Mirror of Justice

Monday, January 23, 2012

Can a President call himself pro-religious liberty if he's anti-Muslim?

I have no doubt that Newt Gingrich would be a strong advocate for defending the religious liberties of Catholic groups currently threatened by Obama administration policies. When it comes to the religious liberties of Muslims, though, Gingrich takes a sharp turn toward intolerance.

[A]sked if he would ever endorse a Muslim running for president[,] "It would depend entirely on whether they would commit in public to give up Shariah," Gingrich said.

Let's get this straight: you're welcome to participate in our public life if you "give up Shariah." Sounds like the sort of treatment given to Rocco Buttiglione by the EU (and rightly criticized by many conservatives). Or consider this piece of red meat he happily threw out to voters:

Gingrich also called the Ground Zero mosque "a deliberate and willful insult to the people of the United States who suffered an attack by people who are motivated by the same thing."

What exactly is the "same thing" that motivated the 9/11 hijackers and Muslims who want to have a mosque near their homes and places of work? Is it the "same thing" that motivates Catholics and abortion clinic bombers? We must resist efforts to paint religious believers with a single broad brush. When it comes to Muslims, Gingrich appears ready to do just that.

Is Gingrich anti-Muslim? Well, he does generously concede that "A truly modern person who happened to worship Allah would not be a threat." It is "a person who belonged to any kind of belief in Shariah, any effort to impose it on the rest of us, [who] would be a mortal threat." So are religious believers welcome to participate in public life in Newt Gingrich's America? Yes, as long as you're "a truly modern person" who just happens "to worship Allah." Not reassuring.

"The Unbearable Wrongness of Roe"

By Rick Garnett

Here, at Public Discourse, is Prof. Michael Stokes Paulsen, reflecting on the Roe anniversary and on today's March for Life:

Today, thousands of people at the March for Life in Washington, D.C., are commemorating the thirty-ninth anniversary of a legal and moral monstrosity, Roe v. Wade, and its companion case, Doe v. Bolton. . . .

. . . It is important . . . to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age. . . .

God bless all those, in Washington at the March for Life and around the country, who today (but not only today) are not only bearing witness to Roe's wrongness but also reminding us of the what-should-be-very-uncomfortable fact that most of us have made our peace, perhaps with regret, with a culture and with a legal regime in which it is not only permitted, but regarded as a moral, fundamental right, to be protected and celebrated, for some people to cause the death of other people who are vulnerable and dependent. Lord have mercy.

For another view, here is President Obama's statement, on the occasion of the Roe anniversary.

Saturday, January 21, 2012

"Catholics for Sebelius," indeed.

By Robert George

The Obama administration's abortifacient and contraception mandate is appalling, but I cannot claim to be surprised by it. In fact, I would have been surprised---indeed stunned---had the administration done anything significant to honor or protect the rights of Catholics and others on whose consciences the mandate will impose.

In every area touching the sanctity of human life and issues of sexual morality, the Obama administration is aggressively prosecuting the agenda its critics predicted and its most ardent left-wing supporters hoped for. Those who are driving the train, including key administration officials who self-identify as members of the Catholic Church, have no regard for the ethical beliefs of Catholics and others when they are in conflict with left-liberal orthodoxy. Their task, as they perceive it, is to fortify and expand the "right to abortion" and "sexual freedom" wherever they can. They pursue this agenda with a religious zeal because, in fact, the ideology in which abortion is a "right" and "sexual freedom" is a core value is their religion. These beliefs are integral to their worldview. If, like Kathleen Sebelius, they happen to be Catholics, you can be assured that it won't be Catholic teaching, or the Judaeo-Christian ethic, that shapes their policies on issues of life and death and marriage and sexual morality; it will be liberal ideology---pure and simple---that does the shaping.

Interestingly, Obama and his people have been willing to break the hearts of those on the left when it comes Guantanamo, rendition, basic procedural rights of detainees and those accused of supporting terrorism, targeted assassinations, drone attacks, and so forth. But they keep faith strictly with them when it comes to anything pertaining to abortion, contraception, and other central components of the ideology of lifestyle liberalism---the conscience rights of Catholics and others be damned.

