Not quite a month ago I mentioned that I have been pursuing research on the subject of John F. Kennedy’s position regarding the relation, if any, between the Church and State. [Here] At that time, I made several observations about then-Senator Kennedy’s address to the Houston Ministerial Association and the question-and-answer session that followed the address. Since the nucleus of my project is to identify the views of the Senator and President on “the separation of Church and State,” it is essential to understand that some major points of the September 12, 1960 speech were based on the September 8, 1960 Background Memorandum prepared by the Democratic National Committee (DNC) before the Houston speech. This memo stressed Senator Kennedy’s “support of the constitutional [sic] provision of the separation of church and state.” The DNC memorandum referred to and relied on the 1948 Statement of the Catholic Bishops of the United States by indicating that,
“We deny absolutely and without qualification that the Catholic Bishops of the United States are seeking a union of Church and State by any endeavors whatsoever, either proximately or remotely. If tomorrow Catholics constituted a majority in our country, they would not seek a union of Church and State. They would, then as now, uphold the Constitution and all its amendments, recognizing the moral obligation imposed upon all Catholics to observe and defend the Constitution and its amendments.”
This is not quite what the bishops said, but more on what they did say later. These words were likely those of Archbishop John T. McNicholas of Cincinnati who was a member of the board that prepared the text of the bishops, but they did not appear in the 1948 statement of the bishops itself.
During the September 12 Houston speech, Senator Kennedy reiterated his opposition to a U.S. ambassador to the Vatican and “against unconstitutional aid to parochial schools.” This formulation begs the question of whether there might be Constitutional aid to parochial schools. He reminded the Protestant ministers of “the statement of the American Bishops in 1948 which strongly endorsed church-state separation, and which more nearly reflects the views of almost every American Catholic.” Furthermore, during the question-and-answer session that followed the address, the Senator reiterated the significance of the 1948 statement when he stated that there is a “happy relationship which exists between church and state” and that, in Kennedy’s judgment, Cardinal Cushing would approve of Kennedy’s position “in the same way that he approved of the 1948 statement of the Bishops.”
Since Senator Kennedy and the DNC relied on the 1948 Bishops’ Statement (entitled “The Christian in Action”), it is essential to take stock of what the bishops did say and what they did not say.
In their paper, the American bishops discussed four topics: (1) religion in the home; (2) religion in education; (3) religion in economic life; and, (4) religion and citizenship. It was in the fourth topic that the bishops elaborated upon the Church-State question. The bishops began tackling the last topic by recalling that there is an essential nexus between religion and good citizenship in the U.S. that is evidenced by the “American tradition” that “religion and morality are the strong supports of national well-being.” They drew attention to the fact of the importance of religion and morality on the Framers’ support of “national well-being” as was evidenced by early legislation when Congress reenacted the Northwest Ordinance.
The Framers also testified to the inextricable connection between the natural law (which the bishops concluded reflects the moral law of God and is comprehendible by human reason and conscience) and human law. The bishops also noted that the natural law process that relies on objective reasoning is the accepted philosophy of law in the American tradition, not the dictate of the will.
The bishops also spoke at length about the growth of secularism in America and its “corrosive influence” that banned religion in tax-supported education and that was advancing the destruction of “all cooperation between government and organized religion in the training of our future citizens.” In short, the bishops saw the strong emergence of a “legalistic tyranny of the omnipotent state.” Yet they recognized the merits of the First Amendment as the antidote to secularism in the United States. In this acknowledgment, they understood that the religious pluralism of America did not prohibit the cooperation between religious communities and the state. The separation and the ability to cooperate were both consistent with “[a]uthoritative Catholic teaching on the relations between Church and state.”
