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, July 20, 2005

Casey vs. Roe

A quick follow-up question to Michael Scaperlanda's post on the Roe/Casey distinction: can a Catholic judge "fully and faithfully" apply Casey given that its holding allows legalized abortion to persist?  A state law outlawing abortion under all circumstances, for example, would clearly constitute an undue burden.  Under such circumstances, assuming that a Catholic judge's application of Roe is morally problematic (and I'm not certain that it is), isn't the application of Casey similarly problematic?

Rob

Judge Roberts, Roe, and Casey

I am not sure that I agree with Rob that Roberts' full quote regarding Roe forecloses my nuanced reading.  Fully and faithfully applying Casey (unlike Carhart), gives a judge a lot of latitude in determining what is or is not an undue burden on the so-called right to an abortion, as we see in the disagreement between Kennedy on the one hand and Souter and O'Connor on the other over the partial birth abortion question.  Given the fact that laws coming before the circuit court will likely be limitations (not prohibitions) on abortion, raising the issue of whether the limitation or restriction is an undue burden, couldn't a judge who disagreed with Roe fully and faithfully apply Casey and reach the conclusion that very few laws create an undue burden?

Michael S.

Judge Roberts and the Rule of Roe (and Casey)

Michael Scaperlanda wonders whether Judge Roberts was parsing his words carefully and cleverly on the question of Roe during his earlier confirmation hearing.  Here is the full quote, which seems to foreclose Michael's nuanced take:

Senator Durbin. . . . I am asking you today what is your position on Roe v. Wade?

Mr. Roberts. I don't--Roe v. Wade is the settled law of the land. It is not--it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.

Rob

Judge Roberts and the Rule of Law

Rob offers three possibilities as to why pro-life groups are lining up behind Roberts when they had reservations about Gonzales given Roberts' confirmation testimony:  "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."  I'd like to tease out the third possibility and ask my fellow bloggers and readers a question.  Rob's third possibility was "Do pro-lifers assume that Roberts was being disingenuous during his confirmation hearing?"  Is it disingenuous to answer in the way Judge Roberts answered given the fact that Roe's issue (defined as can a state or DC outlaw abortion) will not come before the DC Circuit as long as Roe is on the books?  If the issue is what restrictions can be placed on abortion, Roe is not the settled law having been supeceded in large measure by Casey (which allows a judge opposed to the consitutional abortion license leeway) and Carhart.  Could it be the Judge Roberts, in answering the question before the judiciary committee, was following in the footsteps of St. Thomas More?  In "A Man for All Seasons," More's daughter Margaret informs More of the oath, and she is surprised when More responds that he will take it if he is able.  He wanted to look at the words, suggesting that words matter, and if he can escape imprisonment and martyrdom by signing the oath, he will.  What do you think?  Is it possible that Roberts was following More's lawyering footsteps and parsing his words carefully but not disingenuously?

Michael S.

Judge Roberts and the Rule of Law

During the confirmation hearing on his nomination to the D.C. Circuit Court of Appeals, Judge Roberts stated that "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." 

Judge Roberts seems like he would make a very capable Supreme Court Justice, but I would like to note that his statement suggests the ultimate embrace of the rule of law (as opposed to the instrumentalist conception of law now dominant on both sides of the culture war divide).  Given that Judge Roberts is Catholic, is there a problem in the manner with which he pronounces his "personal views" to be no obstacle to his full and faithful application of Roe?  After all, even a rule of law judge may have to wrestle with the prospect of recusal, a possibility not suggested by his stated position.  Given our discussions last week regarding the possible nomination of Alberto Gonzales (here, here, here, here, and here), I would expect pro-life groups to issue statements opposing the confirmation of Roberts.  Instead, they appear to be lining up in support, focusing on anti-Roe positions that Roberts staked out as a government lawyer.

So what's going on here?  Three possibilities:  1) Has the pro-life lobby embraced an inflated vision of the rule of law (where deference to the law trumps everything, even the need for conscientious objection)?  2) Was opposition to Gonzales grounded in his wishy-washy conservatism on non-abortion issues?  or 3) Do pro-lifers assume that Roberts was being disingenuous during his confirmation hearing?

Rob

Christian Service in Education

I would like to thank Amy and Patrick for their recent postings regarding the relationship between science and religious faith and the issue of service to the poor in education. I would like to offer a thought for all of us to consider regarding Patrick’s posting and his invitation for an exchange of thoughts.

The problem he highlights is real and has had a profound effect on Catholic primary and secondary education in the US. The Christian Brothers, my own order (the Jesuits), and many women’s religious congregations that traditionally focused their apostolic energies on education have encountered the same problem. What to do when members of the order are not replacing themselves in the schools? Well, good and talented members of the laity have been hired. But, of course, this has come at a price: paying something close to a fair wage for a member of the laity. In the context of the Society of Jesus, so many of the secondary schools were staffed by young men (scholastics) during their three or four year regency, and they were the backbone of the institution. Such is not the case today; but the good work of these schools continues in the capable hands of many devoted laity. I shall leave for another time my reflections on the shrinkage in the ranks of the religious orders.

