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, February 2, 2009

Doe v. California Lutheran High School Assn

By Richard Myers

Rick's post about Doe v. California Lutheran notes that the case is an important religious freedom decision. It is important to note that the decision protects religious freedom indirectly. The California court of appeals concluded that a Lutheran school was not subject to California's anti-discrimination law because the school wasn't a business. The court's holding was based on statutory grounds and it appears that the school did not even raise the argument that the state law would violate its religious freedom if the state law were interpreted to apply to the school and to prohibit the school from taking the disciplinary action in question. The court noted that the school did not raise a religious freedom argument because recent California Supreme Court decisions would not have supported the argument for a constitutionally compelled exemption.

Interpreting the statute not to cover the religious school does protect the school's freedom to act, but the decision makes it clear that this is not a matter of constitutional law but as a matter of legislative grace.

Richard M.

School Choice Indiana

By Rick Garnett

I was delighted to find, in my parish bulletin on Sunday, a letter from my pastor on school choice, and a flier from this organization, School Choice Indiana (co-sponsored by the Indiana Catholic bishops).  It would be great if programs that increase the ability of parents to choose Catholic schools -- not just vouchers, but tax-credits, private scholarship programs, etc. -- could become the focus of bipartisan, "Seamless Garment Party" support.

Sunday, February 1, 2009

Unionizing Catholic schools

By Rick Garnett

This story, out of Scranton, raises tricky questions.

More than 200 supporters, many from regional union locals, joined a noon rally outside Diocese of Scranton Bishop Joseph Martino’s residence to mark the one-year anniversary of the fight to unionize local Catholic school teachers. Scranton Diocese Association of Catholic Teachers President Michael Milz handed out green and black arm bands.

“Black is the color of mourning, and without a doubt we are here for that sorrowful purpose,” Milz said, repeating the claim that Martino rejected more than a century of Catholic Church support for organized labor when he rejected the request to unionize.

Yes, the Catholic Social Teaching tradition "support[s] organized labor."  It does not follow, though, that a Catholic bishop should support the unionization of teachers in the Catholic schools of his diocese.  (Obviously, he should do all he can -- and all Catholics in the diocese should support him, financially, in this effort -- to pay hard-working Catholic teachers a good, just wage.  But unionization comes with more supervision and intrusion by the secular authorities; the Bishop could, quite reasonably, not want to be put in a position of submitting questions about teachers' hiring, firing, promotion, etc., in the hands of others.

An important religious-freedom decision . . .

By Rick Garnett

. . . with a somewhat clunky title:

A private religious high school can expel students it believes are lesbians because the school isn't covered by California civil rights laws, a state appeals court has ruled.

"The whole purpose of sending one's child to a religious school is to ensure that he or she learns even secular subjects within a religious framework," Justice Betty Richli said in the 3-0 ruling, issued Monday.

As with the Boy Scouts, she said, the primary function of the school is to instill its values in young people, who are told of its policies when they enroll.

Kirk Hanson, a lawyer for the two girls, said he was disappointed and would talk to them about a possible appeal to the state Supreme Court.

According to the court, he said, "if you're a religious school, you can discriminate on any basis you want."

He also noted that all children must attend school, either public or private, and said schools serve different purposes from a voluntary organization like the Boy Scouts.

John McKay, a lawyer for California Lutheran, said he was pleased the court recognized that "a religious school is not a business, and the purpose of a religious school is to teach Christian values."

Any state law that required the school to admit gays or lesbians would violate the school's freedom of expression and religion, McKay said.

Turley's anti-Obama screed

By Rick Garnett

Well, this is strange.  Jonathan Turley's recent USA Today screed puts me in the position of feeling compelled to defend President Obama from a deeply misguided attack.  The "argument" is muddled, but familiar:  Rick Warren is a pastor who thinks that his (bigoted, narrow, etc.) religious views have public-policy relevance, Pres. Obama invited Warren to pray at the inauguration, and so we should have "doubts" about Obama's commitment to the "principle of separation of church and state."  Yawn.  (A possible upside:  If the silly "theocracy!" charge starts being levelled at Pres. Obama, maybe that will be the end of the charge.)

Turley writes, regarding the faith-based initiative, "[many people assumed that any Democrat would restore the secular work of government and strive to remove religion from politics."  Hmm.  How, exactly, did these people think that "religion" would, or could, be "remove[d] from politics"?

As I have said before, I worry that Pres. Obama's version of the faith-based initiative will not include the important protections that the Bush Administration's version provided for faith-based hiring.  But, Turley's effort to swirl together his rancor toward Warren, his still-lingering Bush-loathing, and Pres. Obama's own openness to religion in public life misfires badly.

Cardinal Mahoney and honest-services wire fraud (!!)

By Rick Garnett

Putting aside the serious and interesting church-autonomy questions, this use of the wire-fraud statute strikes me (and, I gather from the news, many others) as big-time prosecutorial grandstanding and overreaching.

Abortion and racial equality

By Rick Garnett

The question many have been discussing -- i.e., to what other wrong ought we to compare abortion? -- is an interesting and difficult one.  Putting aside, for now, the question whether abortion is "like" slavery, it does seem clear (to me) that our current abortion regime operates in a way (as, I suspect, Margaret Sanger et al. hoped it would) that reflects, and contributes to, racial inequality and injustice.  Over at the "Moral Accountability" blog, Micah Watson has this essay, which contains some deeply disturbing information.  "The latest data," he writes, "portray a stunning picture of gross racial inequality when it comes to the lives taken through abortions."  Read the whole thing.

   

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