I am delighted to announce that our MOJ-crew welcomes another blogista: Professor Lisa Schiltz, from the University of St. Thomas. (The St. Tommy take-over continues . . . .). Lisa is an old friend and former colleague to those of us at Notre Dame, and a powerful, thoughtful voice on matters ranging from predatory lending to motherhood. (For some past guest-posts supplied by Lisa, go here and here.) Welcome!
Sunday, July 16, 2006
Welcome to a new blogger!
Chicago conference on The Parish
This week, the Dominican School of Philosophy and Theology is hosting an interdisciplinary conference, "Can You Tell Me What a Parish Is?", at Loyola University in Chicago, Illinois. More information is available here. Our own Mark Sargent is presenting a paper on Wednesday, and I will provide a response to a paper by Mark Chopko (called "The Schizophrenic Constitution?") on Tuesday. Francis Cardinal George is providing the keynote address. Should be interesting!
Adult Stem-Cell Research Controversy
Apropos the discussion last week with Robby George about the need for care in making claims about the potential of stem-cell research (adult as well as embryonic), see this story.
Tom
Saturday, July 15, 2006
In case you're interested ...
Some MOJ-readers may be interested in a piece I have in the current issue (7/14/06) of Commonweal--a piece titled The Morality of Human Rights: A Problem for Nonbelievers. To read the piece, click here. (If anyone has any comments, I'd love to hear them: [email protected].)
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mp
Friday, July 14, 2006
Human Dignity and Human Rights Law
Check out this overview of the concept of human dignity in human rights discourse and law, by leading scholar Christopher McCrudden (with frequent nods to MOJ friend Paolo Carozza). Excerpts:
[A]lthough we see judges often speaking in terms of "common principles for a common humanity," in practice this is rhetoric, however well intentioned and sincere. The apparently common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable in fact covers up the use of dignity in human rights adjudication to incorporate theoretically significantly different approaches to the meaning and implications of such worth, enabling the incorporation of just the type of ideological, religious and cultural differences that a common theory of human rights would need to transcend. The "common enterprise" that I identified in my earlier article is not “the working out of the practical implications, in differing concrete contexts, of human dignity for the rights to life and physical integrity,” as Carozza would have it (Carozza, at 1081-2), but rather the use of the concept of human dignity to provide an apparently universalistic and principled surface justification for an enterprise that is better understood in functionalist terms. . . .
[Dignity’s role], in practice, is to enable local context to be incorporated under the appearance of using a universal principle. Dignity, in the judicial context, not just permits the incorporation of local contingencies in the interpretation of human rights norms, it requires it to an extent that the ideal of universalism is severely undermined. Dignity remains as a place-holder but in the judicial context it is a place holder that allows each jurisdiction to develop its own theory of human rights.
Tom
Bastille Day
Today is Bastille Day, and so thoughts turn -- naturally! -- to the Terror, the September Massacres, the "Temple of Reason," the suppression of religious orders and the confiscation of church property, and the genocide in the Vendee. (Here is a recent essay, by Sophie Masson, "Remembering the Vendee," that might be of interest). And also, maybe, to some recent, relevant thoughts of Pope Benedict XVI:
Although the Holy Roman Empire had been in decline since the late Middle Ages, and it had faded also as an agreed-upon interpretation of history, it was not until the French Revolution that the spiritual framework it provided—and without which Europe could not have been formed—would shatter in a formal sense. This process had a major impact on both politics and ideals. In terms of ideals, there was a rejection of the sacred foundation both of history and of the state. History was no longer measured on the basis of an idea of God that had preceded it and given it shape. The state came to be understood in purely secular terms, based on rationalism and the will of citizens.
The secular state arose for the first time, abandoning and excluding any divine guarantee or legitimation of the political element as a mythological vision of the world and declaring that God is a private question that does not belong to the public sphere or to the democratic formation of the public will. Public life was now considered the realm of reason alone, which had no place for a seemingly unknowable God. From this perspective, religion and faith in God belonged to the realm of sentiment, not of reason. God and His will therefore ceased to be relevant to public life.
In the late eighteenth and early nineteenth centuries, a new schism thus developed, the gravity of which we are only now grasping.
Vatican Condemns Israeli Offensive
According to Vatican Secretary of State Cardinal Angelo Sodano,
"[T]he Holy See deplores right now the attack on Lebanon, a free and sovereign nation, and assures its closeness to these people who already have suffered so much to defend their independence."
The Reuters account is here.
Rob
Same-sex marriage developments
The Eighth Circuit has reversed a district court's ruling that Nebraska's constitutional amendment banning same-sex marriage violates equal protection.
A Connecticut state court has ruled that the state's civil union law does not violate equal protection to the extent that it deprives same-sex couples of the right to marry.
The Tennessee Supreme Court has ruled that a constitutional amendment banning same-sex marriage properly belongs on the ballot this fall.
