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.

Monday, September 6, 2004

On Catholic voters

By Rick Garnett

A former student of mine passes along the following review of some recent poll data and research concerning Catholic voters in America:

BEL

DEN RUSSONELLO & STEWART, The View from Mainstream America: The Catholic
Voter in Summer 2004 - Washington, D.C.: BRS, 2004. pp. 70.
Reviewed by Georgie Ann WEATHERBY, Gonzaga University, Spokane, WA
99258-0065

This reflection of 2004 Catholic voters posits the statistics presented as
being "reliable indicator(s) of the attitudes and preferences of the nation
as a whole concerning politics in presidential elections" (pg. 3). These
are derived from a complex stratified sample (pg. 72, Appendix A).

Catholic voters are depicted as a group that exemplifies the bandwagon
effect. Representing one quarter of the electorate, they routinely (and
without fail) support winners of the popular vote. Hence, they "present us
with a snapshot of mainstream American public opinion" (pg. 3).

The report grapples with cutting-edge topics ranging from the war in Iraq to
same-sex marriage, assisted suicide, stem cell research, their bishops'
political involvement, and abortion. Other than the admitted oversampling
of Hispanics, a cross-section of Catholics appears to be represented (total
N = 2,239).

Trends to be noted include the fact that Catholics are more Hispanic and
less African American than the electorate as a whole. Catholics are also
more urban and northeastern, less southern, and more tend to identify
themselves as members of the Democratic Party. They are more "cultural"
than "religious" in their voting choices. They are pro-legalized abortion
(61%), pro-choice (53%), pro-stem cell research (72%), supportive of the
death penalty (71%), and somewhat in favor of physician-assisted suicide
(53%). They are by and large not influenced by stands taken by their
Catholic bishops (pg. 4).

While it is noted that "candidates who win the popular vote win the Catholic
vote" (pg. 4), the reverse is also true (when one wins the Catholic vote,
they take the nation's vote). This may be somewhat more significant to
pollsters attempting to make election predictions based on limited samples.

An important finding is that the election, as of summer 2004, was in a dead
heat between Kerry and Bush. Resolving the situation in Iraq will
ultimately drive the Catholic vote in one direction or the other. Those who
have confidence in Bush to "resolve" the war intend to vote for him.
Conversely, those who have not much or very little confidence in him on this
matter have pledged their votes to Kerry (pg. 5).

More specifically, the book highlights the fact that Catholics are adamant
about not mixing religion and politics -- 70% are not in the least
influenced by the views of their Catholic bishops, and disapprove of
politicians being denied communion on the basis of their stands against
church teaching on timely political issues (such as legalized abortion).

It is "political beliefs that are driving attitudes on the election and on
issues, not attendance at Mass" (pg. 6). Political ideology is overall a
better predictor. Catholic voters' highest priorities are "protecting
Social Security, American jobs, and improving health care" (pg. 7). Also,
concern is expressed about improving education, Medicare, moral values, and
fighting crime, cutting taxes, protecting civil liberties, and protecting
the environment (pg. 7).

Hispanic Catholics are younger, less educated, and have lower incomes than
the Catholic population overall. While being a "large city" vote, Hispanics
are in reality less likely to vote at all (pg. 8). Two issues are at the
fore of Hispanic concern -- improving health care and public education. On
many other issues, they reflect overall Catholic sentiments (pg. 8) while
being more punctuated with higher numbers, except for their reverse views on
the war in Iraq. On the flip side of the 45%/54% split of Catholics
overall, the majority of Hispanic Catholics want our troops in Iraq home
within six months (54%) versus 44% who think they should stay as long as
necessary (pp. 63-64). Hispanic women (59%) are most ardent about the
undelayed return of our military. The majority of Hispanic Catholics (59%)
have very little or not much confidence in Bush's ability to solve the
situation. Only 19% of this population has a great deal of confidence about
this issue (pg. 64).

