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.

Wednesday, October 13, 2004

Supreme Court's new Religion Clause case

By Rick Garnett

Here is a short news article about the Court's decision to review a case involving the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The case presents several interesting questions about enumerated powers and constitutional structure (i.e., questions involving the scope of Congress's Spending and Commerce Clause powers), but also an important and interesting Religion Clause question: Does the Constitution's no-establishment command preclude government from specifically accommodating religion when such accommodations are not (and, they rarely are) themselves constitutionally required? Several scholars, and also Justice Stevens, have expressed the view that such a discretionary accommodation of religion is, in fact, an unconstitutional establishment of religion. This view is, in my judgment, quite mistaken. For a good read on the matter, see Michael W. McConnell, "The Problem of Singling Out Religion," 50 De Paul L Rev 1 (2000). See also this helpful post by Lyle Denniston, at SCOTUS Blog.

Rick

Bradley & George's response to Roche

By Rick Garnett

Here is the essay referenced by Richard (below), in which Gerry Bradley and Robert George respond to Dean Roche's New York Times op-ed, "Voting Our Conscience, Not Our Religion."

Rick

Tuesday, October 12, 2004

compendium of social doctrine

By Richard Myers

Zenit reported recently that the "Compendium of the Social Doctrine of the Church" will be published on October 25 by the Pontifical Council for Justice and Peace.

Richard

more on the Times editorial

By Richard Myers

A few more comments on this issue. I don't think Archbishop Burke's pastoral letter is a polemic, but I suppose others disagree. I'd encourage people to take a look at the letter. Rob Vischer provided a link to the pastoral in his post of October 7. Much of the pastoral is devoted to summarizing the Church's teaching on the moral evil of abortion and the destruction of human embryos and the teaching on the good of marriage and the family. He also explains that attacks on human life and the family erode the very foundation of the common good, and that for that reason are on a different plane than issues where Catholic politicians and voters make prudential judgments about the best way to achieve certain objectives without necessarily becoming complicit in evil.

What is sometimes missing in pieces such as Roche's brief in support of the Kerry/Edwards ticket is the point that John Langan made towards the end of the talk to which Michael referred--"The essential Catholic affirmation is that abortion is an evil." Roche does say this although it seems obscured by the body of his essay. And politicians who claim to be "personally opposed" do the same. It is hard to look at the parties and conclude that they are divided simply by disagreement over the proper prudential strategy for ending what they agree is an "unspeakable crime." Politicians such as Kerry and Jennifer Granholm (here in my home state of Michigan) who claim to be faithful Catholics and also claim to be "100% pro-choice" really do seem to lack "the essential Catholic affirmation" that John Langan mentioned. Voters who vote for such politicians are, at least, materially cooperating in the pro-abortion policies of these politicians. Would they really justify such votes if they really thought that abortion and the destruction of human embryos for research purposes were evil. Would they really justify such votes if the issue were slavery or torture, the issues to which Roche compared abortion in his Times essay.

Robbie George and Gerry Bradley were two of the other speakers at the Ave Maria conference that Michael mentioned. Readers of this blog might be interested in their papers from that conference. The papers are available on the Events section of the Ave Maria School of Law website. See . George and Bradley also published a piece in today's issue of National Review Online that discusses the Roche essay. See .

Richard

Monday, October 11, 2004

Response to Richard Myers

By Michael Perry

Richard, I disagree. What you describe as "Archbishop Burke's fine pastoral letter" is, in my judgment, so one-dimensional as to be little more, alas, than a polemic. Mark Roche's Op-Ed, by contrast, is appropriately sensitive to the complexity of the issue Catholic voters face. I need not develop the point myself, because Jesuit theologian John Langan, of Georgetown University, has already developed it, in a talk he gave a few weeks back to a gathering sponsored by your own law school, Ave Maria. Let me quote a brief passage from John Langan's presentation, the full text of which is available on the Ave Maria web site:

