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, April 13, 2010

What "reason" is missing

By Rick Garnett

A fascinating op-ed, in The New York Times, by the often-fascinating Stanley Fish, "Does Reason Know what it is missing?"  Here's a bit (presenting Habermas):

What secular reason is missing is self-awareness. It is “unenlightened about itself” in the sense that it has within itself no mechanism for questioning the products and conclusions of its formal, procedural entailments and experiments. “Postmetaphysical thinking,” Habermas contends, “cannot cope on its own with the defeatism concerning reason which we encounter today both in the postmodern radicalization of the ‘dialectic of the Enlightenment’ and in the naturalism founded on a naïve faith in science.”

Postmodernism announces (loudly and often) that a supposedly neutral, objective rationality is always a construct informed by interests it neither acknowledges nor knows nor can know. Meanwhile science goes its merry way endlessly inventing and proliferating technological marvels without having the slightest idea of why. The “naive faith” Habermas criticizes is not a faith in what science can do — it can do anything — but a faith in science’s ability to provide reasons, aside from the reason of its own keeping on going, for doing it and for declining to do it in a particular direction because to do so would be wrong.. . .

As Norbert Brieskorn, one of Habermas’s interlocutors, points out, in Habermas’s bargain “reason addresses demands to the religious communities” but “there is no mention of demands from the opposite direction.” Religion must give up the spheres of law, government, morality and knowledge; reason is asked only to be nice and not dismiss religion as irrational, retrograde and irrelevant. The “truths of faith” can be heard but only those portions of them that have secular counterparts can be admitted into the realm of public discourse. (It seems like a case of “separate but not equal.”) Religion gets to be respected; reason gets to borrow the motivational resources it lacks on its own, resources it can then use to put a brake on its out-of-control spinning.

The result, as Michael Reder, another of Habermas’s interlocutors, observes, is a religion that has been “instrumentalized,” made into something useful for a secular reason that still has no use for its teleological and eschatological underpinnings. Religions, explains Reder, are brought in only “to help to prevent or overcome social disruptions.” Once they have performed this service they go back in their box and don’t trouble us with uncomfortable cosmic demands. At best (and at most), according to Habermas, “the encounter with theology,” like an encounter at a cocktail party, “can remind a self-forgetful secular reason of its origins” in the same “revolutions in worldviews” that gave us monotheism. (One God and one reason stem from the same historical source.)

But Habermas gives us no reason (if you will pardon the word) to believe that such a reminder would be heeded and lead to reason’s being furnished with the motivation-for-solidarity it lacks. Why would secular reason, asked only to acknowledge a genealogical kinship with a form of thought it still compartmentalizes and condescends to, pay serious attention to what that form of thought has to offer? By Habermas’s own account the two great worldviews still remain far apart. Religions resist becoming happy participants in a companionable pluralism and insist on the rightness, for everyone, of their doctrines. Liberal rationality is committed to pluralism and cannot affirm the absolute rightness of anything except its own (empty) proceduralism.

The borrowings and one-way concessions Habermas urges seem insufficient to effect a true and fruitful rapprochment. Nothing he proposes would remove the deficiency he acknowledges when he says that the “humanist self-confidence of a philosophical reason which thinks that it is capable of determining what is true and false” has been “shaken” by “the catastrophes of the twentieth century.” The edifice is not going to be propped up and made strong by something so weak as a reminder, and it is not clear at the end of a volume chock-full of rigorous and impassioned deliberations that secular reason can be saved. There is still something missing.

Articles: (1) SSM and Religious Liberty, and (2) Religious Symbols

By Thomas Berg

As an associate dean, I've found it next to impossible to have time to post on MOJ.  But every once in a while I want to show up to let people know I still exist.  So here are abstracts from a couple of new articles I've posted on SSRN.