For the bishops, the clear import of the First Amendment meant that the prohibition of an established church or religion did not preclude the collaboration between God and Caesar. The phrase “a wall of separation between church and state” was but a “loose metaphor” that had to be understood in the American context. Otherwise a false reading of the metaphor “would be an utter distortion of American history and law to make that practical policy involve the indifference to religion and the exclusion of cooperation between religion and government.” This indifference and exclusion were the shibboleths of “doctrinaire secularism.” The bishops also noted that recent Supreme Court decisions relying on the metaphor’s unintended implications, including McCollum, were “entirely novel and ominously extensive” interpretations of the First Amendment. They relied on the understanding of the phrase “separation of church and state” offered by Justice Stanley Reed that “a rule of law cannot be drawn from a figure of speech.”
The bishops also recalled the views of Thomas Jefferson and James Madison regarding the ability for religion and the state to collaborate in the state-sponsored University of Virginia. As individuals who played major roles in the founding of the United States, the thoughts and views of Madison and Jefferson reflected the legislative intent underpinning the First Amendment: it proscribes an established religion but does not preclude the role of religion in public life. Like John Courtney Murray, the bishops saw the First Amendment as articles of peace for a pluralist society rather than articles of faith.
The bishops concluded the 1948 Statement by presenting the case for the “reaffirmation of our original American tradition of free cooperation between government and religious bodies.” The bishops “solemnly” disclaimed any plan or aspiration “to alter this prudent and fair American policy of government in dealing with the delicate problems that have their source in the divided religious allegiance of our citizens.” The bishops pledged their cooperation “in fairness and charity” to all who were concerned about the “establishment of secularism” which, in their estimation, threatened “the religious foundations of our national life” and would prepare “the way for the advent of the omnipotent state.”
Although he did not directly adopt the bishops’ Statement, Senator Kennedy and the DNC relied upon it. Would that not mean that there was a common denominator on the meaning of the separation of Church and State held by the successors of the Apostles, the Senator, and his party in 1960?
Shaima Alawadi, the mother of five children, ages 8 to 17, was murdered in an unspeakably brutal beating in her home in San Diego. Mrs. Alawadi and her family came from Iraq in the mid-1990s and are Muslims. A vicious anti-Muslim note was found at the crime scene. The family had received at least one threatening note prior to the murder. Police are still investigating the question of whether the murder was a hate crime, but the evidence certainly points in that direction.
Recently many of us who are Catholics have been standing up and speaking out for religious freedom. We have been joined by people of other faiths, including Protestants, Eastern Orthodox Christians, Latter Day Saints, Jews, and Muslims. Among Muslims, important voices such as those of Shaykh Hamza Yusuf of Zaytuna College and brilliant young Becket Fund lawyer Asma Uddin have been raised in solidarity with the Catholic Church and her right not to be coerced in relation to the HHS abortion drug, sterilization, and contraception mandates. Surely there is no right of religious freedom more fundamental than the right to practice one's faith and publicly identify oneself as a member of the faith without fear of violent attack. This, it appears, is precisely the right that Mrs. Alawadi was denied by her murderer who hated her because she was a Muslim.
Her family and many other Muslim Americans now live in fear of future attacks. This is a time for those of us who are Catholic, and, indeed, for all Christians, to stand in solidarity with our Muslim brothers and sisters and speak up for their religious freedom and other human rights. Let us also pray for Mrs. Alawadi, who as a devout Muslim lived, as Christians live, in the hope of resurrection, and for her family---especially for those five children whose beloved mother has been violently taken from them.
Here is a short chapter, called "Religious Freedom and (and in) Institutions," which I contributed to a just-published volume, Challenges to Religious Liberty in the Twenty-First Century" (Cambridge 2012), edited by my colleague Gerard Bradley:
This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces -- to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.
Other contributors to the book include Kent Greenawalt, Steven Smith, Daniel Philpott, and more. Check it out!
. . . spend some time with a friend with Down Syndome today! Today is World Down Syndrome Day, celebrated annually on 3/21 -- in acknowledgement of the genetic basis of Down Syndrome: three copies of chromesome 21) by spending some time on the National Down Syndrome Society's website. (Which reports, among other things, that this is the first year the U.N. is officially observing the day.)
