A court has ordered the removal of a billboard put up by a man proclaiming, "This would have been a picture of my two-month old baby if the mother had decided not to kill our child!" Given the man's photo, it was not difficult for town residents to figure out the woman he was talking about. I'm not a constitutional law expert (though Eugene Volokh is, and he comments on the case here), but just as I'm leery of publicly shaming groups and individuals who contribute money to oppose same-sex marriage, for example, I'm leery of public shaming in this context as well.
Wednesday, June 8, 2011
Is this billboard a legitimate form of pro-life advocacy?
Berg on school prayer decisions
Our own Tom Berg has posted a new paper, "The Story of the School Prayer Decisions: Civil Religion Under Assault." The abstract:
This chapter, from Foundation Press's forthcoming "First Amendment Stories" volume, traces the background, resolution, and impact of the Supreme Court's first school prayer decisions, Engel v. Vitale and Abington School Dist. v. Schempp. Among other things, the chapter traces the relation of the Regents' Prayer, struck down in Engel, to the nondenominational theistic civil religion of the 1950s, and the relation of constitutional attacks on the prayer to various criticisms of that civil religion from both religious and nonreligious quarters.
Tuesday, June 7, 2011
The Intersection of Sports and Religious Liberty
It isn't often that one sees these two fields together, but this story is about FIFA's ban of the niqab (the head-scarf...presumably the full length hijab is a no-go too) for female soccer players. Apparently the ban went into effect in 2007, and Iran's national team was recently disqualified in an Olympic qualifying match for their refusal to comply with it. The story is light on details about the grounds for the original ban, but it seems that there were safety concerns specifically related to the neck (the ban also prohibits "neck warmers"). I can understand how it might well present a safety concern for soccer players on either side to be dealing with a head scarf during play (it seems like a choking hazard and probably there are other dangers to the neck), but if anyone knows something more about the basis of the ban, please comment.
Iran's president, Mahmoud Ahmadinejad, is quoted as calling the FIFA authorities "dictators" for their refusal to accommodate Iran's players.
Monday, June 6, 2011
Greenhouse/Siegel article on Roe
Here is a link to a very interesting article by Linda Greenhouse and Reva Siegel. The article is entitled "Before (and After) Roe v. Wade: New Questions about Backlash." Here is the first paragraph of the abstract--
"Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor."
It is important to focus on the Court's role in the conflict over abortion because the Court's decisions have had a profound impact on the nature of the struggle over the issue for nearly 40 years. But I think it is a mistake to overstate the Court's role, and to that extent I agree with Greenhouse and Siegel that there is a danger in being too court-centered. It is not uncommon to hear people place the entire blame for the current situation on Justice Blackmun. And while Justices Blackmun and Brennan played a pivotal role, it is important to focus on the broader culture. That is why it is so important that certain cultural trends on this issue (e.g., the increasing pro-life sentiment among young people) are encouraging.
Richard M.
Sunday, June 5, 2011
Catholic Identity and the NLRB
Last week, the Chicago Regional Director of the NLRB issued a decision in a case between Saint Xavier University of Chicago and some of its contract adjunct faculty who wish to elect a representative and organize a bargaining unit. The University relied on the precedents of University of Great Falls and Carroll College (earlier NLRB decisions) and the 1979 Supreme Court decision in NLRB v. Catholic Bishop of Chicago in arguing its exemption from the NLRB’s jurisdiction. The University has further argued that it is a religiously operated institution and thereby exempt from the National Labor Relations Act (the Act). The Regional Director’s May 26, 2011 decision is [HERE].
The Regional Director held that the University is not a church-operated institution and is therefore subject to the Act, so its contract employees may proceed with their election rights in accordance with the Act. In his findings, the Regional Director acknowledged the University’s long-time association with the Sisters of Mercy and the Archdiocese of Chicago. Moreover, he mentioned in his decision that the University is recognized as a Catholic institution by the Archdiocese. He also recognized that it is corporately linked with the Council for Mercy Higher Education (the CMHE) which holds responsibilities and reserved powers to govern the University; in addition, he found that the CMHE links the University to the Church. The bylaws of the University, which has several Mercy sisters as members of the Board of Trustees, acknowledge that the CMHE retains several significant powers including the authority to preserve the religious mission of the school. However, the Regional Director also identified some of the substantive powers of the entire Board of Trustees that could extend beyond those of the religious women on the board. The Regional Director also pointed out that the juridical documents of the University state that to the “extent possible”, a majority of the Board “should be Catholics committed to the Church.” But he noted that there was no other qualification or disqualification taking stock of belief, creed, race, gender, or residence to be a trustee.
While the Regional Director acknowledged various programs that enhance the Catholic identity and Mercy character of the school, he found that the University was “guided by” but not “governed by” Pope John Paul II’s Apostolic Constitution Ex Corde Ecclesiae. Still, the Regional Director acknowledged other substantive areas where the University has solidified its Catholic heritage.
It appears that the University’s requirements addressing faculty and student composition were important to the Regional Director in reaching his decision about the University’s legal identity. He found that the University does not examine or consider the religious beliefs of its students, faculty, or trustees. He fortified this finding with the passage from the University’s articles which state: “No religious, racial, color or ethnic test or particular religious profession shall ever be held as a requisite for admission to said colleges or university or to any department belonging thereto … or for election to any professorship, or any place of honor or emolument in … any of its departments or institutions of learning.” Furthermore, he found that there is no requirement imposed by the University for its faculty—including adjuncts—to “espouse or emphasize Catholicism in their teachings or imbue students with the tenets of the Catholic faith.” Although the University requires that all students must take two courses in religious studies, the courses can be about any religion—not just Catholicism.
The Regional Director also placed some emphasis on the testimony of two adjunct faculty members who stated that nothing in their offers of employment or contracts mention anything about the Mercy Sisters, Catholicism, God, or religion. One of these adjunct faculty stated that he did mention his own religious practice (Greek Orthodox) to his hiring department but was told by the department chair that his religion, religious beliefs, or religious orientation “did not matter.” The department head apparently stated to this adjunct professor that continued employment by adjunct faculty is concerned with student evaluations but not with religion.
A crucial question for the Regional Director was whether the application of the Act would constitute “a significant risk of constitutional infringement.” In assessing and deciding upon this issue, the fact that there may be some nexus with a religious body is not crucial in assessing whether there is or is not an infringement. What is crucial is whether the University’s mission is religious—are faculty required to conform to and teach Church teachings where relevant; are faculty and students required to engage in worship, especially of the faith with which the institution claims affiliation. The Regional Director further stated that he was applying the “substantial religious character” test based upon applicable legal precedents.
In doing so, he noted that the CMHE’s role in the operation of the University is not of the sort that would generate “a significant risk of constitutional infringement.” Moreover, he cited several factors to substantiate his conclusion. The first is that the University’s faculty are free to function without any religious requirements or restraints. Second, while the University may be “guided by” Ex Corde Ecclesiae, the academic freedom of the faculty is such that they are “unfettered with regard to imbuing or inculcating students and curriculum with Church doctrine or religion.” Third, it appears that the University would not discipline or fire any faculty member if he or she did not “hold to Catholic values.” In this context, it appears that religion and religious values play no role in faculty hiring, retention, or promotion. Finally, although the University’s mission statement refers to the Church and the Mercy heritage, it is evident that the core mission and objective of the University is “to educate men and women irrespective of their religious beliefs.”
Let me offer some preliminary conclusions about the Regional Director’s decision. First of all, he appears to place the impact of his decision back into the court of the CMHE by noting their ability to change the articles of incorporation, the bylaws, and the mission statement. In making such changes, they could amend the vital hiring and firing procedures in the future and presently alter the mission statement. Second, it will be important to monitor any further review of the Regional Director’s decision which the University may pursue. Third, I am certain that many institutions of higher learning which claim the moniker “Catholic” will assiduously study this decision and weigh its impact on their own institutions.
The future of Catholic higher education is in our hands. But then, it always was.
RJA sj
Saturday, June 4, 2011
Abortion, conscience, and "health care"
This morning I presented a paper on conscience protection and abortion at the conference in Princeton. Our MoJ leader, Rick Garnett, invited me to post some of what I said. Here is a link to an article I did for Public Discourse from which part of my presentation was extracted:
Conscience and "concession": A response to Patrick
Patrick's post, responding to mine, makes me worry and regret that I was unclear, and gave the impression that I think "[d]emocratically pedigreed enactments can[] reduce what is God's by right." I don't. My statement that "in a democracy, requests for 'conscience'-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right" was intended only as a description of what seems to in fact "go on" as requests for conscience-based exemptions are processed by the relevant political authority. But, I can see that I didn't say very well what I meant to say. So, I agree with Patrick, though I also think (maybe he does not?) that, in fact, the political authority grants requests for conscience-based exemptions when that authority decides that it is not costly to do so and not really because it thinks it is required, by virtue of the claimant's "right", to do so.
