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.

Tuesday, March 30, 2010

Kende on "Quebec and Religion"

My friend Prof. Mark Kende (Drake) has an interesting post, over at the "Comparative Constitutions" blog, "Quebec and Religion":

Legislation has been introduced in Quebec to ban women from covering their faces when seeking or providing provincial services. This would effectively prevent Muslim women needing such services from wearing the niquab, a veil that covers the face. Supporters argue this promotes gender equality and more open interactions between the province’s citizens. Even national liberal party leader Michael Ignatieff (a former Harvard professor) has indicated his general support. Opponents argue this would take away the choice of these women and infringes on their religious freedom. Newspaper articles regarding the issue suggest widespread support in Quebec. There have been several situations already where government related entities in Quebec have refused to provide services. Ironically, one of them involved a woman who was denied the chance to take a French language course. Thus, some supporters have argued the bill would simply clarify existing practices. Whatever one’s position, this proposal seems at odds with a Canadian constitutional theme that the nation takes a "mosaic" approach to diversity, unlike the U.S. "melting pot."

On another Quebec religion topic, I recently learned, from a student and from other sources, that some profanity in Quebec uses Catholic terminology in a derogatory way. This is certainly different from the U.S where most profanity has a connection to sexuality. The veil and the profanity issue both suggest some general skepticism about religion in Quebec, to say the least.

Columbia Pro-Life Symposium

On Friday, April 9, Columbia's School of Law is hosting a daylong, legal symposium, "Looking Back, Looking Forward:  Pro-Life Strategy and Jurisprudence for the 21st Century."  More information is available here.  Our own Amy Uelmen, among many others, will be presenting.

A quick thought in response to Rob

Rob asks, with respect to the Church's possible "blind spots", whether "abuse cases have turned out differently if women were part of the conversation".  I do not know.  But, the shocking evidence of the extent of the sexual abuse of children in public schools -- abuse that tends to be pushed under the rug, underexplored by the press and the bar, and mishandled by self-protecting, powerful institutions, in which women do play important decision-making roles -- seems relevant (in a disappointing way).  Also relevant, perhaps, is the fact that, today -- given the responses of Bishops, diocesan officials, pastors, and lay people to the abuse-revelations -- the Catholic Church is, as George Weigel observed recently, "by empirical measure, the safest environment for young people in America today."  Does this fact reflect, perhaps, the participation of women in developing the response?

"Law and Judicial Duty" Conference

This should be good:  Catholic University's "Center for Law, Philosophy and Culture" is hosting, on April 8 and 9, a symposium on Philip Hamburger's Law and Judicial Duty.  

In his recent book, Law and Judicial Duty, Philip Hamburger traces the early history of what is today called "judicial review." Working from previously unexplored historical evidence, he shows that common law judges had the authority to hold governmental acts unconstitutional, not because of a special power over constitutional law, but only pursuant to a distinctive requirement of the judicial office that generally obligated them to follow "the law of the land." Judges honored their offices precisely by adhering to the "Law." While judges could strike down purported laws as unconstitutional, they did so always bound by a duty as strictly limiting themselves as any other. By reviving an understanding of these common law ideals, Law and Judicial Duty calls into question the modern assumptions that judicial review is a power within a scheme of conflicting powers, or a power, in any sense, to make law. It places in view a very different paradigm of law and judging. The book also sheds new light on a host of misunderstood problems, including intent, manifest contradiction, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent.

This symposium gathers leading scholars in the areas of the history of law and politics, constitutional law, and jurisprudence to take up the challenge posed by Philip Hamburger in his provocative work. From their various disciplinary perspectives, participants enter into in a dialogue with Hamburger over the meaning of the history of the common law, the nature of adjudication, and the true significance of judicial review as we experience it in our constitutional system today.

Church sexual abuse: "Fidelity" is not quite enough

The late Richard John Neuhaus used to emphasize that the priest sexual abuse scandal was about "fidelity, fidelity, fidelity," and George Weigel makes the same point now.  At one level, I agree.  On another level, though, "fidelity" is too simplistic.  Most of my sins stem less from a deliberate lack of faithfulness, and more from a failure to come to grips with my own tendencies to justify my behavior through mental gymnastics that in the end amount to self-delusion.  Giving myself a pep talk every morning about "being more faithful" only goes so far.  That's why relationships of accountability are so important. 

My guess is that most of the bishops who ended up facilitating abuse by keeping serial abusers secret, mobile, and working as priests would never have identified their decisions as a failure of fidelity.  They may have been naive, but a clearer focus on faithfulness to their calling would not have done a whole lot to avoid the crisis.  I think it's important to identify the blind spots that allowed the bishops to mistake their decisions for fidelity, and to persist in that mistaken belief for years and years without correction.  Yes, it is about evil decisions that individual priests made.  Yes, it is about horrible decisions that individual bishops made.  But it is also about the entire Church -- not in the sense of playing "gotcha" journalism to try and bring down Pope Benedict -- but in the sense of asking, what are the Church's blind spots, how did those blind spots contribute to this crisis, and do those blind spots continue to compromise the Church's witness to the world? 

A few more specific questions come to mind along these lines: 1) in an age of greater institutional transparency, to what extent does a continued emphasis on secrecy threaten the Church's witness and the well-being of its members?  What are the implications and limitations of a more transparent Church? 2) if women bring a complementary set of gifts, inclinations, and sensibilities to our shared life, what is the cost of excluding them from leadership roles in the Church -- i.e., might these abuse cases have turned out differently if women were part of the conversation?  (I think Lisa has asked this question before) and 3) why was the Church slower than much (but certainly not all) of the rest of society in recognizing the gravity of child sexual abuse and the limitations of therapy?  Are there other areas where Church practices fall behind the sociological and scientific reality?