"What Same-Sex-Marriage and Religious-Liberty Claims Have in Common"

This Article, from a symposium keynote talk, presents a case for adopting significant religious accommodations for objectors to same-sex marriages. My thesis is that there are important common features between the arguments for same-sex civil marriage and those for broad protection of religious conscience. Even though the two are pitted against each other in disputes, the strongest features of the case for same-sex civil marriage also make a strong case for significant religious-liberty protections for dissenters. One implication is that there are good reasons for recognizing same-sex civil marriage. But the other implication is that if a state does so, it should enact strong religious accommodations too, as a matter of consistency and even-handedness.

Among the parallels, both same-sex couples and religious believers claim that their conduct stems from commitments central to their identity – love and fidelity to a life partner, faithfulness to the moral norms of God – and that they should be able to live these commitments in a public way, touching all aspects of their lives. If gay couples claim a right beyond private behavior – participation in the social institution of civil marriage – so too do religious believers who seek to follow their faith not just in houses of worship, but in charitable efforts and in their daily work lives. Therefore, I argue, religious accommodation ought to protect not just churches and clergy, but also religious nonprofit organizations like Catholic Charities, and small businesses like the wedding photographer providing personal services related to a marriage.

"Religious Displays and the Voluntary Approach to Church and State"

This article, from a keynote talk for a symposium on Ten Commandments monuments and other government religious displays, argues that the distinctive constitutional approach to church-state relations in America has been the “voluntary” approach, under which government leaves religious practice to the free decisions and energies of individuals and groups. Several principles within that approach call for invalidating official displays that endorse the religious truth of propositions such as the Ten Commandments. But another key component of the American constitutional approach is that religion remains important to public life: indeed, in America a primary argument for religious freedom and other human rights has been a religious argument that rights are God-given and therefore have priority over government authority. Thus, although religious voluntarism calls for invalidating many government-sponsored religious displays, the rationale for doing so must recognize multiple ways in which religion is relevant to public life at the most fundamental levels. The paper concludes with three suggested means of recognizing that relevance.

Tom

By Michael Perry


Fordham University

FORDHAM CENTER ON RELIGION AND CULTURE AND AMERICA MAGAZINE

Immigration Reform
A Moral Imperative

Monday, 3 May 2010 | 6 – 8 p.m.
Pope Auditorium | Lincoln Center Campus
Fordham University | 113 West 60th Street

From America’s first days, our country and our church have benefited from the talent, determination and faith of immigrants. Yet today, we scapegoat them and withhold legal protections. Is it time to reform America’s chaotic immigration system? Can we hold our legislators accountable for taking action? Cardinal Mahony will speak on why immigration reform is a moral, humanitarian and legal issue.

RESPONDENTS

Thomas R. Suozzi, Nassau County executive, 2001-2009

Clara Rodriguez, Professor of Sociology, Fordham University

MODERATOR

David Ushery, anchor and reporter, WNBC-TV News

FREE AND OPEN TO THE PUBLIC
R.S.V.P: [email protected] or (212) 636-7347.
For more information, visit www.fordham.edu/ReligCulture.

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A "Catholic" interpretation of the Establishment Clause?

By Rick Garnett

Go here for Scot Powe's review of Donald Drakeman's Church, State, and Original Intent (Cambridge).  The book is first-rate, in my view.  (Full disclosure:  I blurbed the book for the press.)

After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that  "[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion" (I don't think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court's decision might have something to do with the fact that the five justices in the majority are Catholic.  (I responded to Geof here.)  Powe then concludes:

A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion.  It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.

There are, it is true, a number of "conservative Catholic legal scholars" (and many others) who agree (as I do) with Prof. Drakeman that the Establishment Clause was misinterpreted, in the parochial-school cases of the 1970s and 1980s, as requiring strict "no aid" separationism.  But, this agreement does not make Drakeman's interpretation a "Catholic" interpretation, and a Catholic justice who voted in accord with Drakeman's interpretation would not be adopting (or imposing) a "Catholic" interpretation.  Nor would the fact that a Catholic justice (or legal scholar) embraced it make the interpretation "Catholic."

To be sure, there are "Catholic" ways of thinking about religious freedom and church-state relations.  For a good start, go here.  Or here.  Or, if you want to help my SSRN count, here.

