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.

Thursday, May 10, 2007

Pluralism, Dialogue, and Freedom

Here's a link to a forthcoming paper of mine -- part of a Journal of Law and Religion volume dedicated to the work of my colleague, Bob Rodes -- called "Pluralism, Dialogue, and Freedom:  Professor Robert Rodes and the Church-State Nexus."  The abstract:

The idea of church-state “separation” and the image of a “wall” are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state “separation”? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration.

This essay is an appreciation, interpretation, and application of Professor Rodes's church-state work. In particular, it contrasts the church-state “nexus” that he has explored and explained with Jefferson's misleading but influential “wall” metaphor. After identifying and discussing a few of the more salient features of this “nexus,” it closes with some thoughts about how the leading themes in Rodes's law-and-religion writing can help us better understand and negotiate one of today's most pressing religious freedom problems.

Thoughts and comments welcome!

Abortion juxtaposition

In the coffee shop this morning, I was struck by the below-the-fold "here's what's inside" box on the front page of the New York Times.  Right next to each other were the two abortion-related stories, which have already been mentioned, i.e., the report on the Pope's "remarks against abortion" and the one on Giuliani's (obviously poll-tested) decision to go ahead and "support abortion rights."  I was also struck by this observation, at the end of the Giuliani piece, from Rich Lowry of National Review:

Rich Lowry, editor of National Review, the conservative magazine, said, “You can’t win as a pro-choicer who is going to deliberately set on challenging the party’s orthodoxy on the issue.”

“It doesn’t have to take him down,” Mr. Lowry said of Mr. Giuliani and the abortion issue, “but if he continues to mishandle it, it’s going to be a real problem for him. One of the big ironies for him is he doesn’t care about abortion.”

I wonder what that means, i.e., "he doesn't care about abortion"?  Doesn't care?

Giuliani to Support Abortion Rights

New York Times
May 10, 2007

After months of conflicting signals on abortion, Rudolph W. Giuliani is planning to offer a forthright affirmation of his support for abortion rights in public forums, television appearances and interviews in the coming days, despite the potential for bad consequences among some conservative voters already wary of his views, aides said yesterday.

At the same time, Mr. Giuliani’s campaign — seeking to accomplish the unusual task of persuading Republicans to nominate an abortion rights supporter — is eyeing a path to the nomination that would try to de-emphasize the early states in which abortion opponents wield a great deal of influence. Instead they would focus on the so-called mega-primary of Feb. 5, in which voters in states like California, New York and New Jersey are likely to be more receptive to Mr. Giuliani’s social views than voters in Iowa and South Carolina.

That approach, they said, became more appealing after the Legislature in Florida, another state they said would be receptive to Mr. Giuliani, voted last week to move the primary forward to the end of January.

The shift in emphasis comes as the Giuliani campaign has struggled to deal with the fallout from the first Republican presidential candidate debate, in which he gave halting and apparently contradictory responses to questions about his support for abortion rights.

Mr. Giuliani’s aides were concerned both because the responses opened him up to a new round of criticism from abortion critics, who have never been happy with the prospect of a Republican presidential candidate who supports abortion rights, while threatening to undercut his image as a tough-talking iconoclast who does not equivocate on tough issues.

The campaign’s approach would be a sharp departure from the traditional route to the Republican nomination in the last 20 years, in which Republicans have highlighted their antiabortion views.

Mr. Giuliani hinted at what aides said would be his uncompromising position on abortion rights yesterday in Huntsville, Ala., where he was besieged with questions about abortion and his donations to Planned Parenthood. “Ultimately, there has to be a right to choose,” he said.

Asked if Republicans would accept that, he said, “I guess we are going to find out.”

Mr. Giuliani acknowledged that his stance on abortion alone might disqualify him with some voters, but he said, “I am at peace with that.”

[To read the rest, click here.]

