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 12, 2005

BEARING THE CHILD AND BEARING THE COST

[This paper, posted on SSRN, looks quite interesting.]

"Should Bearing the Child Mean Bearing All the Cost? A Catholic Perspective on the Sacrifice of Motherhood and the Common Good"
BY: ELIZABETH ROSE SCHILTZ University of St. Thomas - School of Law

Document: Available from the SSRN Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=814104

Paper ID: U of St. Thomas Legal Studies Research Paper No. 05-07 Date: August 2005
Contact: ELIZABETH ROSE SCHILTZ
Email: Mailto:[email protected]
Postal: University of St. Thomas - School of Law 1000 La Salle Avenue Minneapolis, MN 55403-2005 UNITED STATES
Phone: 651-962-4922 Fax: 651-962-4971

ABSTRACT: One of the most significant factors in the persistent wage gap between men and women in the United States is the economic penalty suffered by working mothers. As a Catholic legal academic struggling with the complex issues involved in securing mothers' access to financial security, I discovered some surprising compatibilities between the Catholic Church's teachings on the importance of family and the role of women, and recent writings of feminist legal scholars. In this essay, I argue that Catholic thought could contribute to the development of an emerging theory of justice that is compatible with both Catholic and feminist theorist agendas, which in turn could facilitate the difficult work of translating Church teachings on this topic into concrete policy proposals. Over the past decade, feminists such as Martha Fineman, Eva Feder Kittay, Robin West, and Joan Williams have argued that the dominant equality-based theory of justice needs to be replaced or supplemented by a theory of justice that incorporates the reality of dependency and the need for dependency care. An important component of this argument is a critique of the devaluation of the dependency care work mainly performed by women - primarily raising children but also caring for the old and the infirm. There are two predominant approaches to addressing this marginalization of care work - either change the fact that women do most of this kind of work, or change the fact that this work is accorded no economic value. I argue that the latter approach is the most promising, the most realistic, and, when translated into concrete policy proposals, the most consistent with the positions taken by the Catholic Church in writings such as Laborem Exercens, Familiaris Consortio, and Evangelium Vitae. These proposals for according proper economic value to care work range from reforming welfare and tax policies to subsidize unpaid childcare work, to guaranteeing maternity leave, to more radial proposals to restructure the workplace to permit parents to care for families without undue penalties in career advancement. All of these proposals shift some of the cost of childraising from individual parents (particularly mothers) to society as a whole. I argue that Catholic thought could make significant contributions to articulating persuasive rationales for shifting these costs. Catholic teachings support feminist arguments that children are a 'public good' and that the current market structures incorporate unjust 'free-riding' on the unpaid work of mothers. More significantly, though, Catholic teachings on the role of women, particularly the powerful arguments in Mulieris Dignitatem about women's contributions to the realization of a truly humane social order, could provide support for feminist arguments for more radical restructuring of the workplace to ensure mothers' access to the public sphere. At the same time, I argue that the work of Catholic scholars on these topics could be enriched by engaging the dependency-based theories of justice being developed by the feminists, and by considering the feminist perspective that women, including mothers, have a significant role to play in the public as well as the private sphere.

[Click here to download the paper.]
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mp

Evangelicals in London protest at hatred bill

[MOJ friend Gerry Whyte, of Trinity College Dublin, sent this along:]

Evangelicals in London protest at hatred bill

BRITAIN: Evangelical Christians demonstrated outside the British parliament yesterday against government moves to introduce a new law against incitement to religious hatred.

Hundreds of evangelicals, singing and waving placards, converged opposite the Palace of Westminster in a protest timed to coincide with the second reading of the racial and religious hatred bill in the House of Lords.

The demonstration was organised by a coalition of Christian groups including the Evangelical Alliance, the African and Caribbean Evangelical Alliance (ACEA) and the Lawyers' Christian Fellowship.

The Rev Katei Kirby, ACEA's chief executive, said the right to debate and discuss without fear of prosecution was threatened.  "It affects everyone so deeply. This is not just about doctrine, this is not even about theological opposition, this is about our basic freedom to speak and to preach.  "It affects people's freedom to discuss and to critique anything because it might upset or offend somebody else and that is very serious."

