the significance of this tradition in the Church: “To pass through the Holy Door means to rediscover the infinite mercy of the Father who welcomes everyone and goes out personally to encounter each of them.  It is he who seeks us!  It is he who comes to encounter us!  This will be a year in which we grow ever more convinced of God’s mercy.”

In announcing the Year of Mercy in the Bull of Indiction, Misericordiae Vultus, the Pope also announced that a group of priests, Missionaries of Mercy, would be designated and granted “the authority to pardon even those sins reserved to the Holy See” (¶ 18).  These sins include certain sins that also incur a legal penalty under the Code of Canon Law, including a violation or profanation of the Holy Eucharist (Canon 1367); absolution of an accomplice in the sin of adultery (Canon 1378); unauthorized ordination of a bishop (Canon 1382); direct violation by a confessor of the seal of confession (Canon 1388); and physical violence against the Roman Pontiff (Canon 1370).

Arch. Salvatore Fisichella

Commenting on the last of these sins — what constitutes “physical violence” toward the Pope — Archbishop Rino Fisichella, President of the Pontifical Council for the Promotion of the New Evangelization, told a group of journalists (here):

I would say that we need to understand well “physical violence,” because sometimes words, too, are rocks and stones, and therefore I believe some of these sins, too, are far more widespread than we might think.

It is true that, since shortly after his election in 2013, Pope Francis has been subject to substantial criticism.  Some of this criticism has been unfair, even scandalous.  But much of it is understandable, due to the lack of clarity and precision that is both the strength and the weakness of Papa Bergoglio’s extemporaneous, pastoral style.

But is it also true that the provision in question, Canon 1370, cannot reasonably be interpreted to apply to verbal criticism of the Roman Pontiff.  This is not to say that hateful speech and unfounded criticism are not sinful.  As canonist Edward Peters explains (here), “hateful speech directed against any one is objectively sinful, and if directed against a man of God, let alone a pope, it is especially wrong.”

At the same time, as Peters also explains, Fisichella’s interpretation of Canon 1370 goes against the basic norms of interpretation set forth in the Code of Canon Law.  These norms are similar to the rules of statutory construction familiar to American civil lawyers.  For example, Canon 17 provides that the canons are to “be understood in accord with the proper meaning of their words considered in their text and context,” and “[i]f the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator.”  Likewise, Canon 18 demands that those canons “which establish a penalty” be “subject to strict interpretation.”  Similarly, Canon 221 § 3 protects the faithful by providing that they have “the right not to be punished with canonical penalties except according to the norm of law.”

Taken together, these background norms cast grave doubt on Fisichella’s interpretation of Canon 1370.  On top of this, however, examining the text of Canon 1370 itself, Peters adds the following:

Canon 1370 criminalizes “vim physicam” against the pope, not “verba aspera” or variants thereon, and I know of no canonical commentary that includes “words” as a species of “physical force” in this context. Indeed, the CLSA New Commentary, the Exegetical Commentary, the Ancora Commentary, and the Urbaniana Commentary—at which point I stopped looking—expressly exclude “verbal violence” from the range of actions penalized under Canon 1370.

There are, I think, two things at work in Fisichella’s tortured reading of Canon 1370 that are instructive for those of us who are students of American law and who have an interest in the project of Catholic legal theory.

First, just because we regard a given state of affairs as desirable does not mean that the law, as written, advances that state of affairs.  This is what might be described as the “hermeneutic of desire”: we want the words to mean something, and so they do.  This is a fallacy to which well-meaning people may fall prey, but intellectual honesty demands a different course.

Here, Fisichella seems smitten with the idea that a text can mean what he wants it to mean when that meaning is of sufficient importance.  This idea is not unknown to students of American constitutional law since it is the same idea that finds expression in the theory of “substantive due process.”  Because the freedom to use contraception, to terminate the life of a developing child in the womb, to engage in same-sex relations, and, now, to marry a person of the same sex are deemed to be of such overwhelming importance, it is now thought that the Constitution must prohibit the state from restricting freedom of action with respect to these matters.  Archbishop Fisichella, like certain members of the Supreme Court, is guilty of trying to make a legal text mean something that the operative words simply cannot bear.  “Physical” simply does not mean “verbal” anymore than “process” means “substance.”