Pro-life citizens, including many Catholics, who in 2008 allowed themselves to be persuaded that Obama wouldn't, as his critics warned, push abortion hard and run roughshod over the religious liberty and rights of conscience of Catholics and other pro-life citizens and their institutions, have now gotten a rude awakening. His administration revealed its contempt for religious freedom and the rights of people and communities of faith when it embraced an extreme and utterly untenable position on the ministerial exemption in the Hosanna-Tabor case. In case anyone thought that was some sort of isolated mistake, the President's abortifacient and contraception mandate leaves the matter in no doubt.

In 2012, it is no longer possible to sustain illusions about what Obama and his people mean to do to us. They are already doing it. "Fool me once, shame on you; fool me twice, shame on me."

Update: Michael Winters of the National Catholic Reporter won't be fooled twice: http://ncronline.org/blogs/distinctly-catholic/jaccuse. Thanks to my former student Mike Fragoso for sending me the link. But Mike, what on earth were you doing reading the National Catholic Reporter? Let me guess: You look at it for the pictures.

A Structuralist Musing on "Establishment"

By Marc DeGirolami

The Constitution uses the word "Establishment" exactly twice. The second time is familiar to MOJ readers: "Congress shall make no law respecting an establishment of religion..." Do you know what the first reference is? (No peeking!...the answer, a thought, and a question after the jump)

Friday, January 20, 2012

The Deeply Misguided Contraception-Mandate Decision

By Thomas Berg

The decision not to expand the narrow exemption from mandatory contraceptive coverage is disappointing, for me, on several levels. As someone who believes that the healthcare law accomplishes many good goals, I think it is both unjust and strategically unwise for progressives to reject meaningful exemptions from such laws. Among other things, the statute is now one step more vulnerable to being undercut or even repealed at the initiative of those angered or burdened by it.

Here's my recent piece from The Christian Century arguing that religious progressives "should support significant accommodations for religious beliefs--even those with which they disagree."

Obama holds firm on contraceptive coverage mandate

By Rob Vischer

The Obama administration is refusing to broaden the exemption from the new rule requiring religious employers to cover contraceptives:

The Obama administration will allow religious organizations a one-year delay before they must comply with a new rule requiring employers that offer workers health insurance to include access to contraception with no out-of-pocket cost, according to people familiar with the decision.

But the rule itself and the employers covered by it remain unchanged.

I am (a little) surprised and (a lot) disappointed that the administration didn't budge. I'm also not sure what the purpose of the one-year delay is. My cynical side can't help but notice that it conveniently postpones any enforcement dramas until after the election. If you need a refresher on the merits of the exemption debate, check out Rick's op-ed from a couple of months ago.

Can the State De-Baptize?

By Robert John Araujo, SJ

The Washington Post has an interesting article from January 18 entitled “Flood of ‘de-Baptisms’ Worries European Church Leaders.” [HERE] The article recounts, through several personal accounts, the large number of western Europeans who are asking civil officials to remove their names from Catholic and Protestant baptismal records.

As the report states,

A decade ago, Rene Lebouvier requested that his local Catholic church erase his name from the baptismal register. The church noted his demands on the margins of its records and the chapter was closed. But the clergy abuse scandals rocking Europe, coupled with Pope Benedict XVI’s conservative stances on contraception, hardened Lebouvier’s views. Last October, a court in Normandy ruled in favor of his lawsuit to have his name permanently deleted from church records — making the 71-year-old retiree the first Frenchman to be officially “de-baptized.” “I took the judicial route to get myself de-baptized because of the church’s excesses,” said Lebouvier, speaking by telephone from his village of Fleury, near the D-Day beaches. “It’s a sort of honesty toward the church because they have a guy on their register who doesn’t believe in God.”

The questions here are: does the civil authority have the competence to do this? Should the civil authorities have the competence to do this?