The National Secular Society was at the forefront of the demonstration. Terry Sanderson, its vice-president, said the group had been campaigning on the issue for the past three years.

"We are coming at it from a completely different angle from the Christians. They are looking at the restrictions on their right to evangelise," he said. "We are looking at the restrictions on our being about to criticise religion per se so we can make common cause with them on this.  "I think this is an indicator to the government of just how wide the opposition is."

The campaign received support yesterday from former lord chancellor Lord Mackay. He said the religious hatred offence had been so broadly defined that Tony Blair and his ministers could find themselves falling foul of it. The prime minister, home secretary Charles Clarke and other members of the government had repeatedly blamed terrorism on people who subscribed to "a perverted form of Islam", Lord Mackay told the BBC Radio 4 Today programme.

"That is just as much a religion, of course, as Islam itself," he said.  "Therefore, when they are making it a crime to stir up hatred on religious grounds, what they are doing is exactly that in relation to those who follow the perversion of Islam." - (PA)

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mp

Tuesday, October 11, 2005

10 Commandments in Alabama ... A Discussion, That Is

I'm headed back to my old stomping grounds in Birmingham, Alabama, this week to join a very interesting panel at Cumberland Law School, Samford University, on public displays of the Ten Commandments.  The other panelists include leading Religious Right lawyer Jay Sekulow of the American Center for Law and Justice, leading religious-freedom skeptic Marci Hamilton of Cardozo Law School, and leading "progressive evangelical" Dr. Ron Sider.  Any readers in the Birmingham area this Thursday evening might want to come over to Samford at 7 p.m. and catch what should be a fun discussion about constitutional law, public life, and religious integrity.  I suspect there will be some things worth blogging about.

Tom 

Public Employees' Strikes and Catholic Social Thought

David Opderbeck, business law prof and evangelical Christian, raises the following question at his blog Through a Glass Darkly:

I'm a member of the Professional Staff Congress -- City University of New York (PSC-CUNY) a local union of the American Federation of Teachers. This isn't an ideological commitment for me; the union extracts dues from my pay regardless of whether I join. . . .

PSC-CUNY has been without a collective bargaining agreement for three years. They are now making strike noises. So here is a question for my theology-and-ethics inclined readers: what do I do if the union calls a strike? Under New York's "Taylor Law," as I understand it, it's illegal for public workers (including CUNY faculty) to go on strike. Obviously the New York State government is a Romans 10 [amended to Romans 13 -- ed.] authority that I must respect.

But what about the union leadership and the faculty officers in my college? Are they in any sense "authorities" whose contrary instructions about a job action I also must respect? Is a job action the sort of "civil disobedience" that would permit me to disobey the Taylor Law? In this regard, what are the principles of civil disobedience when my individual situation is just fine -- I'm satisfied with my own pay, work schedule and benefits -- but my "union brothers and sisters" feel aggrieved? Does a law that unequivocally prohibits public workers from exercising the "right" to strike, coupled with hardball negotiating tactics from management, present the kind of systemic injustice that violates God's higher law?

And, what about the pragmatic side of a strike? If my department supports a strike, and I cross the picket line, my prospects for tenure will be over. In that event, should I accept that consequence and start looking for another job? Or would I be justified in following the union leadership in the strike even if a principal motivation for me individually is to ride out the storm so that I can preserve my hopes of eventually gaining tenure?

David writes that he'd "particularly like to hear some perspectives from Catholic social theory, given the historic links between the Catholic Church and labor."  It strikes me that (a) this could be an issue for many workers given the widespread reach of "no strike" laws for public employees (if such a law extends to public-college profs as well as safety-related jobs such as air traffic controller and police, it cuts a very broad swath, of doubtful justification even if it's not fundamentally wrong); (b) there might be questions here about subsidiarity as well as civil disobedience; and (c) we likely need to know more about how fundamental are the teachers' grievances and what exactly have been management's negotiating tactics that the union claims are "hardball."  Any reactions on how someone faced with this situation should think it through?

Tom

Subsidiarity and SIDS

Yesterday the American Academy of Pediatrics issued new guidelines designed to cut the risk of Sudden Infant Death Syndrome:

To minimize the risk of crib death, the nation's largest organization of pediatricians is recommending that babies be put to sleep with pacifiers and in their own beds, despite intense opposition from advocates of breast-feeding and the "family bed."

