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.

Thursday, September 15, 2011

The Death Penalty in Texas and Governor Perry's Restful Nights

Last week, Rob Vischer asked whether we should be concerned that the audience at a presidential debate cheered the death penalty and that Governor Rick Perry said he never struggled or lost any sleep over the possibility that an innocent person might be executed.  Others carried forward that discussion (here and here).  Perry also insisted that Texas provided a rigorous criminal process to ensure that such a travesty would not occur.

In today's Minneapolis Star-Tribune, two prominent Minnesota lawyers who had worked on post-conviction remedies in a Texas death penalty case begged to differ (here).  Tom Johnson (who is a former county attorney for the county in which Minneapolis is located) and Greg Merz told the story of the case in which they worked, in which the prosecution offered either of two friends a pass from the death penalty if he would testify against the other, an offer accepted by the defendant's friend who subsequently recanted (but that didn't matter under Texas procedures).

The defendant's trial lawyer in this capital murder case failed to object to a juror who expressed the opinion that executing a few innocent people to speed up criminal justice might be better for society, failed to cross-examine the primary witness against him, called no witnesses for the defense, failed to adduce any evidence about the defendant's mental disabilities, and made a closing argument in the apparent mistaken understanding that it was the sentencing phase and guilt was already established.  Even with mental, cultural, and educational limitations, the defendant could tell his attorney was incompetent and asked the judge repeatedly for a new lawyer, to no avail.  The end of the story, of course, given that this happened in Texas, was that he was convicted, sentenced to death, post-conviction remedies were denied, and, under Perry's watch, he was put to death.

As Johnson and Merz conclude:

On nights when the Texas executioner is at work, there is good reason for Perry to go sleepless.

Greg Sisk

 

A new blog: "eutopialaw"

MOJ-friend Aidan O'Neill has started, with some of his colleagues, a new blog on EU law and policies.  It's called "eutopialaw" (St. Thomas More!).  Check it out!

Science vs. religion in presidential politics

Over at Public Discourse, William Carroll has an interesting essay on the assumptions that the news media bring to questioning Rick Perry and other GOP presidential candidates about their views on evolution and global warming.  Here's an excerpt:

My point here is not to enter into complex issues about various evolutionary theories and the scientific support for them, but rather to note the fascination that reporters like [Chris] Matthews have with raising simplistic questions such as: "Do you believe in evolution?" It continues to be easy to conclude that there is some fundamental conflict between "belief in evolution" and traditional religious faith: This conclusion is often shared by all sides in the controversy. But once one recognizes that evolutionary biology has as its subject the world of changing things, and offers explanations for change among living things on a grand scale, and that God's creative act is the source of the existence of things, not of changes in and among things, then much of the controversy fades away. God, as transcendent cause of being, is the cause of all causes in nature, including those causes at work in evolutionary history. This analysis, however, involves important distinctions in science, philosophy, and theology; it does not fare well in political debates or popular journalism.

Carroll later suggests that "[t]he candidates are asked such questions because there is the lingering suspicion that they inhabit a world long since left behind."

I have a hard time seeing how a reporter's question, "Do you believe in evolution?," reveals any particular conclusion about the inherent relationship between science and religious faith.  The fact is that many voters in this country do not believe in (macro) evolution despite some pretty good evidence of the theory's validity, and some political candidates express similar skepticism.  Especially in light of the federal government's role in education, this should be fair game for reporters.  The fact that most political candidates both believe in God and believe in the theory of evolution -- and that this is apparently considered unremarkable by the news media -- seems to suggest that reporters don't cling too tightly to the notion of an inescapable religion-science conflict.  Sometimes religion and science do conflict.  If you're a "young Earth" creationist because you take Genesis 1 literally, you have to disregard science (or at least explain it creatively).   We need to take the President's views on science seriously, whether they pertain to fetal pain, stem cell research, vaccines, climate change, or genetically modified foods.  (This is not just the GOP's problem: when it comes to some of these issues,the left appears to be more skeptical of science than the right does.)  Posing the questions does not necessarily suggest anything about the questioner's underlying view of the relationship between science and religion.  And in those situations when the questioner implies skepticism about the compatibility of a particular candidate's religious views with the known scientific evidence, it might be because there is, in the end, a conflict.

