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.

Saturday, October 17, 2009

The Virtue of Enough

By Susan Stabile

Today I participated in the St. John's University Vincentian Chair of Social Justice Poverty Conference, the Vincentian Center's 6th biennial povertty conference.  The theme was Extreme Wealth and Poverty and the Virtue of Enough.  I moderated the opening plenary session, Globalization, Development and Poverty: The Crisis of Ethics and Economics, which featured talks by Drew Christensen, S.J., Editor-in-Chief of America magazine, and H.E. Oscar de Rojas, fomer director of the Financing for Developing Office of the UN Department of Economics and Social Affairs.  That session was followed by a second plenary panel that presented international perspectives on globalization and the effects of the economic crisis on both the wealth and the poor.  The afternoon featured concurrent workships on topics ranging from the environment to mental health in stressful times to how we define poverty and measure progress in today's world.

I was captivated by the theme of this conference as soon as I heard it.  The virtue of "enough."  As Christensen pointed out in his talk, "enough" is not listed as one of the virtues.  However, it is implicit in much of Catholic teaching.  The goods of the earth, provided by our loving God, are destined for all and when are our needs are satisfied, we are obligated to share the rest.  If we all consume what we need and share the rest, there will be enough for all.  It is actually a pretty simple concept.

Christensen went on to talk about the various cultural forces that have contributed to a loss of a sense of enough, a loss of a willingness to modify our lifestyle for the sake of the common good...an unwillingness to have less so others can have enough.

What went through my mind as I was listening to both of the opening speakers this morning, but particularly Christensen, was the language of policital discussions over health care reform, in particular, the efforts to persuade those who currently have care that plans to secure universal access will not have any effect on their existing coverage.  In the short term, that may be a politically expedient message.  However, it seems to me that it is a message that feeds into an attitude of greed vs. generosity and of me vs. you.  Beyond the specific issue of how we deal with health care reform and much more broadly with respect to worldwide issues of hunger, lack of clean water, etc., I wonder from where might come the leadership to stand up and say: We have a human obligation to make sure everyone has enough.  And (more boldly) it just may be that some people have to accept less so that others may have enough. 

Further Response to Rob

By Steve Shiffrin

I, of course, agree with Rob regarding the executioner, but not with the Massachusetts justice of the peace. The justice of the peace can perform most marriages and sufficient alternatives exist for the remaining marriages.  It is distinguishable from the executioner.  I do not think the conscientious JP should be paid for work not performed and I think that the result should probably be different if the JP could as a matter of conscience perform only a minority of marriages.

How much work can the unconstitutional conditions analysis do?

By Rob Vischer

Regarding Steve's response, if a state where the death penalty is legal looked to hire an executioner, would an applicant who is conscientiously opposed to the death penalty have a legitimate claim to that job?  Requiring the waiver of the applicant's freedom of conscience wouldn't be an unconstitutional condition in that scenario, would it?  The object of the applicant's conscience claim is too wrapped up with the central duties of the job.  Maybe the unconstitutional condition analysis would work with Louisiana justices of the peace, who (I think) have a fairly broad set of responsibilities, but what about Massachusetts, where (I think) justices of the peace are primarily charged with performing marriages? Isn't the justice of the peace applicant who refuses to perform same-sex marriages a lot closer to the state executioner applicant who refuses to participate in the death penalty?

Unconstitutional condition

By Steve Shiffrin

For what it's worth, in my view the statute described by Rob should be declared unconstitutional as applied to those whose freedom of conscience would be impaired. In the language of one line of cases, it should be regarded as imposing an unconstitutional condition: you can not be a justice of the peace unless you are prepared to waive your freedom of conscience in pursuing on the job activities.

Question for Robby and Steve on conscience

By Rob Vischer

I probably should be concerned that Steve Shiffrin and Robby George are united in disagreeing with my assertion that liberty of conscience should not empower a justice of the peace to refuse to marry a same-sex couple in a state where such marriages are legal.  So I'll take it from a different angle: to what extent is your support of the justice of the peace's right of conscience in this scenario freestanding and absolute, and to what extent does your willingness to recogize the right of conscience flow from the fact that the rules of the game have changed while the person is already on the job?  Suppose that Massachusetts advertises for justice of the peace openings by notifying applicants that

"Justices of the Peace have the duty to solemnize the marriages of all applicants who meet the statutorily prescribed criteria for marriage.  This includes same-sex couples." 

Should I be deemed qualified to serve as justice of the peace even if I state my categorical refusal to marry same-sex couples?  In other words, when does the liberty of conscience become a license to rewrite one's job description?