The American Academy of Pediatrics, hoping to settle some of the most hotly debated and emotional issues related to the care of newborns, is for the first time endorsing routine pacifier use and explicitly advocating a ban on babies sleeping with their parents.

As a parent of three daughters who have slept in our bed as babies and were never fond of pacifiers, I approach these new guidelines with a certain degree of skepticism.  But as someone interested in Catholic legal theory, I'm wondering how these guidelines comport with subsidiarity.  Assuming that the AAP is not really going to try and criminalize parent and baby co-sleeping, does advocacy by a non-state organization with this much influence still qualify as a higher body taking decision-making authority from the lower body?  Critics of the new policy claim that:

The evidence that pacifiers are helpful and bed sharing is dangerous is far from conclusive . . .adding that the recommendations will hinder breast-feeding and mother-child bonding, which are clearly beneficial.

"I'm very disappointed," said James J. McKenna, director of the Mother-Baby Behavioral Sleep Laboratory at the University of Notre Dame in Indiana. "I really fear this is just another step of inappropriately medicalizing decisions that are best made within the home."

So I guess my subsidiarity-driven skepticism is twofold.  First, even though the AAP policy does not amount to legal coercion, the group's stature and the bright-line confidence with which they paint the issue as a non-negotiable element of baby safety may effectively negate the decision-making authority of many parents.  Second, while 2000 SIDS deaths a year are a tragedy, I'm not sure the possibility of harm warrants the absolute condemnation of co-sleeping and nursing at bedtime, both of which function as fundamental building blocks of many parent-child relationships.  That said, would my opinion change if 10,000 babies died each year from SIDS and the deaths were directly linked to co-sleeping?  50,000 deaths?  At what point does the harm warrant AAP's condemnation?  At what point would it warrant state intervention?

I don't have easy answers to these questions, but I do know that when groups like AAP pronounce a one-size-fits-all approach to intimate family practices, it's not just a matter of public health; it's also a question of subsidiarity.

Rob

Preach the Gospel (But Don't Evangelize)

The ongoing dispute over practices at the Air Force Academy offers a valuable lesson on how not to engage the surrounding culture with the Gospel.  But it's not all that simple.  One thing the Air Force is taking heat for is a (now withdrawn) chaplains' code of ethics that included the statement "I will not proselytize from other religious bodies, but I retain the right to evangelize those who are not affiliated."  I'm not entirely comfortable with government employees evangelizing military personnel, but I'm not sure how a chaplain can refrain from evangelizing without rendering her professional calling unrecognizable.  It's one thing to ask chaplains not to preach the gospel through a megaphone in the campus cafeteria, but what happens when an "unaffiliated" individual asks to talk to the chaplain about spiritual matters?  Or what if an individual attends chapel services, then doesn't show up for a few weeks -- can the chaplain visit the person to inquire why, or has the person then become "unaffiliated?"  And does an individual's affiliation remain fixed?  Indeed, should the Air Force ban ecumenical gatherings given the likelihood that otherwise affiliated individuals wil be exposed to the messages of other chaplains?  Maybe this shows the inherent difficulty with the position of military chaplain, but I'm troubled by the implicit assumption that "evangelism" is an activity readily segregated from other dimensions of Christian ministry.

Rob

Government Aid in Madison's Time and Now

Guest-blogging over at TPM Cafe, friend Jeremy Gunn, new director of the ACLU's Program on Freedom of Religion and Belief, makes a familiar appeal to James Madison's Memorial and Remonstrance against Religious Assessments to argue against equal funding today for individuals or families who wish to receive schooling or social services from a religious organization.

Madison warned us of the dangers that come when religions vie among each other for political power and for financial support from governments.  In doing so, Madison believed, they lose sight of their religious values and their principal mission.

Unfortunately, more than at any other time in American history, some government officials and some religious groups are now seeking to reach into each others' pockets for support.

The good old American approach--articulated perfectly by Madison two hundred years ago--is in danger of being tarnished.  Why would we want to abandon an approach that has worked so well in favor of something that has shown itself to have so many problems?  We need to show the same wisdom as Madison and avoid the temptations of trading money and influence.  The Madisonian approach is good for religion and good for government.

