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.

Sunday, June 12, 2005

"The Future of Family Law"

By Rick Garnett

This report, "The Future of Family Law:  The Legal Future of Marriage and Personhood," issued by the Council on Family Law, looks important:

Can a child have three legal parents? Should parenthood be routinely determined by something other than biology? Should we extend the right to marriage to same-sex couples? To groups of people? Or should we abolish marriage as a legal institution all together?  These are some of the questions currently being discussed in the field of family law, where arguments about the future of the family have moved far beyond the question of same-sex marriage. The Future of Family Law: Law and the Marriage Crisis in North America, a new report released by the Council on Family Law, takes a close look at how two influential legal organizations, the American Law Institute and the Law Commission of Canada, are proposing to answer them.

(The CFL is chaired by Professor Mary Ann Glendon, who needs no introduction).  Thanks to Eve Tushnet.

Rick

Saturday, June 11, 2005

Government Funds and Religious "Discrimination"

By Rick Garnett

Returning again to a theme we've discussed before . . . Marty Lederman has a detailed and thoughtful post up, at Professor Jack Balkin's web page, called "Government Funding of Religious Discrimination:  The Constitutional Questions and the OLC Opinions."  Here is the opening paragraph:

Government may not, of course, discriminate on the basis of religion when it hires its own employees. So says the First Amendment, the Equal Protection Clause and (with respect to the federal government) Article VI. But what happens to this guarantee of nondiscrimination when the state “devolves” certain social-service functions to the private sector, and then subsidizes such functions by providing direct grants to the private entities performing the services? Can a government provide direct funding to a social-service organization, knowing that the funds will be used to subsidize employment positions that are made available only to persons of a single religious denomination?

I hope to take some time thinking over Marty's points, and to respond in more detail later.  In the meantime, I wonder what my MOJ colleagues think?

Rick

Income disparity, cont'd

By Rick Garnett

Rob asks, "is there any disagreement among us that, from the perspective of Catholic legal theory, [the growing income disparity in the United States] is a real problem?"  I'm not sure I "disagree[]" that this is a problem, but still . . . why, exactly, is it a problem?  If we put aside -- just for the sake of discussion -- entirely appropriate concerns about, for example, a consumption culture that is fed by images of the super-rich on spending binges, or about whether those at the low end of the scale (or in the middle, or at the high end, for that matter) are being compensated justly, and just ask about "income disparity" . . . why, from a CST perspective, is this objectionable?  (Please note, I am not asserting that it is not objectionable; I'm only asking why we should so quickly conclude, or assume, that it is).

Rick

Friday, June 10, 2005

Income Disparity

By Rob Vischer

Here is an excerpt from today's NYT column by Paul Krugman:

Working families have seen little if any progress over the past 30 years. Adjusted for inflation, the income of the median family doubled between 1947 and 1973. But it rose only 22 percent from 1973 to 2003, and much of that gain was the result of wives' entering the paid labor force or working longer hours, not rising wages.

Meanwhile, economic security is a thing of the past: year-to-year fluctuations in the incomes of working families are far larger than they were a generation ago. All it takes is a bit of bad luck in employment or health to plunge a family that seems solidly middle-class into poverty.

But the wealthy have done very well indeed. Since 1973 the average income of the top 1 percent of Americans has doubled, and the income of the top 0.1 percent has tripled.

I assume that there is plenty of disagreement among us about how best to remedy the growing income disparity in the United States, but is there any disagreement among us that, from the perspective of Catholic legal theory, this is a real problem?

Rob

Thursday, June 9, 2005

Religious Freedom is Impossible

By Rick Garnett

So argues Winnifred Fallers Sullivan in a new book. 

The Constitution may guarantee it. But religious freedom in America is, in fact, impossible. So argues this timely and iconoclastic work by law and religion scholar Winnifred Sullivan. Sullivan uses as the backdrop for the book the trial of Warner vs. Boca Raton, a recent case concerning the laws that protect the free exercise of religion in America. The trial, for which the author served as an expert witness, concerned regulations banning certain memorials from a multiconfessional nondenominational cemetery in Boca Raton, Florida. The book portrays the unsuccessful struggle of Catholic, Protestant, and Jewish families in Boca Raton to preserve the practice of placing such religious artifacts as crosses and stars of David on the graves of the city-owned burial ground.

Sullivan demonstrates how, during the course of the proceeding, citizens from all walks of life and religious backgrounds were harassed to define just what their religion is. She argues that their plight points up a shocking truth: religion cannot be coherently defined for the purposes of American law, because everyone has different definitions of what religion is. Indeed, while religious freedom as a political idea was arguably once a force for tolerance, it has now become a force for intolerance, she maintains.

A clear-eyed look at the laws created to protect religious freedom, this vigorously argued book offers a new take on a right deemed by many to be necessary for a free democratic society. It will have broad appeal not only for religion scholars, but also for anyone interested in law and the Constitution.

Thanks to Larry Solum.  If any MOJ readers have read or reviewed this book, I'd welcome their reactions.

Rick

Supreme Court Nomination Blog

By Thomas Berg

Hmmm.  Is this relevant enough to Catholic legal theory?  Oh, heck, sure it is, and plus following any forthcoming Supreme Court nomination and the battle it might provoke is likely to be one of the most compelling events of the summer.  So check out the new Supreme Court Nomination Blog, brought to you by Tom Goldstein, Marty Lederman, and the other folks at SCOTUSBlog.  It's only three days old, and there's already lots of valuable information and handicapping for Court-followers.

Tom B.