Wednesday, September 14, 2011

Southern Catholics Today

Several events came together over the past week that seemed to have significance. The first was the announcement by Bishop Michael Burbidge of the Raliegh Diocese of a new cathedral campus. The new cathedral is to be named Holy Name of Jesus, will hold over  In making the announcement, the Bishop noted that over the period from 2000 to 2010, the Catholic population grew by over 40%. 

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"Can We Talk About Abortion?"

The most recent issue of Commonweal includes a conversation among Peter Steinfels, Dennis O'Brien, and my colleague Cathy Kaveny about the morality and regulation of abortion. 

O'Brien insists, as others sometimes do, that strong opposition to abortion (such as that expressed by those called to serve and lead the Catholic Church) is rendered less convincing by the fact that most who strongly oppose abortion are, in O'Brien's view, reluctant to use the law to punish those who perform or procure abortions in the same way as those who intentionally kill persons who have been born.  I've never thought this was a powerful argument, and Steinfels does a good job of responding to it.

In Cathy's essay, she helpfully reminds her readers of something that, in my experience, is often forgotten in the abortion debate, namely, the radical character of the Roe decision, and the extent to which it is Roe, more than the witness of those Bishops with whom O'Brien apparently disagrees, that has made it so hard to "talk about" abortion.

There's more . . .  Check it out. 

 

 

regulate abortion in the same way that  

Garnett & Lash on church-state separation, religious freedom, and the ministerial exception

Here, thanks to Engage and the Federalist Society, is an edited transcript of a conversation that my friend Kurt Lash and I had last Spring, at the University of Illinois.  Topics covered include the Smith decision, the Hosanna-Tabor case and the ministerial exception, church-state separation, the views of Washington and Jefferson, etc., etc.

Lew Daly on "The Church of Labor"

I really appreciated Lew Daly's God's Economy, and so I'm not surprised that I very much enjoyed, learned from, and was provoked by this essay of his, "The Church of Labor."  I'm not able to agree with Lew entirely -- I think he, and other Catholic advocates for the labor movement, need to distinguish more than they do between (a) the dignity of workers and their right to associate in order to advance their common interests and the common good, on the one hand, and (b) the practices and demands of today's labor movment, especially of public-employee unions.  But, for now, I want to put that aside.  Lew's essay nicely reminds readers of the (secular) journal, Democracy, that most of what today's "progressives" value (or say they value) about the labor movement is not easily separable from Catholic, communitarian thinking about associations, mediating institutions, and the common good.  A bit:

I believe that widespread indifference and even hostility toward religion among progressives and Democrats in recent years has helped to reinforce certain trends in our political and legal culture that are equally hostile to the goals of organized labor and, indeed, to the very idea of organized labor. This is the little-told part of the story of labor’s decline—how the very same liberalism that has separated church and state and strengthened individual rights on social issues such as gay marriage has helped to undermine collective rights in the economy.

Lumen Christi event: "God, Freedom, and Public Life"

On Thursday, October 6, the good folks at the Lumen Christi Institute are holding what looks to be a really good event.

Cardinal George at the University of Chicago, Symposium on “God, Freedom, and Public Life”


Thursday, October 6, 4pm-6pm:
Mandel Hall
1131 East 57th Street

Co-sponsored by the Committee on Social Thought

The Lumen Christi Institute is pleased to co-sponsor a symposium at the University of Chicago entitled “God, Freedom, and Public Life” on the occasion of the publication of Francis Cardinal George’s book God in Action: How Faith in God can Address the Challenges of the World.

The symposium will feature contributions from Amitai Etzioni (George Washington University), Hans Joas (University of Chicago), Martin Marty (University of Chicago), and Francis Cardinal George, OMI (Archbishop of Chicago). Jean Bethke Elshtain (University of Chicago) will chair the event.

Amitai Etzioni is University Professor and Professor of International Affairs at George Washington University. He is also Director of the Institute for Communitarian Policy Studies. Etzioni is the author of twenty-four books. His most recent books are My Brother’s Keeper: A Memoir and a Message; From Empire to Community: A New Approach to International Relations; and How Patriotic is the Patriot Act?


