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.

Tuesday, February 7, 2012

Notre Dame -- Defender of Quality Church Music?

For those of you who have bemoaned the state of music in your run-of-the-mill Catholic parishes on these pages in the past:  Here's an interview in the Chronicle of Higher Education with "two of the nation's best-known scholars in medieval church music", Peter Jeffery and Margot Fassler, husband and wife, hired by Notre Dame from Princeton and Yale Universities a few years ago.  Jeffrey's response to the question of whether Vatican II contributed to a "decline in the quality of liturgical music in the Catholic Church":  

The council did say the church valued all true art from any culture. However, what we've had is not so much the adoption of real traditions of music but the assumption that the only way to have congregational singing is to have pop songs written by amateurs. That has not produced a healthy tradition of congregational singing.

Fassler closes the interview with:  "you know, it's right in Our Lady's wheelhouse to try to strengthen the life of the church through worship and music."  I must have missed the wheelhouse when I taught there -- maybe it's down by the Grotto?

Failure of General Applicability in Iowa Road Protection Ordinance

Further to Marc's recent post on the taming of Employment Division v. Smith, the Iowa Supreme Court yesterday issued an interesting and thorough opinion in a case involving a challenge by a member of the Old Order Mennonite Church against a county ordinance prohibiting the use of steel cleats on tractors. The opinion was written for a unanimous court by Justice Edward Mansfield, a very able lawyer who was recently appointed to the Iowa Supreme Court by Governor Terry Branstad. Here is a bit from Justice Mansfield's opinion:

Upon our review, we find the County's ordinance lacks sufficient general applicability to bring this case under Smith. Section 321.442(1) is not a problem; it exempts farm machinery tires with protuberances, but only so long as they “will not injure the highway.” Such an exception is consistent with the stated purpose of protecting the County's roads. One could argue that sections 321.442(2) and (3) do not defeat the general applicability of the ordinance either. Although they allow the use of tire chains, ice grips, or tire studs, the exemptions are limited in scope (“reasonable proportions,” “not more than one-sixteenth inch beyond the tread of the traction surface of the tire”), and except for buses and emergency vehicles, in timing (“when required for safety because of snow, ice, or other conditions,” “from November 1 of each year to April 1 of the following year”). One could construct an argument, therefore, that the ordinance really serves a mixed purpose: It protects the roads from damage except when necessary for safety reasons.

Yet we believe the effort ultimately fails. School buses are allowed to use ice grips and tire studs year round. It is difficult to see how this secular exemption serves either of the foregoing dual purposes. Moreover, the County declined in September 2009 to regulate various other sources of road damage besides steel wheels. Rather, it chose to prohibit only a particular source of harm to the roads that had a religious origin. For example, although state law contains various limits on the overall weight of vehicles and also limits weight per inch of tire width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to cover these matters in its ordinance.

The underinclusion of the ordinance undermines its general applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated”(emphasis added)). We are convinced the underinclusion is “substantial, not inconsequential.” Lukumi, 508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497.

Religious Legal Theory: Religion in Law, Law in Religion

I am pleased to announce that the St. John's Law Review has published several papers from a symposium of the Second Religious Legal Theory Conference, which our Center for Law and Religion, directed by Mark Movsesian, organized and hosted (and for which compatriot MOJ-er Steve Shiffrin gave a wonderful keynote address).  There are many excellent contributions, including a terrific keynote piece by Steve Smith, Nonestablishment, Standing, and the Soft Constitution, the text of which can be accessed at the link. 

The publication occurs at an auspicious moment, as the Third Religious Legal Theory Conference will occur at Pepperdine Law School at month's end, under the auspices of the Nootbar Institute on Law, Religion, and Ethics, and with the able organization of Bob Cochran and Michael Helfand.

