Mirror of Justice

Monday, September 17, 2012

Worthen's "Power of Political Communion" gets Murray (and Biden) wrong

Molly Worthen's NYT piece, "The Power of Political Communion," is attracting (as it should) some notice and comment, and I think it makes a number of powerful and important points. But, it goes wrong in a few places, too.

First, the piece takes as true an unfair and inaccurate characterization of the social-welfare, spending, and taxation policies that are actually likely to be pursued and enacted by a Republican Congress and signed into law by a Republican President. ("[T]he Republican mission to slash the social safety net and deregulate Wall Street will worsen structural inequalities in a way that is radical and even anti-Christian.")

Next (and, for present purposes, more important), I think Ms. Worthen gets both Joe Biden and John Courtney Murray wrong:

Plenty of Catholic politicians still make their home in the Democratic Party, but most have learned not to rock the Roe boat or speak too loudly in the name of their religion: Mr. Biden has said that he is opposed to abortion but supports the Supreme Court decision as the product of consensus.

Mr. Biden is not a “cafeteria Catholic” who chooses his beliefs according to convenience. He stands in the tradition of the Rev. John Courtney Murray, the Jesuit theologian who asserted that the foundation of modern pluralist society is not perfect agreement but continuing “public argument” based on shared values. The laws that frame this evolving conversation cannot always align with religious teachings. “It is not the function of civil law to prescribe everything that is morally right and to forbid everything that is morally wrong,” he wrote in a 1965 memo advising the church to support the decriminalization of artificial contraception.

The link that's provided regarding Joe Biden's asserted view that Roe is the "product of consensus" actually characterizes Biden's position as "Roe v. Wade is as close to a consensus as we can get." This is a very different position. Roe was certainly not the "product of consensus", but a radical and overreaching judicial imposition of the policy views of a few on the legislatures of nearly every state. What's more, the Roe position does not actually represent (and the Democratic platform certainly does not represent) what would be the "consensus" view in the United States.

Second, I believe it is wrong to move from Murray's intervention in the contraception debate of the 1960s to a conclusion that he would have supported the Roe regime. It was quite important, if I understand his writing correctly, to his view on the contraception question that it did not involve a question of public morality or basic justice (as the abortion debate -- he would certainly have thought -- does).

Our own Susan Stabile has written at length on this question, and I think Ms. Worthen's piece would have been better if it had taken Susan's paper into consideration.

Solve the fiscal crisis by taxing the church?

By Rick Garnett

Paul Caron calls attention to a WaPo article suggesting that some are considering the Roman Catholic Church -- you know, the one with all the fancy art and deep "coffers" (See Garnett & Carr, "Drop Coffers," in The Green Bag) -- as a source of funds in fiscal-cliff times. Putting aside the Post writer's silly reference to the Church as "one of the last untouched sources of wealth" (um, the Dissolution of the Monasteries, anyone? Where does the writer think York Minster came from?), the piece raises some interesting questions. Note that the article is not only about proposals to impose taxes on the Church's property, but also about proposals to end various subsidies (like school funding). It strikes me that these different moves (i.e., imposing taxes and removing subsidies) raise different questions, but put that aside.

At First Things, Leroy Huizinga has some thoughts about the story. He writes:

. . . Why shouldn’t churches be taxed, in general? One reason has to do with preserving a healthy separation of Church and State. If Churches can be taxed, then the government can get into the business of running them (or crushing them) through tax policy, like it does most everything else. Another reason is that private institutions like churches contribute to the common good both as charitable institutions directly serving people through its various programs and also as space as a community mediating between individual and the State. A third reason is more practical: Churches generally do a better job administering social programs than government does (which, one suspects, grates government functionaries). A fourth reason applicable to Europe in particular: The reason most people bother visiting Europe and spending significant tourist dollars there is the legacy of beauty produced by Europe’s Christian heritage. . . .

Of course, one knows why government wishes to control religion, going back at least to Hobbes. Religious institutions have often been the only entities effective in challenging State power, reminding rulers that there is a higher law than their whims and will, that they too stand under the judgment of God and nature. . . .

Responsibility without Blame?

