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.

Wednesday, June 16, 2010

Christian Legal Society

On February 5 on MOJ, Tom Berg described the soon-to-be-decided Christian Legal Society case in this way: “Christian Legal Society v. Martinez, now before the Supreme Court, is a very important case about freedom of association, free exercise of religion, and the definition of viewpoint neutrality.  It concerns whether a CLS chapter can be excluded from a limited public forum for student organizations at a public university because it asks leaders and voting members to affirm a statement of faith and refrain from extramarital sexual conduct. “ http://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/christian-legal-society-briefs-in-the-supreme-court.html

I think this description leaves out an important aspect of the case. The parties stipulated in the Court of Appeals that the Hastings policy was the following: the only organizations that could receive subsidies and other benefits were those organizations open to all students in terms of being officers or members.  This policy is viewpoint neutral – it is not aimed at content of any kind. And more controversial, it is reasonable within the meaning of public forum doctrine even if it is not wise (and, just as an aside, I do not think it is wise).

If Hastings is to grant subsidies to organizations in a deliberately diverse student body, it can confine subsidies to those that are open to all students. This is not a prohibition of discrimination or a direct denial of freedom of association; it is a denial of a subsidy; The Boy Scouts case does not apply.

To me, the interesting question is to determine what the baseline is for deciding what a subsidy is in these cases. I think it clear that a group not meeting the all comers policy should have no right to receive funds. On the other hand, it should have access to classrooms as a matter of right. (Hastings, I think is granting this as a matter of sufferance).  Similarly, it should have an ability to communicate through an effective means the existence of its meetings and events. But should it have access to school bulletin boards? I think more attention to the line between prohibition and subsidy is needed.

cross-posted at religiousleftlaw.com

Want to Live a Better Life?

Here are tips from Pope John XXIII and from Buddhist teacher Ken McLeod.

cross-posted at religiousleftlaw.com

Tuesday, June 15, 2010

Socialism ... er, I mean, Communism, Comes to Rwanda!

HEALTH   | June 15, 2010 

A Poor Nation, With a Health Plan
By DONALD G. McNEIL Jr.

Ninety-two percent of Rwanda is covered by a national health plan, and the premiums are $2 a year. 

Read all about it, here.

More on John Garvey

As Rob mentioned, in his earlier post, the decision by Catholic University to hire my friend and mentor John Garvey as that institution's new president is an inspired one.  John is a person of many gifts, and his vision regarding the importance (and the challenges associated with) Catholic higher education is inspiring. 

This seems a good occasion for MOJ readers to buy and read -- if you haven't already -- his book, "What Are Freedoms For?".  Get it here.

Fish on Tamanaha on Styles of Judging

Stanley Fish comments on Brian Tamanaha's new book, agreeing with his central argument debunking the myth of the formalist-realist divide.  This is a debate that has been central to our own discussions about the role of judges contemplated by Catholic legal theory.

Congratulations to John Garvey

Law school deans don't have much time for blogging, but Dean President Garvey is without question an honorary MoJer.  A great hire for Catholic.

Monday, June 14, 2010

What's "borderline despicable" ... or just plain despicable?

A new low in our politics?  Or would it be naive to think so?

Read about it here.

Who's "Chosen"? Jews? Americans? Catholics?

Sightings 6/14/10

Chosen People

-- Martin E. Marty

The grand theological themes don’t fade or disappear from headlines or prime time.  “Being chosen,” as in the case of biblical or modern Israel, is the grand theological theme today.  My clippings and blog-printout file bulges with records of renewed debates over what it means to be a “chosen people,” and whether Israel today should make use of the concept.  Perhaps the most widely-known recent controversy was inspired by Michael Chabon’s “Chosen, but Not Special” op-ed in The New York Times (June 6).  Identified only as author of The Yiddish Policemen’s Union, Chabon spends no time on the biblical concept.  His theme is the Yiddish word “seichel,” which, he says, means “ingenuity, creativity, subtlety, nuance.”  Seichel has helped Jews as a people to survive, but Chabon thinks it has been lacking in recent highly-publicized actions by Israel.

No self-hating Jew, Chabon does say that “we Jews” are not always comfortable living with the consequences of the myth of “seichel.”  Now to the point:  This is “the foundational ambiguity of Judaism and Jewish identity:  the idea of chosenness, of exceptionalism, of the treasure that is a curse, the blessing that is a burden…To be chosen has been, all too often in our history, to be culled.”  Chabon does not mention it, but I recall a grimly humorous or humorously grim prayer by a rabbi who thanks God for having chosen Israel but then, reflecting on “the burden” that goes with this, asks God next time to choose some other people.

