I appreciate Prof. Wertheimer's response to my last post on the U.K. decision. She is correct, I think, to remind us that one danger to keep in view whenever one thinks about public funding of religious organizations and their work is the possibility that the regulatory strings which are often attached to this funding may undermine the organizations' ethos and mission. It is also important to remember, though, that there is no reason, in principle, why the political authority must attach such strings to (say) school vouchers, or even to direct funding of religious schools (which do, after all, provide the political community with a valuable "secular" product).
Prof. Wertheimer says that "the problem here . . . is that access to a publicly-funded education in a Jewish school is being limited by one branch of the religion, resulting in the exclusion of members of other branches." That could be a problem, if the government is denying funds or public support to other Jewish schools (schools that apply different standards), or making it difficult for such schools to open, or requiring publicly funded schools to employ Orthodox standards. But, I do not see why -- in principle -- the fact that the school (which, while it is publicly supported, is, I assume, non-state) employs a standard that, in practice, "exclu[des] . . . members of other branches" is a problem.
Finally, Prof. Wertheimer writes:
[T]his entire discussion seems to underline the wisdom of keeping government and religion apart. The simplest answer--and one that eliminates any risk of government interference in religion--may be that the government should cease paying for or financially supporting religious schools in the first place. If the government were not supporting the schools, the problem of government interference in religious standards would not arise, and the parochial schools of Britain could set their own admission criteria without any government oversight.
Like Patrick Brennan, I am entirely committed to the wisdom of respecting the distinctiveness, and the independence, of political and religious authority. To distinguish between "church" and "state", though -- as we should -- is not to rule out cooperation between the two on matters of shared concern (e.g., education), nor is it to imagine that "government" and "religion" should (or can) be kept apart. Because political communities are inhabited by human being, and because most human beings are, and probably will continue to be, formed and motivated by religious communities and commitments, the goal needs to be the construction of policy that respects religious liberty, and enforces political equality, not a regime that attempts to impose on human persons an unhealthy (and, again, impossible) dis-integration of religious faith and involvement in the political community.
Is it the "simplest answer" -- "one that eliminates any risk of government interference in religion" to say "that the government should cease paying for or financially supporting religious schools in the first place"? Perhaps. Isn't it even simpler, though to say government should cease paying for all education (rather than constructing a system where some schools are funded and others -- religious ones -- are not)? In any event, the removal of public support would not, I fear, "eliminate[] any risk of government interference in religion". Even if religious schools do not accept public funds, there are many who believe that they should be required to observe the same non-discrimination rules that (appropriately) constrain governments.
In any event, I appreciate the conversation with Prof. Wertheimer.
UPDATE: MOJ friend (and expert in U.K. human-rights law) Aidan O'Neill sends in this:
I’ve been following the commentary on the JFS School decision on MoJ and I fear that from the comments so far you have all got it rather wrong in viewing this case as having anything to do with relations between the State and Synagogue/Church/Mosque/Temple and/or the wisdom of strict disestablshmentarianism
In the first instance, the case is an intra-Jewish dispute brought by one private individual against another private institution. It does not matter . . . that the school was a recognised “faith school” and received some funding and financial support from the Government, nor does it matters whose ancestors founded and paid for it. The case could have been brought were the school a private one wholly independent of any Government funding (e.g. in English counter-intuitive terminology “a public school”). The prohibition on race discrimination applies to private schools just as much as those receiving public funding.
Secondly, the case was brought under the Race Relations Act, a UK statute which was passed in the early 1970s around about the same time – and a part often same social movement – which brought the UK the statutory prohibition against sex discrimination and the right to equal pay. The notion of “race” has for many years been given a very broad and purposive construction by the courts on the basis that racism is considered to be a great evil. This has resulted in for example the Scottish appeal court finding in BBC Scotland v. Souter, 2001 SC 458; [2001] IRLR 150, IH – and contrary to the position I was arguing for as counsel for the BBC n the case - that the Scots and English are to be regarded as different/distinct races for the purposes of the legislation - as are gypsies/travellers/Romany.
