The following article has interesting thoughts challenging assumptions regarding wealth. While the author's arguments are not made in the context of Catholic teaching, several of his points seem consistent with aspects Catholic social thought. In particular, the article reminded me of the the Pastoral Letter, Economic Justice for All, and last Sunday's Reading from the fourth chapter of Acts. http://www.commondreams.org/view/2012/04/16
Wednesday, April 18, 2012
Reflections on Wealth
Monday, April 16, 2012
Paolo Carozza on "Human Dignity and the Method of Human Experience"
The Murphy Institute was graced last week by a visit from Notre Dame Law School's Paolo Carozza (recently appointed Director of Notre Dame's Center for Civil and Human Rights), as part of our Human Dignity lecture series. Paolo presented a talk entitled, "Human Dignity and the Method of Human Experience" in a public lecture Thursday evening, and continued the conversation the following morning in an inter-disciplinary, multi-school seminar at UST Law School.
Paolo argued that it is time for the international community to move beyond the compromise that famously permitted the consensus leading to the adoption of the Universal Declaration of Human Rights. (In Jacques Maritain's famous words: "...we agree on the rights, but on the condition that no one asks us why.") Drawing on his hands-on experiences 'on the ground' in international human rights work (among other things, Paolo is just coming off four years as a member of the Inter-American Commission on Human Rights, the last year as its President), Paolo proposed a methodology for moving forward, toward a thicker conception of human dignity, by focusing on our common experiences of human dignity. Paolo drew on the work of Luigi Giussani, the founder of the Communion and Liberation movement, describing a shared "elementary experience" of human dignity -- a 'complex of needs and evidences' that are more fundamental to our humanity than any time-bound, specific cultural artifacts, like law or social structures. Paolo provided illustrations from his own experiences in the human rights field that illustrated this sort of profound, elemental encounter with the essence of humanity, bridging cultural, religious, and political divides of the community in which he was working.
You can watch the video of his excellent talk here.
In our seminarthe next day, we explored what Paolo's proposed methodology shared with, and how it differed from, some other approaches, such as natural law theory, phenomenology, Hauerwasian insights about suffering the presence of others, and the work of Karol Wojtyla. It's clear that Paolo is developing a creative new approach to this ongoing exploration of 'human dignity' -- and that his comparative law perspective and personal experiences in human rights work contribute much to the richness of his approach.
Congratulations to Tom Shaffer!
The Notre Dame Law Association has named Thomas L. Shaffer, Robert and Marion Short Professor Emeritus of Law, the 2012 recipient of The Rev. Michael D. McCafferty, C.S.C., Award. The McCafferty award is presented by the association to Notre Dame lawyers — or members of the Notre Dame Law School faculty or administration — who have rendered distinguished service to the University.
The award is named for Fr. Michael McCafferty, a popular and highly respected teacher at Notre Dame Law School whose life was shortened by cancer. The award is presented on occasions when the association’s board deems someone worthy of receiving it.
Shaffer, the nation’s most prolific legal author, has written nearly 300 scholarly works in his varied areas of expertise. He earned his B.A. from the University of Albuquerque in 1958 and his J.D. cum laude from Notre Dame in 1961, where he graduated first in his class and served as editor-in-chief of the law review. In 1983, St. Mary’s University (San Antonio, Texas) honored him with an LL.D.
Beckwith on the "rational status of religious beliefs"
Check out Frank Beckwith's discussion of his paper, "Fides, Ratio et Juris: How Some Courts and Some Legal Theorists Misrepresent the Rational Status of Religious Beliefs," here.
On Rob's Questions About the HHS Mandate and Smith
Rob,
Your questions are good ones, and the attack under Smith is an uncertain one (the RFRA claim is much stronger). But the point of the "secular exceptions" attack--which Alito accepted several times in the Third Circuit--is not that the exceptions show the government is targeting religion (i.e. is motivated by reasons unrelated to the purposes of the underlying legislation). It's rather that the government is giving weight to other interests, enough weight that it's willing to accept some frustration of its purpose by exempting them, and then is unwilling to give similar weight to religious freedom--a constitutionally protected interest that should receive serious weight. The government may be not targeting religion, but it is devaluing it from the rank of important interests.