The Retirement of Justice Stevens, Q.E.D.

By John M. Breen

Much has been made how Justice Stevens’ retirement will leave the Supreme Court without a single Protestant justice.  Perhaps more significantly, his departure will also leave the Court with only one Mid-westerner (Roberts), and no Cubs fans.

 

Yesterday morning Chicago public radio broadcast a delightful story recounting Stevens’ family history and deep Chicago roots (available here).  It should come as no surprise to learn that Justice Stevens has many admirers in this town.  And I confess to having heard nothing but good things about Justice Stevens as a person – that he is an affable man, an avid golfer and an enthusiastic bridge player.  I don’t doubt his good faith in the service he rendered to the nation, and I wish him well in his retirement.

 

When I think of Justice Stevens as a judge, however, I think of his opinions in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986) and  Webster v. Reproductive Health Services, 492 U.S. 490, 560 (1989).  In these opinions Stevens claimed that the attempt to grant unborn human beings the protection of legal rights was inherently religious and thus unconstitutional. 

 

In Thornburgh Stevens said that he “recognize[d] that a powerful theological argument [could] be made” for the position that the government’s interest in nascent human life remains the same throughout pregnancy but that “our jurisdiction is limited to the evaluation of secular state interests” (at 778).  He insisted that “there is a fundamental and well-recognized difference between a fetus and a human being” that will continue to hold sway “unless the religious view that a fetus is a ‘person’ is adopted” (at 779).  Of course Stevens never explains why the belief that a nascent human life should enjoy the protections of personhood is “religious” or “theological.”  He merely assumes the point and then employs his assumption rhetorically in order to dismiss an argument he never squarely confronts.

 

In Webster Stevens sought to bolster the claims he made in Thornburgh.  And so we are treated to this gem:

 

I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble [to the Missouri statute in question] invalid under the Establishment Clause . . . .  This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions . . . .  Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths, serves no identifiable secular interest (at 566-67).

 

Did you get that?  The statute, which declares that “[t]he life of each human being begins at conception” and that “[u]nborn children have protectable interests in life, health and well-being” (at 504) violates the Establishment Clause because of the “absence of any secular purpose” that follows from the fact that it “serves no identifiable secular purpose” (at 566-67).

 

The remainder of the Stevens’ opinion is replete with references to the “theological view” endorsed by the Missouri statute (at 568), the “theological tenet” embodied in it (at 570), and the “theological finding of the Missouri legislature” (at 572), as well as a tortured and embarrassing passage in which Stevens purports to explain St. Thomas Aquinas’ views on abortion and analogize them to the Missouri statute. 

 

Sigh.

 

As I said before, I wish Justice Stevens well in his retirement.  As for his successor, hoping for someone who is pro-life is too much to expect from President Obama.

 

I do hope, however, that the President has the gumption to appoint someone who knows what a syllogism is – someone who knows the difference between making an argument in support of a conclusion, and simply declaring a proposition to be true.  “Repetition” is not a synonym for “proof,”  “demonstration,” or “argument.”

Law Blog rankings

By Rick Garnett

Paul Caron has posted his latest rankings of law-related blogs.  Once again, Mirror of Justice came out well (ranked 26 in page views . . . with a total that was approximately 0.6% of Instapundit's.)   I note that, in a 12-month period during which many of the leading law blogs saw their page-view and visit numbers decline, ours went up sharply again.  Keep spreading the word!

Contra Koppelman: How "Red States" reduce abortion

By Rick Garnett

Michael linked, the other day, to my friend Andy Koppelman's provocatively titled post, "How the Religious Right Promotes Abortion."  (Obviously, Andy does not use the word "promote" to suggest that abortion-increases are intended by the "religious right."  He claims, instead, that "its most stalwart proponents have succeeded in implementing and maintaining policies that keep the abortion rate high.")