Ave Maria Law School, Revisited

Chronicle of Higher Education
May 10, 2007

Conflict Over Relocation Divides a Catholic Law School, as Professors Say They Have Been Cut Out of the Decision

By KATHERINE MANGAN

A mutiny may be brewing at a Roman Catholic law school whose board has voted to pack it up and move it from Ann Arbor, Mich., to a rural community in southwestern Florida.

More than half of the professors at the Ave Maria School of Law are fighting the move to Ave Maria, Fla., the town being created by Thomas S. Monaghan, the former Domino's Pizza mogul who founded the law school eight years ago.

Critics, including many alumni and students, say the move to the Catholic-oriented town between Naples and Immokalee, Fla., would jeopardize the independent law school's progress. They accuse Mr. Monaghan of moving a successful law school to prop up a struggling university in a town that has already attracted controversy. A spokesman for Ave Maria said Mr. Monaghan was not available for comment.

[To read the rest, click here.]

Wednesday, May 9, 2007

Kaveny on Abortion for Health of the Mother

Kaveny's discussion as I read it, is more limited than Patrick's summary suggests.  She is talking about abortion to protect the health or life of the mother, a point on which most Americans (and most American Catholics) agree with Kaveny.  It's an area of the Church's teaching on abortion that I've often struggled with.  Kaveny compares requiring a mother to carry a child to term even at the risk (or certainty) of substantial physical harm to other areas of the law in which duties to render assistance are not legally enforced.  The Church's views on the morality of abortions in such contexts (as well as abortions to protect the life of the mother) are clear, but I struggle with them.  While my wife was pregnant last year, I frequently asked myself what, if her life were in danger from the pregnancy, would be the proper course of action.  The decision would be a very painful one, but I for one can say that it's a decision with which I would want the state to have nothing at all to do.

In any event, my question for Patrick is whether he really believes that Kaveny's writing on this subject merits excommunication.  Patrick does not come out and say it, but he certainly suggests as much in his post.  (The law at issue in Mexico City was far broader than the situations Kaveny discusses, so the relevance of the Pope's comments seems at least questionable.)  If Patrick does believe she should be excommunicated, I'd also be curious why he would stop there.  Should she, in his view, be permitted to retain her academic position at a Catholic university?  And, if not, what would that suggest about the viability of academic freedom at a Catholic university run according to such principles?

Abortion and the G.O.P.

New York Times Online
May 9, 2007

The G.O.P., Abortion and 2008
By ROBIN TONER

It is one of the enduring features of the modern Republican Party: Since the rise of Ronald Reagan and the empowerment of the social conservatives, the party has formally stood in firm opposition to the constitutional right to abortion and the Supreme Court decision that established it.

Yes, there have always been Republicans who broke with party orthodoxy on the issue, from New England moderates like Senator Olympia Snowe of Maine to pragmatists like Gov. Arnold Schwarzenegger of California. But the party’s platform, if anything, grew less pliant on abortion over the years. And the party invariably nominated presidential candidates who embraced – rather than challenged -- the full “pro-life” position. (Just as the Democrats did, on the “pro-choice” side.)

Now, with Rudolph W. Giuliani, the former mayor of New York, one of the frontrunners for the Republican nomination, the question inevitably arises: Is the party moving on this issue, ready for more flexibility? Can a supporter of abortion rights, even one with caveats and qualifications, make it to the top of the Republican Party in 2008?

Mr. Giuliani’s position on abortion stood out in stark relief at last week’s debate, when he alone, among the ten candidates on the stage, offered an ambivalent response to the prospect of overturning Roe v. Wade, the 1973 Supreme Court decision considered anathema by the anti-abortion movement.

”It would be O.K. to repeal,” Mr. Giuliani said. ”Or it would be O.K. also if a strict constructionist judge viewed it as a precedent, and I think a judge has to make that decision.” On his campaign web site, Mr. Giuliani seeks a middle path, saying he supports “reasonable restrictions on abortion” but adding, “ultimately, he believes that it is a decision between a woman, her doctor, her family and her God.”

[To read the rest, click here.]

