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.

Friday, December 7, 2007

Philadelphia and the Boy Scouts

By Susan Stabile

I have read with interest both Robert's post and the New York Times article about the Boy Scouts and the decision by Philadelphia not to continue allowing the Boy Scouts to rent city property.

The Boy Scouts clearly have a right to define their own membership and should not be coerced or pressured by the state "to abandon their beliefs and their liberties."  However, my understanding from the NYT piece is that Philadelphia has an ordinance prohibiting discrimination and requires that those leasing city property agree to nondiscriminatory language in their lease.  The question, it seems to me, is whether the city is required to exempt the Boy Scouts from the ordinance.  It may be that there are good policy reasons for them to do so (Boy Scouts serve many in the inner city, providing after-school activities and  mentoring, etc.) and there may be arguments that they ought to be grandfathered given the origins of their use of the property and the fact that they built on and improved it.  But that is different from saying that a failure to exempt them impinges on their consitutionally protected belief.

Having framed the question the way I think it ought to be addressed (or at least in a way that I think raises an interesting question), what is strange about the NYT article is that it reports that the city of Philadelphia is willing to allow the Boy Scouts to remain as full-paying tenants.  If the ordinance in fact requires that tenants agree to a nondiscrimination clause, compliance with the ordinance would seem to oust the Boy Scouts regardless of the amount of rent they pay.

Federal Funding and Religious Considerations in Hiring

By Thomas Berg

Law prof Carl Esbeck, friend and colleague of mine and RIck's in Christian Legal Society matters, calls attention to an important recent determination by the Justice Department: that religious organizations receiving federal funds are protected by the Religious Freedom Restoration Act (RFRA) in their continued ability to consider religion in hiring employees.  A number of federal funding statutes (including the one at issue in the particular DOJ grant for anti-gang efforts) contain provisions flatly forbidding grantees to engage in religious discrimination in employment.  But as many of us have pointed out, "religious discrimination" by religious providers is different: it reflects a perfectly legitimate demand that employees be committed to the organization's mission, just as the Sierra Club can favor environmentalists in hiring and Planned Parenthood can favor pro-choicers.  This op-ed by Carl summarizes these and other arguments, and notes the applicability of religious hiring rights to cases where a religious provider requires that employees adhere to its belief that sexual intimacy should be limited to marriage.

Because RFRA overrides other federal statutes unless they're explicitly excluded from its application, this determination is relevant to funding programs under many statutes.  And although as I understand it, the DOJ determination formally applies only to DOJ-administered programs, it seems appropriate and likely that other agencies will pay attention to it for their own programs.  This amounts to an important commitment by the Bush adminstration to ensuring that an organization can cooperate with civil government in helping the needy without giving up its religious identity.

As you might expect, Americans United for Separation of Church and State is not happy, arguing that "it’s hard to see what [an employee's religious] beliefs have to do with working in a government-funded, presumably secular, anti-gang program."  But this far too narrowly conceives the organization's interests in having employees, in Carl's words, "aligned with the energizing core of its mission."  Even if they may not evangelize beneficiaries or hold religious services in the funded program, employees may speak to each other informally, thereby  encouraging (or discouraging) each other's faith, and in many obvious and subtle ways they may model (or fail to model) to beneficiaries the principles that the organization believes are important.

Tom

Live from the womb

By Rob Vischer

If you haven't yet seen it, the American Life League has posted a pretty dramatic video of 4-D images from the womb.

Does "freedom require[] religion"?

By Rick Garnett

In his "Faith in America" speech, Gov. Mitt Romney said, among other things:

Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.

Is this true?  Over at Balkinization, Jack Balkin says that this statement (and some others) in the speech "strongly identify Americans and Americanism with belief in God."  Is this true?

For starters, it is (obviously) not the case that only those persons who believe in God (or who, in Gov. Romney's words, "believe that Jesus Christ is the Son of God and the Savior of mankind") are or can be good Americans.  It is certainly not the case that only such persons desire, deserve, and sacrifice for "freedom"; or that only a political community consisting primarily of such persons can be "free."

I do not know exactly what Gov. Romney intended to communicate or claim with the statement that "[f]reedom requires religion".  If he intended to claim with that statement what (it sounds like) Prof. Balkin understands him to have claimed, he was mistaken.  (It seems to me unlikely, though, that Gov. Romney believes that only theists -- or Mormons, for that matter -- are or can be good Americans.)