"Concession" or Ius Divinum
Unlike Michael, Rob, and Rick, I'm not at Princeton to study "institutional conscience." I am, however, close enough to take my friend Rick's bait thrown from New Jersey. Rick writes that "in a democracy, requests for 'conscience'-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right." I don't see it that way. Imagine a validly enacted law (statute or constitutional amendment) that forbade the availability of wine, with no exception being made for wine intended solely for sacramental use. Would the Church, in asking the state to permit the availability of the matter of the sacrament necessary to the worship that is God's by divine right, be asking for a mere concession? Democratically pedigreed enactments cannot reduce what is God's by right, though obviously they can impede -- and historically often have impeded -- individuals' and groups' giving God what is His by right. Sure, it may -- or may not, frankly -- be prudent to couch requests for the liberty of the Church in terms of concessions, but under the surface of the request for concession is claim of right that democracy is powerless to diminish. The concession theory that comes down to us from Hobbes is an attempt to make the civil authority into that false "mortal God" that has little or no room for the Church. Our Lord, however, didn't say, "Hoc facite in meam commemorationem si Caesari placet." He said, "Hoc facite."
More on "Institutional Conscience"
Like Rob, I am at a very interesting conference / consultation at Princeton's Witherspoon Institute, with a group that is exploring the challenge of protecting "institutional conscience." And, like Rob, I wonder how helpful, and accurate, the language of "conscience" is for dealing with threats to the character, integrity, and freedom of associations, institutions, and churches. Putting aside, though, for now, my reservations, I am also wrestling with the uncomfortable thought that, at the end of the day, in a democracy, requests for "conscience"-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right. This is because the regulation in question will usually reflect the judgment of the political community about what is moral, or in the service of the common good, and so the political community can realistically only be expected to extend a "conscience"-based exemption if it believes that the "costs" of the exemption to its project -- that is, the project it is trying to pursue through the regulation -- are not too great.
In any event, MOJ-er Michael Moreland and Prof. Steve Smith will be giving papers today about church autonomy, freedom of association, and the freedom of the church. Stay tuned!
Institutional conscience protection at Princeton
I'm currently at Princeton, where the Witherspoon Institute is hosting a roundtable discussion on the protection of institutional religious conscience. The papers have been thoughtful and provocative, and the accompanying discussion very rich. A couple of examples:
Christopher Tollefsen and Daniel Sulmasy both presented papers arguing that associations have consciences based on the reality of collective intent embodied in associational life. I'm sympathetic to any effort to protect associational freedom, but I'm not persuaded on the merits or as to the necessity of making the argument. I think it's enough to say that associations are essential venues for the formation, expression, and living out of conscience, and that failing to defend the freedom of associations effectively cuts conscience off at the knees. My concern with making the stronger claim -- that associations should be viewed as having consciences -- is that it will weaken the argument that conscience is ontologically real and a core anthropological truth. Conscience is not just a convenient construct or instrumental device for capturing important human values; conscience is a real facet of the human person, and I don't want to weaken that perception by stretching it to cover non-human entities. Both Christopher and Daniel will deny that associational conscience weakens the human reality of conscience, but I have my doubts. I think some of the negative reaction to Citizens United illustrates the discomfort folks have with attributing human qualities to non-human entities, and I'm not sure why we need to go down that path.
Gerry Bradley presented a paper defending the value of institutional ministry, arguing that "the religious act of charity is much richer than its secular counterpart." He compared a religious charity's work to that of a family farm, and a secular social services provider's work to that of agribusiness -- both the family farm and agribusiness provide the same product, but there is a web of relational goods that permits us to value the family farm differently. My question is whether the difference in "richness" between religious and non-religious charities can be expressed in terms accessible to the state. I believe that the state can recognize the value of religious charities as being different -- especially to participants -- than the value of secular charities, but I'm not sure that the state can recognize the difference in a comparative way. I understood Gerry as making the claim that the state can actually recognize the religious charities as being better / richer than the secular counterparts, and that's where I'm still not quite persuaded.
In any event, these are just some of the great conversations on important topics that have occurred. More to come.
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