"[S]ingle issue voting may well be an admirable expression of conscientious conviction about an important matter; but it should not be imposed on voters as a requirement of conscience. Both voters and politicians have to make up their own minds about what issues are opportune, what fights can be won, what results can be achieved. . . . If a person, whether a political candidate or a citizen, judges that an objective such as the prohibition of abortion is simply not attainable in the present state of American public and legal opinion, then he or she cannot be required to make the prohibition of abortion the decisive consideration in voting or to demand it as an essential plank in the political platform. If I vote for a candidate who professes to be strongly pro-life but is unable or unwilling to reduce or eliminate abortions, then I have not succeeded in achieiving my pro-life objective. . . . Politics is not merely the expression of values; it is social action shaped by many discordant forces over time. Moral principles are profoundly important in political life, but they are developed within a larger and less well ordered and unprincipled reality."

At another point in his presentation, Langan says something that is relevant to Archbishop's Burke's letter: "The function of bishops and more generally of the churches is to bear witness to the moral truth which is at stake, not to determine what is the best legal and political resolution of the problem. . . . It would be a brave bishop who would claim to know on theological grounds just when such compromises are acceptable or justifiable, and it would be a naive voter who would follow his opinion on such a question."

Michael P.

times editorial: a dissent

By Richard Myers

I have to confess that I didn't find the Times editorial by Mark Roche particularly helpful in thinking through these issues.

First, the title, although I realize that op-ed writers are not always responsible for the titles of their pieces. Why the opposition between "our conscience" and "our religion?" I think faithful Catholics would do better to read the discussion in Archbishop Burke's recent pastoral on conscience and the moral law.

Second, the op-ed sets up a false polarity. The Republicans take the Catholic position on abortion but the Democrats take the Catholic position on the death penalty, universal health care, and environmental protection. I think we can safely say that there is a Catholic position on abortion but we can't say the same about health care and the environment. (I'll put aside the issue of the death penalth for the moment, but I'd be happy to address that point.) And, in fact the Democrats are actually more pro-life than the Republicans, and that "honest" Catholics ought to vote for Kerry/Edwards. We know this because of their position on the issues noted above but also because Clinton was more pro-life than Reagan. This is due to Clinton's more successful record in reducing the number of legal abortions and the abortion rate, which are likely attributable to increased social spending. I think it is misleading to credit Clinton, who was fully in favor of Roe and Casey, with these positive signs. The issue is complicated, of course, but surely more credit ought to go to parental notice laws, the heroic work of crisis pregnancy centers, the increasing realization that abortion takes the life of an unborn child and ultimately harms women.

The op-ed seems a somewhat more nuanced version of Father Greeley's recent piece that Catholics shouldn't feel any qualms about voting for a candidate who is 100% in favor of abortion rights.

I think Catholics who are struggling with these issues would do far better to consider Archbishop Burke's fine pastoral letter "On Our Civic Responsibility for the Common Good."

Richard

Times Editorial

By Vince Rougeau

The op-ed to which Susan referred was written by Mark Roche, dean of the College of Arts and Letters here at Notre Dame. You can link to the full text of the piece here. Given our discussions of the very real problems confronting American Catholic voters, it's particularly timely. I recently had a discussion with a colleague who is deeply involved in the Catholic worker movement. She argued that voting is no substitute for the Christian action and engagement required of us as believers in a lived Catholic faith. Better not to vote for president at all and to focus on living out our faith in a way that makes our values real. What, for instance, is more likely to limit abortions in this country--voting for George Bush, or active involvement in the activities and institutions that witness the Catholic respect for life to those people most likely to feel the hopelessness or alienation that tends to lead to the choice of abortion? How many Catholics are really care about why abortions are so much more common in the United States than in most other wealthy industrialized nations?

Vince

Voting and Conscience

By Susan Stabile

Further to the discussion thread last week about morality and voting and the question of effective means, there was an intersting op-ed piece in the NYT this morning entitled, Voting our Conscience, Not our Religion. Among other points, the piece says this on the abortion question:

"During the eight years of the Reagan presidency, the number of legal abortions increased by more than 5 percent; during the eight years of the Clinton presidency, the number dropped by 36 percent. The overall abortion rate (calculated as the number of abortions per 1,000 women between the ages of 15 and 44) was more or less stable during the Reagan years, but during the Clinton presidency it dropped by 11 percent.