Knowing that this phenomenon has generated financial issues that make it more expensive to run and attend Catholic schools (and being a reason for placing into question some schools’ futures), is there a solution or at least a contribution to a solution?

I believe there is, and the core of my suggestion comes from the laity. There are two groups that I would like to identify: the first being qualified retirees who could volunteer some of their time to teach in a Catholic primary or secondary school as a new vocation. I am not sure to what degree this prospect has been explored by primary and secondary schools that have been administered by dioceses and religious orders.

The second group would be recent college graduates, particularly those who attended education schools in Catholic colleges and universities. For them and the institutions from which they graduated, I would like to explore something that I will call at this stage a “Catholic Education Corps.” Its nature would parallel that of the Peace Corps or Jesuit Volunteer Corps. The colleges and universities might manage some debt relief to these graduates in return for their commitment to teach for two or three years in a Catholic primary or secondary school. I believe that Notre Dame now has a masters degree graduate program in which some of its graduates receive their degree at no or low cost in return for several years of service in a poor Catholic primary or secondary school. This program may provide a structure upon which others can build. However, my suggestion would expand the concept to provide some debt relief for those younger graduates who would like to serve the Church in something like the volunteer services I mentioned. These volunteers could receive a stipend along with board and housing in any available space that may exist in the convent or community which once housed the members of the teaching order at the Catholic school at which they serve. This community of young lay volunteers would also be able to come together to pray and participate in the celebration of the Eucharist.

Well, these are a few thoughts which I would like to pass along in response to Patrick’s invitation. Thanks for considering them. Perhaps my suggestion might be akin to the small mustard seed. It could grow into something bigger and enduring.   RJA sj

Tuesday, July 19, 2005

Harry Potter and the Dueling Christians

The Pope is reportedly negative on Harry Potter.  And here's a Christian pro-Harry view (excerpted from a book called Looking for God in Harry Potter).

TB

The Religion-Science Dialogue

For anyone who is disheartened by the tenor of the recent evolution-creation-intelligent design debates, here is a real gem: John Paul II's official message to George Coyne, the director of the Vatican Observatory, dated June 1, 1988, on the occassion of the publication of symposium papers marking the 300th anniversary of Newton’s Philosophiae Naturalis Principia Mathematica.  It's an incredibly beautiful sophisticated analysis of the dialogue between religion and science, which includes not only respect for the autonomy of each disicpline, but also a genuine openness to learning from each other.  Here's a taste:

"By encouraging openness between the Church and the scientific communities, we are not envisioning a disciplinary unity between theology and science like that which exists within a given scientific field or within theology proper. As dialogue and common searching continue, there will be growth towards mutual understanding and a gradual uncovering of common concerns which will provide the basis for further research and discussion. Exactly what form that will take must be left to the future. What is important, as we have already stressed, is that the dialogue should continue and grow in depth and scope. In the process we must overcome every regressive tendency to a unilateral reductionism, to fear, and to self-imposed isolation. What is critically important is that each discipline should continue to enrich, nourish and challenge the other to be more fully what it can be and to contribute to our vision of who we are and who we are becoming.

We might ask whether or not we are ready for this crucial endeavour. Is the community of world religions, including the Church, ready to enter into a more thorough-going dialogue with the scientific community, a dialogue in which the integrity of both religion and science is supported and the advance of each is fostered? Is the scientific community now prepared to open itself to Christianity, and indeed to all the great world religions, working with us all to build a culture that is more humane and in that way more divine? Do we dare to risk the honesty and the courage that this task demands? We must ask ourselves whether both science and religion will contribute to the integration of human culture or to its fragmentation. It is a single choice and it confronts us all.

For a simple neutrality is no longer acceptable. If they are to grow and mature, peoples cannot continue to live in separate compartments, pursing totally divergent interests from which they evaluate and judge their world. A divided community fosters a fragmented vision of the world; a community of interchange encourages its members to expand their partial perspectives and form a new unified vision.

Yet the unity that we seek, as we have already stressed, is not identity. The Church does not propose that science should become religion or religion science. On the contrary, unity always presupposes the diversity and the integrity of its elements. Each of these members should become not less itself but more itself in a dynamic interchange, for a unity in which one of the elements is reduced to the other is destructive, false in its promises of harmony, and ruinous of the integrity of its components. We are asked to become one. We are not asked to become each other.

To be more specific, both religion and science must preserve their autonomy and their distinctiveness. Religion is not founded on science nor is science an extension of religion. Each should possess its own principles, its pattern of procedures, its diversities of interpretation and its own conclusions. Christianity possesses the source of its justification within itself and does not expect science to constitute its primary apologetic. Science must bear witness to its own worth. While each can and should support the other as distinct dimensions of a common human culture, neither ought to assume that it forms a necessary premise for the other. The unprecedented opportunity we have today is for a common interactive relationship in which each discipline retains its integrity and yet is radically open to the discoveries and insights of the other."