Indeed, Archbishop Fisichella has employed a hermeneutic so liberal that it would make even Justice Blackmun blush! . . . Well, maybe not Justice Blackmun – he who “tinker[ed] in the machinery of death”  by virtually inventing the wheel (abortion) even as he claimed to loathe it (capital punishment). (I honestly can’t see the pale torpor of his moribund face blushing at anything).  But perhaps Justice Kennedy, who has recently employed the same hermeneutic to dramatic effect in Obergefell v. Hodges.  Kennedy is nothing is not convinced of the historical significance and righteousness of his conclusion as to what the Constitution must provide.

Second, Fisichella’s “interpretation” of Canon 1370 evidences a kind of sloppiness and intellectual sloth that all who seek to engage in a meaningful conversation involving civil law and the Catholic intellectual tradition should seek to avoid.  Unfortunately, Archbishop Fisichella is not the only prelate who has recently manifested this kind of imprecision – a willingness to say something worthy of a sound-bite but unworthy of one who hopes to represent the best of Catholic thinking.

For example, this same kind of intellectual sloth and imprecision was on display this summer when Chicago’s Archbishop Blase Cupich quite rightly condemned the violence inflicted on unborn children through abortion laid bare in the undercover videos of Planned Parenthood officials, but then said (here) that we should be “no less appalled” by the lack of health care in our society, a broken immigration system, racism, joblessness, and gun violence.

Now I will readily and whole-heartedly admit that each of these presents a serious social problem, both for the Christian community and secular society, problems about which Catholic social teaching has something to say.  But these social problems, serious as they are, are not the moral equivalent of the state-sanctioned murder of innocent human life – a point thoughtfully addressed by Phil Lawler (here and here) and Archbishop Charles Chaput (here).

Sadly, Archbishop Cupich evidenced this same lack of rigor again in comments he made at the Synod on the Family in October.  With respect to couples in irregular second unions without the benefit of an annulment who approach the altar to receive the Eucharist, Cupich said (here):

If people come to a decision in good conscience, then our job is to help them move forward and to respect that.  The conscience is inviolable and we have to respect that when they make decisions, and I’ve always done that.

With respect to people in same-sex relationships he said (here) that:

[G]ay people are human beings too and they have a conscience.  And my role as a pastor is to help them to discern what the will of God is by looking at the objective moral teaching of the Church and yet, at the same time, helping them through a period of discernment to understand what God is calling them to at that point.

Back in Chicago, Archbishop Cupich made a similar comment with respect to people in same-sex relationships (here):

When people who are in good conscience working with a spiritual director come to a decision, then they need to follow that conscience.  That’s the teaching of the Church.  So in the case of people receiving Communion in situations that are irregular that also applies.  The question then was: Does that apply to gay people?  My answer was: they’re human beings too.  They have a conscience.  They have to follow their conscience. . . . They have to be able to have a formed conscience, understand the teaching of the Church, and work with a spiritual director and come to those decisions.  And we have to respect that.

As Ed Peters notes (here), some unkind and untrue things have regrettably been said about Archbishop Cupich in the wake of these comments.  Peters also observes, however, that although Cupich alludes to Church teaching, he fails to make clear “that conscience is used largely to assess whether one’s concrete action in a given situation accords with Church teaching—not to determine whether one agrees with or accepts Church teaching in the first place.”  The faithful have an obligation to reach a well-formed conscience – one in conformity with sacred scripture and the Church’s magisterium.  If an individual reaches a specific moral judgment that is contrary to the teaching of the Church, she must respect that decision on a certain level.  The dignity of the human person demands as much.  But respect does not require acquiescence or facilitation.  The Church is under no obligation to aid such an erroneous decision, to be complicit in it.