Further regression analyses reveal the strongest predictors of the
presidential vote include demographic and lifestyle characteristics. For
example, those who are upper educated are Kerry voters, those who are
married are more likely Bush voters (pg. 14). Frequent church goers tend to
be more conservative, but when ideology enters the mix, these figures skew
toward Kerry among all but the most self-identified of the right wing (pg.
16). Other areas of concern among Catholics include protecting civil
liberties (24%) and protecting the environment (23%). Of all the issues
presented in the survey, "the most important factor in determining how
Catholics will vote in November is their confidence in President Bush's
ability to resolve the conflict in Iraq" (pg. 31). As with Hispanics, this
is highlighted again and again as the one predictor that overshadows all
others.

A healthy 74% of Catholic voters support allowing public schools to include
morning prayer in the classroom (pg. 55). A clear division between
Republicans/Conservatives (for) and Democrats/Liberals (against) exists for
the support of school vouchers (help paying for tuition costs in private
and/or religious schools with tax revenue - pg. 56). A full 72% support the
idea of stem cell research. This particular issue cuts across demographic
and ideological differences -- encompassing those on the far left and far
right (pg. 57). Physician-assisted suicide of a terminally ill patient is
supported by a slight majority (pg. 58). With the exception of Hispanics,
fairly strong opposition is shown to children of illegal immigrants being
allowed to attend public schools (56% opposition to 44% support).

In sum, to date the Catholic vote has reflected the values and wishes of the
American people in general. Those who are as yet undecided will determine
the outcome of the November 2004 presidential election. We need to follow
them closely. In critiquing this piece as a whole, there are straight
statistics offered with very little interpretation beyond simple
demographic and ideological comparisons. Future versions (as this appears
to be a work in progress) should generate predictions based on more pointed,
future-directed questions. Tests of feelings on the war in Iraq come
closest to this effort presently.

I'm not sure what to make of all this. I'm torn between wishing that "being Catholic" made more of a difference -- that is, made Catholic voters somehow meaningfully different than others -- and thinking that the numbers confirm that reasonable, faithful Catholics -- doing their best to "operationalize" Catholic Social Teaching -- can wind up in different camps. (That said, the fact that Catholic voters seem so drearily representative on "life issues" makes me wonder if bad catechesis, not careful prudential judgments, explain the numbers).

Rick

Shaming sanctions

By Rick Garnett

Dan Markel has an op-ed in today's edition of USA Today, criticizing "shaming sanctions." He concludes:

At bottom, shaming punishments are wrong because they constitute an unhinged assault on the shared and exalted moral status — the dignity — all human beings possess simply by virtue of being human.

Don't get me wrong. There are criminals out there, and they need to be punished, and many should be in prison. But the suggestion that prisons or public humiliation are the only choices is false. Other alternatives exist. For example, a landlord who keeps his apartments below code can be forced to sleep there. A bully who threatens an interracial couple can be required to watch civil rights movies. These educative punishments can be a useful supplement to, or substitute for, incarceration or other forms of punishment, such as boot camps, community service or house arrest. What's more, unlike the use of the pillory and the scarlet letter, they lend promise to the prospect of effective and humane punishments. A worthy project for a worthy society.

On a similar note, here is a (relatively) recent paper by Yale Law School's James Whitman, "What is Wrong with Inflicting Shame Sanctions". Here is the abstract:

This paper tackles the problem of the reemergence, in the USA, of sanctions involving ritualized public humiliation of offenders. The paper begins by observing that such sanctions are very widespread in human societies, including both pre-modern societies and modern ones such as that of Maoist China. The paper then concedes that the traditional liberal accounts of what is wrong with such sanctions do not seem to carry much weight. Even the commonly offered sociological argument that shame sanctions cannot work in a modern, urbanized, society is a weaker argument than it seems: in practice, shame sanctions are imposed only on certain, peculiarly vulnerable classes of offenders--in essence, on sex and "morals" offenders, commercial offenders and first offenders. The claims that justified the great eighteenth-century attacks on shame sanctions no longer have much meaning, since they assumed clearly articulated status differences that no longer exist. As for the claims of the Victorian era, which saw the ultimate abolition of shame sanctions: Those Victorian claims grew out of a sensibility of decency in public comportment that we no longer share. We also no longer share the Christian sensibility that contributed to the campaign against shame sanctions: The idea that public shame should be replaced by inward, conscience-governed, guilt, is an idea that has little power in our less-than-fully-Christian society.