Like the claim that was swirling around in the blog-ether in the run-up to the health-care vote -- i.e., that the experiences of other countries show that universal health-care coverage reduces abortions -- Andy's claims did not ring true to me and, it turns out, are incomplete, as Michael New explains at Public Discourse.  That they are inaccurate, no doubt, as a disappointment to those who -- whether or not they care about abortion rates -- enjoy the frisson that accompanies epater-ing les "religious right"-ers,  (I would not include Andy in this category, since he has always struck me as a fair-minded and charitable scholar-citizen.)  Or, maybe not, since -- in my experience, anyway -- there are some "just so" claims (e.g., publicly funded contraception, not legal regulation of abortion, most effectively reduces abortion) that travel through our conversations and for which evidence is convenient but hardly necessary.

Here is New's conclusion: 

Andrew Koppelman is the latest in a long line of pro-choice commentators to try to make the case that the best strategy for lowering the abortion rate is not, greater legal protection for unborn children, but rather, more funding for contraception and comprehensive sex education. Unfortunately, the available research and data do not support his arguments. There is no solid evidence that greater federal funding for contraceptives lowers abortion rates. Furthermore, contrary to the claims of Koppelman there exists evidence that well designed abstinence education programs are able to reduce teen sexual activity.

However, the best way to empirically test Koppelman’s claims are to simply analyze abortion data from the state level. If Koppelman’s claims are correct, then sexually permissive, contraceptive friendly blue states should have the lowest abortion rates. However, that is not the case. Data from both the Centers for Disease Control and the Alan Guttmacher clearly indicate that abortion rates are significantly lower in red states than in blue states. Furthermore, the states where Republican Presidential nominees receive the most support have far lower abortion rates than those states where Democratic Presidential nominees perform the best. Simply put, state level data offer no support for Koppelman’s argument.

Overall, it should come as no surprise to pro-lifers that sexual restraint and greater legal protection for the unborn has been and will continue to be the best strategy for lowering abortion rates. The pro-life movement would do well to stay the course. . . .

"Should I stay or should I go?"

By Michael Perry

by Timothy Radcliffe, O.P.

[The Tablet's lead-in:]  As the scandal of child sexual abuse and its cover-up swirls around the Church, some Catholics are considering their options as regards their very membership of the institution. Here a former Master of the Dominicans explains why the Church is stuck with him, whatever happens.  Free

Monday, April 12, 2010

What did "the last Protestant on the Supreme Court" stand for?

By Michael Perry

We've heard from Eduardo and from Rick.  My Emory colleague Robert Schapiro, who clerked for Justice Stevens in 1991-92, had this to say today, at CNN.com:

What Justice Stevens stood for

(CNN) -- With the retirement of Justice John Paul Stevens, the United States Supreme Court loses a judge with an unusual ability to get the big things right by getting the little things right.

Justice Stevens will be remembered for his stirring opinions in cases of great national significance. He also should be remembered for his equally compelling commitment to justice in scores of other decisions that received little public notice.

In Hamdan v. Rumsfeld in 2006, Stevens wrote the majority opinion holding that even in the face of real threats of terror, the president must follow the law. The court declared that the Constitution reached into a military detention facility in Guantanamo Bay, Cuba, and offered the protection of the rule of law to the man who served as the driver for Osama bin Laden.

For Stevens, no person was above the law, and no person was below the law.

Stevens' passion for this ideal drew support from his experience as a clerk to Supreme Court Justice Wiley Rutledge. In 1946, the Supreme Court upheld the summary trial and the death sentence meted out by an American military tribunal to accused Japanese war criminal Tomoyuki Yamashita. Dissenting, Rutledge affirmed the importance of providing "due process of law" to all people, "whether citizens, aliens, alien enemies or enemy belligerents." In Hamdan, Stevens finally vindicated that principle 60 years later.

For Stevens, that dedication to ensuring justice in all cases constituted the defining characteristic of a judge. In the 2000 presidential election decision, Bush v. Gore, Stevens penned a stinging dissent, castigating the majority for undermining the "Nation's confidence in the judge as an impartial guardian of the rule of law."

