Mirror of Justice

"Inmate gets his wish, and gets executed"

Here's a news story on a recent "death-row volunteer" case:

A death row inmate who participated in the Special Olympics as a child wanted to be executed. But a lawyer—not his lawyer, another one—wanted to save him.

The U.S. Supreme Court Oct. 29 effectively took the inmate’s side in the unusual dispute, permitting Rodney Berget’s execution to go forward. South Dakota officials killed him that night.

Berget had testified at sentencing that he knew he was “guilty of taking Ronald Johnson’s life,” referring to the victim corrections officer he killed while trying to escape a previous prison stint. “I’m not going to beg the court or ask the court to spare my life,” he said. “I believe I deserve the death penalty for what I’ve done.”

I wrote an essay, a while back, on the issue of such "volunteers", on legal ethics, on my own experience with such a case, and on Catholic Social Thought.   Here's the abstract:

What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call into question his own competence to be executed, or to file an eleventh-hour, last-ditch appeal citing newly discovered evidence of his innocence -what should lawyers do?

These are not questions of merely professional interest, narrowly conceived, for lawyers and judges. That said, the death-row volunteer is of particular interest to lawyers because he poses particularly chilling problems for lawyers. It is suggested in this paper that something is missing from our thinking and conversations about the death-row-volunteer problem: Our arguments - which sound primarily in the register of choice, competence, and autonomy - reflect and proceed from an unsound moral anthropology. That is, they proceed from a flawed account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated. The unfortunate result is that the professed commitment to human dignity that drives and sustains so many capital-defense lawyers is often undermined by these same lawyers' responses to death-row volunteers.

Cardinal Zen on the Holy See / China Agreement

This editorial, titled (perhaps more tendentiously than the author would have preferred) "The Pope Doesn't Understand China", by Cardinal Zen, appeared recently in The New York Times.   I share some of the author's concerns.  (Certainly, foolish statements about condition in China like those of  Bishop Sorondo -- here -- do not inspire confidence in the soundness of the advice that Pope Francis is receiving on this topic.)  Although some diplomatic flexibility and procedural adjustments could well be warranted, in order to make the best of a bad situation and provide the best possible pastoral care to Catholics living in the PRC, it does not seem to me that there are reasons for optimism about China's regime when it comes to religious and political freedom.  Indeed, the evidence seems overwhelming that things are getting worse.

But . . . I know that some MOJ-ers disagree and/or think that I'm being too pessimistic.  (I'll admit being attracted to Mel Brooks's sound advice, "Hope for the Best, Expect the Worst.")  We'll see.

Gosnell: "When the Truth is Hard to Watch"

An up-and-coming film critic at the University of Notre Dame -- one Maggie Garnett -- has an eloquent and powerful review of the Gosnell movie up at The Rover.  Highly recommended!  A taste:

All women deserve better than abortion.

Do we avoid watching this movie because it conflicts with our beliefs? Because it makes us uncomfortable? Because it is disturbing? It’s undeniable that Gosnell is a pro-life movie and its content can be disturbing, but it is a movie that every single person should see. Yes, Dr. Gosnell is representative of the worst abuses of doctors in the abortion industry. Yes, the vast majority of clinics perform only legal abortions. Yes, the vast majority of clinics ensure only licensed physicians and nurses are administering treatment and medication. Yes, the vast majority of clinics keep their facilities clean and women safe. But the reality of the most careful, legal, and sterilized abortion is still the death of a human being, often following the choice of a mother who is frightened and feels as if she has no other option. The reality of all abortions is disturbing, heart-wrenching, and gutting.

Perhaps it takes a monster like Kermit Gosnell to move hearts and minds to recognize the reality of abortion, whether performed illegally or by the letter of the law.

The seats in the courtroom at Kermit Gosnell’s trial were largely left empty. It took a murder conviction to get people to pay attention. This movie, and its theater seats, should not be ignored in the same way.  It is a timely, powerful, and thought provoking film that cannot be set aside.

Position of possible interest to MOJ readers

We are looking for a new Program Manager for the Terrence J. Murphy Institute for Catholic Law, Thought, and Public Policy, which I co-direct.  The Institute is an interdisciplinary venture the University of St. Thomas the Center for Catholic Studies and the School of Law, working to engage the church, the academic community, and the public in rigorous discussions that bring historical and contemporary Catholic perspectives to bear on debates in law and public policy.  From Augustine and Aquinas to Galileo and Thomas More, on to Montesquieu, Mother Teresa, Saint John Paul II and Pope Francis, the vibrant programs of the Murphy Institute plumb the interdisciplinary riches of the Catholic intellectual tradition and draw upon other academic disciplines and faith traditions to engage the church and community, facilitate scholarship, provide public policy analysis, and support student scholars.