My point does not address nor do I intend to address the European matter where citizens can add or remove their names from state registers stating that a percentage of their taxes are to be paid to a particular church or religious organization as is permitted under the positive law. As this circumstance does not exist in the United States, I am not tackling this issue today. But I am raising concerns about the state inserting itself at the request of a citizen into a matter that is purely ecclesiastical. Here it seems that the state is ordering the Church to remove from its baptismal records the name of an individual who no longer chooses to remain in the Church. That is his business that reflects the exercise of his free will. But can the state reorder history and command deletion from the records that the Church has maintained for ecclesiastical purposes indicating that M. Rene Lebouvier on a certain date received the sacrament of baptism? I, for one, do not think the state has this authority because it has no role in the administration or revocation of the sacraments of the Church. Should it insist otherwise, the state is then exercising an authority for which it does not have the competence. M. Lebouvier asked that he no longer be considered Catholic, and the parish where he was baptized respected his request to apostatize. That matter should have properly stopped there.

RJA sj

Digital Addictions and the Sabbath

By Steve Shiffrin

The essays continue to appear on the need to escape, if only for a time, our digital addictions. For another, with citations to three other good ones, see here.

But the digital addictions are part of a larger phenomenon that has been addressed by religious traditions from the beginning. In this connection, I am reminded of a comment by Dara Horn referring “to the impossibility of removing oneself from the current of modern life and the equal impossibility of being forever caught in the current.” Horn’s comment was made in connection with praising Judith Schlevitz’s The Sabbath World. Schlevitz writes from a Jewish perspective, but compares the Jewish and Christian traditions in her book. As to the tension described by Horn, Shulevitz puts it nicely: “Americans once the most Sabbatarian people on earth are now the most ambivalent on the subject. On the one hand, we miss the Sabbath. When we pine for escape from the rat race; when we check into spas, yoga centers, encounter weekends, spiritual retreats; when we fret about the disappearance of more old fashioned time, with its former, generally agreed-upon rhythms of labor and repose; when we deplore the increase in time devoted to consumption; when we complain about the commercialization of leisure, which turns fun into work and requires military-scale budgeting and logistics . . . whenever we worry about these things, we are remembering the Sabbath, its power to protect us from the clamor of our own desires. But when, say, we return from a trip to some less developed country and feel a sense of relief that our twenty-four hour economy allows us to work, shop, dine, and be entertained when we want to, not according to some imposed schedule, at that point, too, we are remembering the Sabbath. We are remembering how claustrophobic its rigid boundaries used to make us feel.”

I was raised as a Catholic in the fortys and fifties(I have been in and out of the Church since) and Sunday was a day to go to Mass. I was told it was the Sabbath, but I did not hear a sermon about the Sabbath’s meaning until I heard Taryn Mattice, a Presbyterian minister gave a sermon on it some fifteen years ago in the Sage Chapel. The Christian Sabbath has not been marked by rigid boundaries and rules. But that has led to its decline. That leads me to offer two cheers for the claustrophobic condition.

Thursday, January 19, 2012

What Does It Mean to Call a Judicial Opinion Particularist?

By Marc DeGirolami

Hosanna-Tabor has come and gone, with a flurry of commentary out of the gate (including reliably acute posts by Rick, Michael, and Tom, as well as what I thought was an interesting reflection on religious dissent by Jessie Hill here) and now a bit of (perhaps welcome!) silence. Last week, I described the decision as particularist, but I did not define the term. Judicial particularism is a concept that I explore in my current book project, Tragedy and History: The Quality of Religious Liberty, but for purposes of this post, I thought to offer some quick-shot thoughts about what judicial particularism might mean -- first what it does not, or need not, mean, and second what I believe it does, or at least could, mean.

If judicial particularism is taken to mean only the simple and bland proposition that "context matters" in the adjudication of cases, then that seems fairly uncontroversial. Of course context matters. Who would disagree? Even those who prefer the ostensible discipline of hard rules in adjudication acknowledge that general rules are not self-applying and that the specifics of a case will and ought to affect the outcome.