That said, I believe that it is true -- or, at least, that there is a sense in which it is true -- that political "freedom requires religion."  To be clear:  It is not true that a political community of religious people will, necessarily, be "free"; or that a political community in which most people do not believe in God cannot be "free"; or that religious believers will always cherish, protect, respect, or even understand political freedom.  (I assume that Prof. Balkin and I agree entirely about all this.)

All that said, it seems to me that the existence and maintenance of political freedom does depend on -- i.e., does "require[]" -- "religion" in the sense that political freedom requires not merely constitutional or other legal limits on government power and official action, but also that (and a consensus that) the aims, sphere, authority, purpose, reach, and nature of the state -- of politics -- be limited, by something else.  That is, it is crucial to political freedom that -- in Harold Berman's words -- it not be "for the secular authority alone to decide where its boundaries should be fixed" and that -- as John Courtney Murray put it -- there be "room for the independent exercise of an authority which is not that of the state."  And, it seems to me that "religion" is best, and perhaps only, able to satisfy (even though, of course, it has often failed badly to satisfy) these requirements.  (I tried to flesh out this idea in this short paper.)

What do others think?  Is this, or something like this, plausible? 

I cannot emphasize this enough:  To suggest this is not, at all, to say that only religious people understand the value of, and cherish, freedom-under-and-through-limited-government.  None of this is intended to be -- or, objectively, is -- exclusionary, triumphalist, "theocratic", or "Christianist."  Nor am I claiming that these thoughts of mine capture or reflect what Gov. Romney intended to say.  I do not know, exactly, what he indended to say.  (Disclosure:  I am a member the Thompson campaign's Law Professors Committee.)

Another step toward totalitarianism…in the name of “liberty” in the City of Brotherly Love

By Robert John Araujo, SJ

Yesterday’s The New York Times [HERE] published an article entitled “Boy Scouts Lose Philadelphia Lease in Gay-Rights Fight.” In the 1920s the City of Philadelphia allowed the Scouts to build a building on a small plot of municipal land in the Center City charging the Scouts a nominal $1 per year for rent. As I understand the situation, the City did nothing to build the structure, it merely provided the land. However, over the last several years, gay-rights advocacy groups have pressured the City of Philadelphia to pressure the Scouts to change their membership regulations to embrace gay members. As MOJ readers will recall, the Supreme Court decision in Boy Scouts of America v. Dale held that the Scouts did not have to changer their membership regulations. The Court noted that forced membership is unconstitutional if the person seeking membership, in this case a gay scout, would affect in a significant way the organization’s ability to advocate public or private viewpoints. The viewpoint in contention in this Philadelphia case is, to quote Stacey Sobel, executive director of Equality Advocates Pennsylvania, a gay-rights advocacy group, is to send a message that the city disapproves of their views. As this person was quoted, “We are not looking to kick the Boy Scouts out. We just want them to play be the same rules as everyone else in the city.” And the same rules means for Equality Advocates Pennsylvania that the Scouts must change their membership policies which the Supreme Court of the United States has declared are constitutionally protected. So much for the Constitution and the liberties it protects.

It is odd to me, and perhaps others, that Equality Advocates Pennsylvania would most likely support the liberties found by the Court in Lawrence v. Texas, in which the Court relies on the famous mystery passage of Planned Parenthood v. Casey— there is “a promise of the Constitution that there is a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” But Equality Advocates Pennsylvania do not wish the Boy Scouts to exercise their constitutionally protected liberties as long as they conflict with the objectives of this gay-rights organization. Equality Advocates Pennsylvania have a powerful ally amongst some members of the Philadelphia City Council who, in ex post fashion, have used the authority of the state to pressure the Scouts to abandon their beliefs and their liberties.

It would seem that the liberty demanded by some is not to be extended to the Scouts. But Equality Advocates Pennsylvania insists that they do not want “to kick the Boy Scouts out.” They just want the Boy Scouts to believe, or at least accept the beliefs that they hold. The method to be used is this: put economic pressure on the Scouts by threatening to take away the land on which their building rests. King Henry VIII used a similar tactic in pressuring Church institutions to accept his views on marriage. Those who did not subscribe to his views lost their property and were put out on the street. For the King, the views that differed from his were “a canker in the body politic, and he would have it out.”