 A link to the job posting is  HERE.

Jesuit Universities, the Pro-Life Issue, and the Institutional Examen

 

In a recent post at the America Magazine website, John J. Conley, S.J. asks “Can A Pro-Life Scholar Survive in Academia?”

In the piece, Conley recalls the experience of Stéphane Mercier, a lecturer in the philosophy department at the Université catholique de Louvain in Belgium.  Mercier gave a lecture in February 2017 entitled “Against the Alleged Right to Choose Abortion” in which he argued that it is morally wrong to engage in the direct killing of an innocent human being, and that the act of abortion is precisely this kind of killing.  He also buttressed his argument “with philosophical refutations of common pro-choice theses.”  And yet, as Fr. Conley recounts, as a direct response to this lecture, Mr. Mercier was suspended from teaching at Louvain and told that his contract would not be renewed.

In a public statement the Université catholique [sic] de Louvain assured the public that Mercier’s lecture was “in contradiction with the values supported by the university.”  The bishops who comprise the University’s Board of Governors—including the Archbishop of Malins-Brussels who serves as Grand Chancellor of the University—offered no support and “declared that they would not intervene in the case.”  A spokesman for the bishops objected to Mr. Mercier’s “inflammatory rhetoric,” namely, referring to abortion as “murder.”

It is difficult to see how Mercier’s description of abortion as “murder” is not in keeping with Louvain’s “values” as a Catholic university given that the Catholic Church has, at the highest levels of its teaching authority, referred to abortion as an “infamy” (Gaudium et Spes ¶ 27), an “unspeakable crime” (Id. ¶ 51), and, indeed, “murder” (Evangelium Vitae ¶ 58).  One wonder’s what the administrators at Louvain must think of Pope Francis’ recent comment that going to an abortion doctor is “like hiring a hitman.”

Certainly, there are, as Michael Perry has explained, prudential decisions that the person arguing against abortion must make in describing the act that he or she opposes.  The rhetoric one employs can profoundly affect how the conversation proceeds.  If one’s goal is to persuade another person who supports “a woman’s right to choose,” it may well be imprudent to describe abortion as “murder” since this may end the exchange before it has had a chance to really begin.  Persuasion is not simply a matter of the truth of one’s premises, logical validity, and the coherence of one’s argument, though each of these is important.  Persuasion is also a matter of trust and good faith – belief that the interlocutors are not really opponents, but people who may approach the topic from different points-of-view, but who are ultimately engaged in a shared enterprise.

So, while Mr. Mercier’s choice of words may or may not have been imprudent and off-putting to his audience, given the Catholic Church’s unshakeable commitment to the sanctity of every human life from conception to natural death, it is difficult to see how Mr. Mercier’s thesis was “in contradiction with the values supported by the university” insofar as the Université catholique de Louvain claims to be Catholic.

The Belgian bishops decision not to intervene in the inner workings of the University is in keeping with the respect that the hierarchy has shown for the autonomy of Catholic universities since the Second Vatican Council.  The Land O’Lakes Statement, signed by the representatives of sixteen Catholic universities in North America, was, as Alice Gallin, O.S.U. described in her book Negotiating Identity, a “declaration of independence from authorities outside the university” including church officials (p. 129).  In the Land O’Lakes Statement, the signatories declared: “[T]he Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself” (§ 1).

Later, in the Apostolic Constitution Ex Corde Ecclesiae, Pope John Paul II likewise recognized that every Catholic university must possess the “institutional autonomy necessary to perform its functions effectively and guarantees its members academic freedom, so long as the rights of the individual person and of the community are preserved within the confines of truth and the common good” (¶ 12).

A bishop can, of course, simultaneously respect the institutional autonomy of a Catholic university and call out the university for its failure to understand and live its Catholic identity.  Indeed, the bishop could even call out the university for its failure to honor the principle of academic freedom.  Here, Louvain failed to uphold both the University’s claimed Catholic identity and the principle of academic freedom in spectacular fashion.  

Catholics in the academy who seek the assistance of their bishops in upholding the Catholic identity of the institutions where they serve are accustomed to disappointment.   But it is not impertinent to suggest that Catholic bishops should offer fraternal correction to the Catholic universities within their dioceses when these institutions misstate the nature of Catholic identity and undermine that identity by their actions. 

Thus, although Ex Corde recognizes that “[t]he responsibility for maintaining and strengthening the Catholic identity of the university rests primarily with the university itself” (art. 1, ¶ 1), it also provides that “[i]f problems arise concerning this Catholic character, the local bishop is to take the initiatives necessary to resolve the matter” (art. 5, ¶ 2).   Likewise, the Code of Canon Law provides that the local bishop has the authority to determine that a university may not “bear the title or name of Catholic university” (Canon 808) where the institution fails to manifest an authentic Catholic identity.