Nor do the great traditional political arguments against public shaming resolve the question. We can divide those political arguments into two strains. On the one hand, there is the liberal argument, associated with figures like Mill, which holds that shaming is a style of sanction to be imposed by society rather than by the state; on the other hand, there is the authoritarian argument, present from the eighteenth century into the Nazi period, which condemns public shaming because of its tendency to trigger riots. The paper briefly considers and rejects both arguments. Nevertheless, the paper argues, the political arguments against shame sanctions, and in particular the authoritarian arguments, do point the way toward an answer to the question of what is wrong with shame sanctions. For the fault in shame sanctions, in the last analysis, does necessarily have to do with their impact on the offender at all. Shame sanctions should be seen as a form of officially-sponsored lynch justice; and the evil in shame sanctions should be understood as an evil growing ultimately out of the relationship those sanctions establish between the state and the crowd it stirs up. This does not mean that shame sanctions do not arguably do harm to the offender's dignity: they threaten harm to what the paper calls the offender's "transactional dignity." But the evil in shame sanctions goes beyond any harm to the offender. For such sanctions lend themselves, even if only potentially, to a style of demagogic politics, and encourage an ugly species of mob psychology--especially when those sanctions are imposed on sex offenders and commercial offenders. The evil in American shame sanctions is, in fact, akin to the evil that we sense is present in the shame sanctions of Maoist China: They belong to an ordering based on governance by mob.

Rick

Sunday, September 5, 2004

The Audacity of Certainty: Biola and the New York Times

By Rob Vischer

I admit to experiencing a sinking feeling today when I saw that the New York Times had decided to bring its investigative powers to bear on Biola University, an evangelical Christian school in Los Angeles. I count an uncle and cousin among the school's graduates, and my brother was the school's commencement speaker last year. As such, I feel some fondness for the school, and I know enough about it to recognize that its fundamentalist strain of Christianity would be prime fodder for the Times' unique brand of smarter-than-thou journalism. To my surprise, the Times did a fairly decent job of trying to engage the school on its own terms, letting students tell their stories and keeping the reporter's own right-thinking secularist subtitles to a minimum.

In the end, of course, the Times has to let it be known that all is not right with the Biola worldview, especially to the extent that the worldview presumes to have the answer to the world's questions. The article's concluding paragraph deconstructs two students' efforts to witness to Nicole, a cashier at the local Starbucks:

Brittany and Krista [the Biola students] hung on Nicole's every word as if they were lucky to be talking to her at all. They interrupted a story about her daughter's birthday party to ask exactly what kind of cake Nicole ordered. Although their purpose in getting to know Nicole was to save her soul, part of their motivation appeared more mundane: Nicole is simply different from anyone they know. The women's interest in her stories, the way they lingered over the details, seemed to express something about the world -- the unredeemed, unsaved, unchurched part -- that was not evident in their public prayers in church. Going off campus, even just a mile away, was interesting because it was unpredictable. Talking to the Starbucks bikers or Nicole was compelling on its own terms; Brittany and Krista, like many of the Biola students I met, enjoyed not knowing what would happen. On some level, they seemed already to know what . . . is evident in the often open-ended, messy tales of the Bible: that the most compelling stories unfold when you don't start out with the answer.

I don't regularly (ever) chat up area merchants for the purpose of saving their souls, and I'd be very hesitant to endorse that approach to evangelism. But my hesitation has nothing to do with whether or not I believe that life's deepest questions have an answer. And I'm not sure that the "open-ended, messy tales of the Bible" lead to the epistemological void suggested by the Times reporter. Admittedly, Paul's journey to Damascus begins without Paul having the answer, but the story is compelling, of course, because of the unmistakable terms with which he becomes familiar with the answer during the journey. And from that point on, Paul's life is driven by the certainty of his answer, making for pretty compelling adventures. The same can be said for the other New Testament followers of Christ, as well as Old Testament figures who received singular answers to their existential cries, such as Jonah (answer = whale), Abraham (ram), Job (God), Moses (burning bush), etc.