Suzy Ismail's powerful pro-life personal testimony

Princeton Pro-Life hosts an annual interfaith service in our University's magnificent chapel in observance of Respect Life Sunday each October. One of this year's featured speakers was my friend Suzy Ismail, an exceptionally gifted young Muslim writer. Today, Public Discourse has posted a powerful and moving essay by Suzy adapted from her Respect Life Sunday reflection:  http://www.thepublicdiscourse.com/2012/02/4387?utm_source=RTA+Ismail+Life&utm_campaign=email&utm_medium=email.  Believe me, this is worth reading, and quietly pondering. If you have pro-life Christian and Jewish friends who are unaware that many devout American Muslims are their strong allies in the cause, it would be good to share Suzy's article with them.

Monday, February 6, 2012

On Susan G. Komen v. Planned Parenthood

Notre Dame law professor Carter Snead and I have weighed in on the Susan G. Komen/Planned Parenthood controversy in an op ed piece in the Wall Street Journal:

http://online.wsj.com/article/SB10001424052970204369404577206692451108960.html?mod=WSJ_Opinion_LEADTop#articleTabs%3Dcomments

Not from "The Onion"

Over at The Huffington Post, Bennett Gershman discusses Justice Holmes's (in)famous decree, in Buck v. Bell, that "three generations of imbeciles are enough."  As I started the piece, I thought, "right on!  HuffPo has its political leanings, clearly, but they are clear-eyed enough to see the troubling connections between the founding of Planned Parenthood and the early-20th-century eugenics movement.  Good for them!"  In fact, though, the piece's author is interested in, and worried about, the alleged connections between Holmes's view (and the eugenics movement generally) with today's "anti-choice" movement.  He says nothing about the fact that the leading (and, perhaps, really the only) consistent voice against eugenics and its supporting ideology, before WWII, was the Catholic Church.  He says nothing, at all, about the enthusiasm for eugenics [by Planned Parenthood's founder] Margaret Sanger.  It's really one of the least self-aware pieces I can recall reading.  He ends with this:

 But Buck v. Bell has never been overruled, and the legacy of that case, albeit a footnote in constitutional law, is a brooding presence that continues to unsettle our national conscience. States may continue to express regret for what they did in the name of fraudulent science and social hypocrisy, but the stain really doesn't go away.

Indeed.

UPDATE:  I revised the text above, to take account of the fact that, as a correspondent noted, Sanger often expressed opposition to abortion.  That said, my strong impression -- formed after reading what I can find on the matter -- is that her opposition reflected primarily her concern that illegal abortions, at that time, were unsafe for women, that women were often pressured by men to have abortions, and that expressions of opposition to abortion were useful in gaining support for increased access to contraception.  I do not think her record suggests any reservations, though, about the desirability of a move to legalized, safer abortions (or about the justifiability of abortion in the service of eugenics).

What We Get When We Talk About Religion and Politics

I found this piece by Frank Bruni in Saturday's New York Times to be interesting in several respects.  One of Bruni's claims is that we have not yet really tried to explain the various character flaws and other personality quirks that we (by which I mean the Times writers) see in Mitt Romney by reference to his religious background.  It is important that we do this, says Bruni.  So, for example, we should try to understand Romney's "muffled soul" by engaging in some extended religious psychology about Mormonism.  Here's a bit from Bruni:

One longtime Republican strategist I talked with predicted that Gingrich would broach Romney’s Mormonism yet, with the aim of mobilizing the Mormon-wary evangelicals who vote in southern primaries on March 6, “Super Tuesday.”

That’s a regrettable motive. But there are valid reasons for the rest of us to home in on Romney’s religion, not in terms of its historical eccentricities but in terms of its cultural, psychological and emotional imprint on him.

His aloofness, guardedness and sporadic defensiveness: are these entwined with the experience of belonging to a minority tribe that has often been maligned and has operated in secret? Do his stamina and resilience as a candidate reflect his years of Mormon missionary work in France, during which he learned not to be daunted in the face of so much resistance that he won a mere 10 to 20 converts . . . .

