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, March 23, 2011

Heise and Sisk on Political Ideology and the Establishment Clause

By Marc DeGirolami

I want to flag this interesting and illuminating paper by Michael Heise and our co-blogger and empirical scholar extraordinaire Greg Sisk.  The abstract:

In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.

Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establish¬ment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.

A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.

Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.

Detroit shrinks big-time

By Rick Garnett

Apparently, the census does not follow Super Bowl ads:

The population of Detroit has fallen back 100 years.

The flight of middle-class African-Americans to the suburbs fueled an exodus that cut Detroit's population 25% in the past decade to 713,777, according to Census Bureau data released Tuesday. That's the city's lowest population level since the 1910 census, when automobile mass production was making Detroit Detroit.

60 years ago, Detroit was America's 6th largest city.  Of more parochial interest, perhaps, the Diocese of Detroit is older than the state of Michigan; it is home to approximately 300 parishes and missions, and 100 Catholic schools.  But, again, it seems, as an urban community, to be imploding (or "dying"), in a way that (it strikes me) is unique in the United States today.

Why is this happening?  Could it have been prevented?  Can it be stopped, slowed, or reversed?  Should we (i.e., people who are interested in what Catholic social theory and teaching has to say about the law's project of ordering human communities) care?

UPDATE:  Here is an interesting post on the "sad Detroit census numbers" by a graduate of Notre Dame's Architecture school, who is currently studying urban policy and design.

Walzer on Libya and just wars

By Rick Garnett

At The New Republic, Michael Walzer makes a "case against our attack on Libya."  (At the same time, Jack Goldsmith insists that -- just or not -- the attacks are constitutional, even if then-Sen. Obama seems not to have thought so, in 2007.)  And, here is a link to Paul Ramsey's (I think) helpful book, "The Just War."

Where the abortion debate stands

By Rick Garnett

At Public Discourse, reviewing the new book by my friend Chris Kaczor (Philosophy, Loyola-LA), Raymond Hain brings us up to speed on the current state of the national abortion debate.  A bit:

. . . Kaczor defends an endowment account of human personhood over against the performance accounts defended by Singer, Tooley, and others. A performance account of human personhood “holds that a being is to be accorded respect if and only if the being functions in a given way,” whereas an endowment account “holds that each human being has inherent moral worth simply by virtue of the kind of being it is.” And by “endowment” Kaczor means “an intrinsic, dynamic orientation towards self-expressive activity [like] . . . rationality, autonomy, and respect.” Are you a person because you are something that actually engages in rational and free conscious activity, or are you a person because you are the kind of thing that engages in rational and free conscious activity?

It is only, argues Kaczor, if we look to the kind of thing that you are rather than your actual activity that we will be able to escape many serious moral difficulties. . . .

Tuesday, March 22, 2011

The NYT on Bill Stuntz

By Rick Garnett

Here is the NYT's obituary for Bill Stuntz.  It concludes with this:

Mr. Stuntz wrote extensively about the chronic pain he suffered after a back injury in 1999, saying he felt better after realizing it was futile to dream of being painless. “Hopelessness turns out to be surprisingly good medicine,” he wrote.

He kept writing when he was dying of cancer, saying that he found hope in a single passage of the Book of Job. “You will call and I will answer,” Job says. “You will long for the creature your hands have made.”

Mr. Stuntz wrote, “The concept that God longs for the likes of me is so unbelievably sweet.”

Monday, March 21, 2011

Woodward's "Memories of a Catholic Boyhood"

By Rick Garnett

In my view, this First Things essay by Kenneth Woodward is a delightful read, and also highly relevant to the question of "Catholic legal theory", in this way:  The Catholic moral anthropology, cultural vision, and sensibility are, it is often said, more "communitarian" (while never losing focus on the dignity and destiny of every individual person) than some others.  Woodward's essay depicts a time, and context, when thick Catholic communities were instantiated, lived realities, and not just ideas.

This part struck me:

  In the fifties half of all American Catholic kids attended parochial schools, a figure unequalled before or since. Nancy and Bill and I were three of them. First grade was more than just the beginning of formal education. It was above all an initiation into a vast parallel culture.

As I have already noted, every religious group formed its own subculture, some more closed to the outside world than others. Lutherans, Adventists, and some (mostly Orthodox) Jews also operated their own religious schools, and in Utah, as in much of the South, Mormon and Southern Baptist majorities effectively determined the religious ethos of public classrooms. But at mid-century only Catholics inhabited a parallel culture that, by virtue of their numbers, ethnic diversity, wide geographical distribution, and complex of institutions mirrored the outside “public” culture yet was manifestly different. We were surrounded by a membrane, not a wall, one that absorbed as much as it left out. It was, in other words, the means by which we became American as well as Catholic.

Catholic education was the key. Through its networks of schools and athletic leagues, the church provided age-related levels of religious formation, learning, and belonging that extended through high school and, for some of us, on into college. Church, therefore, always connoted more than just the local parish: kids experienced it anywhere, including schools, where the Mass was said. In this way, Catholicism engendered a powerful sense of community—not because it sheltered Catholic kids from the outside world, as sectarian subcultures try to do, but because it embraced our dating and mating and football playing within an ambient world of shared symbolism, faith, and worship. In my adolescent years, for example, St. Christopher’s transformed its basement on Saturday nights into the “R Canteen” where teenagers from all over Cleveland’s West Side danced to juke-box music; a muscular young priest from the parish roamed the premises to prevent fights and keep the drunks at bay. Yes, Catholics felt like hyphenated Americans, but nothing in human experience, we also came to feel, was foreign to the church. . . .