The Church’s “job” is not to help people “move forward” in persisting in sin.  It is to “speak the truth in love” (Eph. 4:15) and call them to conversion.  Doubtless there are several ways to go about this while remaining faithful to what the Church professes, but to pile sin on top of sin is not one of them.  Good intentions and a desire to be pastoral are laudable qualities, but there is nothing genuinely pastoral in an approach that ignores the truth out of a desire to be "inclusive."  There is, however, something slovenly and intellectually lazy in failing to engage the Church’s teaching with the rigor that it demands.

December 17, 2015 | Permalink

Catholic Doctrine on the God of Islam

Following on Tom's post about the matter at Wheaton College and the question of whether Christians and Muslims "worship the same God," it is worth pointing out that the question is a settled one in Catholic doctrine. Nostra Aetate (Vatican II's Declaration on the Relation of the Church to Non-Christian Religions) states:

3. The Church regards with esteem also the Moslems. They adore the one God, living and subsisting in Himself; merciful and all-powerful, the Creator of heaven and earth, who has spoken to men; they take pains to submit wholeheartedly to even His inscrutable decrees, just as Abraham, with whom the faith of Islam takes pleasure in linking itself, submitted to God. Though they do not acknowledge Jesus as God, they revere Him as a prophet. They also honor Mary, His virgin Mother; at times they even call on her with devotion. In addition, they await the day of judgment when God will render their deserts to all those who have been raised up from the dead. Finally, they value the moral life and worship God especially through prayer, almsgiving and fasting.

Since in the course of centuries not a few quarrels and hostilities have arisen between Christians and Moslems, this sacred synod urges all to forget the past and to work sincerely for mutual understanding and to preserve as well as to promote together for the benefit of all mankind social justice and moral welfare, as well as peace and freedom. (emphasis added)

That still leaves, of course, various and important questions to be explored about this doctrinal claim and its political-theological significance. I commend a recent article in Theological Studies (here for those with institutional subscriptions) by Anna Bonta Moreland (my wife).

December 17, 2015 in Moreland, Michael | Permalink

Wolf on Wheaton and Islam: Enmity, not Theology

In The Washington Post, evangelical theologian Miroslav Wolf criticizes Wheaton College's decision to suspend a professor who is wearing a hijab in solidarity with peaceful Muslims and who based her decision in part on the ground that Muslims and Christians "worship the same God." Wolf says the suspension reflects not a sound assertion of Christian theological distinctiveness, but rather the current political-cultural "enmity" toward Islam (the headline ramps this up to "bigotry," although Wolf doesn't use that term). Wolf notes that Christians (most Christians?) have long accepted that Jews worship the same God, which leads him to ask this good question:

Why is the Christian response to Muslim denial of the Trinity and the incarnation not the same as the response to similar Jewish denial? Why are many Christians today unable to say that Christians and Muslims worship the same God but understand God in partly different ways?

Is there a good answer to the question? One can certainly say (as Wheaton has) that substantially different understandings of the nature of God must be maintained with clarity, and when those differences exist one is not really worshiping "the same God." (See Christianity Today's follow-up story.) But what's the argument for distinguishing, on that score, between Judaism and Islam in their theological differences with Christianity?

Wolf emphasizes other major theological-ethical differences between Christianity and Islam besides the Incarnation: specifically, the Christian assertion that God is, ultimately, love. But, he says, if Christians emphasized that latter difference, "they would need to show how struggle against enemies is a way of loving them — an argument that many great theologians in the past were willing to make." And by any measure, a lot of Americans (including American Christians) currently are not acting with love toward Muslims.

Logically, Wolf's latter point doesn't matter to the "same God" issue: Christ's command to love your enemies applies no matter who they worship or don't worship. (And Wheaton has made clear that Hawkins was free to wear the hijab as an expression of solidarity with Muslim persons; the issue is her "same God" rationale.) But it seems to me Wolf also has a point: when theology becomes operational in politics and  culture, our treatment of other people will be connected to how much commonality with them we are able to see.