But there was, for years, no express prohibition against discrimination on grounds of religious belief or practice and so, anxious to plug that supposed gap in the legislation, the courts held that Sikhs and Jews could be said to be distinct ethnic groups (but not Rastafarians). So the statutory prohibition against anti-Semitism in this country has, faute de mieux, been held to be encompassed in the prohibition against race discrimination.
The prohibited grounds for discrimination have in more recent years since been expanded to include disability, sexual orientation, religion or belief, age, and trans-gender/sex, but the older law still applies and it was this older law which was being applied in the JFS case.
The problem was that the JFS (Jewish Free School) adhered to an admissions policy which avowedly took into account, not practice or beliefs but (matrilineal) descent from what UK law already recognises as a particular ethnic group. In effect the protection given against anti-Semitic/Judaic words and action is double-edged ( or one might describe it as blindly impartial) in that it not only does it prohibit anti-Semitic action but might be said to prevent explicitly philo-Semitic action. None of the judges were happy with this result and clearly wished that they had not been involved in this inter-familial/religious dispute but they have to apply the law. If the school had applied faith/belief/practice criterion (e.g. coming from an observant house-hold) its admissions policies would have passed muster. But in applying a policy based on in effect the ethnicity of the mother of the pupil – albeit for religious reasons – the school breached race discrimination law.
I understand, I think, what Aidan is saying, but also think that we can concede that the U.K. court "applied the law" and that the relevant law here -- which imposes on this religious organization a distinction that the organization does not appear to endorse (i.e., "being Jewish" and "having certain Jewish beliefs") -- is troubling. Thanks to Aidan for writing in.
The latest Law School Survey of Student Engagement is getting press for its finding that more law-school students (even those with high debt loads) are responding to the economic situation by seeking more lower-paying public interest jobs. Since the higher-paying jobs are becoming more scarce, that's hardly a surprising finding. But it's certainly something that ought to be in the forefront of our minds, as law professors, when we think about the sorts of things Rob raises concerning tuition increases, student debt loads, and the "mission" of Catholic law schools.
And some of the other findings ought to present personal challenges to all of us, whether at Catholic law schools or not, committed to living our faith commitments in our professional lives. As summarized in today's Chronicle of Higher Education":
Among the report's other findings:
- Students who
are not involved in extracurricular activities study less than their
peers and more frequently come to class unprepared.
- More
than one-third of all law students say that their legal education
places little emphasis on acting with integrity in personal and
professional settings.
- Only about half of all law
students frequently receive feedback from their professors that is
helpful to their academic development.
- One in 10 law
students say they never receive feedback from professors that
stimulates their interest in the study or practice of law.
- Male
students are more likely than female students to receive oral feedback
from professors, both during class and outside of class.
Michael J. Perry, Emory University (School of Law); University of San Diego (School of Law and Joan B. Kroc School of Peace Studies, 2009-2012)
Abstract:
At the beginning of my career as a law professor, in the mid-1970s, I
was principally engaged by—and I remain engaged by—constitutional
controversies closely aligned with moral controversies: the
constitutional controversy, for example, over laws banning abortion. (I
have also been engaged by the related question of the courts' proper
role--especially the U.S. Supreme Court's proper role--in resolving
such controversies.) I was soon confronted by the question of the
proper relationship of morality to constitutional law. Because for most
citizens of the United States morality is religiously grounded, another
question—one that would become for me a scholarly obsession—quickly
came into view: the proper role of religion in the politics and law of
a liberal democracy. Before long I was in the grip of this large
question: Can any worldview that is not religious support—embed—the
twofold claim to which liberal democracy is, as such—as liberal
democracy—committed, namely, that each and every human being has equal
inherent dignity and is inviolable?
I
can now see, in retrospect, that each of the principal questions that
have engaged me over the course of my career concerns one or another
aspect of the political morality of liberal democracy; in particular,
each question concerns either (a) the grounding, (b) the content, (c)
the implications for one or another political-moral controversy, or (d)
the judicial enforcement of the political morality of liberal democracy.
In
my new book, The Political Morality of Liberal Democracy (Cambridge
Univ. Press, 2010), I address all four aspects: grounding, content,
implications—in particular, implications for the political-moral
controversies over abortion and same-sex marriage—and judicial
enforcement. In the book, I am particularly concerned with the
proper--and properly limited--role of religious faith in the politics
and law of a liberal democracy.
Those interested in seeing the
table of contents and reading the introduction to The Political
Morality of Liberal Democracy can download this document, here.
[Update: The paper is *now* available for download. Sorry about that.]
Tuesday, January 5, 2010
Ellen Wertheimer asserts that she has demonstrated the "wisdom " (sic) of keeping religion and government "apart." Rather than belabor my point, I'll just note that some *responsible* and *respected* theories of "government" teach that, while church and state are indeed distinct ("two there are"), government's role *includes* serving (because government is all about service, at least in the Catholic tradition as I understand it) people, including those who practice "religion," i.e. are religious (including by being and operating as church, including by running distinctive schools). Yes, the *responsible* and *respected* theories I allude to are contested, but no more so than the one(s) on which Prof. Wertheimer implicitly relies. QED
Professor Ellen Wertheimer sends this response to Rick's reaction to her earlier comment on the UK decisio: holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:
It is certainly possible that the court and the Orthodox community that seems to have set the standards for admission to the school are talking at cross-purposes. Perhaps the problem is that the governmental entity that supports the schools allowed the use of the Orthodox definition of who is Jewish in the first place. Under the Orthodox definition, a practicing and confessional Catholic who has one Jewish grandparent is a Jew if that grandparent were his or her mother's mother, while a practicing Jew whose mother's mother converted to Judaism in a Reform ceremony is not a Jew, even though the other three of his or her grandparents are Jewish, and even though both of his or her parents practice that religion. Of course, I do not question the right of any branch of Judaism to set the standards of who is a Jew in the first place; the problem here, though, is that access to a publicly-funded education in a Jewish school is being limited by one branch of the religion, resulting in the exclusion of members of other branches.
In any event, and be that as it may, this entire discussion seems to underline the wisdom of keeping government and religion apart. The simplest answer--and one that eliminates any risk of government interference in religion--may be that the government should cease paying for or financially supporting religious schools in the first place. If the government were not supporting the schools, the problem of government interference in religious standards would not arise, and the parochial schools of Britain could set their own admission criteria without any government oversight. Of course, the principles of separation of church and state that we follow in this country do not necessarily translate to Britain, which has (in theory) an established religion, but it does not follow that the government of the UK has to pay for parochial education for any of its subjects.
With all due respect, the
comments of Prof. Wertheimer only increase my concerns about the decision we are discussing. I do not see it as reducing our reasons for concern that the mother's conversion to Judaism was acceptable to some branches of Judaism, but not others. If the (non-state) religious institution in question -- one that, I am assuming, decided to embrace the Orthodox standards -- applies, in keeping with its own understanding of an authentic Jewish "ethos", those Orthodox standards, it strikes me as (way) out of line for the government to (in effect) decree that, in the government's view, the Orthodox standards are less worthy of deference than (say) Reform standards, or that "him that says, is." (In expressing these concerns, I am -- of course -- not presuming to have an opinion on which branch of Judaism correctly understands what it means to be, and what is required to be, Jewish.)
Professor Ellen Wertheimer at Villanova Law School shares these thoughts in response to our recent posts on the UK decision holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:
I want to caution those on Mirror of Justice against over-reading the decision. As I understand the case, the mother of the student at issue had in fact converted to Judaism in a ceremony that was acceptable to Reconstructionist, Reform, and Conservative Judaism. It was not an Orthodox conversion, which meant that the Orthodox branch of Judaism did not view her as Jewish.
My father, as it happens, was a Jewish refugee from Nazi Germany. For him, the idea that Jews were a race was utterly repellent as having been the basis Hitler used for the genocide that he planned and carried out. At least some of the original founders of Israel agreed with this. When asked, "who is a Jew,?" the response was "Him that says, is."
In any event, the opinion rejects any principle that would base religious identity on heredity, focusing instead on belief and action.