I don't think the small-employer exception to the HHS mandate, or a small-business exception in laws generally, is "driven by the underlying purposes" of the law as you suggest. Rather I expect that here, as elsewhere, it's primarily driven by a concern that small businesses experience a disproportionate imposition from the rule. And then the argument kicks in that religious freedom interests should receive similar consideration, because those organizations likewise experience a serious burden, unless there's a compelling interest in making the distinction. Although the government might respond that the reason for the small-employer exception is simply that each one does not undercut coverage as much as each large employer, we all know the obvious logic of aggregation across a category. Here, when you exempt all entities under 50 employees, you cut out 20-40 million employees and (I believe the statistic is) 90-some percent of employers. For the government to accept that big a hole in the mandate but then to say religious organizations deserve very little accommodation may not target religious conscience, but there's a decent argument that it significantly devalues it.
It's true that if this logic applied every time a secular exception were made that compromised the government's interest, then Smith would be effectively overruled. But Alito adopted this logic in the Third Circuit several times--most notably in Fraternal Order of Police v. Newark (1999)--so he might lead others on the Court in that direction. And there are middle positions where a court can say there are enough secular exceptions, with a wide enough range of effect, to indicate that the government is treating religious freedom as significantly less weighty than other valued interests. The HHS mandate not only has the large holes in coverage, but it provides some of them on an individualized basis--the hardship waivers that have been given to many employers--and Smith (in order to preserve Sherbert v. Verner) had identified that as a category where the compelling-interest test still applies.
It's also true that any move in this direction would limit the effect of Smith and get the courts involved in ordering exemptions in some imperfectly-defined category of cases. But we just saw the justices unanimously limit the effect of Smith in Hosanna-Tabor, so they might do so again. The "secular exceptions" approach also, as compared with the straight-up "compelling interest" approach, leaves the government more room to control whether it must grant a religious exemption: it can avoid doing so by refraining from granting other significant exemptions.
With that said, this is all still very uncertain, and the RFRA claim is significantly stronger, although still uncertain too.
How could (and why should) the HHS mandate be held unconstitutional under Smith?
I oppose the HHS contraceptive mandate, but I admit to being confused (and a little troubled) by the argument that, under Smith, legislative exceptions make it more likely that a statute is unconstitutional. I understand that there are exceptions built into the rule of Smith, though I don't know the case law well enough to have a good sense of how they play out in practice. I'm having a hard time seeing how the exceptions -- especially to the extent that those exceptions are triggered by the existence of exceptions in the legislation at issue -- could stretch to encompass the HHS mandate. Marc writes:
The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations; hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others. There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution.
If the legislative exception itself calls into question the general applicability that is at the heart of the Smith requirements -- i.e., the exceptions suggest that certain categories of practices are being targeted for reasons unrelated to the objectives of the underlying rule -- I can see why Smith wouldn't apply. But if the exceptions are driven by the objectives of the underlying rule, why would that take us outside of Smith's scope? Exceptions based on the number of employees or on the fact that the organization serves members of the sponsoring religious group appear to be related to the underlying rule's objective. There is no suggestion that HHS is picking and choosing the practices and groups that it prefers through the exceptions to the mandate.
Alternatively, if the exceptions are taken to be evidence that the government interest at stake is not all that compelling since the government is willing to give ground on certain aspects of the legislation's enforcement, doesn't that simply take us back to the pre-Smith balancing approach, from which Smith was a dramatic departure?
More broadly, to the extent that the presence of exceptions is enough to call the Smith rule's applicability into question, isn't the easy legislative response to stop granting exceptions? Is that result good for anyone?