In both of these instances, we see an exercise of totalitarianism. The totalitarianism of today, like its predecessors in the sixteenth and twentieth centuries, is a type of dictatorship that relies and insists on a centralized, universal control of all or many aspects of life including innermost convictions. The totalitarian state can conjure up means of ensuring public endorsement of its control demanding uniform support by all over whom it exercises dominion. This is what the Philadelphia City Council is doing to the Scouts. The threat of eviction of the Scouts is designed to guarantee cohesion within society and is an important component of the totalitarian state. Nonetheless, in spite of these efforts at universal, central control, there often remain elements of the society, such as the Scouts, that preserve a moral force and function as a counterpoint to the pressure of the state. But by pursuing their goals, the Scouts face a kind of persecution and annihilation when targeted by the state’s enforcement mechanism.

Christopher Dawson spent a career studying conscience, religious belief and faith, and public life noted that in more modern times Christianity needed to become an underground movement. He recognized that not only the totalitarian state but even the modern “democratic” state “is not satisfied with passive obedience; it demands full co-operation from the cradle to the grave.” This obedience can be essential if anyone or any group is to avoid being “pushed… out of physical existence.” In the context of the Boy Scout case in Philadelphia, Dawson’s words from the first half of the twentieth century may be an accurate prophecy for the world of the early twenty-first century.

The views and beliefs that are targeted today need not be held by a few isolated individuals since they can and likely are held by many other persons. In this context, the hallmark of the totalitarian regime is its plan to eradicate beliefs and acts that may be held by many individuals and are often considered mainstream. Surely this is the case in Philadelphia. These are not only interesting times, they are challenging as well. And how should these challenges be met? With resignation? With defiance? Or, with the reasoned arguments previously advanced by the Scouts of their constitutionally protected belief? I think it is the latter. And, when people of good will understand what is afoot, I pray that the Scouts will receive the support of many public officials and citizenry alike. If the liberty of Mr. Lawrence is to be protected, so must that of the Boy Scouts of America—and, for that matter, everyone else.    RJA sj

Cochran, "Faith and Law"

By Rick Garnett

This new book -- by Pepperdine law prof and law-and-religion expert Bob Cochran -- looks good:  In "Faith and Law",  "legal scholars from sixteen different religious traditions contend that religious discourse has an important function in the making, practice, and adjudication of American law, not least because our laws rest upon a framework of religious values. The book includes faiths that have traditionally had an impact on American law, as well as new immigrant faiths that are likely to have a growing influence. Each contributor describes how his or her tradition views law and addresses one legal issue from that perspective. Topics include abortion, gay rights, euthanasia, immigrant rights, and blasphemy and free speech." 

Contributors include our own Patrick Brennan, as well as Bob Tuttle, Tom Shaffer, Brett Scharffs, David Caudill, and many others.

Thursday, December 6, 2007

Kmiec on the Romney speech

By Rick Garnett

Prof. Doug Kmiec (who is an advisor to Gov. Romney) -- about whose essay I blogged yesterday -- asked me to post the following, and I am delighted to do so:

The speech -- A Reason to Put Faith in Governor Romney

Mitt Romney gave the speech many of us wish John Kennedy had.

John Kennedy is a hero for me.  My first foray into politics was as a child with my father campaigning for JFK in Chicago.  Sporting a button that said “if I were 21, I’d vote for Kennedy,” I meant it then, and now when so many years have past, it is difficult to remember 21, let alone a younger age.

So to say that Romney did Kennedy one better is not in any way to denigrate the memory of the young, vibrant president whose vision and idealism still inspire.

But Kennedy handled the so-called Catholic issue largely by separating himself from Catholicism.  In this, Kennedy would say “the separation of church and state is absolute,” and that the statements of his church were “rarely relevant to any situation in” America.  Said Kennedy: I do not consider myself bound by church statements with regard to “my public acts – why should you?”