The Times' implicit suggestion seems to be that the most rewarding way to engage life is to affirm our mutual cluelessness as to its meaning. For those who reject the viability of divine revelation, perhaps this is an entirely sensible proposition. But don't drag the Bible in as support for that mindset.

Rob

Storms of This World

By Rob Vischer

On September 2, Fr. George Rutler presided over a prayer service at NYC's Church of Our Savior attended by President Bush. Here's an excerpt from his sermon, which was based on the Gospel account of Jesus calming the storm:

In Galilee there was a storm and the waves of the sea shook the fishermen's ship. What they called a sea was a lake and what they called a ship was a boat and what they called a storm was one of the countless storms that have rattled the world; but to die is to die, whether on a lake or a sea, whether in a boat or a ship, whether by one storm or all the tides and turnings of the universe. Through it all Jesus lay on a cushion asleep. The men woke him: "Master, don't you care that we are dying?" Jesus rose. The men had awakened eyes that never sleep. Jesus did not rebuke the men. He rebuked the wind. How does one rebuke the wind? Did he groan or shout or cry a language unknown to us? He stared at the violent waves like a mechanic looking at a noisy machine: "Peace. Be still." The sea became like glass. Everyone here knows what storms are, and how many kinds there are. "Doesn't God care that we are dying?"

. . . .

There is a picture of Saint Thomas More, the "Man for All Seasons." There is a picture of courage. He coined two words: Utopia and Anarchy. There can be no Utopia in the storms of this world, and yet if the winds that blow are not rebuked there will be anarchy. Pope John Paul II declared Saint Thomas the patron saint of statesmen and politicians. . . . He said that Thomas More teaches that "government is above all an exercise of virtue. Unwavering in this rigorous moral stance, this English statesman placed his own public activity at the service of the person, especially if that person was weak or poor; he dealt with social controversies with a superb sense of fairness; he was vigorously committed to favoring and defending the family; he supported the all-round education of the young." With such courage, Thomas More joyfully declared at his execution: "I die the King's good servant, but God's first."

The first letter I ever received was sent to me by my father during the Second World War. He was sailing on a Liberty ship of the Merchant Marine on the Murmansk Run. His letter was addressed to me care of my mother because I was still in her womb. He told me to be good. He said his ship had gone through some storms and U-boats kept circling around, but "everything is fine."

Today stormy controversies attend questions of biotechnology on the micro level and world politics on the macro level. The answers are not easy but they are simple: everything will be fine so long as human rights respect the rights of God. The deepest question is, "Why did God make you?" The simplest answer that calms every storm is this: "God made me to know Him, to love Him and to serve Him in this world, and to be happy with Him for ever in Heaven."

Rob

Friday, September 3, 2004

Religious Background as an Influence on Federal Judges (With a Look at Catholic Judges)

By Greg Sisk

Although later than anticipated, my most recent article, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, is finally in print in the Ohio State Law Journal. Many on this weblog have received a copy in the mail and for anyone else interested it also is available at this link in pdf format. At the risk of shamless self-promotion, please allow me to offer a glimpse of what my co-authors (Michael Heise of Cornell and Andrew Morriss of Case Western) and I hope will be received as a valuable contribution to the empirical study of the courts. I will focus on one of two elements most pertinent to the Mirror of Justice audience (saving the second most pertinent element for another day).

To briefly summarize the purpose and design of our study, as we describe it in the article: Many thoughtful contributions (including important ones by members of this blog) have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role or instead should be constrained to rely upon and report only secular justifications for court decisions. Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. What might motivate a judge to smile upon the religious dissenter who seeks to avoid the burden of a legal requirement that conflicts with what he or she regards as the obligation of faithful belief? What experiences or attitudes might persuade a jurist to frown upon a specific example of governmental accommodation of religiously-affiliated institutions and instead insist upon a strict exclusion of what he or she regards as inappropriate sectarian elements from public life? Most poignantly, might the judge’s own religious upbringing or affiliation influence his or her evaluation of religiously-grounded claims that implicate those beliefs?