Fun religion maps

By Rick Garnett

A new study, by David T. Olson, "The American Church", includes some fun county-by-county maps showing the percentage of people in each county that attended a particular "kind" of church on a particular weekend.  Here's the Catholic map (dark colors in the Northeast, upper Midwest, Louisiana, and the Mexican border areas; negligible in the South).  Here's the "Mainline" map, and here is the "evangelical" map. The study includes "12 fascinating facts about what is really happening in the American church."  One such fact is said to be that "the percentage of people that attend a Christian church each weekend is far below what pollsters report."  Also, this map suggests that Oregon is not as much of an "unchurched" outlier as one sometimes hears.

Rick

Saving the Catholics

By Rob Vischer

Much of our conversation on MoJ explores the Gospel's power to transform culture.  What happens if the focus on culture means that the individual never experiences that transformative power?  In other words, are there gaps in the current practice of Catholicism that warrant Protestant evangelism efforts geared specifically toward Catholics?  Here are recent comments by the Southern Baptist Mission Board President:

Rankin added that nearly 1,200 Southern Baptist missionaries continue to serve in 65 predominately Roman Catholic countries where 852 million people live.

“Why would we invest such efforts in Catholic countries? The answer is quite simple: It is because they are lost,” Rankin said. “The people may be identified as cultural Christians since that is their socio-religious profile, but most of them do not have a personal relationship with Jesus Christ.... They, too, deserve an opportunity to hear, understand and respond to the life-changing message of the Gospel. They cannot be ignored in our commitment that all peoples would know our Lord Jesus Christ.”

The debate is raging over at Open Book.  (See here, here and here, along with the voluminous reader comments.)  In Amy Welborn's view:

North American Catholics can be easy pickings for evangelical Protestants for a number of reasons, and the reasons cited for leaving vary, but one of the big ones, aside from marriage and kids' programs, is the centrality of Christ. Is Christ preached in your parish? Is the life you and your fellow parishioners live now, in 2005, being actively engaged and enlightened by the Gospels and the richness and wisdom of 2000 years of tradition and, in the end, drawn to the reality of Christ in the Eucharist, here and now? Is Christ being preached as your savior, as the way, as the One to strengthen and guide you out of a place in which you are lost? Not in my parish, not in many parishes I've been in.

In my view, this is a context where the marketplace of religious experience has some value; if Catholics find the transformative power of the Gospel best embodied in the megachurch down the street, the burden should be on the local Catholic parish to recommit to constructing an authentic caring community, focusing especially on vibrant spiritual formation among adults; the burden should not be on the megachurches to keep their hands off Catholics.

Rob

Wednesday, June 8, 2005

Evangelical Christians: A "Quirky and Vibrant Mosaic"

By Thomas Berg

Evangelical Protestant writer Philip Yancey praises and criticizes evangelicals in terms many of which can also apply well to the Catholic Church:

A friend who runs an inner-city shelter for drug addicts and homeless people made this observation: "I love evangelicals. You can get them to do anything. The challenge is, you've also got to soften their judgmental attitudes before they can be effective."

I have seen the truth of both statements. . . .

When I return from [overseas] trips and read profiles in Time and Newsweek about U.S. evangelicals, I feel sad. Many Americans view evangelicals as a monolithic voting bloc obsessed with a few moral issues. They miss the vibrancy and enthusiasm, the good-newsness that the word evangelical represents in much of the world. Evangelicals in Africa bring food to prisoners, care for aids orphans, and operate mission schools that train many of that continent's leaders. There, and in Asia and Latin America, evangelicals also manage micro-enterprise loan programs that allow families to buy a sewing machine or a flock of chickens. About a third of the world's 2 billion Christians fall into a category to which the word evangelical applies, a large majority of whom live outside North America and Europe.

Tom B.

Tuesday, June 7, 2005

Ian Ayres's Protestant Sensibility

By Rob Vischer

Below Rick posts Ian Ayres's suggestion that members of churches that discriminate against gays in the marriage rite sign a statement acknowledging that they "choose to associate with a church that discriminates on the basis of sexual orientation." I have two reactions:

First, this strikes me as an insightful reflection of a Protestant mindset. In a free market of religious options, perhaps the consumer should be made to reckon with the content of the beliefs chosen. Indeed, many Protestant churches with which I'm familiar make their "statement of faith" readily accessible to potential members to facilitate this choice. It's more of a stretch, though, to assert that Catholics "choose to associate" with an organization espousing x, y, or z belief. It's akin to admitting that, "As an American, I choose to live in a country where materialism is rampant." Sure we could uproot our existences and identities and move to another country as a protest against a given social ill, but can our failure to do so be termed a deliberate choice along the lines of joining the local country club? Perhaps Catholicism would benefit if Catholics reframed their religious identities more in terms of choice, but it seems to me that many Catholics have always been, and will always be, Catholics with little or no deliberate reflection on that affiliation. And for those who have deliberately chosen Catholicism, that choice may stem more from the circumstances and implications of the Church's founding than from any specific belief or practice. In other words, if one is led to the Church by a conviction that it was established and blessed by Christ, choosing an offshoot of that Church, "non-discriminatory" or otherwise, may not even be a viable option. In Protestant churches, by contrast, the characteristics of the church tend to drive membership decisions. (Of course, there are lifelong Baptists, Methodists, etc. who have never thought twice about their religious identities, but in my experience they are relatively rare.)

Second, Professor Ayres's proposal implicitly equates discriminatory policies of a church with those of any voluntary organization. Religions founded on divine commands do not have unlimited policy-making discretion. If they did, they could not claim to be founded on divine commands. We can debate the proper interpretation of scriptural language about same-sex relationships, but a church that chooses to maintain the traditional interpretation is not on par with a secular club writing its membership by-laws on a blank slate. This does not mean that church members should never be held accountable for church positions, but that we should recognize the religious foundation of a particular position before we condemn it in the same language we would apply to the Augusta National Golf Club.

Rob

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive