Following up on Marc's
post, and also on the posts by Eugene
Volokh and Paul
Horwitz to which he linked, a few quick thoughts: First, I think it would be a good thing if the possibility Eugene raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987
article had and have force. Next, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes,
Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in
this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.
"Sister Teresa Forcades is one of Catalonia's foremost political figures,
but uniquely for a faith-led figure in Spain, her ideology is feminist
and left-wing. Against a backdrop of continued economic contraction and
austerity, she spoke to the Guardian about the need for an alternative
to capitalism and criticised the misogyny of the Catholic church."
You can watch the six-minute video about Sister Forcades here.
The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town's practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit's very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court's radar. But one never knows exactly why the Court decides to take up an issue.
For some discussion of the Second Circuit decision, see this post.
UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.
Sunday, May 19, 2013
“Without the Holy Spirit, God is distant, Christ is merely a historical figure, the Gospel is a dead letter, the Church is just an organization, authority is domination, mission is propaganda, liturgy is only nostalgia, and the work of Christians is slave labor. But with the Holy Spirit, Christ is risen and present, the Gospel is a living force, the Church is a communion in the life of the Trinity, authority is a service that sets the people free, mission is Pentecost, the liturgy is memory and anticipation, and the labor of Christians is divinized.”
-- Ignatius of Laodicea, Bishop, 390 CE
HT: Brian Prior, Episcopal Bishop of Minnesota, who read it in his sermon at my parish (St. Stephen the Martyr) today
Saturday, May 18, 2013
A blog dedicated to "Catholic legal theory" should be interested in the fact of -- and the theory behind -- the ongoing revision of the law of the Catholic Church. Several times I've heard a U.S. Cardinal complain tht the current Code (1983) "doesn't allow bishops to govern the Church effectively. It makes it too difficult to apply appropriate penalties." The following quote from the linked story hits the nail on the head:
The current code was drafted in the 1970s, Bishop Arrieta said, "a period that was a bit naive" in regard to the need for a detailed description of offenses, procedures for investigating them and penalties to impose on the guilty. It reflected a feeling that "we are all good," he said, and that "penalties should be applied rarely."
It will be more than a little interesting to see how this revision, begun under Pope Benedict, concludes under the governance of Pope Francis. Like his immediate predecessor, Pope Francis is profoundly aware that "we are [NOT] all good," as so many of his daily homilies make abundantly clear. The 1970s weren't a propitious time for revising the Code of Canon Law, nor for much else in the life of the Church.
