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.

Monday, June 28, 2010

Christian Legal Society v. Martinez

By Rob Vischer

I share Rick’s disappointment in today’s Martinez decision.  Four quick points about the reasoning employed by Justices Ginsburg (for the majority) and Stevens (concurring):

First, has the Supreme Court ever had a gift that has kept on giving like Lawrence v. Texas?  At oral argument, Michael McConnell argued (on behalf of CLS) that while a group could properly be prohibited from discriminating based on status, prohibiting discrimination based on belief unduly compromises a group’s ability to foster any sort of coherent identity.  The Martinez majority rejected the feasibility of this distinction as posing a “dauting” task for a university to monitor, and then relied on the Lawrence Court’s statement that “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”  A religious student group’s right to participate in the life of the university may seem to raise starkly different considerations than the state’s power to criminalize sexual conduct engaged in primarily by a certain category of individuals, but apparently the status-belief distinction is no longer viable in either category.

Second, the majority noted that the law school’s (alleged) “all comers” policy could be a reasonable expression of the school’s desire to encourage tolerance, cooperation, and learning among students.  Fair enough.  But, the majority added, to the extent that the policy “sometimes produces discord,” the law school can reasonably include among its goals for the policy “the development of conflict-resolution skills, toleration, and readiness to find common ground.”  The message to CLS: “you nutty evangelicals have the opportunity to learn tolerance and cooperation by admitting all students, even those who defy your group’s animating beliefs; if you find that this policy creates discord, you have the opportunity to learn conflict-resolution skills.”  Obviously, the same skill sets could be equally in play with a policy that permitted groups to pursue their own chosen beliefs, with significantly less fallout for associational freedom and expression. 

Third, Justice Stevens, in his concurring opinion, notes that “the policy may end up having greater consequences for religious groups . . . inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths.” (emphasis added)  Note what this phrasing communicates about the Justice’s mindset.  I’ve never met a CLS member or leader who desired “to exclude students of particular faiths.”  The point, for CLS and every other religious group of which I have been a part, is to engage in the mutual formation and expression of truths held in common.  A desire to exclude is not the point of the project, nor is the exclusion aimed at “particular faiths.”  The exclusion is a consequence – and usually a consequence that is neither celebrated nor trumpeted – of a commitment to meaningful inclusion.

Finally, the Court emphasizes that the reader should not confuse the advisability of the law school’s policy with its permissibility.  That seems to be the next challenge – how can we help expand our public discourse about “discrimination” to include a recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it’s a right best left unexercised?

The Court gets it wrong on "discrimination", diversity, and speech

By Rick Garnett

The Court handed down its opinion in the Christian Legal Society case this morning.  By a 5-4 vote, the Court upheld a rule requiring officially recognized student groups at Hastings College of the Law to "accept all comers" as members and leaders.  As Justice Alito explains in his dissent, this rule is not the rule that was actually applied to the Christian Legal Society when it was denied official recognition for insisting that its members and leaders affirm a Christian statement of belief.  Instead, this "accept all comers" rule -- which, even if it were in fact the rule, would be a very silly rule -- seems to have been seized upon in order to make less apparent the extent to which Hastings was singling out the Christian Legal Society, its views, and the views of other such groups, for special disapproval.  (Justice Stevens' concurring opinion is more candid in expressing this disapproval.)

The opinion and outcome is, I think, deeply disappointing.  (Note:  I filed, with Tom Berg, an amicus brief in the case.)  Like Justice Alito, "I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country."  What is particularly unsettling, even ominous, is that the Court -- and Justice Kennedy in his concurring opinion -- seems entirely unable to understand (or perhaps simply does not believe) that it is not invidious, and it is not contrary to dialogue, diversity, education, etc., for associations to act in accord with a shared, distinctive ethos.

The Temple of Our National Religion?

By Michael Perry

The Supreme Court ruled on Monday that the Second Amendment, which forbids Congress from infringing the right to keep and bear arms, applies to state and local governments as well.