Enjoy!  Amy

Monday, July 18, 2005

"Service to the poor through education"

As many but by no means all readers of this blog know, in 1680 a man called John Baptiste de la Salle began to serve poor French children by providing the education no one else was even close to offering.  La Salle's efforts didn't immediately win much support from the Church in France.  But, in time, La Salle's initiative was institutionalized by the Church and granted the "permission" of the Crown, and it comes down to us as the Institute of the Brothers of the Christian Schools, more commonly known as the Christian Brothers, the largest order in the Catholic Church dedicated to education.  La Salle himself was canonized in 1900, and fifty years later Pius XII named him Patron of All Teachers of Youth.  The unique vow La Salle's Brothers take, even today, is this: "service to the poor through education."

The Christian Brothers' contribution to Catholic education in the U.S. over the last century and a half has been stunning.  Today, however, the Brothers are facing extinction in this country, following the line already traced by so many other non-clerical orders.  More immediately, the Brothers' efforts to serve the poor through education are foundering on the costs of running schools no longer indirectly subsidized by Brothers' working for free.  (The disappearance of vocations to the Brothers has meant paying lay people, who do not take vows of poverty, salaries).  Today's Brothers, along with their Partners in the La Sallian educational ministry, are struggling to find ways to provide Christian education to the poor.

In aid of finding such ways, the west coast province of the Brothers recently sponsored a colloquium on "school choice."  The aim was to stimulate constructive discussion of new ways to allow the La Sallians to do their work of serving the poor through education.  The colloquium made it possible for leading contributors to issues touching schools, family, children, and religion to talk together about the challenges and opportunities that lie ahead.  I was privileged to join in the colloquium, which was organized and beautifully executed by Tom Brady and Jack Coons.  Among the contibutors to the dialogue were Rosemary Salomone, Jesse Choper, Goodwin Liu, Charles Glenn,Terry Moe, Howard Fuller, Jim Blew, Paul Dimond, Joe Viteritti, Steve Sugarman, Michael Guerra, Frank Kemerer, and Jack Coons.

One can hope that the colloquium's work will lead the Brothers and their Partners to undertake new efforts to teach not just the children in their classrooms, but, differently, all those who control the political conditions under which the Brothers and all other educators of the young operate.  "School choice" is a divisive issue in American politics, but the following text of the Second Vatican Council (in its declaration Gravissimum educationis) seems to me, in light of the deliberations of the recent colloquium, grossly under-appreciated by American Catholics:  "Parents, who have a primary and inalienable duty and right to the education of their children, should enjoy the fullest liberty in their choice of school.  The public authority, therefore, whose duty it is to protect and defend the liberty of citizens, is bound according to the principles of distributive justice to ensure that public subsidies to schools are so allocated that parents are truly free to select their schools for children in accordance with their conscience."  The Brothers embody commitment to these principles, and their witness is as profound as their service has been effective.  But the Brothers and their Partners need help if they are to continue doing their work of service to the poor through education.  And many others, too, of course, need systemic change if they are to continue their work of educating children whom the current system leaves under-served.  The current educational monopoly blocks family and other efforts to see that children obtain the education that is indicated by their parents' conscience.

Today, only the rich (or otherwise lucky) can choose schools "in accordance with their conscience."  Today, the Brothers and others are increasingly stymied in their efforts to serve those whom local property-tax revenues leave under-served.  Distributive justice is nowhere to be seen in the land of education, and dramatially few Catholic voices are heard to say that education, too, must be justly distributed.

I'll soon post a draft of my paper from the recent colloquium.  I would be most grateful if it would stimulate discussion of what, exactly, Catholics and others who want to see distributive justice done in education can do, now and in the coming seasons, to bring about change in the prevailing discourse and policy.  Three centuries before the U.N. or Rome acknowledged the right of all children to education, La Salle announced the right and went to work for it.  Sadly, the initiative he launched is now almost without means to do its work in the U.S.  The Catholic leadership needs help on this.   

   

What Roe v. Wade Should Have Said

Yale law prof Jack Balkin has a new book, "What Roe v. Wade Should Have Said," in which he asks eleven scholars to rewrite Roe v. Wade and its companion case Doe v. Bolton using only materials available in 1973.  Contributors include  Anita Allen ( Penn), Akhil Amar (Yale), Teresa Stanton Collett (St. Thomas), Michael Stokes Paulsen (Minnesota), Jeffrey Rosen (George Washington University), Jed Rubenfeld (Yale), Reva Siegel (Yale), Cass Sunstein (Chicago), Mark Tushnet (Georgetown), and Robin West (Georgetown).  Interestingly, none of the contributors adopted Roe's trimester framework.

Rob