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 12, 2005

Religious Freedom and Immigration

Like Rick, I'm troubled by the Fifth Circuit's ruling on religious "freedom" in China, but I'm wondering whether some of the fault lies in the vagueness of the governing statute, which provides simply that "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's . . . religion."  We don't have to look to China for scenarios where an individual's freedom is threatened because of his religion.  Would or should the United States grant asylum to a pastor who wants to preach anti-gay sermons in Sweden?  Or to Christians who want to proselytize in Saudi Arabia?  For that matter, should other countries give asylum to Native Americans who lack the legislative clout to secure exemptions for their sacramental use of illegal drugs?  Or to David Koresh types?

In other words, can the statute mean what it seems to say, and if so, is that a workable standard?  And does the impractical quality of the standard drive the Fifth Circuit's strained distinctions between "political opinion" and religion?  Given the fact that states constantly pose threats to their citizens depending on the substance of the citizens' religion-driven practices (many more of which are palatable to the United States government than to the Chinese government), is it more accurate to fault the Fifth Circuit for failing to acknowledge that the limitations placed on religious exercise in China are not justified by state interests that we deem legitimate (much less compelling)?

Rob

Leiter and academic credentials

Alasdair McIntyre (M.A. Manchester) appears unqualified to "do competent, cutting edge work" whether in philosophy or interdisciplinary work in Brian Leiter's world where "the PhD training is essential"?  Thank Rick for alerting us to this discussion.

Sunday, September 11, 2005

Credentials for "Interdisciplinary" work

Much of the conversation on Mirror of Justice -- indeed, the blog's "mission" -- and much of the work of our bloggers is "interdisciplinary."  So, take a look at the conversation going on between Prawfsblawg's Dan Solove and Professor Brian Leiter about whether "interdisciplinary" work by law professors without Ph.D.'s is worth anything.  I'm with Solove, but perhaps that is just because, in my own experience, the "you need a Ph.D. in ___ to really explore ___ with any competence" argument is one that is too often wielded inconsistently and disingenuously.

Rick

China, Religion, and Persecution

Here (thanks to Professor Friedman's Religion Clause blog) is a post about a recent immigration-and-religion decision by the United States Court of Appeals for the Fifth Circuit:

The Court of Appeals upheld a decision of the Board of Immigration Appeals which refused to permit a Chinese Christian who claimed religious persecution to remain in the United States. At issue were the provision of 8 USC Section 1253(h), which are now found in 8 USC Sec. 1231(b)(3). They permit withholding of an alien's removal from the country if the alien would be persecuted at home on account of his or her religion. Li had been prosecuted in China for holding an illegal religious gathering and conducting an underground church. The court found that Li had been punished at home for violating China's law on unregistered churches and not because of his religion. It said:

The evidence suggests that the Chinese government condones, or rather tolerates, the Christian faith and seeks to punish only the unregistered aspect of Li’s activities. There is therefore reasonable, substantial, and probative evidence to support the BIA’s decision that Li’s punishment was for his activities and not for his religion.... Clearly, we are faced with a complicated issue in this case. The issue in this case is perplexing not only because it involves affairs of a foreign state that are contrary to our fundamental ideals but also because the line between religious belief and religious activity here is indeed a fine one and it is colored by sensitive political and religious concerns. However, while we may abhor China’s practice of restricting its citizens from gathering in a private home to read the gospel and sing hymns, and abusing offenders, like Li, who commit such acts, that is a moral judgment not a legal one.

What a striking example of how our law, and our legal discourse, is increasingly unable to understand "religion" as involving anything more than voluntarily chosen private beliefs.  For China to "condone" or "tolerate" private "Christian" belief, while at the same time requiring churches to register and submit to state supervision, is not, contrary to the court's assumption, to "condone" or "tolerate" the "Christian faith."  It is not particularly surprising, but deeply troubling, that our law proceeds on the assumption that "religion" does not include "holding . . . religious gathering[s] and conducting an underground church."

Consider this text, from a footnote in the court's opinion:

Li stated that he did not want to register his religious group because he did not agree with the Government's requirement that registered churches promote Communism and alter church teachings so as to not conflict with Socialist thought. Li also testified that the police accused him of being a reactionary against the government and he was arrested for,

inter alia

, conducting an illegal gathering against the government. The Government asserts that China regulates religion based on a concern that unregulated religious gatherings are a challenge to their authority and an alternative to Communist thought. Finally, the Three-Self Patriotic Movement committee that registered Protestant groups are supervised by is a “political” organization. Based on this record, perhaps it would have been more appropriate for Li to argue that he was persecuted based on his political opinion.