Sunday, June 27, 2010

The Case for Catholic Schools (Part Three): Expanding Access to Catholic Education for All Catholics

By Greg Sisk

This is the third in a series of six.  Here you may find Parts One and Two.  As before, I have turned on the comments, which have been interesting and vigorous and, almost without exception, have been thoughtful and generous in substance and tone, both in agreement and disagreement.  (Note:  While I have not removed any comment thus far, anonymous comments will be deleted in the future; your email will not be disclosed on the blog.)  I am sure that I will learn from the continuing discussion accompanying this thread, and I know from the feedback both on and off-the blog that Mirror of Justice readers are watching the unfolding discussion with anticipation.

In today’s post, I suggest that no single action we could take does more to increase access to Catholic education for all Catholic families than to support our own parish Catholic school by choosing it for our children.  As I emphasized in the preface to this whole discussion (Part One), parents rightly should have the power to make educational choices for their children, a right which we as Catholic lawyers, legal scholars, and advocates in public life should zealously defend (more on that point tomorrow).  As I also said then, faithful Catholic parents will reasonably make different choices under different circumstances. But, when Catholic parents are balancing the factors and educational options for their children, a powerful additional reason to select a Catholic school is that such an affirmation enhances opportunity for others as well.  Consistent with Catholic Social Teaching, solidarity with other Catholic families and the preferential option for the poor are advanced by an educational choice that opens up Catholic education to the impoverished, to struggling single-parent families, to families suffering recent unemployment, etc.

When those of us who have been financially blessed make the economic sacrifice of forgoing the public schools supported by our taxes and instead paying tuition for our children to attend Catholic schools, we thereby enhance educational choice for others in two vital ways.  First, by supporting Catholic schools, we ensure that future generations will have the same opportunity for quality Catholic education that was afforded to us and our children.  Second, because Catholic schools nearly always operate close to the margin, especially in the parish setting, stability and growth in tuition-paying students makes it possible for Catholic schools to offer scholarships for Catholic children whose families could not otherwise afford Catholic education.

In our legal and public advocacy, we as Catholics should encourage and defend public policies that expand educational choice for all.  The Supreme Court’s decision in Zelman v. Simmons-Harris in 2002 upholding tuition aid to Cleveland students seeking alternatives to the failing public schools, specifically including faith-based education, was a tremendous victory for educational choice.  But the Court upheld school choice by a narrow five-to-four margin, and some state courts have ruled against vouchers to religious schools under state constitutional provisions.  Moreover, even though constitutionally-validated, such programs exist in only a few places, such as Cleveland, Milwaukee, and, until recently, Washington, D.C.  But while full educational choice for all, regardless of economic means, is a battle yet to won, we can take modest steps now as Catholic parents to expand access for other Catholic families through our support of Catholic schools.

In any strong Catholic parish with an elementary school at its heart, no Catholic family in the parish should be turned away from Catholic education because of disadvantage.  And if the parish and parish school are not financially able to afford such an opportunity to all parishioners, then we have work to do in strengthening that parish and school so that Catholic education is accessible to every Catholic family.  Likewise, we should be supporting the precious Catholic high schools in our community, including contributing to scholarship programs (a step which I myself need to take but have not yet), so that all Catholics can enjoy the faith-based and academic opportunities that they offer.  In contrast with so many politicians who choose private schools for their children while holding the door shut against others, we should put our commitment to educational choice into concrete action by not only choosing it for ourselves but by helping to open the door for others.

Greg Sisk


USCCB on the Phoenix abortion case

By Richard Myers

Here is the US Bishops' Committee on Doctrine's statement on the Phoenix abortion case.

Richard M.

"War Readings for Sunday, June 27"

By Michael Perry

Here.

Tom Farr on international religious freedom and the Administration

By Rick Garnett

I noted a few days ago that there is some concern, among religious-freedom advocates, about what seems to be the Administration's rhetorical shift from "freedom of religion" to "freedom of worship."  (The latter is seen, I gather, as less threatening and meaningful by those governments that do not respect the former.)  The other day, in The Washington Post, Tom Farr -- author of "World of Faith and Freedom:  Why International Religious Liberty is Vital to American National Security"-- weighed in on the matter, and discussed the importance of a foreign policy that includes defending religious freedom:

Why downgrade religious freedom? Administration officials apparently think that "engaging" Muslims abroad precludes a vigorous policy on international religious freedom. But while many Muslim governments fear religious liberty as a threat to their authority, polls show religious freedom is popular among Muslims. Among other things, Muslims need religious liberty to undermine Islamist extremism and to advance women's rights -- to argue, for example, that the Koran does not require repression of women or non-Muslims, or death for apostasy. The administration is missing a huge opportunity to employ IRF policy as a means of countering religious terrorism. And supporting Muslims' right to religious freedom could reenergize Obama's engagement strategy in Islamic lands.