Thoughts?  Other questions that need to be asked?

Call for Papers: Religious Legal Theory at St. John's

RELIGIOUS LEGAL THEORY CONFERENCE: RELIGION IN LAW AND LAW IN RELIGION

Center for Law, Religion, and the Global Community

St. John’s University School of Law

New York

November 5, 2010

This annual symposium, to be shared among different law schools and now in its second year, addresses a broad range of topics.  This year’s theme, “Religion in Law and Law in Religion,” encompasses papers on traditional religion/state questions as well as papers that discuss the concept of law in different religious traditions.  Possible topics include: coherence and incoherence in American Religion Clause jurisprudence; comparative approaches to religion/state issues; doctrine and precedent as legal and religious concepts; and the role of authority in law and religion.  Confirmed plenary speakers include Steven H. Shiffrin (Cornell) and Steven D. Smith (San Diego).

Please submit abstracts (500 words) and inquiries to Professor Mark Movsesian ([email protected]; 718-990-5650) by May 24, 2010.  Accepted speakers will be notified by mid-June.  For presenters, group rates at a hotel in Manhattan will be available; conference meals and transportation between Manhattan and the St. John’s Queens campus will be provided.  There will be an opportunity for presenters to publish papers in a forthcoming issue of the St. John’s Law Review. 

This year’s conference is being hosted by the Center for Law, Religion, and the Global Community at St. John’s University School of Law.  The conference is being planned by Professor Movsesian and Professor Marc DeGirolami ([email protected]; 718-990-6760). 

The Wheel Turns . . .

"New York Recognition of a Legal Status for Same-Sex Couples: A Rapidly Developing Story" 

New York Law School Law Review, Vol. 54, 2009/10
NYLS Legal Studies Research Paper No. 09/10 #24

ARTHUR S. LEONARD, New York Law School
Email:

In New York State as of the beginning of 2010, same-sex couples cannot get married but can be married. The state’s highest court, the Court of Appeals, construed the state’s marriage law in 2006 to prohibit state officials from issuing marriage licenses to same-sex couples, but said nothing in that decision about whether same-sex couples married outside the state would be considered married when they were in the state. In February 2008, an intermediate appeals court in Rochester ruled that New York’s marriage recognition law supported extending comity to a same-sex marriage performed in Canada, and several other appellate courts have reached similar conclusions, but the Court of Appeals avoided deciding the issue in a 2009 case, instead resolving the questions presented on narrower grounds of standing and statutory construction. Although the State Assembly has twice approved a bill to allow same-sex couples to marry in the state, it was defeated in the State Senate shortly after the Court of Appeals ruling. This article provides the history of this issue in New York.

[Download here.]

A Response to George Weigel's Criticism of the Times

Paul Moses, who teaches journalism at Brooklyn College and CUNY Graduate School of Journalism, responds to Weigel at dotCommonweal, here.  An excerpt:

"I don’t agree with his analysis. The reason goes back to something I told the U.S. bishops when I was invited to address them at a closed session of the National Conference of Catholic Bishops in Pittsburgh in the late 1990s: that journalists aren’t especially interested in individual cases of sexual abuse, but are very interested in stories about cover-ups in powerful institutions. In other words, the best course for the bishops was to be truthful.

This is what has made clergy sexual abuse in the Catholic Church the subject of so many scathing reports, whether from the news media or grand juries: that a cover-up occurred at high levels in many dioceses. When a scandal of this proportion is uncovered, journalists will naturally want to see how far it goes – the basis for the latest round of stories. To say that sexual abuse in other churches or other sectors of society does not get the same media attention misses the point. The issue isn’t that Catholic priests are allegedly prone to commit sexual abuse, but that a small percentage of them were freed to do so, again and again, due to gross mismanagement, secrecy and lack of accountability on the part of church authorities. However dated most of the sexual abuse cases are, this story still calls out to be covered because some of those who failed to stop repeat abusers remain in positions of authority."


Oh, Duke . . . why do you make it so hard?

Alright, sure . . . Duke is the greatest college basketball program, and Coach K. is the best coach in college basketball.  No room for (what my friend Michael Perry would call) "reasonable" disagreement there.  But . . . sometimes Duke University (or parts of it) makes such an (institutional) idiot of itself.  Volokh has the report.:

Duke University’s Women’s Center has canceled an event about motherhood because the sponsor was engaging in pro-life expression elsewhere on campus. A Women’s Center representative told Duke Students for Life (DSFL) that “we have a problem” and an ideological “conflict” with the event, which was supposedly canceled to protect Duke women from encountering the event during the group’s “traumatizing” pro-life “Week for Life.” ...

As part of a “Week for Life” series of events held at Duke over March 15–19, DSFL had reserved a Women’s Center space for a “Discussion with a Duke Mother” on March 18. A Duke student and mother was to speak about motherhood and the challenges of being in both roles. But the day before the event, the reservation was abruptly canceled in a voicemail to the group.

Meeting with the group on March 18, Duke Women’s Center Gender Violence Prevention Specialist Martin Liccardo said that because the event was associated with the Week for Life and DSFL, the event could not be held at the Women’s Center.

Liccardo told the group that the prospect of holding a pro-life event in the Women’s Center during Week for Life was too upsetting for some students: “We had a very strong reaction from students in general who use our space who said this was something that was upsetting and not OK. So based on that, we said, OK, we are going to respond to this and stop the program.” .. .

Monday, March 29, 2010

"Christian" militia? Hmm ...

Militia Charged With Plotting to Murder Officers

Members of a Christian militia were indicted on sedition and weapons charges in connection with an alleged plot to murder law enforcement officers.