Kennedy sought acceptance upon the ground of secularism.  Romney’s common ground is different, and it is that of America’s founders.  What matters is not how a man worships, but that he worships. Said George Washington: “Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports. . . . reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

When Kennedy spoke in Houston, he wanted to change the subject.  When Romney returned to Houston, he embraced it.   Kennedy began his talk by saying there are far more critical issues to speak of – hungry children, old people who cannot pay their doctors bills, and America with too many slums and too few schools.  Sadly, almost a half century later, those critical issues remain with us, but if we are going to meaningfully address them, we cannot separate ourselves from the meaning that faith provides.  We need our greatest ingenuity – our reason, but reason and faith are collaborators, not antagonists.  As Romney put it, “we can be deeply thankful that we live in a land where reason and religion are friends.”

No doubt some will say that Romney failed to address whatever differences there may be between the Mormon tradition and that of other faiths.  But then, exploring those theological questions would have been entirely inappropriate.  Kennedy didn’t attempt to justify the unique doctrines of the Catholic Church either.  Said JFK it is not my purpose to explain “what kind of church I believe in for that should be important only to me, but what kind of America believe in.”  Romney affirmed, noting that to make such explanation would be to contradict the very guarantees of religious freedom and against religious tests for public office.  “ No candidate should become the spokesman for his faith. For if he becomes President he will need the prayers of the people of all faiths,” Romney said eloquently.

Yet, Faith does matter, said Romney, to “those American values ... lived in my religion [and] yours.”  Honoring God and love of neighbor prompted, he said, his father to “march with Martin Luther King. . .and provide compassionate care to others . . .”   and with humility, guides him and his wife, Ann, in his marriage and family” today.

Inevitably, it will be asked was Romney’s speech as effective as Kennedy’s?   Yes, but for different reasons.  Kennedy said his faith wouldn’t matter, but then acted as if it did, especially in civil rights.  Romney said his faith would “inform [his] presidency” in those subtle ways that every great President from Lincoln to Kennedy would unquestionably affirm.  Today’s speech supplied ample reason to entrust him with that office.

I do not know enough to know what the political effects of Gov. Romney's speech will be.  I tend to agree with Prof. Kmiec, though, that its content was better than then-Sen. Kennedy's.  (Though, to be fair -- as Ken Woodward points out -- the Kennedy speech was given in a dramatically different context.)  That said, and all things considered, I think Gov. Romney would have done well to make clear that a crucial dimension of religious liberty is the freedom not to profess a religion at all.  (I do not doubt that he believes this.)  (Full disclosure:  I am a member of Sen. Thompson's "Law Professors Committee.")

GOVERNOR ROMNEY'S SPEECH

By Michael Perry

Click here.

More on "private" marriage

By Rick Garnett

A few days ago, we had a discussion about Prof. Stephanie Coontz's op-ed about marriage.  I wrote, among other things, that:

[i]t seems to me -- and, certainly, I invite correction by experts -- that if Professor Coontz is suggesting (and perhaps she is not) that, "for most of Western history", marriage was a matter of merely "private" concern, a matter with which the relevant public authorities were not concerned, then her suggestion is not supported by the historical record.  It has, it seems to me, "for [all] of Western history", been the case that communities have regarded marriage -- its formation, incidents, nature, dissolution, etc. -- as (among other things) a matter of community concern.  The fact that the Church recognized as "licit" marriages contracted in a haystack does not, it seems to me, indicate otherwise.

At the First Things blog, Michael Fragoso -- a medieval studies student at Princeton -- has a long, detailed post responding in detail (and, it seems to me, thoroughly demolishing) to the Coontz op-ed.  Here's the intro:

Prof. Stephanie Coontz recently took to the pages of the New York Times to inform us that we do not need marriage as a legal institution. This is not the first time she has ridden rough-shod over marriage in the Times, and I doubt it will be the last. In this instance, Coontz is nothing short of dazzling in how adeptly she manages to misrepresent marriage and marriage law in Western history in order to bolster her destructive arguments.

In her description of premodern marriage law, she leaves a distinct impression that legal interference with marriage tended toward a restriction of individual liberty–preventing marriages when parents disapproved, preventing divorce, and so on. It’s a useful narrative for contemporary radicals who seek to undermine marriage. The trouble is that it has little relation to actual history. Here are some of her claims, and the facts against which they stand opposed.

Anticipating Gov. Romney’s Speech

By Robert John Araujo, SJ

Later this morning, Presidential Republican Candidate and former Governor of Massachusetts, Mitt Romney, will be delivering his address on his religion and its role (or not) in his public duties. Rick has previously posted several commentaries on Governor Romney and Senator John Kennedy’s September 1960 Houston address. I am mindful that Rick pointed out that the Kennedy address did not remove the Senator from suspicion as the question-and-answer session immediately following his Houston speech illustrated.