Judicial particularism also does not necessarily mean or imply adjudicatory narrowness, in the sense of deciding only the absolute minimum that one needs to dispose of the case. It is true that often times particularistic judgments may also be narrow judgments. Indeed, this is a position with great appeal. But one could be both a judicial particularist and write a decision that intimates (perhaps subtly, in dicta, or perhaps implicitly, by failing to say anything) the resolution of other, future cases that are factually similar on similar grounds, or the resolution of other, future cases that are factually dissimilar on dissimilar grounds.

Following Jonathan Dancy's work on moral particularism, I take the core of judicial particularism to be that it is possible to decide cases reasonably predictably without the necessity of relying on a single general value or principle, or even a set number of general values or principles, to do so. The sting in particularism is not that 'context matters' but that reasons or values which are important in some specific context may not be so in others. Reasons or values do not have either constant or categorical weight across a range of disputes, or even among cases within a range, so that what is a reason for reaching a judgment in one set of circumstances may not, as Dancy puts it, retain the same "polarity" in another set of circumstances.

I should make clear that for me the analogy from moral particularism to law is more suggestive than direct. I do not believe that a rigorous version of particularism is well-suited to law, principally because I believe in a comparatively strong approach to the bindingness of precedent for various reasons not directly related to particularism. But I do think that a soft particularism is one way to understand certain decisions in religion clause law, including Chief Justice Roberts's opinion in Hosanna-Tabor. Take, for example, the Chief's discussion of the bare fact of the official title, "minister." It seems to me that what the Chief is saying is that the Sixth Circuit was wrong completely to disregard the fact that Cheryl Perich had obtained the title of minister -- not even to consider that fact in deciding the ME question. An official designation is often a reason to ascribe a particular legal status. But at the same time, the Chief was very much unwilling to say that the formal title itself "automatically ensure[s] coverage." Slip op. at 18. The formal title is an invitation to ask more fact-specific questions about the nature of her position and the perceptions of the employer and the employee with respect to it.

Suppose it turned out that Perich had been given the title "minister" very late in the game -- on the eve of litigation, say -- precisely and solely for the reason that it would make it more likely that courts would apply the ministerial exception to her case. It seems to me that one way to interpret the decision is that in such a case, the formal title minister would not merely be no reason to find that the exception applied. It might in fact be a negative reason -- a reason exactly to find that the ministerial exception should not apply. That would be an example of a reason which might have salience in one sort of context but the opposite sort of salience in another.

Or suppose instead that Perich had been given the title, "minister," but that in the particular faith under consideration, everyone who joins the religion is automatically given the title minister as a pro forma matter. To be a minister, all one needs to do is to be nominally affiliated with the religious organization. In that sort of case, a reason which might have salience in one sort of context would have no (but not negative) salience in this context.

Much the same method may be applied to other sorts of reasons cited by the Court. Take, for example, the fact that, in the Court's view, Perich held herself out as a minister of the Church. The subjective perception of the employee with respect to the nature of his or her position, and the actions taken by the employee as a consequence of those perceptions, are, the Court seems to say, often times important reasons in determining whether the position is, in fact, "ministerial." But one could imagine fairly easily situations in which the subjective perceptions (and consequent actions) of the employee would not count as reasons. Suppose the employee believed in earnest that he ought to count as a minister, and held himself out as a minister, but it was plain that nobody within the religious organization ever thought the same thing. The reasons for the employee's beliefs need not be delusional; they might be grounded in a different or dissenting set of theological or doctrinal beliefs about what the religious organization ought to require in order to be a minister. The point is that a reason which might be salient in one context might lose its salience entirely, or at least acquire a different polarity, in another. And the best way to achieve an evolving sense of the quality of the ministerial exception is by the accretion of cases over time which give jurisprudential shape to its content.

That is why, in my view, the staking out of a particularist approach by the Chief (with the unanimous agreement of his colleagues) -- coupled with the Court's "reluctan[ce] to adopt any test" -- at the very birth of the ministerial exception is so interesting from a doctrinal perspective. It is somewhat more difficult to replace a hard rule with a particularist method once the hard rule has become encrusted with precedent (not at all impossible, but at least more complicated). But by bringing the ministerial exception into being as a jurisprudential creature living in a particularist legal world, the Court (all 9 of them) has set the future of the ME on a decidedly common law course. I may be wrong, but I do not believe this has happened in any other corner of religion clause law. It will be interesting to see how the ME develops through the years, nurtured on the diet of common law constitutionalism.