December 17, 2015 in Berg, Thomas | Permalink

Carl Esbeck on a North Carolina case involving religious accommodations after Obergefell

Here's a guest-post from Prof. Carl Esbeck, a law-and-religion expert and the R.B. Price Professor of Law Emeritus at the University of Missouri:

North Carolina suit challenges constitutionality of religious exemption for conscientious objectors

By Carl H. Esbeck

     On December 9th six state taxpayers in North Carolina filed a lawsuit in federal district court challenging the constitutionality of state legislation enacted to bring relief to magistrates and county clerks in the wake of Obergefell v. Hodges. When the North Carolina Administrative Office of the Courts ruled that magistrates could not avoid conducting a same-sex marriage by declining to officiate at any and all marriages, there were at least 32 resignations with the explanation that the magistrates’ religious beliefs did not permit them to perform same-sex marriages. The legislature responded with the passage of Senate Bill 2, permitting magistrates to decline for reasons of faith to solemnize any marriage, as well as to ensure that same-sex couples have a ready alternate who will perform the civil ceremony. The statutory accommodation extends to assistant and deputy clerks who have duties that entail the issuance of marriage licenses.

     Senate Bill 2 further allows for reinstatement of those magistrates that had resigned, and to do so without any loss of employment benefits due to their break in service. It is the latter expenditure of tax funds, along with any added costs in providing an alternate judicial official to perform a marriage ceremony, which presumably gives rise to plaintiffs’ claimed taxpayer standing.

     The Complaint [Download North Carolina complaint] is oddly composed. Early on, and with rising indignation, the pleading avers that after Obergefell obedience to a magistrate’s oath of office, entailing—as judicial oaths routinely do—upholding of the state and federal constitutions, requires that a magistrate marry same-sex couples. But Obergefell held that same-sex couples have the same right to marry as is enjoyed by opposite-sex couples, not that the couple has a right to be married by a particular person or government official. Moreover, the putative violation of a state judicial oath is a state law matter. Any duties thought to be attendant to a state oath can be modified by the North Carolina legislature, and that’s just what happened with the passage of Senate Bill 2. In any event, such state law issues should be of no concern to a federal court not sitting in diversity.

     Getting to the merits will require that the plaintiffs first establish federal subject matter jurisdiction, which is here based on taxpayer standing, a jurisdictional claim much diminished from its Golden Age under Flast v. Cohen (1968). Even in the heady days of Flast, taxpayer standing was never permitted except to entertain a claim under the Establishment Clause. With the Supreme Court’s most recent pronouncement in Arizona Christian Sch. Tuition Org. v. Winn (2011), taxpayer standing is available only to challenge the expenditure of tax monies that were first “extracted” from, among others, plaintiff-taxpayers, and paid into the state treasury from which the legislature is now said to be “spending” money alleged to be in “aid of religion.”

     The twenty-page Complaint finally gets serious about stating a federal question on page 14 by proceeding to set out three counts, each claiming that Senate Bill 2 undermines Obergefell. The first count alleges that the exemption for conscientious objectors violates the Establishment Clause. However, in an unbroken line of six cases the U.S. Supreme Court has without exception rejected the claim that a religious exemption to a generally applicable law is a religious establishment. The leading case is Corp. of the Presiding Bishop v. Amos (1987), unanimously upholding the religious employer exemption in Title VII of the ’64 Civil Rights Act. The Amos Court reasoned that for Congress to leave religion alone, even as others are regulated, is not to establishment a religion. The other exemption cases are Cutter (2005), Gillette (1971), Walz (1970), Zorach (1952), and Arver (1918). Further, any unintended harm that befalls third parties as a result of the exemption has never altered the Court’s analysis. See Amos and Zorach, where others were inconvenienced by the religious accommodation.

     A religious exemption is not to be confused with a naked religious preference. When government, without more, sets out to prefer a particular religious observance, the Establishment Clause is properly implicated. Examples of such a bald preference are found in Caldor (1985), with its unyielding preference for Sabbath observance, and Larkin (1982), with its unguided veto authority vested in churches over the obtaining of a license by nearby businesses. Senate Bill 2, however, is a religious exemption from the general duty imposed on magistrates in North Carolina to solemnize any and all marriages when requested, not a free-standing preference for a religious practice. Finally, it is true that in Larson v. Valente (1982) the Court held that there is an establishment violation when a state sets out to advance a particular religious viewpoint over others, but Senate Bill 2 simply permits recusal by a magistrate as to any couple seeking to marry and to do so without regard to the viewpoint of the magistrate’s religious belief. 

