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.

Wednesday, March 14, 2012

What is the object of "human rights"?

By Marc DeGirolami

To make liberal education sanitary for students.  Dante’s DivineHell-bent---a-Gustave-Dor-007 Comedy appears to be on the chopping block, even at universities.  From the story:

The classic work should be removed from school curricula, according to Gherush 92, a human rights organisation which acts as a consultant to UN bodies on racism and discrimination.

Dante’s epic is “offensive and discriminatory” and has no place in a modern classroom, said Valentina Sereni, the group’s president . . . .

It represents Islam as a heresy and Mohammed as a schismatic and refers to Jews as greedy, scheming moneylenders and traitors, Miss Sereni told the Adnkronos news agency.

“The Prophet Mohammed was subjected to a horrific punishment – his body was split from end to end so that his entrails dangled out, an image that offends Islamic culture,” she said.

Homosexuals are damned by the work as being “against nature” and condemned to an eternal rain of fire in Hell.

“We do not advocate censorship or the burning of books, but we would like it acknowledged, clearly and unambiguously, that in the Divine Comedy there is racist, Islamophobic and anti-Semitic content. Art cannot be above criticism,” Miss Sereni said.

The concession about not burning books is truly magnanimous.  Maybe Ms. Sereni may have missed the exquisite pain previewed for Popes Clement V and Boniface VIII in the Eighth Circle.  It's the only explanation for the lack of anti-Catholicism outrage.  But Boniface probably deserved a bit of hell, given his pretensions to temporal power.  Perhaps Dante and Ms. Sereni agree on the issue of simony.  Or the separation of church and state? 

No matter –Dante was banished in his own time, so it is fitting that some right-thinking folks wish to banish him today.  Still, if I could offer a little legal advice to Messrs. Chaucer, Boccaccio, Cervantes, and Shakespeare -- keep your heads down.

Michael McConnell at St. John's Law School

By Marc DeGirolami

The Center for Law and Religion is delighted to announce that Professor Michael McConnell (Stanford) will visit us at St. John's Law School next Monday, March 19, at 5:30 pm.  His is the fourth session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor McConnell will reconsider Employment Division v. Smith in light of Hosanna-Tabor v. EEOC, and he will offer us his always illuminating thoughts about the future of free exercise (those who have not read Professor McConnell's two 1990 pieces on free exercise -- one on the historical origins of free exercise and one in response to Smith -- will profit from them greatly).  

Academics in the New York area and beyond are welcome to attend.  Please let me know.

Wright on Constitutional Cases and the Four Cardinal Virtues

By Rick Garnett

I always learn from George Wright's work.  Here is another paper of his that I just came across, "Constitutional Cases and the Four Cardinal Virtues":

Judges typically decide constitutional cases by referring to one or more legal precedents, rules, tests, principles, doctrines, or policies. This Article recommends supplementing this standard approach with fully legitimate and appropriate attention to what many cultures have long recognized as the four basic cardinal virtues of practical wisdom or reasonable prudence, courage or fortitude, temperance or reasonable self-restraint, and justice as the disposition to give everyone their due.

The Article illustrates the legitimacy and usefulness of this supplementary approach, with judicial attention being paid either to government actors or to some broader public, in a range of important constitutional cases.

Part of the justification for this Article’s recommended approach is drawn directly from reflection on the case law, but the Article also draws upon philosophical discussions of the basic virtues from many cultures in order to address a number of possible critical concerns.

Tuesday, March 13, 2012

A new conscience-clause-advocacy group

By Rick Garnett

Politico reports that a new "center-right" group is forming "to advocate for measures exempting religious organizations from federal rules governing contraception coverage."

. . . The group is set to announce more details about its structure and planned activities in the coming days. Matalin said Conscience Cause plans to leverage “earned media, paid media, petitions” and more to spur a legislative debate.

While the operatives involved in the group say it is not focused on electoral politics, there’s been an unmistakable loss of momentum on the conservative side of the debate as it’s been framed as an issue of reproductive rights, rather than religious conscience. To the extent that faith-oriented activists and conservatives in general can move the conversation back in the direction of conscience, it’s presumably a help to Republicans and to those who think President Barack Obama’s split-the-difference policy on the issue is inadequate.

Levin and Douthat on Religious Institutional Decline

By Michael Moreland

The proximate purpose is a review of Charles Murray's new book Coming Apart, but my friend and former colleague Yuval Levin and Ross Douthat offer perceptive comments about the role of religious institutions and the problem of their decline in American life here and here. From Yuval:

[T]he cultural disaster Murray describes seems to be a failing of America’s moral (and therefore largely its religious) institutions. And although he does not put it this way, Coming Apart is a scathing indictment of American social conservatism.

Social conservatism serves two kinds of purposes in a liberal society: We might call them justice and order. In the cause of justice, it speaks up for the weak and the oppressed, defending them from abuse by the powerful, and vindicating basic human dignity. In the cause of order, it helps us combat our human failings and vices, and argues for self-discipline and responsibility. Think of abolition on the one hand and temperance on the other.

In our time, American social conservatism has much to be proud of as a movement for justice: Social conservatives devote themselves to the pro-life cause, to human rights, and to the plight of the poor abroad. But American social conservatism has almost entirely lost interest in the cause of order—in standing up for clean living, for self-discipline and restraint, for resisting temptation and meeting basic responsibilities. The institutions of American Christianity—some of which would actually stand a chance of being taken seriously by the emerging lower class—are falling down on the job, as their attention is directed to more exciting causes, in no small part because the welfare state has overtaken some of their key social functions.

The cultural revival essential to addressing the crisis Murray describes is barely imaginable as long as this remains the case. Indeed, whether such a revival is imaginable under any circumstances is by no means clear in Murray’s telling. Surely an all-out return to the condition from which he says we have fallen seems far out of reach. But this may have as much to do with the particular cultural high-point against which Murray has chosen to measure our current state as with the potential for a moral revival in American life.

And then from Douthat, with a particular lesson for Catholic colleges and universities:

[R]eligious belief offers one of the most few motivators that might be potent enough to persuade a high-achiever to choose a life outside the SuperZips. (Just ask Ignatius of Loyola, or Francis of Assisi, or …) And even in their weakened state, our religious institutions — with their flar-flung networks of parishes and ministries and schools in need of leadership — offer a more plausible mechanism than most other professions for seeding middle America with the talented and energetic. What’s more, faith itself can have a leveling effect in a stratified society, and supply a common ground for people from very different walks of life: Under some circumstances, at least, a young Princeton-educated pastor might be better equipped to minister to a blue-collar community than a Princeton-educated social worker or Teach For America participant. To the extent that the kind of upper class civic reawakening that Murray calls for is even a remotely plausible answer to the current social crisis, then, it would probably have to be a religious awakening as well.

Monday, March 12, 2012

Nicholas Wolterstorff, Justice in Love

By Michael Moreland

The central problem--or at least one articulation of it--for Catholic legal theory is the relation of justice and love, and so I have been eager to read Nicholas Wolterstorff's most recent book, Justice in Love (Eerdmans, 2011), which is a sequel to his remarkable Justice: Rights and Wrongs (Princeton, 2008). Justice: Rights and Wrongs was a powerful articulation (with an echo in Catholic social thought and the work of Catholic scholars such as John Finnis) of rights from within the Christian tradition (though I disagree with Nick's argument that rights are inconsistent with Thomism and other forms of eudaimonistic ethics, but that's a topic for another day). Justice in Love gets a tough review from Emory's Timothy Jackson at the Notre Dame Philosophical Reviews here, where Jackson takes Wolterstorff to task for his rejection of "modern day agapists," including Anders Nygren, Soren Kierkegaard, Karl Barth, and Paul Ramsey. (I suspect I'm with Wolterstorff in his reservations about a tendency to "love monism" in these figures, even if each of them presents particular complications.) But whatever one's assessment of this or that aspect of the overall Wolterstorff position, we can be grateful that one of the great Christian philosophers of our day--after taking up projects on epistemology, metaphysics, philosophy of religion, aesthetics, John Locke, and Thomas Reid over the course of a long career--is spending his "retirement" producing a lasting legacy for Christian political thought with Justice: Rights and Wrongs, Justice in Love, and the forthcoming The Mighty and the Almighty: An Essay in Political Theology (Cambridge, 2012)