Or watch this great video -- with a Phil Collins soundtrack.
Or go to this 5:15 celebration Mass and reception on the Notre Dame campus (see flyer attached below). Or just look at the gorgeous kid on that flyer and say a prayer of thanks for what God has seen fit to share with us!
There were two cases argued yesterday before the Supreme Court dealing with the constitutionality of a sentence of life without the possibility of parole imposed on 14 year old defendants who have committed the crime of murder. The cases are structured to build on the 'death is not really different' jurisprudence which seemed to emerge in Graham v. Florida, where the Court held that the imposition of LWOP on a juvenile for a non-homicidal offense violates the 8th Amendment. The cases are Miller v. Alabama and Jackson v. Hobbs. 39 jurisdictions at present permit the punishment.
I think the more difficult of the cases is Miller v. Alabama, and the reason is that Miller participated quite personally in the horrifyingly brutal killing of his victim (do read the opinion of the Alabama Court of Criminal Appeals), while Jackson did not (he was convicted of felony murder as an accomplice, with the predicate felony being robbery). Justice Sotomayor seems to agree with me ("I do see a world of difference between the Miller killing and the Jackson killing . . . ."). Because he was 14, Miller was (under Alabama law) transferred out of the juvenile system to the adult system, given the quality of the crime. 14 is the lowest age at which Alabama permits this transfer to occur.
The leitmotiv of the argument seems to show various Justices searching for some sort of compromise view; it does not seem that a majority of the Court is prepared to say that imposition of LWOP on minors who have committed murder is categorically a violation of the 8th Amendment, as it did say (notwithstanding what was to my mind a sensible concurrence by CJ Roberts) in Graham v. Florida that the 8th Amendment categorically forbids imposition of LWOP on minors for non-homicide offenses. Justice Kennedy (the author of Graham) talked about a holding that mandatory sentences of LWOP for juveniles convicted of a homicide would violate the 8th Amendment. Justice Kennedy also mentioned rehabilitation specifically several times in the argument. Justice Scalia was less interested in rehabilitation ("Let's assume I don't believe in rehabilitation, as I think sentencing authorities nowadays do not"...he might enjoy Meghan Ryan's new piece!), but pointed out quite reasonably the many line-drawing difficulties that the Court confronts -- now that it has moved away from its death-is-different position.
Justice Sotomayor seemed to suggest something like a bifurcated theory: an absolute bar on LWOP for offenders 14 and under and guilty of homicide, and a bar on mandatory LWOP for homicide offenders 15-18, but she was curious about how to work around the Court's holding in Harmelin v. Michigan, which dealt with the imposition of LWOP on a first-time offender for possession of cocaine. The Harmelin Court engaged in a proportionality analysis, but the opinion was highly fractured. Justice Kennedy argued for a contextual review in non-death penalty cases (setting out a multi-factor test): unless the sentence was grossly disproportionate to the offense, the Court would uphold it in a non-death penalty context. Justice Sotomayor's question seems to be -- if the Court engages in a kind of contextual proportionality analysis when it is dealing with an adult who committed a non-homicide offense, why should it engage in a categorical no-LWOP-ever approach when it is dealing with a 17 year old who committed murder? It is a good question.
Here's a question that keeps me up at night, especially when, as now, I'm teaching the morass of products liability law: Was Erie Railroad Co. v. Tomkins--one of the most celebrated cases of the twentieth century--wrongly decided (or if it's now too well-settled to call into doubt, should we regret that)? Michael Greve puts the question back on the table with his new book The Upside-Down Constitution (Harvard, 2012) and has a short blog post about the argument here with the promise of more to come. Apart from the concerns about Erie's effects on federalism that Greve raises in his book, there are also passages in Justice Brandeis's opinion (here quoting Justice Holmes in his dissent in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co.) that I should think have to chafe the sensibilities of anyone sympathetic to the Catholic legal tradition:
The doctrine [of Swift v. Tyson] rests upon the assumption that there is "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute," that federal courts have the power to use their judgment as to what the rules of common law are, and that, in the federal courts, "the parties are entitled to an independent judgment on matters of general law":
"but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally, but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. . . ."