Many co-MOJers and readers may have previously heard these arguments, as well as the counterarguments defending aid programs.  But I'd like to put the counterarguments on record here on the blog, given the continuing importance of the issue.  (For lengthier versions of these pro-aid counterarguments, see here and here.)

All of the modern aid opponents' appeals to Madison founder on the fact that the aid he was opposing would have funded solely (preferentially) the religious activities of clergy, at a time when government did not fund comparable or competing nonreligious activities.  Today, though, the issue is whether, when government already funds education or social services provided in a secular setting, government or private (e.g. public schools, which must be secular), the government may or must give equal (not preferential) funding to religious counterparts providing the same services.  In today's context, all of the analogies drawn to Madison's campaign against aid are wrong or are open to serious question.

On the dangers of "vying among each other for support and power":  There may be divisions among different groups over the allocation of aid, although these divisions are much reduced if the aid is channeled through the decisions of numerous individuals and families, as with vouchers.  But in any event, the divisions over what private schools get aid are easily matched or surpassed by the divisions that occur when people fight over the content of education in the sole government-preferred provider, the public schools.  These include fights over, for example, prayers at school events, 10 Commandments in the classroom, sex education classes, intelligent design vs. evolution, and the host of bitter fights that we hear about with wearying regularity.  Give people equal treatment in funding and thus a real choice of where to go to school, and these controversies will be greatly reduced.

On "the temptations of trading money and influence," the danger of "losing sight of religious values and mission":  It is true that an organization can be compromised in its mission by taking government money, often with attached regulations.  But the organization's mission can also be compromised when the organization has to compete with secular alternatives, public and private, that are favored in government funding.  As a result of the extra competition on that unequal playing field, the religious school may have to close -- which surely compromises its mission -- or it may change its program in ways dictated not by its mission but by what will attract more students away from the government-favored public schools.  Let the school decide which is a greater threat, being denied equal aid or receiving it, and therefore decide whether to take the aid funding with any attached strings.

Tom

Monday, October 10, 2005

More on Retroactive Suspension or Limitation of Statutes of Limitation

A particularly well informed reader offers the following comments on the legality of retroactive suspension or extension of statutes of limitation in sexual abuse cases. prompted by my post on the call for such a suspension or extension in Pennsylvania in response to the grand jury report on sexual abuse in the Archdiocese of Philadelphia:

I read with interest your posts at Mirror of Justice regarding the

Philadelphia grand jury report. Those of us who litigate these cases

around the country were, obviously, deeply dismayed by the report.

Having briefed statute of limitations defenses to sex abuse claims more

times than I care to remember, I can answer your questions fairly

quickly. A retroactive extension of the criminal statute of limitations

would be an unconstitutional violation of the Ex Post Facto Clause. See

Stogner v. California. 539 U.S. 607 (2003). A retroactive extension of

the civil statute of limitations, however, would almost certainly not

pose federal constitutional problems. See Chase Securities Corp. v.

Donaldson, 325 U.S. 304 (1945). It's harder to speak generally about

possible state constitutional problems with reviving time-barred claims,

but recent decisions have not been favorable for the church. Compare

Roman Catholic Bishop of Oakland v. Superior Court, 28 Cal. Rptr. 3d 355

(Cal. App. 2005) (stating that it is "well settled that legislation

reviving the statute of limitations on civil law claims does not violate

constitutional principles"), with D.P. v. M.J.O., 640 N.E. 2d 1323 (Ill.

App. 1994) (holding that limitations defense is a vested right under

Illinois law that cannot be impaired by retroactive legislation).

I'm not sure I understand what Father Araujo is saying [in his post following mine -MAS]. Surely no state

legislature has or will consider lifting the statute of limitations

specifically for claims against the church or church-related actors--the

proposals on the table around the country call for suspending or

extending the limitations period for claims related to sexual abuse, no

matter the identity of the defendant. And, unless I am missing

something, it simply isn't true that "all statutes of limitations and

repose involving criminal and civil cases are open to suspension or

revocation....[i]f statutes of limitation or repose can be suspended in

one type of case, equal protection would require the same in all cases."