Again, this line of thinking strikes me as both utterly unremarkable, and totally misguided.   It is a religious claim that churches ought not to have their preaching and liturgy subject to supervision by a Communist state.  I'm reminded of the way, in the First Amendment context, many religion-related claims are framed by litigants in free-speech terms, precisely in order to get the benefit of a body of legal doctrine that has reduced all non-interior-life features of religion to "expression."

The court assures us that "China does permit registered Protestant groups to practice their religion."  No, it doesn't.  Registered churches must "promote Communism and alter church teachings so as to not conflict with Socialist thought."  Such churches are not, I would think, being permitted to practice their religion.

This decision is very upsetting to me.  Am I over-reacting?

Rick

Subsidiarity in Iraq's Constitution?

I just came across this language -- which could well have been deleted in the last few days -- in the draft Iraqi Constitution:

Article (43): 1st - The state is keen to strengthen the role of civil society groups and to support, develop them and preserve their independence in accordance with peaceful means to realize legitimate goals.  This shall be regulated by law.

What would, or should, be the likely effect of the state's "keen-ness" in this regard?

Rick

Santorum, Reagan, Freedom, and Liberty

Jonathan Rauch has this very interesting review of Sen. Santorum's book, "It Takes a Family:  Conservativism and the Common Good."  He does not dismiss the book as a right-wing screed, or Santorum as a neanderthal.  Instead, Rauch's point is that Santorum is, well, not very "conservative", in the way that Goldwater, Reagan, etc., have framed the term.

In Santorum's view, freedom is not the same as liberty. Or, to put it differently, there are two kinds of freedom. One is "no-fault freedom," individual autonomy uncoupled from any larger purpose: "freedom to choose, irrespective of the choice." This, he says, is "the liberal definition of freedom," and it is the one that has taken over in the culture and been imposed on the country by the courts.

Quite different is "the conservative view of freedom," "the liberty our Founders understood." This is "freedom coupled with the responsibility to something bigger or higher than the self." True liberty is freedom in the service of virtue -- not "the freedom to be as selfish as I want to be," or "the freedom to be left alone," but "the freedom to attend to one's duties -- duties to God, to family, and to neighbors."

This kind of freedom depends upon and serves virtue, and virtue's indispensable incubator and transmitter is the family. Thus "selflessness in the family is the basis for the political liberty we cherish as Americans." If government is to defend liberty and promote the common welfare, then it must promote and defend the integrity of the traditional family. In doing so, it will foster virtue and rebuild the country's declining social and moral capital, thus fostering liberty and strengthening family. The liberal cycle of decline -- families weaken, disorder spreads, government steps in, families weaken still further -- will be reversed. . . .

Goldwater and Reagan, and Madison and Jefferson, were saying that if you restrain government, you will strengthen society and foster virtue. Santorum is saying something more like the reverse: If you shore up the family, you will strengthen the social fabric and ultimately reduce dependence on government.

Where Goldwater denounced collectivism as the enemy of the individual, Santorum denounces individualism as the enemy of family. On page 426, Santorum says this: "In the conservative vision, people are first connected to and part of families: The family, not the individual, is the fundamental unit of society." Those words are not merely uncomfortable with the individual-rights tradition of modern conservatism. They are incompatible with it.

Santorum seems to sense as much. In an interview with National Public Radio last month, he acknowledged his quarrel with "what I refer to as more of a libertarianish Right" and "this whole idea of personal autonomy." In his book he comments, seemingly with a shrug, "Some will reject what I have to say as a kind of 'Big Government' conservatism."  . . .

The quarrel between virtue and freedom is an ancient and profound one. Santorum's suspicion of liberal individualism has a long pedigree and is not without support in American history. Adams, after all, favored sumptuary laws that would restrict conspicuous consumption in order to promote a virtuous frugality. And Santorum is right to observe that no healthy society is made up of people who view themselves as detached and unencumbered individuals.

"But to move from that sociological truism to the proposition that the family is the fundamental unit of political liberty," says Galston, "goes against the grain of two centuries of American political thought, as first articulated in the Declaration of Independence." With It Takes a Family, Rick Santorum has served notice. The bold new challenge to the Goldwater-Reagan tradition in American politics comes not from the Left, but from the Right.

Thoughts?