Meanwhile, China has insisted it will handle its "religion problem" its way. We seem to have acquiesced, settling for periodic "dialogues" in which little is accomplished. But our averted gaze will only increase human suffering while Beijing decides whether to accommodate its exploding religious population or to crush it. . . .

. . . Whatever one's views on engaging Islam, cooperating with China or advancing gay rights, surely we can all agree that religious freedom deserves our vigorous and sustained defense. Without it, no one is safe. And that includes us.

Saturday, June 26, 2010

The Case for Catholic Schools (Part Two): Integrating Personal Faith in Life, Education, and Community

By Greg Sisk

Following up on the discussion I began with yesterday’s post, I come today to the first of five reasons I will propose over the next week for why, all things being equal, Catholic parents should choose Catholic schools for their children.  As before, the comments are turned on.

The first and most important reason for creating and maintaining any Catholic institution is to build the faith and point the way to Jesus, to the Church that He founded, and to the Sacraments that He established.  Catholic schools serve that mission in wonderful and diverse ways.

Every faithful Catholic parent wants to raise children who will be faithful Catholics.  We earnestly hope that our children will be committed to the Church, live Christian lives, and contribute to the Catholic witness in their work and public lives.  And even the father or mother most confident in his or her own parental skills knows that we need help in doing so.  We are blessed by the support of others who are part of our Catholic community and able to offer guidance and teaching that may be beyond our own limited set of skills, to offer a perspective that had not occurred to us but that may resonate with our children, and to demonstrate through their own lives yet additional examples of walking with Christ.  Catholic schools are designed toward those very ends, with teachers who often have made considerable economic sacrifices because of their commitment to Catholic education and their heart for teaching in a faith community.

Together with the nurturing of children in our family homes, Catholic elementary and secondary schools offer the best venue for our children to learn to integrate their faith into all aspects of life.  Children in a Catholic school are encouraged to consider, express, and live their faith in each part of the day, in religion classes that are part of the regular curriculum and in their other courses.  From morning prayers in home room class to the sharing among children of what God is teaching them in religion class and on to the integration of Sacraments into the school week, the student in Catholic school learns in an atmosphere of faith.

To be sure, a person with a strong religious faith will try to do some of the same in a public school setting, as was true for many of us on the Mirror of Justice (including me) who attended public schools. And parents can play a role in encouraging their children who attend public schools to proudly uphold their faith. But we must admit that it is difficult as parents to do so effectively, at least in a manner that best facilitates children to grow up with a holistic understanding of faith life. And public schools rarely invite children of faith to be themselves in a public school environment, certainly not in any way equivalent to the manner in which public schools otherwise tout their openness to, support of, and pride in other forms of diversity.

The child in Catholic school also learns to integrate that faith as part of a faith community.  Our Catholic faith is one of community, built around both the family and the parish, in which the Catholic school should be at the heart of parish.  As Catholics in law and public life, we should advocate for public policies and legal protections that uphold the rights of parents to make educational choices for their children, most definitely including those who choose home-schooling. As Catholic parents, however, and assuming a quality Catholic parish school is available (which may not always be the case), we should participate with our fellow believers in supporting the parish school.  As I’ll discuss further on another day with respect to the other benefits of Catholic schools, home-schooling simply is not an option for most parents, especially those in difficult and disadvantaged settings.  More importantly, for today’s discussion, our faith is to be lived out with others, so that our children learn to care for their neighbors and to join with them in Catholic teaching and worship. Catholic schools make that practically possible.

Nothing can substitute for the growth in faith that comes when a teacher shows the love of Christ to the child who is struggling in class or comes from a difficult family setting.  Knowing that our children will live in community and must learn to work with others, the faithful atmosphere of a Catholic school affords the opportunity to not only learn about but practice peace-making and forgiveness after the unfortunate episode on the playground or the childish taunt in the hallway.  And how precious it is to see our children working with classmates in preparing the readings and prayers for school Mass.  Our faith should equip us for effective participation in community.  And students in Catholic school are immersed in community.