Abortion, Brazil, and Benedict

New York Times
May 9, 2007

As Pope Heads to Brazil, Abortion Debate Heats Up
By LARRY ROHTER

SÃO PAULO, Brazil, May 9 — Hours before Pope Benedict XVI was scheduled to arrive here on his first pastoral trip to Latin America, a heated dispute broke out today between the Roman Catholic Church and the Brazilian government about abortion policy.

Church officials have said that the pope will reaffirm the Vatican’s traditional stand on the issue in public pronouncements during his five-day visit here. But the cordial atmosphere that had been expected to prevail now appears to be threatened by sharp exchanges between senior Brazilian government officials and their counterparts in the church.

The controversy began on Monday, when Luiz Inácio Lula da Silva, the president of Brazil, said in a radio interview with Roman Catholic radio stations that he was of two minds on abortion. Though personally opposed, he said, as president he believes that “the state cannot abdicate from caring for this as a public health question, because to do so would lead to the death of many young women in this country.”

Except in very limited and specific circumstances, abortion is against the law in Brazil, which is the most populous Roman Catholic nation in the world with an estimated 140 million church members. Even so, abortions are not uncommon: clandestine clinics known in Brazilian slang as “angel factories” perform an estimated one to two million abortions a year.

But the Minister of Health, José Gomes Temporão, suggested in March that a change in the law, which now imposes prison sentences of up to three years for women convicted of having an illegal abortion, might be appropriate. He called for a national referendum on abortion, prompting denunciations from pulpits across the country and a protest march on Tuesday in Brasilia, the capital.

[Read the rest ... here.]

Promoting Integrity . . . One Lust-Driven Divorce at a Time

One recurring theme of our conversations on MoJ is the degree to which Catholic legal education should produce a different sort of lawyer than the mainstream.  Well, our graduates are sure making a mark in the case of the racy "Life is Short. Get a Divorce" billboard.  The two lawyers who put up the billboard are both DePaul Law School graduates, and they apparently saw this new marketing angle as supportive of authentic human flourishing.  One commented, "It promotes happiness and personal integrity."  Reporters looked to a John Marshall Law School grad to label the billboard a "disappointment to the profession and to the institution of marriage, which is something our community holds as sacred."

Contemporary Culture Revisited

Associated Press
May 9, 2007

Chicago Dumps Racy Law Firm Billboard

CHICAGO (AP) -- A racy billboard proclaiming ''Life's short. Get a divorce'' caused enough of an uproar, city workers stripped it from its downtown perch after a week.

It wasn't so much about the partially clothed man and woman on the law firm's ad. It was the phrase that lawyers Corri Fetman and Kelly Garland chose that drew scores of complaints from neighbors and from other attorneys who said it reflected poorly on their profession.

A city alderman who lives nearby found a technical reason to jettison the sign.

''I called the building inspector and told him to do his job and he did,'' said Alderman Burton Natarus. ''It has nothing to do with content or anything else. They did not have a permit and they were ordered to take it down.''

Fetman and Garland say they're upset the sign was removed.

''They ripped our billboard down without due process,'' Fetman said. ''We own that art. I feel violated.''

Despite its brief run, the sign apparently was good for business. Since it went up last week, the two women said calls to their law firm have gone up dramatically.

Kaveny, Carhart, and excommunication

Anyone giving serious consideration to Cathlen Kaveny's remarkable editorial on Carhart (http://www.commonwealmagazine.org/article.php3?id_article=1926) will do well to consider at the same time Pope Benedict's recent remarks on the automatic excommunication of the Mexican politicians who supported the legalization of first-trimester abortion  (http://news.yahoo.com/s/ap/20070509/ap_on_re_ca/pope_mexico_1).  Professor Kaveny recommends an American legal regime that "would highlight the humanity of unborn life while recognizing that secular law should not require a woman to sacrifice her fundamental physical integrity to carry her baby to term."  In pondering that recommendation in the context of the Church's contrary insistence, I keep coming back to Maritain's acute observation that today "It is no longer the human which takes charge of defending the divine, but the divine which offers itself to defend the human."