To explore those questions empirically, we conducted a comprehensive statistical study of federal court of appeals and district court judges deciding hundreds of religious liberty cases over a ten-year period, including creation and analysis of integrated models of judicial attitudes in practice toward the Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution. (The details of our research design, database, data collection, coding, etc. can be found in the article itself).

Based upon our study, the vitality of religious variables to a more complete understanding of judicial decisionmaking seems abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking in our study was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.

While the study reports many findings on a variety of variables, let me focus here on one that would be of particular interest to those reading the Mirror of Justice: In certain instances, Catholic judges (who accounted for 25.9 percent or 385 of the 1484 observations) were significantly more likely to take a favorable approach toward religion, what we called the Pro-Religion Model (positive outcomes on Free Exercise Clause (and related statutory) accommodation claims and negative outcomes on Establishment Clause claims).

When the Pro-Religion Model was considered as a whole, the variable for Catholic judges came closest to statistical significance, rising to the 93% probability level. While this falls just below the standard significance level of 95% and thus makes us wary of pronouncing this result as a “finding,” the variable does point in the anticipated positive direction for this model—that is, being Catholic made a judge more likely to be “Pro-Religion” when interpreting the Religion Clauses.

The influence of Catholic Church membership upon judges so affiliated emerged to full significance with respect to one important dimension of the Church and State debate—education. In the context of free exercise claims in which parents or students sought exemption on religious grounds from school policies or insisted upon accommodation by school authorities of religious practices, Catholic judges were significantly more likely (at the 95% probability level) to be receptive to those religious claimants. In the context of Establishment Clause claims challenging affirmative acknowledgment of religion in a public school setting or government aid to private religious schools, Catholic judges were significantly less likely (at the 95% probability level) to sustain those challenges.

Beyond reporting these results, we did not much speculate on the possible reasons for the correlation between Catholic background for judges and what we characterized as the “Pro-Religion” approach to religious liberty issues. Why might account for this influence? Given that other variables, such as political party, race, gender, etc., were controlled for through our regression analysis, does this not suggest that some true and genuine molding of attitudes toward religious faith in public life has occurred (at least in the past) in Catholic parishes through this country? Or does it reflect the continuing effect of history, in which Catholic judges remember when a strict separationist approach, at least on the Establishment Clause side, too often was combined with an anti-Catholic attitude, or at least an antipathy to Catholic schools? These are interesting questions to ponder. I invite the thoughts of others. (In a future posting, I'll note the other element of potential interes to this audience, which is the significantly less favorable success rate for Catholic claimants in asserting free exercise accommodation claims).

Greg Sisk

Call for Papers

By Michael Perry

[I received this notice, and thought that the readers of this blog would be interested.]

The University of St. Thomas has formed a new center, the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy, a collaboration between the university’s Center for Catholic Studies and its School of Law. The Murphy Institute will hold its inaugural conference on April 7-9, 2005, at the School of Law building in downtown Minneapolis. The theme is “The Catholic Intellectual Tradition and the Good Society.” Members of this list, we hope, will be interested in submitting a paper proposal or attending the conference.

The call for papers: Click here.

Steve Smith on "Toleration and Liberal Commitments"

By Rick Garnett

Steve Smith has a new paper up on SSRN. Here is the abstract:

This essay defends the ideal of toleration as against familiar criticisms coming from opposing directions. The "illiberal" objection argues that toleration is too permissive. Given the choice, why should we knowingly put up with error? The "ultraliberal" objection, reflected among other places in current free speech and religion clause jurisprudence, complains that "mere" toleration is condescending and illiberal because it declines to treat ideas and persons with equal concern and respect. This essay argues that both sorts of objections are misconceived and that if the valued liberal commitments of the American constitutional tradition are to be maintained, then we will necessarily have to embrace an ideal of toleration. The essay further argues that a renewed commitment to toleration is especially imperative at the present time as we try to cope, internally, with an exhausted ultraliberal discourse reflected in increasingly ineffectual Supreme Court opinions and, externally, with a so-called "clash of civilizations" or cultures that calls upon us to defend our central values rather than complacently pretend to rest in an "overlapping consensus" that needs no more foundational justification.