     The Equal Protection Clause count alleges that plaintiffs, as gay and lesbian individuals, may in future have to appear before a reinstated magistrate, thus being subject to a judicial officer that allegedly harbors prejudice. Speculation as to such possible future harm is not ripe for review. Of more interest is that on its face, the Complaint presumes that a magistrate as a conscientious objector to same-sex marriage harbors religious prejudice against gays and lesbians such that he or she cannot perform the judicial task of equal justice under the rule of law. Such a presumption, if categorical, is tantamount to imposing a religious test for holding a public office, a criteria clearly prohibited by the U.S. Constitution.  See McDaniel v. Paty (1978).

     The third count, invoking the Due Process Clause, is a variant of the second, again speculating about future harm from a reinstated magistrate harboring prejudices that deny plaintiffs equal treatment. Once again, the case is neither ripe for review nor is there taxpayer standing apart from claims under the establishment clause. But on the merits, Obergefell established the fundamental right to marry for same-sex couples same as opposite-sex couples, but the right does not extend to a couple being able to demand that the ceremony be performed by a particular person or judicial official. A state retains authority to arrange the many duties of its judicial officers so that they might reasonably be available for the performance inter alia of a civil marriage ceremony, but retains discretion to accommodate the religious conscience of some so long as alternate personnel are provided with all deliberate speed and convenience.

     Writing for the Court in Zorach v. Clausen (1952), Justice William O. Douglas observed that when government cooperates with its religious citizens “by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.” It is just good manners in the face of such differences to “live and let live.” Why not, Plaintiffs, just bask in the glow of your win in Obergefell? But the cause these Plaintiffs carry here is that even such a minimal accommodation for those with whom they are in genuine disagreement, must be unconstitutional. Sigh …….


December 17, 2015 in Garnett, Rick | Permalink

Gender Ideology, the Synod of Bishops, and Feminism

The Final Report of the Synod of Bishops is now out -- in English. Chapter One begins with contexts and challenges. The ever-encroaching threat of current gender ideology is foremost among them: 

Today, a very important cultural challenge is posed by “gender” ideology which denies the difference and reciprocity in nature of a man and a woman and envisages a society without gender differences, thereby removing the anthropological foundation of the family. This ideology leads to educational programmes and legislative guidelines which promote a personal identity and emotional intimacy radically separated from the biological difference between male and female. Consequently, human identity becomes the choice of the individual, which can also change over time. According to our faith, the difference between the sexes bears in itself the image and likeness of God (Gen1:26-27). “This tells us that it is not man alone who is the image of God or woman alone who is the image of God, but man and woman as a couple who are the image of God. [...] We can say that without the mutual enrichment of this relationship — in thought and in action, in affection and in work, as well as in faith — the two cannot even understand the depth of what it means to be man and woman. Modern contemporary culture has opened new spaces, new forms of freedom and new depths in order to enrich the understanding of this difference. But it has also introduced many doubts and much skepticism. [...] The removal of the difference [...] is the problem, not the solution” (Francis, General Audience, 15 April 2015)....


[And then later in the document] Christianity proclaims that God created humanity as male and female, and blessed them to form one flesh and transmit life (cf. Gen 1: 27-28; 2, 24). Their difference, in equal personal dignity, is God’s seal of goodness on creation. According to the Christian principle, soul and body, as well as biological sex (sex) and socio-cultural role of sex (gender), can be distinguished but not separated.

Statements like this are desperately needed as our post-Obergefell culture swims faster and faster toward gender [strike that - sex] oblivion. The ideological march toward the fringe of the feminist and gay rights movements (a fringe that tends toward obliteration of the very identity of the category of persons whom these movements represent) is fast approaching. A recent piece in the New Yorker on the creator of the popular tv show, Transparent, is indicative--and frightening. 