Legislatures routinely extend the statute of limitations (criminal or

civil) in one type of case without revising the statute in other types

of cases. Those revisions don't raise any equal protection

concerns--well, I suppose so long as the revisions could pass rational

basis review, which they almost certainly could in the case of extending

the statute for sex abuse claims (due to understandable delays in

bringing claims, the specter of fraudulent concealment, etc.).

The Key Christian Lines to Look for in The Lion, the Witch, and the Wardrobe ...

... -- the lines whose presence (or absence) will signal its Christian emphasis (or lack of thereof) and maybe its box-office receipts (or lack thereof) -- according to Time, are:

The White Witch: "That human creature is mine. His life is forfeit to me. His blood is my property."

Aslan (later) : "The Witch knew the Deep Magic. But if she could have looked a little further back... she would have known that when a willing victim who had committed no treachery was killed in a traitor's stead, the Table would crack and Death itself would start working backwards."

Tom

Katrina and School Choice

The Minneapolis Star-Tribune editorializes against President Bush's proposal to offer vouchers to evacuee Gulf families to send their children to public or private (including religious) schools:  "the president and his majority party should not take advantage of a natural disaster to rush through such a plan."  There are the usual arguments against vouchers, but a few twists worth noting.  First, the paper acknowledges that

[a]n estimated 60,000 Katrina kids were private school students before the hurricane hit. But that doesn't mean they should now receive taxpayer dollars for educations they had financed themselves or through scholarships before.

Of course.  The fact that your family has been chased from its (now destroyed) home by a hurricane and flood doesn't mean you have any moral claim on public support to help you continue major features of your family's life.  Well ... not if that major feature is the conscientiously motivated decision that your children should have a religious component to their education.

The editorial continues:

Channeling millions to private programs would take much-needed federal help from many already financially strapped public schools. They are the schools equipped and required to accept all students. Private schools, on the other hand, can pick and choose students based on their ability, background or religion. To their credit, many private institutions (such as DeLaSalle in Minneapolis) have generously opened their doors to Katrina victims without the expectation of federal reimbursement.

The first sentence is boilerplate anti-voucher stuff:  but what does it have to do with this supplemental program, added on the basis of each new evacuee student to the aid that public schools around the country already receive?  In the typical fiscal arguments over vouchers, when proponents point out that public schools receiving less government money because of vouchers will also have fewer students to serve, the usual answer is "Yes, but the fixed-cost items, like buildings, for a larger population will still be there and will then be partly uncompensated."  But that argument has no relevance to a program like the Katrina idea, that doesn't reduce the public schools' money but merely doesn't push every evacuee student (with corresponding funds) toward the public schools.  The argument here is a nonsequitur.  Unless the Star Trib and proponents of the public-school funding monopoly want themselves to "take advantage of a natural disaster" to get more money for public schools than the enrollment choices of parents would justify.

The second argument -- that public schools have to take all students and private schools "can pick and choose based on ability, background, and religion" -- is likewise a typical anti-voucher argument.  As is also typical, though, that argument would have more credibility if it confronted the repeated findings that the largest system of private schools around the nation, Catholic schools, has its biggest advantage over public schools with those students who come from the most challenging backgrounds, low-income inner-city minority families (see, e.g., here and here).

Finally, the Star-Trib argues that

the president and his majority party should not take advantage of a natural disaster to rush through such a plan. Though there are limited voucher experiments underway in a handful of U.S. cities, including Washington, both Congress and many public opinion polls reject the idea of a national voucher program. Any attempt to direct nearly a half-billion federal dollars to private and religious schools deserves full debate and discussion.

That's laughable too, because knee-kerk [CORRECTION: knee-jerk] voucher opponents like the Star-Trib do their level best to prevent any of the "limited voucher experiments" in inner cities that contribute to the factual basis for a "full debate and discussion" about the effects of school choice.  In addition to helping some people, a choice program for Katrina evacuees might give us a bit more evidence about such effects.  But opponents don't want a full discussion about vouchers:  they want to stop them by any means available, including litigation under the federal Constitution (until Zelman) and state constitutions (see here) that would decide the issue in court rather than in public debate.

Tom B.