Some are quite critical of our Catholic schools, finding them to fall short of the mark (even if superior to the public schools).  In a setting where the only available Catholic parish school is woefully inadequately, I understand why a parent would lean to alternatives.  I must also say, however, that living in two major cities, and having carefully explored many, many Catholic parish schools when joining the Church and then when moving to a new city, I have yet to find one that was educationally inferior or that could justly be denigated as "nominally Catholic."  To be sure, as one would expect, some surpassed others in academic quality, and some were more vibrant or more orthodox in Catholic faith.  But not one of the Catholic schools that I visited and investigated was a discredit to the parish to which it belonged.  Sadly, I appreciate that others may have had different experiences, and I do sympathize with those who face such difficult burdens in educational choice.

In the end, however, withdrawal is not an option for Catholics (we're not Protestants after all, who start a new church whenever a flaw is identified in the existing church).  As we must resist the temptation to withdraw from parish life when we are disappointed with our local Catholic Church, I submit that the truly Catholic response is to become even more engaged so as to prayerfully and energetically work to correct any problems with Catholic education.  When we work with other parents and parishioners to strengthen the Catholic school at the heart of our parish, we just may find that God is working dynamically and deeply in that school and that the rewards, temporal and spiritual, for our Catholic kids are great!

Greg Sisk

Some news from Germany (via Ireland)

By Michael Perry

Trinity College Dublin law prof and MOJ friend Gerry Whyte sends this our way:

Irish Times
June 26, 2010

German court opens door to limited euthanasia

DEREK SCALLY in Berlin

GERMANY’S FEDERAL high court in a landmark ruling has opened the door to limited euthanasia if a person requests explicitly not to be kept alive by artificial means.

The federal court of justice overturned a conviction yesterday against a lawyer who advised his client to remove the feeding tube of her 72-year-old mother in 2002.

Five years earlier, shortly before Erika Küllmer suffered a brain haemorrhage and lost consciousness, her daughter Elke Gloor said she had insisted she did not want to be kept alive artificially.

After consulting her lawyer, and with her own brother present, Ms Gloor cut the cable with a scissors only to have care facility staff reconnect it. Ms Küllmer died shortly after of natural causes.

The state prosecutor pressed charges against her daughter and the lawyer, Wolfgang Putz. Charges against Ms Gloor were dropped because the court ruled she had followed “mistaken” legal advice, while Mr Putz was given a nine-month suspended sentence for attempted manslaughter.

The federal court yesterday upheld the lawyer’s appeal against his conviction.

“I’m in seventh heaven, this ruling is like an Oscar for my life’s work,” said Mr Putz, a specialist in patient rights. “This is the most important court ruling in our post-war history.”

In its ruling, the court argued that cutting the feeding tube made possible a “natural” death because it ended treatment that was being carried out against the patient’s will.

“A person’s free will must be respected, in all stages of life,” the judges ruled, insisting that “death on demand” remained a crime.

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Catholic Judges and Capital Punishment

By Michael Perry

This, from the Dayton Daily News, may be of interest to MOJ readers:

Guest column: Judge was correct to step aside in death penalty case

Tuesday, June 22, 2010

This commentary was written by Michael Merz, U.S. magistrate judge serving the U.S. District Court of Southern Ohio.

The Dayton Daily News recently criticized Montgomery County Common Pleas Judge A.J. Wagner’s decision to disqualify himself in a death penalty case (“Can judge refuse to hear capital cases?” May 21).

Wagner said he does not believe in capital punishment and, thus, couldn’t decide any case where the punishment could be death. The DDN asked “whether somebody who can’t follow the law should run for a position as a common pleas judge.”

The editorial also asked whether Wagner could have done something short of getting off the case. It quoted Lori Shaw, assistant dean of the University of Dayton Law School, who suggested he could have heard the case, then declared the death penalty unconstitutional.

I have been a judge for more than 30 years and have decided more than 50 cases where defendants challenged their death-penalty convictions. Like Wagner, I am a Roman Catholic. I comment from those perspectives.

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