Hans Joas
is a Permanent Fellow at the Freiburg Institute for Advanced Studies (FRIAS) at Albert-Ludwigs-Universität Freiburg and Professor of Sociology and a Member of the Committee on Social Thought at the University of Chicago. Joas has taught at many institutions as a visiting professor, most recently in Berlin, and has published several books on social theory, most notably The Creativity of Action.

 

Martin Marty, an ordained minister in the Evangelical Lutheran Church in America, is the Fairfax M. Cone Distinguished Service Professor Emeritus at the University of Chicago Divinity School, where he taught for 35 years and where the Martin Marty Center for the Advanced Study of Religion has since been founded to promote “public religion” endeavors. The author of over fifty books, Marty has written the three-volume Modern American Religion as well as Politics, Religion and the Common Good.


Francis Cardinal George, OMI is the first Chicago native to become Archbishop of Chicago. A member of the Missionary Oblates of Mary Immaculate, George is the sixth Cardinal to lead the 2.3 million Catholics in the Archdiocese of Chicago. He has assumed a prominent position among U.S. Cardinals, serving as the President of the United States Conference of Catholic Bishops from 2007 to 2010. In addition to his most recent book, he is also author of The Difference God Makes: A Catholic Vision of Faith, Communion and Culture.  

Audi on church-state separation

My colleague at Notre Dame, Robert Audi, has a new book out called Democratic Authority and the Separation of Church and State.  Here is the description, from OUP:

Democratic states must protect the liberty of citizens and must accommodate both religious liberty and cultural diversity. This democratic imperative is one reason for the increasing secularity of most modern democracies. Religious citizens, however, commonly see a secular state as unfriendly toward religion. This book articulates principles that enable secular governments to protect liberty in a way that judiciously separates church and state and fully respects religious citizens.

After presenting a brief account of the relation between religion and ethics, the book shows how ethics can be independent of religion-evidentially autonomous in a way that makes moral knowledge possible for secular citizens-without denying religious sources a moral authority of their own. With this account in view, it portrays a church-state separation that requires governments not only to avoid religious establishment but also to maintain religious neutrality. The book shows how religious neutrality is related to such issues as teaching evolutionary biology in public schools, the legitimacy of vouchers to fund private schooling, and governmental support of "faith-based initiatives." The final chapter shows how the proposed theory of religion and politics incorporates toleration and forgiveness as elements in flourishing democracies. Tolerance and forgiveness are described; their role in democratic citizenship is clarified; and in this light a conception of civic virtue is proposed.

Overall, the book advances the theory of liberal democracy, clarifies the relation between religion and ethics, provides distinctive principles governing religion in politics, and provides a theory of toleration for pluralistic societies. It frames institutional principles to guide governmental policy toward religion; it articulates citizenship standards for political conduct by individuals; it examines the case for affirming these two kinds of standards on the basis of what, historically, has been called natural reason; and it defends an account of toleration that enhances the practical application of the ethical framework both in individual nations and in the international realm.

Interestingly, one of the claims advanced in another, recent book -- one that is likely familiar to MOJ readers -- "God's Century", by Toft, Philpott, and Shah -- is that the recent "wave" of democratization is both facilitating and reflecting a resurgence in religious belief and practice.  Anyway, Audi's book (like "God's Century") should be of interest.

A Useful Book for Professional Responsibility Teachers

The legal profession as we know it today was born between the 12th and 13th centuries in Europe, and9780226077598  most especially at the University of Bologna.  The new lawyers practiced in church courts -- indeed, as James Brundage notes in his magnificent study, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago Press 2008):

[P]rofessional lawyers first emerged in the courts of the medieval church.  Practitioners in civil courts that employed the procedural system of the ius commune [the common, learned law] quickly followed suit and adopted procedures that resembled those already introduced in the ecclesiastical courts.  Development of a professional identity among the canonists thus seems to have supplied a model that other professional groups, such as English common lawyers and university-trained physicians, adapted to their own needs and purposes.  (3)

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