"There are many reasons for this shift. Yet surely the traditional Democratic concern with the social safety net makes it easier for pregnant women to make responsible decisions and for young life to flourish; among the most economically disadvantaged, abortion rates have always been and remain the highest. The world's lowest abortion rates are in Belgium and the Netherlands, where abortion is legal but where the welfare state is strong. Latin America, where almost all abortions are illegal, has one of the highest rates in the world.

"None of this is to argue that abortion should be acceptable. History will judge our society's support of abortion in much the same way we view earlier generations' support of torture and slavery - it will be universally condemned. The moral condemnation of abortion, however, need not lead to the conclusion that criminal prosecution is the best way to limit the number of abortions. Those who view abortion as the most significant issue in this campaign may well want to supplement their abstract desire for moral rectitude with a more realistic focus on how best to ensure that fewer abortions take place."

It may be that part of the reduction is simply a shifting view among younger persons about the morality of abortion. But still, as already noted in several posts last week, it is shortsighted to think the debate can be carried on without some discussion of effective means to achieve the moral aim.

--Susan

Sunday, October 10, 2004

Steinfels on "Religion and Political Attitudes"

By Rick Garnett

Peter Steinfels's column in today's New York Times discusses a new report, "The American Religious Landscape and Political Attitudes: A Baseline for 2004," which stems from the Fourth Annual National Survey of Religion and Politics and which was co-sponsored by the Bliss Institute and the Pew Forum on Religion and Public Life. The report's most noteworthy contribution, it appears to me, is not so much the data it provides about what members of various religious groupings think about various issues (though this data certainly merits study). Rather, as Steinfels describes it, the report's real achievement is to highlight, document, and sort out the remarkable complexity of America's religious "landscape." Everyone knows that we in America are not, as was once thought, "Protestant, Catholic, Jew." But this report does more than note the passing of this myth; it documents and identifies 18 (!) different groupings, sorted not simply by denomination or tradition, but also broken down as "Traditionalists, Centrists and Modernists." Take a look.

Rick

Proselytism

By Rick Garnett

The October issue of First Things includes, among other things, an interesting and provocative essay, "Don't Call It Proselytism," by Lawrence Uzzell, President of International Religious Freedom Watch and an expert on religious liberty abroad, particularly in Russia.

This topic -- i.e., "proselytism" -- if of great interest to me. Often, in the Supreme Court's Religion Clause cases, Justices will assume the existence of, and accord constitutional significance to, a distinction between "proselytizing" expression (which is thought to be troubling) and other forms of religious expression. In cases involving the government's obligation not to discriminate in "public forums" against private religious speech, several Justices appear to be of the view that for government to fail to regulate "proselytism" is to (unconstitutionally) endorse, advance, or coerce religion.

This is, in my judgment, a misguided view. "Proselytism" (assuming it can meaningfully be distinguished from 'evangelization') by non-government actors should be, under our First Amendment, entirely protected, and no less valued than any other forms of protected expression. That is, the purported distinction between "non-proselytizing" and "proselytizing" religious speech is, I think, one that should largely be invisible to courts. That expression -- even religious expression -- is intended to "change the hearer's mind" does nothing to reduce the constitutional protections such expression enjoys.

As believers, of course, we might well believe that respect for religious freedom and human dignity, properly understood, requires us to propose religious claims, and declare religious truths, and issue calls to religious conversion, in some ways but not others. There are, many Catholic writers have recognized, some ways of evangelizing which seem unworthy.

Still, it is a religiously informed view of religious freedom that supplies the best arguments against "proselytism" (understood here as coercive and unworthy tactics), and not liberal political theory or jurisprudence. As I see it, the law's thin understanding of religious freedom -- i.e., religion is a matter of personal preference and individual choice, nothing more -- provides no basis for authorizing the government to "protect" citizens from (non-tortious) proselytization by private persons.

Rick

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