It is too early to assess Governor Romney’s speech at this hour. However, I think it is important that we who are dedicated to the pursuit of Catholic Legal Theory might wish to keep in mind that Kennedy, Romney, and, in a much earlier period, Thomas Jefferson were or are politicians who saw the need not to alienate voters. Thus, what is said about religion in one particular context may not and probably is not the only view held by someone seeking or holding public office. This prudential consideration would suggest that those seeking public office may at different times offer different perspectives on their views about the role of faith and religion in public life.

For example, when the then recently elected President Thomas Jefferson wrote his famous “wall of separation” letter to the Danbury Baptist Association (1802), he stated that,

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

Yet the same Jefferson, in drafting the Virginia legislation on religious liberty some sixteen years earlier invoked the name of “Almighty God” who created “the mind free” to substantiate and legitimate the claim that,

all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

In September of 1960, Senator Kennedy argued before the protestant ministers that the “real issues” of the campaign were being obscured by the fact that he was a Catholic and no Catholic have ever been elected President of the United States. But to allay their fears about a Catholic President, he stated,

I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishoners for whom to vote—where no church or church school is granted any public funds or political preference—and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him… I ask you tonight to follow in that tradition—to judge me on the basis of my record of 14 years in Congress—on my declared stands against an Ambassador to the Vatican, against unconstitutional aid to parochial schools, and against any boycott of the public schools (which I have attended myself)—instead of judging me on the basis of these pamphlets and publications we all have seen that carefully select quotations out of context from the statements of Catholic church leaders, usually in other countries, frequently in other centuries, and always omitting, of course, the statement of the American Bishops in 1948 which strongly endorsed church-state separation, and which more nearly reflects the views of almost every American Catholic. I do not consider these other quotations binding upon my public acts—why should you? But let me say, with respect to other countries, that I am wholly opposed to the state being used by any religious group, Catholic or Protestant, to compel, prohibit, or persecute the free exercise of any other religion. And I hope that you and I condemn with equal fervor those nations which deny their Presidency to Protestants and those which deny it to Catholics. And rather than cite the misdeeds of those who differ, I would cite the record of the Catholic Church in such nations as Ireland and France—and the independence of such statesmen as Adenauer and De Gaulle… If I should lose on the real issues, I shall return to my seat in the Senate, satisfied that I had tried my best and was fairly judged. But if this election is decided on the basis that 40 million Americans lost their chance of being President on the day they were baptized, then it is the whole nation that will be the loser, in the eyes of Catholics and non-Catholics around the world, in the eyes of history, and in the eyes of our own people.

In April of 1963, then President Kennedy delivered an address at Boston College (then a school largely attended by young Catholics and owned by the Jesuit order), in which he spoke about peace in the world and referred to Pope John XXIII’s encyclical letter Pacem in Terris, which had been promulgated less that two months earlier. This is what President Kennedy said after being elected to the White House:

In this hope I am much encouraged by a reading in this last week of the remarkable encyclical, “Pacem in Terris.” In its penetrating analysis of today’s great problems, of social welfare and human rights, of disarmament and international order and peace, that document surely shows that on the basis of one great faith and its traditions there can be developed counsel on public affairs that is of value to all men and women of good will. As a Catholic I am proud of it; and as an American I have learned from it. It only adds to the impact of this message that it closely matches notable expressions of conviction and aspiration from churchmen of other faiths, as in recent documents of the World Council of Churches, and from outstanding world citizens with no ecclesiastical standing. We are learning to talk the language of progress and peace across the barriers of sect and creed. It seems reasonable to hope that a similar process may be taking place across the quite different barriers of higher learning. (Italics mine)

I do not think that either of the two statements of two former presidents are in conflict with one another. However, I do think that they reveal that the same person who is seeking public office (and wishes to retain it) would not want to be held to the views expressed in only one speech given to one influential group. They were not foolish enough to do that, and I do not think the American public is imprudent enough to believe that. I look forward to hearing and studying Governor Romney’s address later today. I may be proven wrong, but I do not think that what he will say today will be the only views he will express about the role of religion in public life.    RJA sj

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive