Thanks to Susan for her response to my post about the (very interesting) UK case holding that a Jewish school could not, in keeping with laws against race-discrimination, apply Orthodox rabbinical standards as to who is Jew in its admissions policies. Susan writes:
This case involved a child who was not considered Jewish because his mother converted to Judaism after his birth. Except in that technical sense, the child was Jewish in the sense of being raised in a Jewish home by parents who clearly wanted him educated into their faith. It is hard to see how keeping such a child out of the school is necessary to maintain the school's "ethos."
In my view, this is one of those "who decides" question, rather than a question about whether I -- I'm not Jewish, let alone a Jewish authority -- think that "keeping such a child out of the school is necessary to maintain the school's 'ethos'." If the question is "what decisions are necessary, by a religious institution, to preserve that religious institution's ethos," I'm reluctant to let civil authority have much (if any) of a role in second-guessing the answer that the religious institution gives. What, after all, would be the justification for such second-guessing (even if we suspect that the religious institution's answer is (by what standard?) wrong)?
Susan also writes, with respect to the commentator, Mr. Moore, to whom I linked in my post:
Although Rick didn't quote this part of Moore's piece, I was also bothered by Moore's treatment of the difficulty to deciding when the law should interfere with religious decisions. For Moore the answer is clearly no in this case, but clearly yes, when the issue is "resist[ing] Islamist attempts to advance the cause of sharia as a way of creating a parallel legal order (oppressive of women) in this country." Why is it so clear that these should be treated differently? Why are the school children deprived of a particular education less oppressed than women under sharia? Maybe there is a good difference, but demontrating that requires more than a mere assertion.
I agree that more than a "mere assertion" is required, but it does seem to me that, at the end of the day, refusing to second a Jewish school's admissions decision (no child has a right to be educated at particular Jewish -- i.e., non-state -- school, do they?) is importantly different from allowing "Islamist attempt[s]" to operate a parallel legal order in a way that did deprive (say) women of that to which they have a right (i.e., protections against coercion and violence). No?
A former student of mine, and an MOJ reader, sends in these thoughts:
I think Prof. Stabile is right to recognize that there is or may be a different chain of reasoning used to support hiring Jewish teachers versus admitting Jewish students to this school. On a foundational level, however, I think both decisions are well rooted in the autonomy proper to private institutions as the West as traditionally recognized it. A private institution, whether religious, educational, both, or other, worthy of the name chooses its membership itself on whatever basis it deems proper - whether that determination appears imprudent, silly, or "technical" to outsiders. (I will admit that for myself the school's decision does seem "technical" to the point of being uncharitable and/or divisive. But I have very little understanding of Jewish culture and maybe this is something important to them.) The institution does not derive its creative authority from the government but from the individuals that make it up and therefore the government has no business telling the group who it should and should not admit.
This approach certainly has its costs, as shown here where a young boy, probably very deserving in every other respect, would be denied access to one particular source of a quality education. But this boy had no claim, in justice, on that education as far as we know. The school was not built, maintained, and funded by the taxes of his parents, grandparents, or fellow citizens. He was not defrauded from entrance, he simply didn't meet the explicit if exacting requirements; requirements set up long before his case arose. There are plenty of other schools around, and it is no great legal tragedy not to get into the school of your desire. Sad perhaps, but not unjust (not giving to one his due).
The UK Supreme Court's decision, however, is unjust. It does not give the religious institution its due. This decision continues the trend in the West of breaking down the civil society that binds individuals and groups together by a thousand threads and in the aggregate stands as a source of civil authority distinct from the government. See, e.g. Bowling Alone, It Takes a Family, Democracy in America, etc. The breakdown of these mediating institutions is a far greater danger to the liberty of that boy than being denied access to a Jewish primary school, however superior its education. It is even more disturbing that the institution is a religious one, whose entrance requirements are now deemed "racist."
Another reader sends in this:
First, I doubt that Orthodox Jews would agree that their laws, such as those of descent, birth, or kosher dietary laws, could be or should be reduced to "technicalities" that the State is authorized to waive when it desires. Second, and more substantially, what would happen if / when the state does force the school to accept this child? Surely, part of this child's education is that one is Jewish only when a certain set of conditions is met, and "M" will surely realize that, according to the school and likely many of his peers there, he is not, in fact, Jewish. [Should] the UK government . . . intervene to adjust that part of the curriculum accordingly?
Rick talks about the UK case holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies, quoting Charles Moore's critical commentary of the decision.
While I share some hesitation in treating actions like this as race discrimination, I think one needs to do more than Moore does to explain why it is important to allow religious schools to be "free to prefer to admit children from the relevant faith." More clearly sees no difference between a religious school's preference in hiring teachers of its faith and admitting students of its faith. Although neither issue strikes me as crystal clear, my inclination is to think the answers to those two questions are not necessarily the same.
More suggests a student preference is necessary "to maintain the ethos which is so important to its success as a school." It seems to me hard to make that argument on these facts. This case involved a child who was not considered Jewish because his mother converted to Judaism after his birth. Except in that technical sense, the child was Jewish in the sense of being raised in a Jewish home by parents who clearly wanted him educated into their faith. It is hard to see how keeping such a child out of the school is necessary to maintain the school's "ethos."
Although Rick didn't quote this part of Moore's piece, I was also bothered by Moore's treatment of the difficulty to deciding when the law should interfere with religious decisions. For Moore the answer is clearly no in this case, but clearly yes, when the issue is "resist[ing] Islamist attempts to advance the cause of sharia as a way of creating a parallel legal order (oppressive of women) in this country." Why is it so clear that these should be treated differently? Why are the school children deprived of a particular education less oppressed than women under sharia? Maybe there is a good difference, but demontrating that requires more than a mere assertion.
I
am back and my New Year’s
resolution is… to blog more!(Or at
least to try…)As Christmas was
approaching, my Focolare house had plans to go upstate to our conference center
in order to celebrate with a larger group, but we were also flanking one of the
women in my community as she accompanied her mother in her last days.Sensing that the time was close, we decided
to scrap our initial plans so as to facilitate taking turns being together with our friend as she kept vigil over her mom.I
have had many wonderful Christmas Eves in my life, but this was the most
beautiful: standing next to my friend as we assured her mother that Jesus and
Mary were close to her.On Christmas morning
another group went to be with her… and she left peacefully for heaven on Christmas
evening.The wake and the funeral were
filled with this sense of peace.All of
this helped me to discover in a deeper way the meaning of Christmas, which is
closely tied to the whole point of a Focolare house: to love one
another to the point of receiving the gift of Christ’s presence among us and
for the world, “where two or three are gathered in my name…” (Mt. 18:19).It seems like in these moments that reality
takes on an extraordinary depth.
Then
we all shifted gears and went up to the conference center for our annual
retreat.The theme that we are reflecting
on this year is the reality of God as love in our lives, and our response to
that love.I realized that when I am in
the middle of stuff and the messiness of life—struggles, questions, issues, and
just the work of growing in understanding how love can permeate in a deeper way
my work in being a member of a community, a scholar, a teacher, a colleague, a daughter,
a sister, a friend… often in this process it is not always straightforward to
see God’s love at work.What came to my
soul at the end of the retreat was that exchange between Jesus and Martha after
Lazarus’s death. (John 11:21-27).When
Jesus says, “Your
brother will rise again,” Martha’s first reaction is, I know that will happen—eventually:
“I know he will rise again in the resurrection at the last day.”Jesus invites her to look again, to recognize
the power of his love in her life not just eventually but also right now, standing
in front of her: “I am the resurrection and the life.”I sensed the Jesus was saying also to me, “Do
you believe this?”It was a wonderful
invitation to look again, to see all of the ways in which the life of the Risen
One is at work right now, even in the midst of the struggles.Not a bad way to start the new semester!
So I
guess with that, also a New Year’s wish that our little “Mirror of Justice”
community can this year discover in a deeper way how in the midst of our
conversations in which differences often emerge, and as we engage the messiness
of our culture, that we can look again to see all of the ways in which God is
loving us, and at work in our lives.Happy New Year, and happy new semester! Amy
An important question for both religious-freedom law and civil society is whether religious organizations can receive funding to provide social services without having to compromise their religious character in doing so. The Bush Justice Department issued an opinion concluding that organizations receiving government funding could invoke the Religious Freedom Restoration Act (RFRA) to challenge funding conditions that conflicted with their religious tenets or identity. Now the Obama DOJ has proposed reversing a set of liberal adovcacy groups have urged that the Obama DOJ reverse that interpretation. In response, in this memorandum letter, religious-liberty expert Doug Laycock, in his typical incisive way, explains why RFRA should be held to protect the organization.
CORRECTION TO ORIGINAL POST: see strikethrough above and the language following it. Thanks to Stanley Carlson-Thies at the Institutional Religious Freedom Alliance for pointing out my synapse misfire.
I'm always curious to see how scholars articulate (or fail to articulate) what "human dignity" means, especially in non-religious contexts, and to figure out what work the concept is doing for them. Markus Dubber has posted a short essay on dignity in penal law. Here's an excerpt:
American penality continues to operate as an exercise of the sovereign’s “police power,” which regards the objects of governance as human resources within the state household, rather than as persons defined by their capacity for self-government, or autonomy. Dignity, properly defined, is personal—rather than social—dignity, which is owed persons qua persons. Insofar as autonomy is the fundamental principle of legitimacy of a liberal democratic state, in the United States and elsewhere, a system of penal law is only legitimate if it always also regards its objects as legal subjects, i.e., as persons who possess the capacity for autonomy and, therefore, dignity.
Equating dignity with the capacity for autonomy is hardly unusual (at least since Kant), but I'm more interested in the sharp distinction between "personal dignity" and "social dignity." If Prof. Dubber is definining "social" as "collective," then I see the need for the distinction, but if "social" is equivalent to "relational," then I'm not so sure. The more I think about human dignity, the less comfortable I am defining it without reference to human relationships, especially in an area such as criminal law.
Apparently so, in the United Kingdom. MOJ-friend Aidan O'Neill sent in a note, a few weeks back, with this report:
a Jewish school is held to be not permitted to apply Orthodox rabbinical standards as to who is Jew in its admissions policies. Application of the requirement that prospective pupils require to have mother born a Jew, or dully converted to Orthodox Judaism, is held to constitute direct race discrimination.
At least one commentator finds the decision extremely troubling. In this piece("Our human rights culture has now become a tyranny"), Charles Moore writes:
The court is effectively saying that a religion's way of defining its own membership, practised over 3,500 years, is illegal. This is an acute problem for Jews, who are at great pains to maintain their own rules while respecting the law of the land. It will also be used by anti-Jewish groups, which are growing in strength, to bolster their argument that Judaism is racist and that the state of Israel is the equivalent of apartheid South Africa. So the Race Relations Act, set up to help minorities, ends up punishing them.
I would argue that the judgment goes wider still. It is part of a current idea of equality and of human rights which, in the name of freedom, is beginning to look like tyranny.
When you set out general principles about equal treatment for all, regardless of race, religion, sex, age etc, people will tend to agree with them. It is a liberal principle that all are equal before the law, and a Christian principle that all are equal in the sight of God.
But when you frame endless laws according to these universal principles, you run into difficulties. It may be "discriminatory" for a Jewish/Catholic/Muslim school to prefer to employ Jewish/Catholic/Muslim teachers, but isn't it also reasonable? Isn't it fair and natural that a religious school should be free to prefer to admit children from the relevant faith, in order to maintain the ethos which is so important to its success as a school? By what morality are such things wrong? . . .
Last October, the American Law Institute, the group that established standards for the death penalty in America, voted to withdraw its support of the practice it helped to define. This decision, according to New York Times columnist Adam Liptak, "represents a tectonic shift in legal theory." In his most recent column, he descirbes it as the single most significant development surrounding the death penalty in the past year.
A study commissioned by the institute said that decades of experience have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections.
Not too long ago, Sen. Feingold proposed not too long ago that the federal death penalty be abandoned. What happened to this effort? Does anyone know?
The number of registered cases of euthanasia rose by 200 to some 2,500 in 2009, according to new figures from the official monitoring body, quoted in the Telegraaf.