Richard Epstein on Morals and the Police Power in Free Speech Cases

By Michael Moreland

Following on a friendly debate between Hadley Arkes and me last summer (here and here) over some of the Supreme Court's recent First Amendment cases, this essay by the always-interesting Richard Epstein at the Liberty Law Blog departs from the standard libertarian view in some provocative ways by contrasting judicial deference to legislative judgment on economic matters to judicial scrutiny on matters of speech and religion. As Epstein writes, "The deferential 'rational basis' inquiry on matters of property and contract is worlds apart from the searching 'strict scrutiny' inquiry often brought to the regulation of religion and, especially, speech." He then makes the argument that Snyder v. Phelps (the funeral protest case) and Brown v. EMA (the violent video games case) represent an unwelcome limitation on the morals aspect of the police power and disregard of common law rules.

On Snyder v. Phelps:

The Supreme Court knocked out these damages by resorting to a simple-minded paradigm of free speech cases that stated that since this speech was a “public, not private concern” the Church’s speech “occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’”  Unfortunately, this approach takes a certain kind of moral blindness not to see the difference between this sorry episode and the speech involved in a political debate over the future of the country.  The common law rules that always held that both falsity and latent aggression were reasons to allow damage actions after the fact, but not injunctions before the fact, reflect a very different set of sensibilities, and Chief Justice Roberts at no point explained why his view was better than the common law position.  Recall that the First Amendment protects freedom of speech, which does not mean that all speech is free of bad consequences.  The libertarian concern with force and fraud applies to speech as well as action, and it makes a lot of sense in this context to read the First Amendment as a protection against government encroachment into areas of protected political debate and artistic expression. But it hardly follows that this commitment offers courts a warrant to disregard the common law categories that have stood the test of time.

On Brown v. EMA:

As a matter of morals regulation this statute would not raise the slightest peep from any nineteenth century judge.  Any judge who would let the legislature keep bowling alleys off limits to the young would rest easy with this statute on the books.  But to read Justice Scalia’s opinion, one would think the entire edifice of freedom of speech would collapse of its own weight if this statute were allowed to remain on the books.  Justice Scalia relied explicitly on the Supreme Court’s 1952 decision on Joseph Burstyn, Inc. v. Wilson, which rightly struck down a general censorship rule that required all films to go through a preclearance before being released.  The more modest reach of the California statute makes the two cases readily distinguishable.

The replies to Epstein by Paul Salamanca and Adam White are also worth checking out.

Prince Charles: Defender of the High Middle Ages?

By Michael Moreland

Having been a little churlish about British anti-Catholicism last year on the eve of his son's wedding, I hasten to recommend this interesting piece by Rod Dreher making the case for the “revolutionary anti-modernism” of Prince Charles:

He is an anti-modernist to the marrow, which doesn’t always put him onside with the Conservative Party. Charles’s support for organic agriculture and other green causes, his sympathetic view of Islam, and his disdain for liberal economic thinking have earned him skepticism from some on the British right. (“Is Prince Charles ill-advised, or merely idiotic?” the Tory libertarian writer James Delingpole once asked in print.) And some Tories fear that the prince’s unusually forceful advocacy endangers the most traditional British institution of all: the monarchy itself.

Others, though, see in Charles a visionary of the cultural right, one whose worldview is far broader, historically and otherwise, than those of his contemporaries on either side of the political spectrum. In this reading, Charles’s thinking is not determined by post-Enlightenment categories but rather draws on older ways of seeing and understanding that conservatives ought to recover. “All in all, the criticisms of Prince Charles from self-styled ‘Tories’ show just how little they understand about the philosophy they claim to represent,” says the conservative philosopher Roger Scruton.

....