By Rob Vischer

Nicola Lacey and Hannah Pickard have posted a new paper that should be of interest to Catholic legal theory fans. The authors ask whether criminal punishment can be more effective if we focus on responsibility without as much focus on affective blame. This is not a new question, but the authors appear to frame the inquiry in a way that may avoid the trap identified by John Paul II, who affirmed those who have "drawn attention to the many kinds of psychological and social conditioning which influence the exercise of freedom," but cautioned against the temptation to go "beyond the conclusion which can legitimately be drawn from these observations . . . to question or even deny the very reality of human freedom." (Veritatis Spendor para. 33) Here's the abstract of the Lacey/Pickard paper:

Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of ‘just deserts’. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency in relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call ‘affective blame’: the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of ‘responsibility without blame’ into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of ‘just deserts’ with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences – typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context – imposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice.

Developments in China

By Rob Vischer

Is China relaxing its policy on forced abortions?

Sunday, September 16, 2012

A thought about the "disenchantment of the world"

By Rick Garnett

Yesterday, at a very interesting roundtable conference at Valparaiso University on Brad Gregory's new book, The Unintended Reformation, on participant recounted -- in the context of a conversation about Weber's "disenchantment" claim -- an exchange in which it was asked, "do you think you live -- that is, do you experience yourself as living -- 'in Creation' or in 'the Universe'?" A big question, that.

Saturday, September 15, 2012

Sr. Mary Rose McGeady

By Mary G. Leary

"There is no greater joy than to see a kid come in homeless, cold, hungry, dirty and then that same kid a few weeks later –cleaned up, smiling and hopeful…I believe that is what Covenant House is all about…one child at a time."

--Sr. Mary Rose McGeady

In a world in which the fullness of one's life is so often measured by material wealth, celebrity, and Twitter followers, Sr. Mary Rose McGeady stood as a powerful alternative model. In a previous post, Father Araujo beautifully posed the question, "What's it all about?" Sr. Mary Rose can offer us an example of someone who knew the answer. She demonstrated this wisdom through her work and her life which sadly ended September 13th after 84 years of dedicated service to the poorest children. This is a great loss for Catholics, children, and indeed the entire world.

In 1990 the largest program for homeless children in the United States was deeply in trouble. Covenant House had been hailed as an exemplary beacon of help and aid to the forgotten population of homeless children. However, after a scandal and financial problems brought the institution to the brink, it appeared that this once fine example of what a non-profit organization could be was in its last days. At this time of crisis, Covenant House turned to this 62 year old Daughter of Charity of St. Vincent DePaul, whose life had been spent working with children in need, to be its new leader. After praying extensively about the unattractive challenge, Sr. Mary Rose answered the call few others would have heard and became the Executive Director of a deeply in debt Covenant House at a time when its services were deeply needed.

That alone was courageous enough. But what she did in the position is even more remarkable. For the next thirteen years she resurrected the organization and directed its growth to meet the needs of literally hundreds of thousands of children in six countries through its shelters, street outreach, and services. Through her work, Covenant House doubled the number of homeless children served. Today, it is the largest privately funded organization providing food, shelter, and services to homeless children in the Americas.

More intangibly, but equally as critical to the story of this remarkable woman, was the way in which she lead such an impactful life. She did it through love. Again and again in her public presentations or her writing she would come back to what was central to serving the poor: love. Without a doubt, her vision and tenacity were critical to her success. But at the core of all she did was a love of children.

One can read about Sr. Mary Rose's life and achievements in her obituaries here and here. The many accolades indeed demonstrate the fullness of a life dedicated to others. For the legal community, it is significant that her work transcended direct services to children to a tireless advocacy for children in legal and policy circles. Much of her work was spent giving a voice to the voiceless children who are often reduced to statistics, if considered at all, in lawmaking and public policy. She worked to change that and to remind policy makers and academics alike of the real children, those to whom the "kingdom of heaven belong;" (Mathew 19:14); those who are supposed to be the subject of all our concern.

Her life represents so much to us. For Catholic scholars she is a constant reminder of the human story unfolding in the wake of legal and policy decisions. She embodies Catholic social teaching, taking it from complex theory into simple practice. For our students, she represents an alternative message of what it means to live a full life. Sr. Mary Rose died as she lived: happy to be serving God, loving and being loved by so many children, and feeling blessed that she had the richest of lives. At the end of her days she received calls from leaders throughout the country and world. At her funeral next week, the church will no doubt be overflowing with those who want to celebrate her life. That full church, and the love flowing throughout that space, will offer a clear example of how one can lead a very full life when devoted, not to the partnership track, but to the weakest and most vulnerable among us.

What’s it all about?

By Robert John Araujo, SJ

Yesterday I had the honor of celebrating the Mass of Christian Burial for another member of my family, a maternal aunt. My cousins selected as the first reading a segment of Chapter 3 of the Book of Ecclesiastes, verses 1-15—the verses reminding us that there is a time for everything, including living and dying. As I sat in the sanctuary pondering on this passage knowing that I would be offering a homily, which would also include some commentary on Saint Matthew’s Gospel, “come to me all you who labor, and I will give you rest…”, I realized that the Ecclesiastes passage has a bearing on what most of us do outside of funeral Masses. Of course, I do not mean to suggest that other, even many passages of sacred scripture do not have application to us, our labors, and our lives—for they do. But this Ecclesiastes passage surely has a particular bearing on what the Mirror of Justice contributors in the realm of the teaching of the law and the development of Catholic legal theory.

The bearing involves this: keeping regular focus on the question of “what’s it all about”? Many issues and problems transect the work that legal academics—including the Catholic ones—tackle. Some of these issues and problems pertain to the important political issues of the day; in parallel fashion, others concern the fiscal questions that are inevitable to the study and practice of the law and its rule. Still other questions raise important psychological and sociological matters that are of concern to the law and legal theory. Others concern the relationship between the human person, human societies, and the state. But rarely does the question I pose get much attention. And by this question, I mean to raise the insufficiency of interest that deals with the essence and nature of the human person that inevitably brings up the question about human destiny. Some will argue that there is little need to address these old fashioned ideas about nature, essence, and destiny. I suppose the justification for offering and defending such a perspective is based on the fact that exaggerated human autonomy, relativism, and secularism provide strong currents in the academic world of today that has a strong influence on the making of law and the practice of the legal profession.

It may well be that the metaphysical reflection that surrounds the question I have posed is of little interest to some, perhaps many; it may also alarm and frighten others who “don’t want to go there” because it involves consideration of matters that go beyond the collection and assessment of empirical data. There are a lot of important issues that demand the time of our study and research and that have an impact on our teaching and public speaking. But I think one matter that is in need of greater attention is the question that I have posed. For the Christian, the inevitable encounter with God is fundamental, yet many often avoid consideration of the topic. I suppose one rationale used to support the avoidance is that the Christian does not want to offend the non-believing or questioning person. Yet, is it not more than fair to raise with anyone we encounter matters which deal with the destiny of the human person, which can begin with the straight-forward question: what’s it all about?

RJA sj

"Can State-Sponsored Religious Symbols Promote Religious Liberty?"

By Thomas Berg

I've just posted this paper on SSRN, from the excellent conference that Mark Movsesian's and Marc DeGirolami's St. John's center sponsored this summer in Rome on "state-sponsored religious symbols in comparative perspective." Forthcoming in the Journal of Catholic Legal Studies. Abstract:

In Lautsi v. Italy, the European Court of Human Rights upheld the display of crucifixes in Italian state schools. Somewhat differently, the U.S. Supreme Court has upheld state-sponsored displays of symbols such as crèches or menorahs, and of religious texts such as the Ten Commandments, but only outside the school setting, and only if they are accompanied by other elements giving the overall display a secular message. In both instances, the high courts in question found that the displays could co-exist with religious liberty. But given the negative effects that such displays can have on dissenters and on social peace, the public argument for them would be much stronger if they do not merely co-exist with religious liberty but can actually promote it. This paper, for a symposium comparing state-sponsored displays in Europe and America, offers ways in which such displays can actually support a vigorous conception of religious liberty for all faiths. They can communicate important messages of limited government and transcendent freedoms, including freedom for religion to be relevant to public life, not confined to private, insular settings. I then, however, acknowledge and revisit some of the problems with such official displays, and I briefly suggest ways in which the vigorous conception of religious liberty can be recognized and promoted without them. The crucial thing is to cultivate the spirit I have described of limited government, transcendent rights, and a religious freedom whose scope extends to public settings.

Friday, September 14, 2012

The Catholic Southern European Sybarite

By Marc DeGirolami

Don't miss my colleague Mark Movsesian's reflections on the clash of the North and the South (of Europe). And then go hear L'Incoronazione di Poppea in the company of a nice Barolo.

Studying Conflicts Without Solving Them: An Agenda

By Marc DeGirolami

I participated in a terrific conference yesterday organized by the Berkley Center for Religion, Peace, and World Affairs at Georgetown. The master of ceremonies, Tom Farr, did a wonderful job of putting interesting panels together. And our own moderator, Tom Banschoff, put a series of provocative questions to our panel. I learned a lot from my good co-panelists, Cathy Kaveny and Mark Rienzi, and was happy to see and listen to many old friends and meet new ones (I am now on the train home with some spotty internet access, and so will forbear from linking to the various places where you can learn about the conference -- at some point, a video will be available for those who need a sleep aid).

Our panel's overarching subject was conflict between religious liberty and other rights. My initial comments had to do with the importance of conflict -- not only its inevitability, but indeed (and more controversially), its positive desirability as a reflection of the reality of our respective and very different backgrounds, traditions, and memories, but also as a reflection of our internal struggles to manage the clash of sundry values as to which we each hold strong allegiances.

But I realized -- both throughout the day and during the panel itself -- that my approach and that of others may be slightly different, and in a way that maybe it would be helpful to spell out. During the conference, there was sometimes mention, by some of the speakers, about the need to "build bridges" or to reach mutual agreements or to "solve" conflicts with those with whom one disagrees. Provided that compromises are undertaken at the right level of particularity, I think these are all very worthy goals. They are important as a matter of practical getting along. They are important as a political and legal matter. And they are important inasmuch as an irenic state of affairs is generally welcome.

But I do not think that bridge-building is the only activity that needs pursuing. There are other projects too. Because of the depth and complexity of the conflicts at issue in many of the contemporary controversies addressed by the conference -- indeed, because of the central importance of conflict -- it seems to me that some study of the conflicts themselves is worthwhile -- a study which would be undertaken without the self-conscious and more specifically practical aim of "solving" them. The project would be simply to understand them, and if that were accomplished, it'd be a good day's work. It also might be the case that taking the measure of a conflict can be achieved more effectively and more deeply without an underlying impulse or motivation to reach a state of harmony, and without the conviction that harmony must somehow be possible.

Perhaps it might be useful to offer some concrete examples of the beginnings of an agenda for the study of conflict as applicable to some of the specific controversies swirling about today. The list surely is not and is not intended to be complete. The main point of this post is methodological. It is about what projects are worth pursuing.

1. What are the conflicting meanings and understandings of various values and concepts which one hears about so often -- values like "health," "autonomy," "equality," "religion," "liberty," and "rights" -- within the particular contexts in which they are invoked? How do these values and concepts fragment (if they do) on closer inspection into rival values and concepts? For example, what do the contending sides in a given dispute mean by "health"? How does the value of "health" interact with other values, like "autonomy," when these are invoked together? In what precise way are these and other values used when they are invoked in support of particular policy aims? Are they always invoked consistently? Sometimes? (I do not mean in the least to imply that consistency is a cardinal virtue.)

2. What is the ranking or ordering of values that different constituencies assign to these values when they conflict? What is the ranking or ordering that different constituencies assign to these values when (and if) the values break down into sub-values, or sub-sub-values. Is there consistency in the ranking of values, or does the ranking of values change depending on the controversy at issue. For example, does "health" always or only sometimes trump "liberty"? If not always, under what circumstances does "health" trump "liberty," and why? What drives the ranking of values? Another larger or covering value? A more general vision of the good life? What happens if values are not systematically rankable in this way?

3. As to which social unit -- the institution or the individual -- does religious liberty attach? Always both, or only sometimes? When the religious liberty of the individual conflicts with the religious liberty of the state, which is more important? If context matters (as it usually does), which contexts matter? Can we understand and see patterns in the priorities set by different sides in a given conflict?

4. What is the appropriate role of law? When ought the law to step in to decide a conflict (resolve is hardly the right word here). How broadly or narrowly should "rights" be defined? Should new legal rights come into being over time, and if so, how should we decide when and what they should be? Is the law the best vehicle for the negotiation of conflict? What are the different views on this question?

5. What is the proper understanding of the right to religious liberty? Is a right to, say, sexual autonomy also properly characterized as a right to religious liberty? If so, what is the proper scope of the right to religious liberty (under the Constitution? under a statute like RFRA? under state constitutions or state statutes?) and what are its limits? Does the right to religious liberty continue to be a useful concept for us, and what makes it useful in light of the contestability of the category of religion?

As I say, these are only a few questions that occurred to me (as always, after the panel was over). But I think they speak to a somewhat different agenda than that of solving conflicts. The agenda is one of studying without solving. It is certainly possible that the projects of studying conflict and reaching viable practical compromises might be mutually beneficial. But the projects are, I think distinct, and perhaps best pursued distinctively.