Rob
Christian Free Speech, Supported by the ACLU
It should be recognized that the ACLU does sometimes support the right of individuals to speak and act religiously in public settings. As an example, the NJ chapter is filing a friend-of-the-court brief supporting an elementary student's free speech/free exercise rights in this case (noted in The Christian Century):
A year ago a school superintendent in New Jersey barred a second-grade girl from singing the song "Awesome God" in an after-school talent show. The superintendent said that the song was a problem not because it was religious but because it moved into proselytizing. (One lines says, "His return is very close / And so you better be believing that / Our God is an awesome God.")
Tom
Establishment Clause and Attorney's Fees
MOJ friend Pat Shrake asks :
Tom's recent postings on the MOJ blog regarding religion and legislation, combined with a news story I just saw about the Public Expression of Religion Act of 2005 (HR 2679), led me to wonder about a couple of things.1) What does the MOJ Blogosphere think of that proposed Act (which attempts to prevent payment of attorney fees for Establishment Clause challenges).2) Would there be any legal reason that Congress couldn't enact a similar ban on payment of attorney fees for abortion legislation challenges? I'm wondering about that because the South Dakota ballot question regarding its abortion ban will probably have some language indicating that the state might have to pay the attorney fees for the opponents of the ban (i.e. - Planned Parenthood) (see this story).
With respect to Pat's first question, my reaction to the proposed Public Expression of Religion Act is negative.
1. I'm puzzled and disturbed by the text of the bill as found on Thomas.gov, the Library of Congress website tracking legislation. The link above is to Thomas, but it may not work, so I'm pasting the text here:
a) Civil Action for Deprivation of Rights- Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended--(1) by inserting `(a)' before the first sentence; and
(2) by adding at the end the following:
`(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.'.
(b) Attorneys Fees- Section 722(b) of the Revised Statutes of the United States (42 U.S.C. 1988(b)) is amended by adding at the end the following: `However, no fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine.'.
From the title "Public Expression of Religion," I had assumed that the concern of this bill was to rein in the Establishment Clause some, e.g. to hinder lawsuits that would try to strike down noncoercive or mildly coercive official religious expressions in public schools, on public property (creches, 10 Commandments, etc.). But the text by its terms denies attorney's fees for any Establishment Clause suit under section 1983. It would deny fees in a case where a government official plainly imposed religion on students in a coercive manner that most all would agree is impermissible -- for example, if a teacher gave a sermon on her interpretation of the Bible to her first-grade class every day. (You could try to wrench that into a free exercise case, but the constitutional problem sounds much more naturally in the Establishment Clause.) It would deny fees to any plaintiffs challenging government funding of religious institutions, which I suppose moves in a direction some of us would like to see. But again it goes way too far -- no fees for a challenge to a funding law blatantly preferring Southern Baptists in Alabama or Mormons in Utah? -- and goes way beyond the category "public expression of religion" referred to in the title.
It's disturbing enough that the bill would empower truly coercive official impositions of religion. Equally disturbing is that it would cover claims by religious institutions that government interference in their internal affairs violates the Establishment Clause. As we've touched on before here, in the wake of the decline of free exercise claims after Employment Division v. Smith, churches seeking to protect their autonomy may rely more and more on the religion-protective elements of the church-state separation derived from the Establishment Clause.
So the title of the bill is a mistake or a fraud. The text reaches far beyond the mere "public expression of religion" claims and would hamper claims that are much more compelling constitutionally and morally -- including some claims that you'd think the "pro-religion" types would like, which is puzzling.
2. All the above, of course, assumes for sake of argument that we should try to empower (by shielding from fee awards) all instances of mere "public expression of religion" by government -- creches, 10 Commandments, prayers without direct coercion, etc. For lots of reasons, familar to many of us here, I think that a fair number of such official expressions ought to be deemed unconstitutional, or deemed morally and theologically unwise by thoughtful Christians. Therefore, I'm not happy with shielding from challenge everything that might be called a mere "public expression of religion." But to reiterate, I don't have to rest on this point, it seems, because the text of the bill reaches other Establishment Clause claims that are unquestionably compelling constitutionally or morally.
3. I imagine there are constitutional questions about whether Congress can disfavor a class of claims in terms of procedure or remedies. This has been debated in the context of jurisdiction-stripping proposals, with Tribe saying that stripping federal courts of jurisdiction to hear claims asserting a certain right is a presumptively unconstitutional burden on the right, and others disagreeing. Even if Tribe were right, though, a denial of fees in federal court is less of a burden than closing the federal forum altogether (though the fee denial also lacks a specific constitutional authorization like Congress's power to control federal court jurisdiction). Moreover, perhaps here the breadth of the text -- all Establishment Clause challenges -- would actually reduce the sense that Congress was trying to tip the scales against one particular set of plaintiffs or constitutional interests. (But you couldn't make this last point in defense of fee stripping in the abortion context; that would be more clearly aimed at one distinct set of constitutional interests.)
Tom
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