If trans people are scapegoats for the right, they are also requiring the left to undertake a momentous shift in thinking. “We’re asking the whole world to transition with us to a less binary way of being,” Drucker said. “It’s the next step in the fight for gender equality: removing the habit of always qualifying a person as a man or a woman. If we start thinking of each other as just people, it allows us to identify with each other in a way that has never really been possible before.” ...
In the utopia that [Transparent creator] Soloway envisions...there would be no need to transition, because there would be no gender in the first place. Soloway parsed it differently: “In a few years, we’re going to look back and say, ‘When we were little, we used to think that all women had vaginas and all men had penises, but now, of course, we know that’s not true.’"
[And in conclusion, the admission of the spiritual "obsession" of this quest:]  I’m obsessed with that part in the Bible when Jesus is given the opportunity to cure a person possessed by demons, and Jesus says, ‘What is your name?’ And the person replies, ‘My name is Legion.’ Whatever is not normative is many.” She liked the idea of a person containing more than one self, more than one gender.

"Part of it is just the fiction of being alive,” she said. “Every step, you’re making up who you are.” 


Though feminists are certainly a diverse bunch, this fast-moving ideological current is due to splinter feminism further--much like abortion did in the 1960s and 70s. Feminists for Life, founded by estranged members of NOW, might well need to be joined by Feminists for Women, an organization that would hold fast to the now controversial position that women are women--and that biological differences (asymmetry) have something to do with it. Here's my utopia: that Feminists for Women would recognize that they really ought to be Feminists for Women for Life because it was that move--acceding to a male-normative view of equality by agitating for abortion--that brought us down this dark road in the first place. And do note:  the pressure the LGBTQetc community has put on the culture to accommodate--no, force a transition to a "less binary way of thinking"--has shifted the properly feminist focus away from the central concern of the vast majority of women today:  how to both contribute to the world of work while prioritizing care for their children. The trans focus has been a major loss for women and for children. Kudos to the bishops for speaking the truth. 

December 17, 2015 in Bachiochi, Erika | Permalink

Dickens on Model Rule of Professional Conduct 1.2: "I would rather be hanged in my own way."

I have not taught Professional Responsibility in a few years, but when I did, one unit concerned the allocation of authority as between a client and a lawyer. The rule is 1.2, which states in relevant part: "a lawyer shall abide by a client's decisions concerning the objectives of representation and...shall consult with the client as to the means by which they are to be pursued..." In my experience, discussion of this provision tends to focus on a few, fairly dull, contemporary oddities without a great deal of depth in them--the Unabomber case, or scattershot debates between Supreme Court justices about the ends of litigation, and so on. 

But there is a wonderful illustration of the conflict that the rule perhaps means, in its typically arid and exsanguinous way, to address, in Dickens's "Bleak House." Here is the scene: an upright and honorable, though down-on-his-luck, military man, Mr. George, has been wrongfully accused of the murder of a prominent and rather nasty lawyer, Mr. Tulkinghorn, who represented one of George's creditors. George is being held in custody and his friends, who include the novel's main protagonists, come to visit and express sympathy. And to advise that he get a lawyer for his defense. But here is George's reaction (in Chapter LII, titled "Obstinacy," in discussion with Mr. Jarndyce, who is referred to by the narrator, Esther Summerson, as "my guardian"):

"You must have a lawyer," pursued my guardian. "We must engage a good one for you."

"I ask your pardon, sir," said Mr. George, with a step backward. "I am equally obliged. But I must decidedly beg to be excused from anything of that sort."

"You won't have a lawyer?"

"No, sir." Mr. George shook his head in the most emphatic manner. "I thank you all the same, sir, but--no lawyer!"

"Why not?"

"I don't take kindly to the breed," said Mr. George. "Gridley didn't. And--if you'll excuse my saying so much--I should hardly have thought you did yourself, sir."

"That's Equity," my guardian explained, a little at a loss; "that's Equity, George."