The examen is a fixture in Jesuit spirituality – a method of prayer that St. Ignatius taught in in his Spiritual Exercises.  The person who takes up the examen is invited to place him or herself in God’s presence; recall the different moments of the day; reflect upon what he or she did, or said, or thought in those instances and whether those occasions drew the person closer to God or further away; and reflect on how to collaborate more effectively with God’s plan in the future.  Thus, when taken up earnestly and with sincerity of heart, the examen can be a method of real self-improvement, moving closer to God and to fulfilling the specific vocation he has entrusted to each of us.

Recently the Association of Jesuit Colleges and Universities (AJCU) published Some Characteristics of Jesuit Colleges and Universities: A Self-Evaluation Instrument.  The document was prepared as a kind of institutional examen.  The AJCU intends for it “to be used by Jesuit universities and colleges in the United States as a tool for self-improvement, particularly with regard to their fulfillment of their Jesuit and Catholic identity” (p. 1).   Thus, the document’s method of proceeding is to pose a series of questions centered around a number of characteristics that Jesuit colleges and universities ought to manifest.  

One of these characteristics is the responsibility of the University’s leadership to “competently communicate[] and enliven[] the Jesuit, Catholic mission of the institution” (p. 5).  Here the document acknowledges, albeit implicitly, that Jesuit universities have a problem with fulfilling their mission because they have a problem of personnel.  Because they are committed to a standard of “excellence” Jesuit universities “adopt the standards of the academy that value scholarly productivity . . . while devaluing an integrative understanding of knowledge that is rooted ultimately in transcendent questions” (p. 7).

Even in those instances where institutions are successful in hiring Catholic leadership, the majority of our lay people come without adequate formation or interest in learning about and implementing the mission beyond humanistic concerns, like “care for the person” or a “commitment to service.”  In the absence of a “thick” understanding of the tradition, these good and well-intentioned leaders will be uncertain about how to hire faculty and administrators who explicitly engage the university’s mission and establish and promote programming that links directly to our Jesuit, Catholic identity.  How does the institution hope to address this issue?  

This is the question that will be determinative of the future of Jesuit and Catholic higher education.  Without faculty who know and embrace the intellectual tradition and carry it forward in their teaching and research, Jesuit and Catholic higher education will cease to exist.  The name “Jesuit” may remain on the door, but it will cease to be a meaningful descriptive.  It will stand as an empty epithet, a phrase hollow of any significance other than as a merely historical reference.

A cynic, born of experience, might conclude that the exercise of going through the institutional examen is just another example of what James Burtchaell, C.S.C. described in The Dying of the Light as “the untiring Jesuit energy for self-study” (p. 624).  Navel-gazing, whether Ignatian or otherwise, is a useless exercise.  It is not genuine self-reflection and it cannot lead to genuine change.

In his post, Fr. Conley says that “over the years, I have heard accounts of appointments and promotions denied because of faculty members’ pro-life positions.”  Faculty and administrators who have no interest in navel-gazing, but who wish to make use of the examen as a serious opportunity for institutional reflection and reform might ask themselves: “Have qualified faculty candidates who are pro-life scholars been denied appointments at our institution?  If so, why is this the case?  Have we hired faculty candidates knowing, in advance, that they have written and plan to write in favor of abortion as morally licit and legally justified?  If so, why is this the case?  Does our university have a intellectual and social justice commitment to the Church's teaching on abortion?  If no, why is this the case?”

Absent a serious and honest engagement with these kinds of questions, the institutional examen is destined to be nothing more than the latest addition to a library shelf already full of volumes dedicated to Jesuit identity -- mere words, gathering dust -- while the universities they seek to guide continue on their path away from the gospel of life. 

 

Bradley on Catholic social thought and Catholic higher ed

Here's a very worthwhile interview with my friend and colleague, Prof. Gerard Bradley, thanks to the good people at the Lumen Christi Institute.

Recalling the legacy of John Saint John Paul II

Here's a post I did, the day after Blessed Pope John Paul II's death, back in April of 2005:

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

There's a lot more to say, of course.  I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.

Cert Petition Filed in Religious Accommodation Case

A cert petition has been filed in Patterson v. Walgreen Co., a potentially important case under the religious-accommodation provision, section 701(j), of Title VII. And St. Thomas Law's Religious Liberty Appellate Clinic, which I supervise, has filed an amicus brief on behalf of Christian and Muslim organizations supporting the petition.