Half of all Catholic kids were in Catholic schools!

Egyptian Christians Vote "No"

By Marc DeGirolami

A concerning story here.

Why Do We Let Girls Dress Like That?

By Elizabeth Schiltz

.... wonders Jennifer Moses in this rather poignant Wall Street Journal piece subtitled: "Women of a liberated generations wrestle with their eager-to-grow-up daughters -- and their own pasts." 

Her theory: 

It has to do with how conflicted my own generation of women is about our own past, when many of us behaved in ways that we now regret. A woman I know, with two mature daughters, said, "If I could do it again, I wouldn't even have slept with my own husband before marriage. Sex is the most powerful thing there is, and our generation, what did we know?"

We are the first moms in history to have grown up with widely available birth control, the first who didn't have to worry about getting knocked up. We were also the first not only to be free of old-fashioned fears about our reputations but actually pressured by our peers and the wider culture to find our true womanhood in the bedroom. Not all of us are former good-time girls now drowning in regret—I know women of my generation who waited until marriage—but that's certainly the norm among my peers.

So here we are, the feminist and postfeminist and postpill generation. We somehow survived our own teen and college years (except for those who didn't), and now, with the exception of some Mormons, evangelicals and Orthodox Jews, scads of us don't know how to teach our own sons and daughters not to give away their bodies so readily. We're embarrassed, and we don't want to be, God forbid, hypocrites.

Still, in my own circle of girlfriends, the desire to push back is strong. I don't know one of them who doesn't have feelings of lingering discomfort regarding her own sexual past. And not one woman I've ever asked about the subject has said that she wishes she'd "experimented" more.

My tip for women (and men) who don't know how to teach their kids 'not to give away their bodies so readily' is to take this advice fom the always wise Helen Alvare, and buy them a copy of Kristin Lavransdatter, by Nobel prize winning author Sigrid Undset.  (And if you haven't read it yet, do yourself a favor and buy yourself a copy, too.)

 

(Hard) Core First Amendment "Protection"

By Marc DeGirolami

Here is a summary of a recent New York lower court decision, People v. Andujar, involving a prosecution for the unlicensed vending of condoms with "political" messages and caricatures:

Charged with unlicensed general vending in violation of AC §20-453, defendant moved for dismissal of the accusatory instrument for facial insufficiency. The instrument alleged that, in front of 1585 Broadway, defendant displayed and offered for sale 20 condoms without being able to produce a license from the Department of Consumer Affairs. While the condoms were not described any further in the instrument, defendant contended they bore political messages on their packaging and contained caricatures of Barack Obama, John McCain and Sarah Palin, along with "satirical slogans and commentary regarding political awareness, sexual responsibility, and abortion." The court granted defendant's motion, finding that the condoms fell within the "written matter" exception as construed by the consumer affairs agency. The court cited the exception contained in AC §20-453, which ensures that the statute is not unconstitutionally applied to First Amendment-protected forms of expression protected. It added that a reasonable consumer of the condoms is unlikely to buy them for use during intercourse, but would instead buy them because of the political message contained on the wrapper.

I wonder how the court felt so sure about the purposes for which "reasonable" people would buy condoms with caricatures of President Obama and Sarah Palin?  (For those who may be wondering, "the instrument" refers, I believe, to the complaint).

Ahhh, the freedom of speech. 

Sunday, March 20, 2011

Sure looks like a monologue to me

By Robert George

Thank you, Fr. Robert, for providing a link to the program for the four-session colloquium, "More Than A Monologue: Sexual Diversity and the Catholic Church," being sponsored by members of the academic communities of Fordham and Fairfield Universities, Yale Divinity School, and Union Theological Seminary.  I had a look.  It seems pretty clear that the colloquium itself is designed to be a monologue---members of the choir preaching to the choir about how the Church's teachings on sexual morality and marriage are all wrong and need to be changed.

Unless I'm missing something, the speakers seem to be drawn exclusively from the pool of people whose views line up with the editorial positions of the New York Times, not the firm and constant teachings of the Catholic Church, at least when it comes to homosexual conduct and the nature and meaning of marriage.  I hope I'm proven wrong, but it doesn't look to me as if arguments in support of the Church's teachings will be presented or even seriously entertained.  It certainly doesn't look like anyone has (yet?) been lined up to defend those teachings.  Perhaps I'm missing something, but even if I am, the program looks lopsided.

If the folks organizing the colloquium are looking around for institutions where discussion is stifled and diversity of opinion on sexual morality and marriage has given way to a "monologue" on those subjects, I would be happy to give them a very long list of universities, newsrooms, professional associations, and other institutions they could organize colloquia about.  I would suggest that "monologue" is a much more serious problem in those institutions than it is in the Catholic Church.  But I suspect that the organizers' real objection is not to monologues as such.  Their real objection is to the teachings of the Church. That, I further suspect, is why the colloquium itself is designed, or so it appears, to be . . . a monologue. 

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