Rick

Friday, September 9, 2005

The "secret" of St. Brigid's

I have been away from MofJ for regrettably long, but this news just in from the indefatigable Committee to Save St. Brigid's impels me to pick up where I left off.  The Archdiocese's request for this "secret" would raise for me, if it occurred, acute questions concerning the moral and canonical responsibility of the hierarchy to the temporal patrimony of the Church.    Without even touching that word "transparency," one can say that the days of Spellman-sytle administration should be in the past.  What the present and future should look like is a question that, it increasingly appears, the laity must press.  Without questioning for a moment the necessarily hierarchical structure of the Church, one can wonder whether new systems and accountings aren't necessary here, too.  I have a feeling the Holy Father wouldn't be smiling about the tricks and deceptions that, it appears, have been used by some to assure the sale for many millions of dollars of this place where Mozart so often animated the most glorious liturgies.  The bills that never should have been incurred do need to be paid, but, sadly, St. Brigid's was closed before those bills were foreseen, and for what appeared to be, even a decade ago, totally or largely specious reasons.  I'm staying tuned for the incoming data from San Francisco, hoping also that somehow Mozart will again one day help the Catholic faithful and their clergy pray and worship there together. 

Attention St. Brigid Faithful!!

PROTEST TODAY FRIDAY, Sept. 9 at 3 p.m. in front of the church!!!!
Please be there.


We have just learned that major San Francisco real estate owner Luke
Brugnara has for a year now been offering the Archdiocese a plan to save
St. Brigid which would do the necessary renovation work to the building, give
the gymnasium to the school, throw open the doors of the sanctuary as a
church, and pay the Archdiocese several million dollars.

The Archdiocese asked Brugnara to keep his offer secret, for a year.

Then they turned him down.

Instead they chose to demolish our 100-year-old church and negotiate a
deal with a developer who wanted the vacant lot under the church to build
condominiums.

Only when the city rose up in open revolt, when our city supervisors
started the process of landmarking the building to protect it from the wrecker's
ball, and when our State Senator, Carole Migden, introduced legislation in
Sacramento to stop them - did they back down.

Brugnara has been a major donor to the Archdiocese of San Francisco and
has the resources to do as he offers.

Brugnara's offer still stands, but now the Archdiocese wants to sell the
church to the Academy of Art University.

Why do they want to do that? 

We're going to ask that question and provide some answers very publicly
today.

PLEASE be there. PLEASE invite your friends. PLEASE bring a sign that says
"Save St. Brigid" if you can manage it.

We've asked television and print reporters to be there to help us get the
word out.

SAVE ST. BRIGID!

Questions?

Joe Dignan     cell: 415-577-0105
Committee to Save St. Brigid Church
P.O. Box 641318
San Francisco, CA 94164-1318
(415)364-1511

Associations, Discrimination and the Academy

There's an interesting discussion over at the Volokh Conspiracy (and St. Maximos' Hut) regarding an academic association forging its identity through a non-discrimination norm and the impact such an identity has on the ability of schools (in this case, Wheaton College) to forge their own unique identities.  At some point, one side's associational identity has to give; my understanding of subsidiarity calls for the higher body (the association) to resist the temptation to elevate its own moral claims to non-negotiable status when such claims preclude the pursuit of divergent claims by the lower body (the school).  This does not mean that all academic associations must allow all moral claims to flourish among their members.  Where exclusion from an association does not threaten the viability of a school, there is no reason why the higher body must disregard its own identity to embrace all schools seeking membership.  (E.g., There is no reason why an Association of Christian Law Schools should have to admit UCLA.)  It's different, though, where exclusion from an association calls into question the very ability of a school to function.  (E.g., The American Association of Law Schools should not require that member schools agree not to consider religion in its decisions on faculty hiring.)

Rob

Salvation through Government

Joe Carter has another provocative post on Katrina addressing the rising belief in "Gnostic governance":

[O]ne of the most consistent, though often unstated, themes in the discussion about the disaster in New Orleans is that the government could have saved everyone. Some blame the local government, which had hundreds of unused buses at their disposal. Most others place the blame on the Federal government which is believed to have almost unlimited resources at its disposal.

Either one or both of these allegations could very well be true. But undergirding every claim is the foundational assumption that someone somewhere could have done enough to ensure almost universal salvation after the disaster. Nearly everyone could have been spared if only the government had responded in the right way. . . .

As becomes apparent, the Gnostic deification of governance resembles the Roman god Zeus more than it does Jehovah or Allah. The Gnostic government is omnipotent, but not omniscient; transcendent and also immanent; impersonal and yet represented in various human forms (i.e., President Bush). The god is also arbitrary and showers blessings on those it loves (the rich, welfare recipients, white men) and ignores those who it despises (the poor, minorities, white men); able to save all and yet arbitrarily chooses limited atonement. It is a fickle god that commands our succor but is unworthy of adoration.