The Prince of Wales says the West reached a turning point in the High Middle Ages, when integrative scholasticism gave way to nominalism and Western man began to think of God as separate from Creation and humanity distinct from nature—a point also made by the American conservative Richard Weaver in his landmark 1948 book, Ideas Have Consequences. Though Charles concedes this paradigm shift paved the way for the emergence of science, it also “effectively shattered the organic unity of reality.”

As a result, he concludes, we are living in a Faustian crisis. We have become blindly proud of our power, in thrall to the ideal of progress based on extending our mastery of the material world through science and technology. We have forgotten that we are not gods. We do not long for harmony with the natural world, including learning to live within “Nature’s necessary limits,” as Charles puts it, but rather seek to conquer Nature and to impose our own will upon it, free from any obligation beyond satisfying our own desires. And, following Faust, we are bound for destruction if we do not turn back to tradition.

A Call for Civility, Public Discourse, and Consistency

By Mary G. Leary

 

There has been a great deal written here about the current issues of religious liberty and public debate. Earlier this month John DeGioia, President of Georgetown University, the oldest Catholic University in the United States, issued a call for civility and public discourse which may be of interest.

Along those lines, as well as Professor Garnett's earlier discussion of bigotry and civil discourse, this piece appeared in the Washington Post to discuss the uneven response to misogynistic comments….depending on who is the target. Both pieces may offer some food for thought on the state in which we find ourselves regarding our national dialog about important issues.

"We Just Saw a Miracle": Benilde-St. Margaret's Hockey 2011-12

By Greg Sisk

Herb Brooks, the legendary coach of the “Miracle on Ice” Olympic hockey team, got his start playing hockey for Johnson High School in St. Paul, Minnesota, where his team won the state hockey championship in 1955.  He later coached the University of Minnesota Golden Gophers hockey team to three NCAA championships in the 1970s, before coaching the United States Olympic team to its upset over the Soviet Union and then on to the Gold Medal in 1980.

On Saturday night, as part of the award ceremony for the Minnesota Boy’s State Hockey Tournament, the annual Herb Brooks Award was given to Moorhead high school senior Michael Bitzer as “the most qualified hockey player in the state tournament who strongly represents the values, characteristics, and traits that defined Herb Brooks” (here).  As Herb Brook’s son and grand-daughter came to make the award, the students and families in the Benilde-St. Margaret’s Catholic High School (BSM) section began chanting “USA, USA”, as did the crowds nearly a quarter-century ago at the Olympics.  The gesture clear touched Brooks family members, who turned and waved to the BSM fans.

For Benilde-St. Margaret’s, they had just witnessed another “Miracle on Ice” that began just weeks ago, went through the sections tournament, and continued on to the state championship.

Two months before this weekend, BSM sophomore Jack Jablonski (“Jabby”), while playing in a junior varsity hockey game, was checked from behind and suffered a paralyzing spinal cord injury.  In a previous post here on Mirror of Justice, I described how the Benilde-St. Margaret’s community had come together in prayer and support for “Jabby” and his family. Jabby002

The doctors say that Jabby will never walk again.  But Jack already has made more progress and regained more range of motion in his upper body than his doctors had expected.  And if anyone has the courage, hope, and commitment to a miracle, it is Jabby.  Back in 1980, as the seconds counted down to the United States' upset victory over the Soviet Union in the Winter Olympics, the excited announcer shouted:  “Do you believe in miracles?  Yes!”  Inside the BSM community, and the larger Minnesota community that supports him, people remember Jabby’s own take on this:  “I don’t believe in miracles.  I rely on them.”

Outside of Jack Jablonski and his family, the impact of the devastating injury fell hardest on the Benilde-St. Margaret’s Red Knights hockey team, all of whom knew and loved Jack as their team-mate.  While BSM has a strong hockey tradition, success for this year’s team already was an uphill climb.  Most of BSM’s athletic teams compete in Class A.  But the Red Knights hockey team competes in Class AA, which includes the largest schools in the state, some of which graduate nearly a thousand students each year.  BSM is among the smallest high schools in hockey’s Class AA, with fewer than 250 graduates each year.  And Class AA features the state’s traditional powerhouses in hockey, with such regular champions as Minnetonka, Edina, Eden Prairie, and Duluth East having more than one state championship.  The Red Knights had not won a state championship since 2001, and that had been in the Class A division.