Plenty of other people have seen themselves as chosen.  Most theologically nuanced was Abraham Lincoln’s word for Americans:  “an almost chosen people.”  Of course, there are no biblical roots for calling citizens of the United States a “chosen people,” nor were there for the English, from whom Americans, including many of our founders, inherited the myth.  Such myths, like Lincoln’s word about the United States being “the last, best hope of earth,” can be empowering and ennobling, but they can also issue in arrogance, imperial swaggering and destruction.

Back to Israel’s issue:  We non-Jews do not have to settle the debates internal to Judaism and Israel on this subject.  But non-Jews such as the almost-chosen Americans do have much at stake.  The Jewish paper Forward on May 21 published John C. Hagee’s “Why Christian Zionists Really Support Israel.”  Evangelist Hagee was a counselor to Presidential candidate John McCain’s team for five minutes during the 2008 campaign, until the team leaders caught on to the consequences of any Hageean embrace.  Hagee assures Israel that it can count on Christian Zionists, no matter what it does:  “Our support for Israel starts with God’s promises in the Hebrew Bible,” which many of this school of thought translate to the idea that the United States must help assure that Israel will own all the land within some boundaries mentioned in “the Hebrew Bible.”

Non-Jews will not understand Jews who have a sense of history unless they understand how central “the Land” is in their thought.  But they can chafe – as many of us confess to have done years ago – when chided for not believing that Israel’s chosenness had to be an article of Christian belief today, and that non-belief was anti-Semitism.  Chabon repeated the many reasons for identifying with Israel that are political, moral, strategic and empathic.  But such identifying does not need to become creedal, as it does in the world of Christian Zionists and their more moderate allies.  “Get over it” is part of Chabon’s message, and then “get on with it” implies more pragmatic consequences.

References:

Read Chabon’s piece here: 

http://www.nytimes.com/2010/06/06/opinion/06chabon.html?scp=1&sq=chosen,%20but%20not%20special&st=cse

 Read Hagee’s piece here:  http://www.forward.com/articles/127965/

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Legal Ethics and Moral Character

I highly recommend a new paper, Legal Ethics and Moral Character, by Brad Wendel and Alice Woolley.  Legal ethics discourse is traditionally focused on coming up with a theory that explains and justifies the lawyer's role; Wendel and Woolley ask what a particular theory tells us about what kind of person a lawyer should be.  In other words, they're trying to expand the focus from "What should a lawyer do?" to "How should the lawyer be?"  I do not agree with every aspect of their analysis, but this is an important contribution to the debate.  (And yes, they are part of a very select group of legal ethics scholars to quote MacIntyre!)  The paper also serves as fertile ground for reflection among MoJ-ers:  would Catholic legal theory suggest an ideal lawyer who looks significantly different from the ideal lawyer who would emerge from the dominant professional paradigm(s)?  If so, in what way(s)?  

Friday, June 11, 2010

"In Memo, Kagan Took Broad View of Religious Freedom"

"WASHINGTON — As a young White House lawyer, Elena Kagan wrote that it was 'quite outrageous' for the government to force a landlord to rent an apartment to an unwed couple if doing so violated the landlord’s religious beliefs against cohabitation outside the bonds of marriage. . . .

Among the documents were several concerning religious-freedom issues, which are often hotly disputed in Washington. The Aug. 4, 1996, memorandum on the case of the landlord, for example, put Ms. Kagan on the side of advocates for a broader interpretation of religious freedom, even at the expense of an antidiscrimination law.

The case involved a California woman who refused to lease an apartment to an unmarried couple because she considered a sexual relationship outside marriage to be a sin. The California Supreme Court ruled that she violated a state law prohibiting housing discrimination on the basis of marital status.

Ms. Kagan objected to the California court ruling and recommended that the federal government support an appeal to the United States Supreme Court. She noted that the plurality of California justices ruled that the state housing law did not 'substantially burden' the landlord’s religion 'because she could earn a living in some other way than by leasing apartments.'

'The plurality’s reasoning seems to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,' Ms. Kagan wrote. 'Taken seriously, this kind of reasoning could strip RFRA of any real meaning.'

The abbreviation referred to the law’s formal name, the Religious Freedom Restoration Act of 1993. The law was intended to counter a Supreme Court decision permitting states to penalize someone for using the drug peyote, even as part of a religious ritual. While the court did not take the California case that Ms. Kagan wrote about in 1996, it did strike down the religious freedom law’s application to the states in another case the following year."

Here for the rest of this interesting NYT article.