Rick

Thursday, September 2, 2004

Campus Connection

By Rob Vischer

The campus ministry of Catholic Relief Services has put together an effective website called Campus Connection to help students, faculty, and staff engage the world around them.

Rob

Kerry and Conversion

By Rob Vischer

With the rise of the secularist/religious split on matters of culture, law and politics, sniping between evangelicals and Catholics has decreased remarkably in the last twenty years. There are still occasional signs of tension, however, especially when a vocally moral evangelical is pitted against a purportedly amoral Catholic in the race for President.

Marvin Olasky, the intellectual guru of compassionate conservatism, recently wrote a column in which he characterizes himself and Bush as not having had "to save ourselves: God alone saves sinners (and I can surely add, of whom I was the worst). Being born again, we don't have to justify ourselves. Being saved, we don't have to be saviors. John Kerry, once-born, has no such spiritual support, nor do most of his top admirers in the heavily secularized Democratic Party."

In his speech last night, Zell Miller indicated that he "can identify with someone [like Bush] who has lived that line in 'Amazing Grace,' 'Was blind, but now I see.'" Given that this line was delivered in the midst of a maelstrom of Kerry-bashing, the implication is clear: Kerry is still blind, or (more charitably) that he simply lacks such a "road to Damascus" moment.

Catholics are "born again" (born of the flesh and born of the spirit), but most lack the singular conversion experience of evangelicals, instead being gradually formed as Christians through a series of deliberate decisions. Why on earth would calling attention to this distinction be relevant in today's religious and political climate? Is there enough lingering anti-Catholic sentiment among the GOP's evangelical base that Olasky or Miler might think that an "us versus them" signal holds promise? Maybe these are just stray comments, but they struck me as holdovers from a thankfully bygone era.

Rob

Wednesday, September 1, 2004

The "God Gap" Revisited

By Rob Vischer

Beliefnet's Steven Waldman has an interesting blog tracking religious themes at the GOP convention. Previously, he has argued that the purported "God gap" between the parties is simply a church attendance gap, pointing out that other measures of faith (e.g., daily prayer) do not vary too much between Dems and Republicans. He uses this thesis to put a different spin on the question that has been discussed endlessly by the politically and religiously minded among us:

At a panel discussion Tuesday morning, Michael Cromartie, head of Evangelical Studies at the conservative Ethics and Public Policy Center, suggested that the gap exists because 15% of Democratic voters now are secular, and the party has avoided religious rhetoric and moved to the left on social issues in order to appease that voting block. That in turn has made the party less welcoming to religious voters. The two Democratic panel members disagreed with each other over whether that was true. Mike McCurry, Bill Clinton's former press secretary, felt there was a grain of truth to that theory, but his old friend John Podesta, the former White House chief of staff, said he couldn't recall a single meeting where any adjustments in rhetoric or policy were made to appeal to secularists. "I just have never heard that point made," he said.

This being the Republican convention, the focus was on what mistakes the two political parties have made. But it's also time we asked what this God gap says about religion. Conversely, the question is not why less-frequent attenders vote Democratic, but why Democrats are drawn to church less often. Why are progressive houses of worship unable to create an urgent reason for liberal people to show up on Sundays?

That's a good question, and undoubtedly many factors are implicated. Skeptics will say that attendance drops as the threat of eternal damnation recedes into the background. Let me offer one other possibility. I've attended conservative evangelical churches, Episcopal churches that fall squarely in the "progressive" column, and Catholic churches. In my experience, as churches become more suspicious of the "supernatural" elements of scripture and church tradition (a suspicion that pervades much of mainline Protestantism and provided the foundation for modern evangelicalism's rise), it becomes more difficult to maintain a communal conception of Christianity as a set of transcendent truth claims. Commitments to worthy social causes and fellowship must be central to any Christian congregation, but without an abiding belief that the faith tradition is more than a tradition, church involvement has the tendency to take its place among the ranks of worthwhile activities to be pursued as time permits, rather than a non-negotiable manifestation of a person's core convictions.

Rob

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