While the season had been going reasonably well, Jack’s injury was a difficult thing for these young men to handle.  Coach Ken Pauly explained (here) how difficult it was to deliver the news that Jabby likely would not walk again: "To give them that reality ... that flew in the face of the hope that they had." Never a hard-hitting team, the Red Knight players became even more hesitant about delivering checks to opposing players, quite understandably given the injury that Jack had suffered.  Moreover, the Red Knights dad been pegged as a fast scoring team, but with a weak defense that gave up too many goals.  But then, over the last few weeks of the season, with the wise and seasoned help of head coach Pauly, along with a sports therapist, the Red Knights began to come together as a family and to gell as a team.

At the sections hockey tournament, BSM faced the Minnetonka Skippers, one of the largest high schools in Minnesota and ranked No. 2 in the state for hockey (here).  Before the game, Jabby returned and came into the locker room in his new motorized wheel chair.  And as he watched, the team upset Minnetonka to make it to the state finals for the first time in four years.  We’ll never forget those pictures of Jack Jablonski wheeling along the ice holding up the section trophy.

On the first night of the state hockey tournament, on Thursday, BSM faced the Edina Hornets, which have won more state championships in Minnesota history than any other high school.  Once again, Jabby was in the stands cheering on his team.  Despite a higher seeding and great expectations for Edina, BSM stayed even with the Hornets throughout the game, with goals by Grant Besse and Dan Labosky (here).  Then as it appeared the game would go into overtime with a tied 2-2 score, BSM senior Christian Horn scored the winning goal with only 24 second left on the clock.  On the second night, against the Lakeville South Cougars, the BSM Red Knights turned on the power and took over the game from the beginning, finishing with 10-1.  (Although falling short that night, Lakeville South’s Justin Kloos was later honored as “Mr. Hockey,” the top award for a graduating senior in hockey (here).

On Saturday night came the championship game against the Hill-Murray Pioneers, another smaller Catholic high school located near St. Paul, but which has won five prior state hockey championships.  It was a hard-fought, very physical game.  But three times when down a man due to a penalty, resulting in power plays for Hill-Murray, BSM junior Grant Besse broke away to score goals -- an unprecedented short-handed hat trick (here)  Altogether, Besse went on to score five goals that night, placing him in storied history for Minnesota state hockey (here).  Together with the phenomenal play of BSM junior Justin Quale as goalie, who just would not allow other teams to score, and such other standouts as junior Dan Labosky, the Red Knights slowly built up a lead.  For a team that had a reputation as weak on defense, BSM allowed just five goals in their final six games, and goalie Quale had a .961 save percentage in the state tournament (here).

Throughout the past two months, and in the championship game, the Red Knights team played with a patch on the front of their jersey saying, “Jack Jablonski in Our Hearts.”  As the time in the final period of the championship game came to 13:13 – “13” being the number on Jack Jablonski’s jersey – the BSM crowd chanted, “We Love Jabby.”  And Jack Jablonski was there again, with his family in a stadium suite just above the BSM cheering section where we all remained on our feets throughout most of the game (here).  BSM_State_Hockey_Champs_2012

With the score at 5-1 for Benilde St. Margaret’s, as time ran down and the outcome was clear, the crowd began chanting, “We Just Saw a Miracle.”  Against all expectations, the Red Knights won their first state championship in Class AA.

No one doubts that many challenges lie ahead, for Jabby and those who love him in the BSM community and beyond.  But for now we’ll be celebrating what came to be know as the “Season of Hope.”  As BSM hockey coach Pauly – who later was named state hockey coash of the year – said after the championship (here):  “It’s been emotional, it’s been psychological, it’s been spiritual, it’s been life-changing. And those are things you can’t always say about a season.”

Greg Sisk

 

 

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