"the authority and only authority is the State, and, if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word."
Erie Railroad Co. v. Tomkins, 304 U.S. 64, 79 (1938) (omission and second alteration in original).
My Notre Dame colleague, and MOJ-friend, John O'Callaghan (Philosophy), sends in the following, in response to John Breen's recent post:
Dear Mr. Breen,
As a Thomist, however mediocre an Aristotelian that makes me, I enjoyed reading your ontological thoughts, or better questions posed to those who would suggest that the terms “health” and thus “healthcare” signify subjective determinations of the autonomous power of the speaker wielding the terms when applied to their own persons, and not states of living organisms in pursuit of the goods of existence of the type of organism one is and the acts directed at promoting those states and goods. But in reading it I was also reminded of the sorts of discussions I find myself engaged in in the philosophy courses I teach in which the student believes that because the door to the classroom is closed he or she can say pretty much anything no matter how manifestly absurd, absurdities that he or she would never think of uttering outside the classroom, as for example that he doesn’t know who his father is because knowledge excludes faith, and he has to have faith in his mother to have any inkling who his father is. Those of us who teach philosophy enter every semester thinking things will be different this time, and our students will see the obvious absurdity our counterexamples are designed to elicit to the “everything is allowed behind closed doors” principle that our students have picked up. Alas—no. Horrendous evil only exists in the mind of some as a thought experiment to argue that God cannot possibly exist, not as a reality that presents an opportunity to think about justice and what it requires of us. Our last refuge in the face of such bullet biting is to just say “tell it to your father or mother, or whoever else is footing the bill for this class.”
But this last refuge of a non-philosophical response brings me to the thought that confronting such claims about “health" and “healthcare” with ontology might miss the goal of the social, moral, and political questions that are now being asked about health care and the state’s role in it. Many people are happy with a very large role for the state in the structure of health care. Many people are unhappy with such a very large role. But few people think there is no role whatsoever for the state in healthcare. At the very least the licensing of doctors, nurses, therapists, pharmacists, etc. is a public good that promotes the goals of healthcare as a social good even if the state were to play no more part in it than that licensing role. But there are additional goods that predate the success of the Obama administration in putting forward the Affordable Care Act, goods such as compelling healthcare professionals and institutions to provide healthcare to individuals regardless of ability to pay. I believe it is the case that if you present yourself to a hospital in most, and I think it may be all, states in this country, you cannot be turned away from care because of your inability to pay. Others know the particulars.
But with the involvement of the state comes the coercive power of the state. And so there are at least two problems with the position that the very meaning of ‘health’ and ‘healthcare’ are subjective determinations of the autonomy of private individuals. The first is semantic and bears upon coherence. If the meaning of “health” and “healthcare” really are subjective determinations of the autonomy of private individuals, the state in mandating any sort of legislation concerning “healthcare” is quite literally legislating nothing. Any apparent law involving the terms “health” and “healthcare” are really schema with place markers or variables in them like “X” and “Y”, which of course means that they are not laws at all. Thus the incoherence--the law is not a law.
And this brings me to the second problem with the position, the moral or political. Here what is not a law can only become a law if the place marker or variable is filled in with some semantic determination. But the claim here is that such a determination is the expression of and determined by the autonomy of the private individual pursuing his or her own private interests. So the autonomous private individual in fact becomes the legislator, not the public legislative body. The philosophers among you will of course see the hand of Kant in the ideal of autonomy as self-legislation, each human being being a king in a kingdom of ends, except that Kant only argued for self-legislation as a kind of binding of oneself to an objective moral law that one does not create for oneself or others, but that exists apart from and independently of any autonomous or heteronomous individual. The sort of self-legislation envisaged here by the autonomous-semanticist is quite different since it determines the very character of the law that binds, creating it, as it were, ex nihilo. And here it is a law that does not bind the autonomous individual; no it is a law that binds everyone else to the self-determination of the individual, and uses the coercive power of the state to so bind them.