"The Vocation of the Business Leader"
This new statement on business, business ethics, and Catholic thought, backed by the Pontificial Council for Justice and Peace, has received positive responses from different points on the ideological spectrum. I haven't had a chance to read it yet, but various commenters seem to appreciate its strong emphases both on the moral legitimacy of profitmaking and on the moral obligations of business leaders. I found particularly interesting, though, John Allen's comments about the statement's method. Allen emphasizes how the statement avoids the unattractive alternatives into which too many "faith/society/politicy" documents fall--that of dealing either in agreed-on but unhelpful abstractions or in specific but insufficiently-supported policy recommendations:
In a sound-bite, the idea is to be didactic on principle but interrogatory on policy. The church may not have to offer specific answers; perhaps it’s enough to frame the right questions. Think of it as Catholic social teaching, Socrates-style. . . .
Perhaps the most striking element of the text, however, comes in its appendix. There one finds a “Discernment Checklist for the Business Leader,” composed of thirty questions which amount to an examination of conscience informed by Catholic social teaching.
Some are fairly broad (yet still packing a punch), such as, “Have I been living a divided life, separating Gospel principles from my work?" . . . .
Others are more concrete, and with real bite. For instance: . . .
- Do I provide working conditions which allow my employees appropriate autonomy at each level?
- Am I making sure that the company provides safe working conditions, living wages, training, and the opportunity for employees to organize themselves? . . .
“Vocation of the Business Leader” may thus be that rarest of Vatican texts: Something that isn’t just dissected by vaticanisti and other denizens of the church’s chattering classes, but actually used out in the field. One can imagine, for instance, retreats for business leaders organized around the document, culminating in the examination of conscience it invites. . . .
The team drafting the document included, among others, my colleagues Mike Naughton (one of the coordinators), Ken Goodpaster, and Bob Kennedy from St. Thomas's business school, Catholic Studies center, and John Ryan Institute foe Catholic Social Thought. A shout out to them and the other drafters!
Sunday, April 15, 2012
Week Three of Lynn Trial
Last week's testimony continued during the trial of Msgr. Lynn and his co-defendant, Fr. James Brennan. Much of the evidence continued to portray an atmosphere of people complaining about abusive priests to Lynn's office and the Archdiocese failing to act appropriately. Lynn's attorneys continued to pursue a strategy of asserting that removal of priests was the duty of the now deceased Cardinal Bevilacqua and not Lynn.
Two witnesses may be of particular note to MOJ readers, however. One was Bishop Robert Maginnis as vicar of Montgomery County, Pennsylvania. Earlier in the trial, Sister Joan Scary testified that she was concerned when a Fr. DePaoli was receiving what appeared to be a form of pornography at a church rectory. Fr. DePaoli had a prior conviction for child pornography possession, but was allowed to serve in a parish without notice to the parishioners about his conviction. After Sister Scary mailed her concerns and relevant information to the Bishop, she was fired from her position. Bishop Maginnis testified in connection with these events and, according to the New York Times, he stated that "he could not remember much about the episode but that he had been trying at the time to establish whether the sister's assertions were true." In 1996 he reportedly wrote to Msgr. Lynn that "perhaps she [Sr. Scary] is using [the pastor's] absence to cast doubt on Father DePaoli's credibility." DePaoli continued as a priest until, due to abuse of children, he was defrocked in 2005. Lynn's defense attorneys confirmed with Maginnis that Lynn, as Secretary for the Archdiocese, did not have the power to remove priests but that said power rested with the Cardinal.
A second interesting witness testified at the intersection of canon law and criminal law. Here is some of the Washington Post's (via the Associated Press) reporting:
An expert on "canon" law angrily called it "obstruction of justice, cubed" for a Roman Catholic archbishop to have shredded a list of 35 active priests accused of molesting children.
***
The Rev. Thomas Doyle, an expert on Roman Catholic law, testified at Lynn's child-endangerment trial Thursday. Lynn, 61, is the first Catholic church official in the U.S. charged with child endangerment for allegedly failing to protect children from suspected priest-predators.
Church law requires church officials to investigate the complaints, Doyle said. And the archbishop — following the teachings of Christ — should have sought out victims to offer pastoral care, he added.
"He's got a list of men who are sexually abusing children, and he's going to shred it?" an incredulous Doyle asked on cross-examination from defense lawyers.
***
Jurors also heard excerpts Thursday from Lynn's 2002 grand jury testimony. Lynn testified that his office had never referred any of the complaints to local authorities despite a 1995 state law that added clergy to a list of mandated reporters of suspected child abuse.
Lynn believed the law only required reporting if a "child" had made the report. That rarely if ever happened. The reports were coming in from adults who said they were abused as children, or occasionally from parents of minors, he testified.
If this reflects Msgr. Lynn's beliefs accurately, this would be a rather narrow reading of mandatory reporting statutes. The purpose of such statutes lies in the fact that child abuse is so often underreported by children. As a result, mandatory reporting statutes require certain professionals to report suspicions of child abuse to state officials so that cases will be investigated even without a disclosure from a child. As the trial progresses it will be interesting to see what the jury thinks of this claim. Notably, Lynn is not charged with violation of that statute but with endangering the welfare of children.
The trial will start its fourth week on Monday.
SSPX rejects the Bishops' religious-freedom statement
More on Smith and the USCCB Statement
Michael has already pointed out the inaccuracy of the complaint that the Bishops' statement on religious liberty is, or could reasonably be regarded as, "partisan", even if, as some have pointed out, it could perhaps have been improved by more explicitly discussing the challenges faced by Muslims in the United States. (DIsclosure: I serve as a lay consultant to the Ad Hoc Committee for Religious Liberty, which produced the statement.) The statement cites a number of (though certainly not all) troubling events, laws, decisions, and trends -- that is, it cites to evidence and facts -- and criticizes policies supported by Republicans and Democrats alike. It emphasizes strongly and clearly the fact that religious liberty is a human right, enjoyed by all, and that it faces challenges -- and requires defense -- around the world and from many directions, from "left" and "right" alike.
I'm afraid it is the charge itself, and not the statement, that appears partisan. The appropriate response, it seems to me, of someone who regrets the possibility that an increased focus by Catholics on the importance and vulnerability of religious liberty, correctly understood, might prompt some of those Catholics to vote for one party, rather than the other, is to challenge the other party to improve its understanding of, and sensitivity to, religious liberty.
With respect to the Court's Smith decision, Marc has already explained some technical aspects of post-Smith Free Exercise doctrine that are sometimes overlooked or forgotten. In addition, though, it should be emphasized that Smith -- which, all agree, places some obstacles (though perhaps not insurmountable ones) in the path of a Free Exercise Clause-based legal challenge, in court, to the preventative-services mandate -- is not contrary to or even in tension with the Bishops' arguments that the mandate is inconsistent with our nation's professed commitment to religious liberty and that a broader exemption would be more in keeping with (what Justice Douglas once called) "the best of our traditions."
Smith does not stand for the proposition that religious accommodations are bad, undesirable, or unconstitutional. Quite the contrary: The decision invites religious accommodations. It holds, however, that because exceptions from otherwise-generally-applicable laws are not always possible or justified (see also, e.g., Dignitatis humanae), and almost always involve balances and trade-offs, they should be created by politically accountable actors rather than federal judges. (In so holding, I believe the decision is sound, as I explain in this short essay. For a more detailed discussion, see this article by my colleague, Prof. William Kelley.) So, the Bishops are urging all of us, to urge our politically accountable representatives, to do precisely what Smith expects them to do, i.e., to accommodate religion generously, in a way that reflects our underlying commitment to the good of religious freedom.
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