"Is it, indeed, sir?" returned the trooper, in his off-hand manner. "I am not acquainted with those shades of names, myself, but in a general way I objected to the breed."

Unfolding his arms and changing his position, he stood with one massive hand upon the table, and the other on his hip, as complete a picture of a man who was not to be moved from a fixed purpose as I ever saw. It was in vain that we all three talked to him, and endeavoured to persuade him; he listened with that gentleness which went so well with his bluff bearing, but was evidently no more shaken by our representations than his place of confinement was.

"Pray think, once more, Mr. George," said I. "Have you no wish, in reference to your case?"

"I certainly could wish it to be tried, miss," he returned, "by court-martial; but that is out of the question, as I am well-aware. If you will be so good as to favour me with your attention for a couple of minutes, miss, not more, I'll endeavour to explain myself as clearly as I can."

He looked at us all three in turn, shook his head a little as if he were adjusting it in the stock and collar of a tight uniform, and after a moment's reflection went on.

"You see, miss, I have been handcuffed and taken into custody, and brought here. I am a marked and disgraced man, and here I am....I don't particularly complain of that. Though I am in these present quarters through no immediately preceding fault of mine, I can very well understand that if I hadn't gone into the vagabond way in my youth, this wouldn't have happened. It has happened. Then comes the question, how to meet it."

He rubbed his swarthy forehead for a moment, with a good-humoured look, and said apologetically, "I am such a short-winded talker that I must think a bit." Having thought a bit, he looked up again, and resumed.

"How to meet it. Now, the unfortunate deceased was himself a lawyer, and had a pretty tight hold of me. I don't wish to rake up his ashes, but he had, what I should call if he was living, a Devil of a tight hold of me. I don't like his trade the better for that. If I had kept clear of his trade, I should have kept outside this place. But that's not what I mean. Now, suppose I had killed him....What should I have done as soon as I was hard and fast here? Got a lawyer."....

"I should have got a lawyer, and he would have said (as I have often read in the newspapers), 'my client says nothing, my client reserves his defence--my client this, that, and t'other.' Well, 'tis not the custom of that breed to go straight, according to my opinion, or to think that other men do. Say, I am innocent, and I get a lawyer. He would be as likely to believe me guilty as not; perhaps more. What would he do, whether or not? Act as if I was;--shut my mouth up, tell me not to commit myself, keep circumstances back, chop the evidence small, quibble, and get me off perhaps! But, Ms. Summerson, do I care for getting off in that way; or would I rather be hanged in my own way--if you'll excuse my mentioning anything so disagreeable to a lady?"

He had warmed into his subject now, and was under no further necessity to wait a bit.

"I would rather be hanged in my own way. And I mean to be! I don't intend to say," looking round upon us, with his powerful arms akimbo and his dark eyebrows raised, "that I am more partial to being hanged than any other man. What I say is, I must come off clear and full or not at all. Therefore, when I hear stated against me what is true, I say it's true; and when they tell me, 'whatever you say will be used,' I tell them I don't mind that; I mean it to be used. If they can't make me innocent out of the whole truth, they are not likely to do it out of anything less, or anything else. And if they are, it's worth nothing to me."

December 17, 2015 in DeGirolami, Marc | Permalink

Wednesday, December 16, 2015

The Expressive Power of Law

The expressive power of law defies capture by those inclined  ("caused"?) to reduce compliance with (or obedience to) law to either deterrence or "legitimacy."  I recommend in this vein Richard McAdams's The Expressive Powers of Law: Theories and Limits (Harvard 2015), a book that can be read especially profitably in tandem with Fred Schauer's The Force of Law (Harvard 2015).  Schauer's careful argument for the place of coercion in law's efficacy is somewhat overstated, in my view, and McAdams's account, while doing too little to expose the place in law of reasons for action per se, does a fine job of both demonstrating and refusing to exaggerate law's power of suggestion.  With dignitary harms multiplying as causes of action, it's timely to clarify whether the operation of law's expressive power that does not lead to compliance should nonetheless a cause of action make.        

December 16, 2015 in Brennan, Patrick | Permalink