Patterson, a trainer for workers on Walgreen's phone-assistance line, was fired after he was unable to do an emergency training session on Saturday, his Sabbath (he is Seventh-day Adventist). But his unavailability on that occasion caused no harmful consequences: the training session went forward the following Monday and Walgreen's met the schedule it had articulated for the new phone-call policies. Instead, Walgreen's articulated that it must fire Patterson because this one-off situation would start recurring more regularly in the future, since its other trainer (who had swapped shifts with Patterson in the past) was going to move to a different company because Walgreen's was planning to sell that division in a sale to take place several months down the line. As a result, Patterson was fired at that moment based on a projected set of circumstances beginning nine months later.

The cert petition argues for review on the ground, among others, that the circuits are split on whether the employer may use such speculative future harms to meet its burden of justifying a refusal of accommodation: i.e. showing the accommodation would cause "undue hardship [to its] business." More broadly, while the accommodation provision has sometimes provided protection for employees' religiously-based dress and grooming,  it's been ineffective at protecting varying Sabbath observances because the Supreme Court has interpreted the burden of showing "undue hardship" to require only a showing of a "more than de minimis harm." TWA v. Hardison, 432 U.S. 63 (1977). As the third question presented, the cert petition calls for reconsidering Hardison's interpretation.

Our amicus brief for Christians and Muslims explains how "[a]llowing employers to rely on predicted future events creates at least three problems that undermine the effectiveness of the [accommodation] provision":

First, it allows employers to fire or otherwise adversely affect employees now based on events that might never occur—events that might never necessitate the firing. Second, reliance on future, hypothetical events makes it much more difficult to identify specific accommodations that might be available at the time the conflict arises. Third, reliance on speculative or hypothetical harms relieves the employer of the duty to search for reasonable accommodation—and at the worst, may incentivize employers to dream up scenarios of future hardship.

In addition, we support the petition's argument that the Hardison interpretation of "undue hardship" should be reconsidered, based on several grounds involving the statute's text and purpose:

      The ordinary meaning of “undue hardship” at the time the accommodation provision was enacted (1972) ...  is irreconcilable with a standard of mere “de minimis” cost....

      [T]he premise of the de minimis standard has been undercut by [the] Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) ... [which] makes clear [unlike Hardison] that [the accommodation provision] requires protection against the effects of a religion-neutral employer policy....

      A weak interpretation of [the] accommodation provision is particularly harmful to religious minorities, who are particularly likely to come in conflict with formally neutral employer policies reflecting the majority’s norms.

Aaron Bostrom, class of 2020, did an excellent job drafting significant portions of the amicus brief.

Civility and the pursuit of justice

Lest we grow complacent in attributing the degrading of our political culture solely to Donald Trump, Hillary Clinton steps forward to remind us that the race to the bottom is readily susceptible to a bipartisan effort. In a recent interview, she explained, "You cannot be civil with a political party that wants to destroy what you stand for, what you care about. That's why I believe, if we are fortunate enough to win back the House and or the Senate, that's when civility can start again."

Her comments reflect a fundamental misunderstanding of civility's role in the pursuit of justice.  As I explained earlier this week in an op-ed,

The means we employ in the political pursuit of our chosen values and priorities bear witness to how we view our fellow Americans.

As [Martin Luther King Jr.] reminded us during the tumult of the civil rights movement, “Hate is always tragic. It is as injurious to the hater as it is to the hated. It distorts the personality and scars the soul.”

That prison cells, firebombs and police dogs could not shake King from his commitment to civility speaks volumes about its importance to his work — and to ours.

Here is the lesson for Americans today who seek to defend their cherished values and priorities in the public square: Civility is not ultimately about manners; it’s about affirming our shared dignity and acknowledging — albeit sometimes through gritted teeth — that politics calls us to relationship.

When we allow our disagreements to obscure the dignity of our political opponents, we’re forgetting why King thought such battles were worth fighting in the first place.

You can read the whole thing here.

"China's Crackdown on Christianity"

Story here.  Very troubling.  A bit:

China’s crackdown on religion has taken a significant turn over the last two months, reaching a sustained intensity not seen since the Cultural Revolution. Outside the Three-Self Patriotic Movement churches—the state-sanctioned Christian churches—Christians have been facing steadily increasing pressure for the last 10 years. In 2017, the crosses of hundreds of churches were removed in Zhejiang Province. Cameras and other monitoring devices were also installed in churches throughout the province.

The situation is not isolated to Christians. Authorities in the Xinjiang Uighur Autonomous Region have been working to develop and implement a massive electronic surveillance system straight out of Nineteen Eighty-Four, including facial and iris recognition, speech recognition software, and even DNA sampling. Chinese authorities have also instituted a reeducation program, detaining Uighurs in “reeducation camps” and even luring Uighur students studying abroad to return to China under false pretenses, only to be detained.