And what of his sometimes huffy expectation that voters accept his current stances against abortion and gun control, to name two flips, and stop fussing over so many contrary positions in the past? Does that track with Mormonism’s blithe reluctance, according to its critics, to explain controversial tenets that it has jettisoned, like a ban on black clergy members that was in place until 1978?

I've noted before that I am increasingly skeptical that encouraging the drawing of these connections is worthwhile -- that the rhetoric of "talking" about religion in these contexts is at all helpful.  Bruni's column does little to dissuade me from that view.  Just as it would be inappropriate to understand, say, Secretary of HHS Kathleen Sebelius's decisions to do away with conscience protections on the ground that she is a lapsed Catholic with a deep-seated animus toward the Catholic Church based on some strategically chosen anecdotes about her early upbringing which, it is claimed, illuminate her "muffled soul" for the voting public to see in its full journalistic nakedness, and to draw a general connection between lapsed Catholics and support for the HHS mandate, so, too, ought it be inappropriate in this case. 

More generally, though, this is precisely the sort of low-level partisan psychologizing that we are likely to get by imagining that we can explain personality flaws on the basis of religious association.  Aloofness?  Well, sure, that's a Mormon trait.  Opportunistic waffling on the issues, coupled with inexplicable indignation?  Yes, Mormons do that.  It's part of their psychology, you see.  And if you pay attention closely enough, we the press will bare a person's soul to you.  We will explain them to you by recourse to their religious commitments, all the while reinforcing our (and, now, your) suspicions about them.  I think this is a mistake, but perhaps one which ought to have been predictable to those who advocate greater public discourse about religion.  To be clear, I am proud to be part of that group.  But increasingly I see definite costs to that approach, too.

Federal vs. State Laws on Contraception Coverage

Rick's post links to the comment letter submitted by the USCCB back in August regarding the (then) proposed regulations as a source for more information about the difference between the HHS regulations and the existing state law.

As I've argued before, I believe the HHS regulations contain too narrow a definition of exempt religious employers. And I don't disagree that the federal mandate is broader than that in most states.  But let me correct one factual inaccuracy in the USCCB letter.

It is incorrect to say that "State contraceptive mandates generally exclude self-insured and ERISA plans."  Because of ERISA's preemption of state law, state laws that mandate coverage are framed as insurance regulations that require that plans sold/purchased in that state provide the coverage.  They are drafted that way precisely so that they avoid preemption by ERISA, which excepts from its preemptive scope laws that regulate insurance.  Thus, if an ERISA plan self-insures, it is not subject to the state mandate.  (That part of the USCCB sentence is correct.)  However, if an employer with an ERISA plan uses insurance, that ERISA plan is subject to the state law contraception mandate contained in its insurance code.

 

USA Today on the HHS mandate

USA Today editorializes against the HHS mandate, here.  Kudos to the paper (and to The Washington Post) for -- unlike the New York Times -- embracing the correct position on this issue.  Secretary Sebelius defends the mandate, here, but follows those who have misleadingly suggested that the religious-employer exemption in the HHS mandate is more generous than several states'  and is based on the ones adopted in, e.g., New York and  California.  This claim fails to take account of the fact that, in those other states, other avenues are available for religious employers to avoid the force of the mandate.  Such avenues are not available with respect to the HHS mandate; the only way to avoid the mandate is to fit within the very narrow religious-employer exemption.  Learn more here.