The Challenges to Religious Freedom

By Robert John Araujo, SJ

This morning, Pope Benedict met a group of U.S. bishops on their ad limina visit with the Holy Father, and he delivered to them an important address dealing with religious freedom in the United States. [HERE] His remarks echo the sentiments of Paul VI who, at the conclusion of the Second Vatican Council, stated to the temporal authorities of the world that the one thing that the Church asked of them was the freedom to exist in order that she may advance her mission without impediment. Implicit in this request of Paul VI was the necessity to promote in public forums the Church’s teachings that are critical to the development and preservation of the moral and virtuous life and the promotion of the common good.

Today, Benedict XVI reemphasized this central objective. As he, Benedict, stated,

At the heart of every culture, whether perceived or not, is a consensus about the nature of reality and the moral good, and thus about the conditions for human flourishing. In America, that consensus, as enshrined in your nation’s founding documents, was grounded in a worldview shaped not only by faith but a commitment to certain ethical principles deriving from nature and nature’s God. Today that consensus has eroded significantly in the face of powerful new cultural currents which are not only directly opposed to core moral teachings of the Judeo-Christian tradition, but increasingly hostile to Christianity as such.

Like many others, the pope is aware of the recent erosions of authentic religious liberty around the world, including the great democracies. He stated that true religious freedom has been beneficial to the establishment and the progress of our nation that has promoted human flourishing and the advancement of the common good. Yet, the pope also noted that,

For her part, the Church in the United States is called, in season and out of season, to proclaim a Gospel which not only proposes unchanging moral truths but proposes them precisely as the key to human happiness and social prospering (cf. Gaudium et Spes, 10). To the extent that some current cultural trends contain elements that would curtail the proclamation of these truths, whether constricting it within the limits of a merely scientific rationality, or suppressing it in the name of political power or majority rule, they represent a threat not just to Christian faith, but also to humanity itself and to the deepest truth about our being and ultimate vocation, our relationship to God. When a culture attempts to suppress the dimension of ultimate mystery, and to close the doors to transcendent truth, it inevitably becomes impoverished and falls prey, as the late Pope John Paul II so clearly saw, to reductionist and totalitarian readings of the human person and the nature of society.

The pope continued his exhortation by emphasizing the crucial relationship between faith and reason that is essential not only for the Church but for all of civil society. This does not mean that the Christian perspective will always control the outcome of public discourse, but it does mean that this point of view must nevertheless always be a substantial and meaningful part of the discourse. As Benedict asserted,

The Church’s defense of a moral reasoning based on the natural law is grounded on her conviction that this law is not a threat to our freedom, but rather a “language” which enables us to understand ourselves and the truth of our being, and so to shape a more just and humane world. She thus proposes her moral teaching as a message not of constraint but of liberation, and as the basis for building a secure future.

The Holy Father further realized that there presently exist dangers to the Church’s ability, through all her members, to serve as an advocate and a public moral witness that is essential to the common good by providing a critical counterpoint to the “radical secularism” of the day that increases its influence on the political and cultural dimensions of civil society. In one particular context the pope identified the assaults against the right to enjoy the benefits and public exercise of the well-formed conscience, an issue frequently discussed here at the Mirror of Justice.

The pope continued by expressing that it is essential to the preservation of authentic religious freedom that “an engaged, articulate and well-formed Catholic laity” (and here, I suggest that this means any person who thinks with and not against the Church) provide this essential counterpoint in the debates surrounding the important issues of the day. The Holy Father also expressed his gratitude to those ecclesiastical officials who have maintained contacts with Catholics in public life who have or can have an impact on the outcome of the political, social, economic, and cultural debates that often determine what is constitutive of our democratic society.

I, for one, pray that all members of the Church around the world, but especially here in the United States, will take to heart the words of the Holy Father and the encouraging and challenging words he has offered.