And Robby is correct that SSM laws are certain to affect individuals and groups beyond the participants in those marriages.  Those who insist otherwise are being naive or disingenuous.  That's why strong religious liberty protections are so crucial, but I do draw a line between protections that eviscerate the state's ability to effectuate its laws through its designated agents, and protections that prevent the state from effectively designating all market providers as its agents.

Conscience, Justices of the Peace, and Associational Hiring

By Steve Shiffrin

For what it is worth, I think justices of the peace should be able to refuse to marry individuals if their consciences would be violated even if a justice holds the view with respect to interracial couples. (As described, the JP in Louisiana has not put forward a reason grounded in moral obligation). In my view, the Smith case elevates considerations of judicial administration over freedom of conscience. I do not think freedom of conscience should always prevail (e.g., human sacrifice), but, to my mind, as a normative matter the justice of the peace cases are easy even though I think in the case of race and sexual orientation that the posited justices have ill-formed consciences. Freedom of conscience should be protected whether or not the conscience has arrived at the right moral conclusion.

I also agree with Rick that associations should be able to condition membership or employment or religious grounds (whether we call it discrimination or “hiring to mission”).   But I do not think it helpful to describe associations as having a conscience. The source of right here would be religious autonomy. At the same time, I think hiring on religious grounds should count against an association in receiving public funds. As John DiIulio puts it, the difference between a faith based and a faith saturated organization is important. No public agency hires on religious grounds, and government can reasonably require that private agencies receiving public funds not employ religious conditions for their clients or their employees. On the other hand, although I think that establishment clause considerations should lead us away from subsidizing such organizations, I think those considerations should not be dispositive in all cases. Vouchers to religious schools should be permissible in some limited circumstances if appropriate criteria are met. For discussion, see Chapters 5 and 6 of (hot off the press), Shiffrin, The Religious Left and Church-State Relations, http://press.princeton.edu/titles/9088.html.

Conscience and Consequences

By Robert George

Someone who holds, as I do, that the racist justice of the peace in Louisiana who refuses to perform marriages of interracial couples should not be permitted to retain his job is not logically committing himself to the proposition that a justice of the peace or other official in a jurisdiction that recognizes same-sex or polyamorous partners as eligible to marry should not be able to retain his job if he refuses, as a matter of conscience, to participate in same-sex or polyamorous ceremonies. One need not adopt the view that officials must either be free as a matter of conscience to refuse to perform any marriages they happen, however unreasonably, to disapprove of, or be required to perform any marriages that are lawfully permitted.  Different cases are distinguishable in various important respects.  Still, I suspect that most advocates of redefining marriage believe that, once marriage is redefined as they wish it to be, those officials who cannot in conscience perform certain marriages should, as Rob Vischer puts it, "find another line of work."  I find this extremely interesting and instructive.  It means that if proponents of redefining marriage get their way, many faithful Catholics, Evangelical Protestants, Eastern Orthodox Christians, Mormons, Orthodox Jews, Muslims, and others would not be eligible for certain public offices.  It puts the lie to the claim, never really plausible, yet very often repeated, that no one would be adversely affected or suffer any injury to their opportunities or interests if the law were to be revised to recognize as marriages (or give some other form of legal recognition to) same-sex partnerships.  (By now everyone has heard the argument that says, "How does it affect you if the two men or two women living next door have their relationship recognized as a legal marriage?  It would have no impact on you at all.")  This is something that citizens in states where redefining marriage is at issue should bear in mind in considering how they should vote and where they should stand.  When some proponents of redefining marriage assure them that there will be no consequences for anyone who happens to object on moral grounds to the recognition of same-sex partnerships as marriages, I hope that others on their side will honestly and candidly admit the truth: among the consequences (though far from the only, or even the most important, one) will be the exclusion of many reasonable people of goodwill from eligibility for certain public positions as a result of their conscientious moral beliefs about marriage.

Friday, October 16, 2009

Defend conscience! (Of the racist justice of the peace?)

By Rob Vischer

To answer Michael's question about the Louisiana justice of the peace who refuses to marry interracial couples: No, I do not believe that he should be legally empowered to exercise his conscience in this way, regardless of how many justices of the peace stand ready to pick up the slack.  He is a public official, not a private actor.  By "public," I do not mean a market actor who sells goods or services to members of the public, I mean a representative of the state whose job is to perform state functions.  (A marketplace provider who is licensed by the state is also not "public" in this sense.)  I would reach the same conclusion about a justice of the peace in Massachusetts who objects to same-sex marriage.  If the state changes the legal definition of marriage, and if my job as a public official is to provide legal services, including the solemnization of marriage, then I must either perform same-sex marriages when requested or find another line of work.

What say you, Rob, about this act of conscience?

By Michael Perry

Interracial marriage.  Same-sex marriage.  Hmm.