Charles Dickens and the Catholic Legal Imagination

This week marks the bicentenary of Charles Dickens’s birth. When my law students ask for a summer reading recommendation, I tell them to read Bleak House, one of the great novels about law and arguably Dickens’s masterpiece. Of course, Bleak House is hardly a Grisham-esque celebration of lawyers, and perhaps for that reason it’s an especially worthwhile novel to read amid times of economic turmoil and cynicism about legal education and the legal profession. As he did to Utilitarianism in Hard Times, Dickens attacks the corruption, pettiness, and self-importance of law in Bleak House, vividly depicting the shrunken soul of Mr. Tulkinghorn and the buffoonish legalese of Mr. Guppy. Consider this passage describing Tulkinghorn’s chambers, replete with images of law's obscurantism:

The day is closing in and the gas is lighted, but is not yet fully effective, for it is not quite dark. Mr. Snagsby standing at his shop-door looking up at the clouds sees a crow who is out late skim westward over the slice of sky belonging to Cook’s Court. The crow flies straight across Chancery Lane and Lincoln’s Inn Garden into Lincoln’s Inn Fields.

Here, in a large house, formerly a house of state, lives Mr. Tulkinghorn. It is let off in sets of chambers now, and in those shrunken fragments of its greatness, lawyers lie like maggots in nuts. But its roomy staircases, passages, and antechambers still remain; and even its painted ceilings, where Allegory, in Roman helmet and celestial linen, sprawls among balustrades and pillars, flowers, clouds, and big-legged boys, and makes the head ache — as would seem to be Allegory’s object always, more or less. Here, among his many boxes labelled with transcendent names, lives Mr. Tulkinghorn, when not speechlessly at home in country-houses where the great ones of the earth are bored to death. Here he is today, quiet at his table. An oyster of the old school whom nobody can open.

But the most lasting characters in Dickens are those, such as Esther Summerson and John Jarndyce in Bleak House, whose kindness and generosity endure amid the dehumanizing world around them, another lesson I would hope a law student or lawyer would take from reading Bleak House to set off any despair about law's purposes. Catholic critics from G.K. Chesterton to Peter Ackroyd have rightly seen in Dickens a reflection of merry English Catholicism, summarized in this bit from Chesterton’s Charles Dickens (1906):

If we are to look for lessons, here at least is the last and deepest lesson of Dickens. It is in our own daily life that we are to look for the portents and the prodigies. This is the truth, not merely of the fixed figures of our life; the wife, the husband, the fool that fills the sky. It is true of the whole stream and substance of our daily experience; every instant we reject a great fool merely because he is foolish. Every day we neglect Tootses and Swivellers, Guppys and Joblings, Simmerys and Flashers. Every day we lose the last sight of Jobling and Chuckster, the Analytical Chemist, or the Marchioness. Every day we are missing a monster whom we might easily love, and an imbecile whom we should certainly admire.

This is the real gospel of Dickens; the inexhaustible opportunities offered by the liberty and the variety of man. Compared with this life, all public life, all fame, all wisdom, is by its nature cramped and cold and small. For on that defined and lighted public stage men are of necessity forced to profess one set of accomplishments, to rise to one rigid standard. It is the utterly unknown people who can grow in all directions like an exuberant tree. It is in our interior lives that we find that people are too much themselves. It is in our private life that we find them swelling into the enormous contours, and taking on the colours of caricature. Many of us live publicly with featureless public puppets, images of the small public abstractions. It is when we pass our own private gate, and open our own secret door, that we step into the land of the giants.

Charles Dickens's work is one of the high achievements in our English language of the human spirit. For that reason, everyone—even lawyers, whom he subjected to such searching criticism in Bleak House—has reason to celebrate tomorrow the comradeship and joy that Chesterton offered as his final word on Dickens:

The hour of absinthe is over. We shall not be much further troubled with the little artists who found Dickens too sane for their sorrows and too clean for their delights. But we have a long way to travel before we get back to what Dickens meant: and the passage is along a rambling English road, a twisting road such as Mr. Pickwick travelled. But this at least is part of what he meant; that comradeship and serious joy are not interludes in our travel; but that rather our travels are interludes in comradeship and joy, which through God shall endure for ever. The inn does not point to the road; the road points to the inn. And all roads point at last to an ultimate inn, where we shall meet Dickens and all his characters: and when we drink again it shall be from the great flagons in the tavern at the end of the world.