Stevens' commitment to the rule of law transcended partisan boundaries. In 1997, he spoke for the Court in Clinton v. Jones, finding that the Constitution did not shield President Clinton with immunity from civil suits.

First appointed to the bench by President Nixon and then elevated to the high court by President Ford, Stevens was a Republican from a different era. His rulings fell out of favor with the ideology of that party. However, Stevens always remained a small-R republican. He detested the idea of a monarch who stood outside of the law.

He often cited the English maxim, "The King can do no wrong," to emphasize the foreignness of that concept of immunity in our republican form of government.

Cases involving presidents are important, but rare. Stevens insisted on promoting the rule of law in all cases. When I think about Stevens, I think not only of Bush and Gore, of Clinton and Rumsfeld, but also of Vladimir Zatko and Jerome Hiersche.

It is a bedrock principle of the American legal system that lack of wealth should not translate into a denial of justice. Accordingly, courts do not charge filing fees to those who cannot afford to pay. In the early 1990s, however, the Supreme Court deviated from that practice by barring access to people it deemed frequent filers of frivolous actions. The court refused to waive the fees for these litigants despite their poverty.

When the court invoked the rule to bar access to one Vladimir Zatko, Stevens dissented. His opinion criticized the court for undermining its commitment to offering "equal access to justice for both the rich and the poor." The court continues to invoke the rule up to this day, and Stevens continues to dissent.

And then there is the tragic case of Jerome Hiersche. The United States government hired Hiersche, a professional diver, to inspect a dam on the Columbia River. Government employees assured Hiersche that the water flow system would be shut off, but it was not. Hiersche's head was pulled into an opening in the system, and he was killed.

The government denied all liability, citing language in a Supreme Court case interpreting an obscure provision of a 1928 statute. Stevens wrote separately to decry this result, imploring Congress to remedy the situation. He declared that "this obsolete legislative remnant is nothing more than an engine of injustice." In his lexicon, there was no stronger rebuke.

The rule of law requires standing up to presidents, but it also demands standing up for the notorious and the nameless, the Hamdans and the Yamashitas, the Zatkos and the Hiersches. When one develops a habit of promoting justice in the obscure cases, the courage to demand justice in the notable cases follows.

Justice Stevens pursued justice in all cases, great and small. The rule of law has lost an important champion on our nation's highest court.

[Cross-posted at ReligiousLeftLaw.]

Katherine Kersten: You'd think the evil of sexual abuse was exclusive to the Catholic Church

By Greg Sisk

Herewith excerpts from this column in the Minneapolis Star-Tribune (the full column is here:

In 2004, a groundbreaking report commissioned by the U.S. Department of Education found that 6 to 10 percent of children in public schools have been sexually abused or harassed by teachers or school employees. Hofstra University Prof. Charol Shakeshaft, the report's author, estimated that about 290,000 students were victimized between 1991 and 2000. "So we think the Catholic Church has a problem?" Shakeshaft told Education Week. "The physical sexual abuse of students in schools is likely more than 100 times the abuse by priests."

How did the media respond to these shocking revelations? With a giant collective yawn. News reports could be counted on one hand, according to NewsMax.com, which contrasted the media's ho-hum reaction with its "wall-to-wall" coverage of Catholic scandals.

*  *  *  *

Since 2002, the Catholic Church has labored mightily to clean up what Benedict has called "the filth" of priestly sexual abuse. In 2009, the U.S. Catholic bishops' annual audit included only six new allegations of clerical abuse of children younger than 18 -- in a church of some 65 million members. Abuse escalated between the mid-1960s and the mid-1980s, but now seems largely to have vanished.

So why does the Catholic Church continue to get all the headlines?

The church draws the mainstream media's ire because, in a world increasingly characterized by moral relativism, it continues to teach enduring moral rules that don't shift with cultural fashions. It dares to challenge the doctrine preached by America's new priestly class -- our opinionmaking elite -- on social issues ranging from abortion and embryonic stem cell research to same-sex marriage.

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