It is not known how many cases of mercy killing there actually are in the Netherlands, but in 2007 experts said around 80% of instances are registered with the monitoring body.
There were also six registered cases of euthansia on elderly patients with senile dementia, all of whom were in the early stages and able to make their wishes known, the monitoring commission chairman Jan Suyver told tv programme Nova.
Euthanasia for cases of dementia has been officially recorded since 2003. In total, 22 cases have been registered and approved by the commission.
As our own Susan Stabile reminds us, at her other (wonderful) blog, today is the Feast of St. Elizabeth Ann Seton, my daughter Libby's patron and a saint whom all of us who care about Catholic schools (as all of us should) should call upon often. Susan writes:
Today the Catholic Church celebrates the memorial of Saint Elizabeth Ann Seton, the first US-born canonized saint in the Catholic Church. Mother Seton, as she was called, was one of the women I remember learning about in my Catholic grade school (although she had not yet then been canonized).
Elizabeth was born into a prominent Episcopal family in New York City and married the son of a wealthy New York mercantile family with international connections. As a young society matron, she enjoyed a life that included loving service to her family (she and her husband had five children) and care for the poor. (She and her sister-in-law became known as the “Protestant Sisters of Charity.”)
Near the end of the eighteenth century, political and economic turmoil took a severe toll on Elizabeth’s husband’s business and on his health and he became increasingly debilitated by tuberculosis. Hoping to improve his health, Elizabeth and her husband traveled to Italy. However, on their arrival, they were placed in quarantine and her husband died soon thereafter, leaving Elizabeth, then 29 years old, a widow with five children.
While waiting to return to the United States, Elizabeth spent several months with a Catholic family who had been business associates of her late husband. She was affected deeply by her experience of the family’s Catholic piety and began learning more about the faith. She returned to New York in June 1804 and a year later made converted to Catholicism, a choice that resulted in financial struggle and social discrimination. After receiving her First Communion as a Catholic, she proclaimed, “At last God is mine and I am His!…I have received Him!”
Elizabeth opened a school in New York City to support her children. Eventually, the school’s good reputation resulted in an invitation to open a school for girls in Baltimore. In June, 1808 she moved with her family to Baltimore to open the school. Ultimately, Catholic women from along the east coast came to join her work, leading to the establishment of the Sisters of Charity of Saint Joseph. Elizabeth became the first superior of the congregation and served in that capacity until her death.
Widow, convert, single mother, educator and religious leader. Today we remember Elizabeth Ann Seton.
Here is my First Things review of David Novak's recent book, In Defense of Religious Liberty. A bit:
[T]o mount a serious defense of religious liberty, one must understand what that liberty is and why it is worth protecting. But reaching such an understanding has proved, for more than a few contemporary scholars, harder than it sounds. One senses in current academic conversations a desire, perhaps just a vestigial one, to protect religious liberty in and through law, but also a reluctance or inability to explain why we should. One of Novak’s important and timely tasks is to do just that. . . .
Novak’s focus, in his Defense, is on . . . the “freedom of a religious community to bring its moral wisdom to the world”—to “sing the Lord’s song on strange ground.” It is a freedom that is “exercised for the world, even though many in the world may resist it.” So often, discussions and debates about law, religion, and policy are animated by a concern about keeping religion in its place and cataloging the circumstances in which religion is to be permitted to make its claims and present its vision. Always lurking, it is thought, is the danger that religion will be “imposed” on the civic, the political, or the secular. Novak’s case, though, is again consonant with John Paul II’s: “The Church proposes; she imposes nothing.”
“Make no mistake,” Novak warns, “religious liberty is being seriously threatened today.” Religious liberty, “the claim that a historically continuous ethical community makes upon a secular polity,” is vulnerable and this vulnerability is easy to miss because we so often think of religious liberty exclusively in terms of privacy and individual exemptions. We imagine that, so long as we are permitted to be “personally spiritual,” liberty is alive and well. But as Novak insists, “Becket was not martyred because he was ‘spiritual.’” Religion makes claims, and religious liberty necessarily includes the liberty to make them. . . .