Over the next few weeks, the primary question will be “Which part of the government is to blame?” and will be hashed over by the various Gnostic sects the way Lutherans and Presbyterians argue over baptism. A few heretics (like me) may step forward to claim that maybe -- just maybe -- the government really can’t save us all. After an audible gasp, we apostates will be shouted down and ushered to the door by a stern deacon. We’ll stand outside the gates of the public square, shrugging and casting bemused looks at one another. As we walk away, with the din of “Bush!”, “Class!”, “Race!”, and “FEMA!” echoing behind us, we’ll reflect on the nature of government and remember where our true salvation lies.

Carter once again raises some good points, but remembering where our true salvation lies should not be an obstacle to recognizing the impact human action can have on real-world suffering.  FEMA could not have stopped the hurricane, but it could have responded to the resulting disaster more quickly and effectively.  Demanding as much is not idolatrous; it is good citizenship.

Rob

Thursday, September 8, 2005

Subsidiarity and Katrina: My Take

Rene Henry Gracida, Bishop Emeritus of Corpus Christi, opines:

The principle of subsidiarity was evidently ignored by those holding responsibility for the government of the State of Louisiana and the City of New Orleans. This principle was first clearly defined by Pope John XXIII and then later by the Second Vatican Council. The principle is valid for both the secular as well as the ecclesiastical realm. The principle of subsidiarity is the principle by which those in authority recognize the rights of the different members of society. Those in higher authority respect the rights of those in lower authority. And of course, with rights go responsibilities.

MOJ blogger Rob Vischer takes a more expansive view, opining:

In the case of Katrina, I think there's plenty of blame to go around at both the local and federal levels.  I do agree with Carter, though, that conservatives often invoke subsidiarity without acknowledging its full import, an argument I've made elsewhere.  (This is not to excuse liberals, who tend to ignore subsidiarity completely.)

The "Carter" to whom Rob refers is evangelical blogger Joe Carter who observes:

According to the principle of subsidiarity, governmental agencies and leaders at the city, parish, and state agencies hold primary responsibility for implementing the evacuation process. The city of New Orleans apparently agrees, since in their “Comprehensive Emergency Management Plan” they vest the authority to authorize an evacuation with the Mayor and the implementation of such an action with the city’s Office of Emergency Preparedness. The state’s official hurricane evacuation plan even notes that the primary means of evacuation will be personal vehicles but that school and municipal buses, government-owned vehicles, and vehicles provided by volunteer agencies may be used to provide transportation for individuals who lack transportation and require assistance in evacuating.  ...

Principles such as subsidiarity, federalism, and limited government are often considered cornerstones of conservative political thought. But when it comes to their actual implementation they are merely given lip-service. While aspiring young politicos sing the praises of states-rights, they prefer to do so on Capital Hill or in D.C. think tanks rather than in the choirs of their state legislatures or local governments. The very idea that our most competent conservative statesmen should be working in their actual states rather than in Washington is considered ludicrous. After all, everyone knows that state and local governments are reserved for the also-rans and has-beens rather than for the able and ambitious. Any job in FEMA, for instance, is considered superior to working in the New Orleans’s Office of Emergency Preparedness.

I agree with the second paragraph from Joe's post, as well as the view that both he and the Bishop express with respect to who has immediate and initial responsibility, but on the general application of the subsidiarity principle am closest to what I take to be Rob's position.

The principle of subsidiarity, I believe, derives from the Church’s understanding that Leviathan and community are incompatible. Communities cannot be created from without; they must be built from within, as Richard Epstein observed somewhere or another, but they easily “can be destroyed from without.” Subsidiarity thus teaches that to empower higher authorities as anything but second-best solutions or even last resorts endangers the rights and liberties of those who are most affected.

At the same time, however, subsidiarity also teaches that higher authority properly intervenes when 4 conditions are met:

  • The first, the ‘sufficiency criterion,’ states that smaller institutions or individuals alone will not be able to solve the problem. Help is required from a larger body.
  • The second, the ‘benefit criterion,’ states that intervention by a higher authority should bring greater benefit than the smaller institutions alone could have achieved.
  • The third, the ‘close to the citizen criterion,’ states that action should be taken in close cooperation with locally affected individuals.
  • The fourth, the ‘autonomy criterion,’ dictates that the intervention of a higher power must secure greater freedom for individuals.

Disaster relief pretty clearly satisfies all 4 conditions for national governmental action in my view. Local communities have responsibilities, but quickly can be overwhelmed. The greater resources of the national government likely can do things the local and state authorities cannot. The national government can and should closely work with local, state, and private parties. What more basic freedom is there than the necessities of survival?

The fact that subsidiarity doesn't preclude national involvement, of course, doesn't answer the question of the form that involvement should take. Personally, I think as a prudential matter we should be looking very seriously at outsourcing disaster relief. See my TCS column and followup blog post.