NYT, 11/16/09

October 16, 2009

NEW ORLEANS (AP) -- Louisiana's governor and a U.S. senator joined Friday in calling for the ouster of a local official who refused to marry an interracial couple, saying his actions clearly broke the law.

Keith Bardwell, a white justice of the peace in Tangipahoa Parish in the southeastern part of the state, refused to issue a marriage license earlier this month to Beth Humphrey, who is white, and Terence McKay, who is black. His refusal has prompted calls for an investigation or resignation from civil and constitutional rights groups and the state's Legislative Black Caucus.

Republican Gov. Bobby Jindal said in a statement a nine-member commission that reviews lawyers and judges in the state should investigate.

''Disciplinary action should be taken immediately -- including the revoking of his license,'' Jindal said.

Bardwell did not return calls left on his answering machine Friday.

Bardwell has said he always asks if a couple is interracial and, if they are, refers them to another justice of the peace. Bardwell said no one had complained in the past and he doesn't marry the couples because he's worried about their children's futures.

''Perhaps he's worried the kids will grow up and be president,'' said Bill Quigley, director of the Center for Constitutional Rights and Justice, referring to President Barack Obama, the son of a black father from Kenya and a white mother from Kansas.

Obama's deputy press secretary Bill Burton echoed those sentiments.

''I've found that actually the children of biracial couples can do pretty good,'' Burton told reporters aboard Air Force One as it flew to Texas.

Humphrey and McKay were eventually married by another justice of the peace, but are now looking into legal action against Bardwell.

Humphrey said she called Bardwell on Oct. 6 to ask about a marriage license. She said Bardwell's wife told her that Bardwell would not sign marriage licenses for interracial couples.

Bardwell maintains he can recuse himself from marrying people. Quigley disagreed.

''A justice of the peace is legally obligated to serve the public, all of the public,'' Quigley said. ''Racial discrimination has been a violation of Louisiana and U.S. law for decades. No public official has the right to pick and choose which laws they are going to follow.''

A spokeswoman for the Louisiana Judiciary Commission said investigations were confidential and would not comment. If the commission recommends action to the Louisiana Supreme Court, the matter would become public.

U.S. Sen. Mary Landrieu, D-La., said in a statement Bardwell's practices and comments were deeply disturbing.

''Not only does his decision directly contradict Supreme Court rulings, it is an example of the ugly bigotry that divided our country for too long,'' she said.

Tangipahoa Parish President Gordon Burgess said Bardwell's views were not consistent with his or those of the local government. But as an elected official, Bardwell was not under the supervision of the parish government.

''However, I am certainly very disappointed that anyone representing the people of Tangipahoa Parish, particularly an elected official, would take such a divisive stand,'' Burgess said in an e-mail. ''I would hope that Mr. Bardwell would consider offering his resignation if he is unable to serve all of the people of his district and our parish.''

Bardwell, a Republican, has served as justice of peace for 34 years. He said he has run without opposition each time, but had decided earlier not to run again. His current term expires Dec. 31, 2014

A conference in honor of Edward P. Mahoney

By Rick Garnett

Philosophers out there, take note:  Duke University is holding a conference in honor of the work and memory of my former teacher, Fr. Edward Mahoney, a medievalist who taught for years at Duke.  Here are some thoughts I wrote, when he passed away back in January:

My undergraduate degree was in Philosophy.  This was in no small part because of the encouragement and example provided by a wonderful teacher, friend, and priest, Prof. Ed Mahoney, who died yesterday.  (See Brian Leiter's notice here, and the nice memorial at the Duke Philosophy Department's webpage here.) 

"Father Ed" -- a specialist in later medieval psychology, who did important work on the "Great Chain of Being" -- taught me, and many others, Ancient, Medieval, and late-Medieval Philosophy.  He was passionately committed to undergraduate education, and he inspired many of us not only to wrestle with difficult, beautiful texts and ideas, but to better appreciate, in a big-picture way, the medieval vision, mind, and cosmology.  He ruthlessly gave me the worst grade I received in college, delivering a much-needed ego-check, and then proceeded to help me learn, and get me fired up to learn, in a deeper way than I ever would have without him.  He made me think harder, and write better, than I would have, or could have, without his help.  He was my teacher before I knew that he was a Catholic priest, and he later became an advisor, counselor, and mentor.

The news about Fr. Ed made me think -- it reminded me -- of how special a great teacher can be.  I'm sure all of us (I hope all of us!) were blessed, at some point, with such a teacher.  I'm thankful that I was able to tell him how much he meant to me, and that he was able to see, before he passed away, at least some of the fruits of his efforts in my own career.  And I hope I'll remember, in my own teaching, how important it turned out to be, for me, that he took the time and expended the efforts that he did.

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive