Mirror of Justice

Tuesday, February 8, 2011

CST in the Washington Post

Readers will perhaps have seen this piece by Michael Gerson in today's Washington Post discussing the current and past compositions of House Catholics (there are roughly an equal number in total, but the percentage of Republican Catholics increased considerably in the last election).

Gerson discusses the possible effect of Catholic political and social thought on the fortunes of various ideological and policy issues. Here's an interesting line from the article: "A revolutionary populism has seldom been the Catholic style - especially since Catholics have often been the victims of such populism in American history."

"Healthy Secularity" . . . in Rome, and in Charlottesville

By Rick Garnett

Last week, I was honored with the opportunity to present a lecture sponsored by the St. Anselm Institute for Catholic Thought, at the University of Virginia, on "Positive Secularism: Understanding the Separation of Church and State." Notwithstanding the Institute's mis-step with this particular invitation, they are doing great work; check them out, and consider supporting them. An inspiration for my talk, for what it's worth, was Pope Benedict's recent and increasingly frequent calls for a "healthy secularity." Check out, for example, this address, given in December:

. . . In order to understand the authentic meaning of the lay state and to explain how it is understood in our day, it is essential to keep in mind the historical development of this concept.

In the Middle Ages, "secularity", a term coined to describe the condition of the ordinary lay Christian who belonged neither to the clerical nor to the religious state, inferred opposition between the civil powers and the ecclesiastical hierarchies; in modern times, it has come to mean the exclusion of religion and its symbols from public life by confining them to the private sphere and to the individual conscience.

So it is that an ideological understanding has come to be attributed to the term "secularity", which is the opposite of its original meaning. . . .

Monday, February 7, 2011

Against Restitution as the Core Aim of Criminal Law

By Marc DeGirolami

There is a story in today's National Law Journal (unfortunately kept under lock and key) about orders of monetary restitution to make victims of child pornography whole. The defendants in some of these cases have been convicted of possession of child pornography, not distribution.

The cases, which at present seem largely limited to a single victim -- "Amy" (though there is another victim in a different group of cases named "Vicky") --, raise interesting questions about the nature and purposes of criminal law. I understand that restitution seems to be an increasingly popular mode of administering punishment, and the commingling of tort and criminal remedies gives me some pause, though in truth I am uncertain about it.

As I understand the issue (thanks in part to a terrific law review note that I supervised by Brad Reiss), wherever images of Amy (or whoever) are part of the evidence against the defendant, Amy's lawyers (who include former Judge Paul Cassell, whose writing I greatly respect) are notified and then use 18 U.S.C. section 2259 to request restitution for the harm caused by the display of the images. Whether the victim is herself notified is not clear. Each time the images are re-circulated represents a new episode of victimization for which new restitution is warranted. Courts have split over the question of restitution in possession cases. One, the S.D. of Florida, has awarded full restitution (more than $3 million worth), others partial restitution (sometimes the language of restitution is couched in terms of "proportionality"), and still others no restitution at all.

The story in the NLJ reports on the 11th Circuit's decision to award partial restitution (it joins the 9th in adopting this approach) using rather over-heated language about the "slow acid drip" of harm that the victim suffered as a result of the defendant's possession. The story itself is about the appeal of Judge Gladys Kessler's $5,000 award -- the case is being heard today by the D.C. Circuit.

These cases present difficult questions of proximate causation, and it looks like one of the major issues will be how to measure the harm to the victim of increasingly remote possession of the images. But another larger question relates to the nature of remedies in tort and the aims of criminal punishment -- purposes which, though they may overlap here and there, ought to remain distinct.

Laura Ingraham and John Locke on Religion in the Public Sphere

By Michael Scaperlanda

In his Letter Concerning Toleration, Locke states that church and state should be separate but the church's sphere of influence should be limited, extending only to the other worldy salvation of its members souls. He writes: "The end of a religious society ... is the public worship of God and, by means thereof, the acquisition of eternal life. ... Nothing ought nor can be transacted in this society relating to the possession of civil and worldly goods." This morning, while in the car, I caught a couple of minutes of Laura Ingraham's radio program. If I heard her correctly, she took a very Lockean position, criticizing the Catholic bishops and some evangelical pastors for getting involved in the immigration debate suggesting that they ought to stick to "religious" matters. I've criticized those on the left who take the separationist line when it is convenient to their cause but welcome the church's input when beneficial to their cause and so I apply my criticism equally across the political spectrum since I highly doubt the Ingraham is a consistent secularist.

The Obama's and the Nation's Nutrition

By Michael Scaperlanda

I am pleased to see that the First Lady is working with the National Restaurant Association to encourage "restaurants to adopt her goals of smaller portions and children's meals that include healthy offerings." But, it seems to me that her efforts merely chip around the edges of our nation's vast nutrition and health problems. Would her efforts be better spent targeting her husband and his administration for continuing the federal government's cozy relationship with and subsidy of major agribusiness? If Michael Poulan and the folks who produced Food, Inc. are correct, the federal government and how it subsidizes agriculature has a large role to play in our obese society, in environmentally unsound farming practices, and in putting local farmers out of business.

Questions on the Bush conscience regs

By Rob Vischer

Apparently the Obama Administration is due to issue its new regulations on conscience rights for health care providers sometime between now and March 1. (See this court filing.) I'm trying to get up to speed on the Bush regs, and I have a couple of questions:

1) Are folks who oppose the Bush regs arguing that they represent a change in the law, and if so, what is their argument? I can understand opposition based on opposition to the underlying laws (Church Amendments, Public Health Service Act, Weldon Amendment) or on wanting to keep the existing laws underenforced and underpublicized, but I can't figure out any way to view these regulations as changing the existing law. Any thoughts?

2) Section 88.4(d)(2) of the regulations provides that a covered entity shall not: "discriminate in the employment, promotion, termination, or the extension of staff or other privileges to any physician or other health care personnel because he performed, assisted in the performance, refused to perform, or refused to assist in the performance of any lawful health service or research activity on the grounds that his performance or assistance in performance of such service or activity would be contrary to his religious beliefs or moral convictions, or because of the religious beliefs or moral convictions concerning such activity themselves."

Given the language in bold, does this mean that a Catholic health care organization could not refuse to hire or grant privileges to a physician who is a notorious provider of late-term abortions, for example? If the person provides the services based on his moral convictions, wouldn't that person fall within this regulation's protection? (Obviously the organization could prevent the person from performing the services at that organization, but the physician could maintain their own private practice.) Or would a research entity dedicated to pro-life values be precluded from refusing to hire someone who has been a leader in embryonic stem cell research?

If I'm correct in my interpretation of the provision (and I very well may be wrong), this does reflect an accurate view of conscience (i.e., sometimes conscience forbids, but sometimes conscience permits). A policy based on that reality, though, creates problems when it focuses almost exclusively on conscience protection at the level of the individual provider. Institutional identity gets pushed to the margins. Am I missing something?

Leaving the Catholic Church

By Steve Shiffrin

As I mentioned in passing on a post sometime back, I left the Catholic Church many months ago. For those interested, I explain why today over at religiousleftlaw.com. As an outsider to the Church now, I avoid criticism of Church leaders on MOJ (and actually not very much on religiousleftlaw except for today's post there). So, as I look back over my posts from September on here, I have been mainly posting on MOJ about the religion clauses, spirituality, theology, and the sociology of religion. I am grateful to Rick for permitting me to continue here.

"If the viewing of pornography is legal, income should not be a barrier."

By Rob Vischer

As Rick pointed out a few days ago, we usually do not equate "legally permissible" with "must be funded by the government." At a minimum, we should be prepared to make separate arguments for government funding; the fact that an activity is protected by the Constitution is not an argument for funding. My local paper this morning falls into the trap in criticizing new state legislative proposals on abortion: "If ending a pregnancy is legal, income should not be a barrier." Perhaps the argument could work if the state was creating financial obstacles to abortion, but there is nothing in law or logic that compels the state to remove financial obstacles to the exercise of a constitutional right. Particularly in the case of abortion, where the removal requires the financial support of a citizenry sharply conflicted on the topic, these arguments are weak.

Saturday, February 5, 2011

The Beginning of Life

By Elizabeth Schiltz

Today's "Daily Thought from Jean Vanier" is too lovely for me not to share:

The life that begins when a child is conceived is a powerful reality, hidden in that first cell. This life is not just a physical thing, allowing the growth of the tiny body with all its organs, but also something psychological and spiritual. The power of life hidden in the body pushes the tiny child out of the womb of his mother and into her arms, and invites him to enjoy his parents love, to advance through life, to acquire knowledge, to be independent of his parents, to love others, to open himself to the world, to create and procreate.

There are a number of life forces working along side each other, one to form the body, one to create relationships, and another to develop knowledge and creativity. All is united. All is one, contained in that life hidden in the first cell. It is at the root of all movement and all physical growth, but also of all relationships, all growth in knowledge, all spiritual activity.

- Jean Vanier, Our Journey Home, p. 140

Friday, February 4, 2011

Looking at Egypt as an American Catholic

By Russell Powell

Commmonweal currently has interesting pieces on events in Egypt here and here. A stable Egypt has contributed to peace in the region since the Camp David Accords, but our economic and strategic support of the regime has undoubtedly been in tension with our commitments to democracy and human rights. As someone who studies the region, I believe that this is a complicated situation that belies simplistic solutions. Let us pray for leaders in the U.S. and Egypt and most importantly for peace, justice, security and the defense of human dignity in Egypt.