But one might have thought that it was fundamentally unjust for a private individual to use the coercive power of the state to enslave the lives of others to his or her private interests. Political theorists have a very specific word for such coercion. It is one thing for the state to protect the pursuit of private interests, quite another for it to advance such private pursuits particularly at the cost of enslaving others to them. An ideal of equality or justice as fairness might suggest that if the coercive power of the state is used to advance the private interests of some it ought to be used to advance the private interests of all, to the extent that such massive promotion of private interests would be at all workable. But that really just raises the more fundamental question whether the coercive power of the state can justly be used to advance the private interests of anyone. And on point, whether the state can be justly involved in any aspect of healthcare conceived of as merely the advancement of the interests of autonomous private individuals? Or whether, on the contrary, in justice we ought to say goodbye to all laws that use the coercive power of the state to compel medical treatment of the poor, the halt, and the lame?
Following up on Robby's recent post on Timothy Shah's new book, Religious Freedom: Why Now?, I thought MOJ readers might be interested in this interview with Tim, which is available at "Research on Religion":
What case can be made for promoting religious liberty worldwide? Why is religious freedom often considered the “first freedom”? And should religious liberty really be a strategic objective for US foreign policymakers? Prof. Timothy Shah – associate director of the Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs and an a visiting assistant professor at Georgetown University — joins us to discuss the recent monograph he authored under the auspices of the Witherspoon Institute’s Task Force on International Religious Freedom. Tim starts the program by explaining what the Witherspoon Task Force saught to accomplish and also details how his own interests in religious freedom grew from a tragic incident in Gujarat, India. We then dip into a variety of justifications for why religious liberty should be a major concern for both policymakers and civilians around the world, starting with the anthropological reasons behind religious freedom. Justin Barrett’s research, recently discussed on a separate podcast, serves as our anchor here as Tim argues that the innate tendency for humans to seek out the transcendent provides an important justification for promoting religious liberty and the human dignity it requires. Dr. Shah then covers the moral case for religious freedom and summarizes how three religious traditions — Judaism, Christianity, and Islam – view the subject. The topic of apostasy figures into this discussion, particularly as it pertains to the recent case of Youcef Nadarkhani in Iran. Following the moral case for religious freedom, Tony brings up the issue of political and strategic justifications, noting that political rulers often dislike religious freedom since they fear it may promote conflict within their borders, as it did in India. Tim answers these concerns arguing that religious freedom is certainly better than other political options and we engage in a thought experiment based on a scenario where everyone in a population had the same beliefs. That exercise proves enlightening. Along the way, we also ruminate about why so many secular elites — be they policymakers or academics — tend to downplay the vital importance of what is often called “the first freedom.” A few stories about Tony’s visit to the Witherspoon Institute and a 2011 colloquium on religious liberty at Princeton Theological Seminary are sprinkled throughout the interview. Recorded: March 13, 2012
This Friday, March 23, Villanova will host its annual Joseph T. McCullen, Jr. Symposium, and the topic is the moral foundations of private law. Speakers include James Gordley (Tulane), Chapin Cimino (Drexel), Eric Claeys (George Mason), Andrew Gold (DePaul), Jody Kraus (Penn), Nate Oman (William & Mary), Jeff Pojanowski (Notre Dame), and Chaim Saiman and yours truly from Villanova. Details here.
Michael McConnell will be delivering the annual Giannella Lecture at Villanova this Wednesday, March 21, on "Employment Division v. Smith in Hindsight: Ministers, Peyote and the Supreme Court." Details for anyone in the area who would like to attend are here.
