Mirror of Justice

Thursday, June 6, 2013

Depends on How it Changes the Game

Patrick's post about the AID's involvement in a partnership to address LGBT issues around the world laments that "U.S. taxpayers' dollars are being spent to advocate internationally for laws and policies that most Americans still oppose and that, what is more, violate the moral law."

I think he overstates the objection tremendously. The specific things listed as being of concern in the AID's announcement of the partnership are the fact that LGBT behavior is criminalized in 85 countries, seven of which impose a death penalty for same-sex sexual activity and that a large number of countries do not punish anti-gay discrimination. I think one would be hard put to claim that most Americans think same-sex behavior should be criminatlized or subject to the death penality and I see no violation of moral law in fighting against such laws. And (appreciating that people can have different views as to what constitutes discrimination, even the Catholic Church believes that people should not be discriminated against) because of their sexual orientation.

The United States is not representative of the rest ofthe world. The big fight here is about gay marriage. In other parts of the world homosexuals risk harm from third parties and their own governments because of their orientation.

I'd like to know a little more about the specific plans of the partnership of which the AID is a part before coming to the conclusions Patrick does.

"a real game-changer"

By Patrick McKinley Brennan

"A real game-changer," that's how Claire Lucas, senior advisor to the U.S. Agency for International Development (USAID), described the Obama administration's new program to train activists on behalf of homosexual causes around the globe. Here is the story . Trouble is, it's not a "game," and no one should be fooled into treating it as one. U.S. taxpayers' dollars are being spent to advocate internationally for laws and policies that most Americans still oppose and that, what is more, violate the moral law.

And speaking of law, consider the following conclusion of Ursula Cristina Bassett concerning what ensues, as a matter of historical fact, upon legal recognition of homosexual union: “It quickly became clear that legalising same-sex marriage required a revolution to our internal law. It impacted laws regulating public order, identity, gender, rules of kinship, filiation, marriage, names, marital property arrangements, divorce, alimony, parental rights, succession, domestic violence, adoption, artificial reproductive techniques, surrogate motherhood, liberty of conscience, criminal law, tax law and employment law, among other topics. All of these subjects would need to be attuned to the gender-neutral paradigm ... same sex marriage law in Argentina has turned the law upside down—no stone has remained unturned”. Basset's work was recently considered by the British Parliament (here at column 947) before it voted, in effect, to leave "no stone . . . unturned."

While many are busily "dialing it down," including a growing number of equivocating and misleading Catholic prelates (e.g., Belgium's Cardinal Danneels), the players of the "game" that is no game at all are positioning things to leave no stone unturned. The purveyors of the Church of Nice are complicit, alas, in the creation of an unCatholic world order.

AALS call for papers

By Rob Vischer

Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program:

“Cooperating With Evil, Complicity with Sin”

From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion:

The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel. The program description follows:

What does it mean for religious believers and groups to refrain from “cooperating with evil?" When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.

Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.

Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ of St. Thomas (MN) School of Law, [email protected]

Proposal Requirements: An abstract of not more than five pages, or a completed paper.

Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal (MN) during the 2013-14 academic year.

Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses.

Immovable ladders, the Church of the Holy Sepulchre, and property rights

By Rick Garnett

This piece, from Slate, by "Atlas Obscura," is wonderful. Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?

The Boys of Pointe du Hoc

By Michael Scaperlanda

Ronald Reagan's speech at Pointe du Hoc on the 40th anniversary of D-Day.

A ministerial-exception case to watch in Cincinnati

By Rick Garnett

The Washington Post reports that a jury found that the Archdiocese of Cincinnati unlawfully discriminated against a Catholic-school teacher whom it fired after she became pregnant via artificial insemination. The jury awarded the teacher more than $170,000 (including $100,000 in punitive damages). The trial court had disallowed the ministerial-exception argument because the "computer technology teacher" had no "ministerial duties."

The Archdiocese also argued that the teacher was fired for not complying with her contract, but the fired teacher, "who is not Catholic, had testified she didn’t know artificial insemination violated church doctrine or her employment pact. She said she thought the contract clause about abiding by church teachings meant she should be a Christian and follow the Bible."

As many (including several of us here at MOJ) have noted, the Supreme Court's important ruling in Hosanna-Tabor did not resolve the debate over the scope and coverage of the ministerial exception. My own view is that a teacher -- of any subject and whether or not that teacher is Catholic -- in a diocesan school is a "minister" but . . . stay tuned.

Haupt on the Mirage of Constitutional Convergence

By Marc DeGirolami

Check out Claudia Haupt's first post over at CLR Forum. Claudia is a fellow at Columbia Law School and the author of a fine book dealing with the law and religion regimes of the US and Germany. Her post makes a very interesting comparative point about "neutrality" in the law and rhetoric of the US and Germany. As she puts it, "From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality. But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same."

Claudia is right that the meaning of a term like neutrality cannot be properly assessed without reference to cultural and historical particulars. The use of the same term inter-culturally creates a mirage of convergence. But an additional difficulty may be that the term lends itself to multiple and (at times) conflicting interpretations within the same legal and cultural system. That can create confusion about a term's meaning as well. At least, this is what I argue in Chapter 2 of The Tragedy of Religious Freedom.

ADDENDUM: I was also reminded of this example from Joseph Raz's The Morality of Freedom (121-22):

Imagine that the Reds are fighting the Blues. We have no commercial or other relations with the Blues, but we supply the Reds with essential food which helps them maintain their war effort. If we want to be neutral, should we continue normal supplies to the Reds or should they be discontinued? If we continue supplying the Reds, we will be helping them more than the Blues. If we discontinue supplies, we will be hindering the Reds more than the Blues. (I am assuming that even if similar supplies to the Blues will help them, continuing not to help them is not hindering them.)....The[se cases] form a special class where, in the circumstances of the case, not helping is hindering....In [them] two standards of neutrality conflict.

Wednesday, June 5, 2013

Judge Henry Friendly on the Establishment Clause

By Marc DeGirolami

Here's an interesting selection from David Dorsen's recent superb biography of renowned Second Circuit Judge Henry Friendly. The passage deals with the Establishment Clause, with particular reference to the issue of "shared time" remedial education by public school teachers in religious schools and the Supreme Court's decision Aguilar v. Felton. The passage is neat because it shows the fashion in which an intermediate appellate judge managed hierarchical constraint and substantive preference in crafting a decision. I'll have some more on this general issue soon, but here's Dorsen (at 162-63):

[I]n 1984, a time of doctrinal uncertainty and confusing precedents [ed.: when has this not been true?], Friendly wrote the Second Circuit's opinion in Felton v. Secretary, Dept. of Education, where, when other programs had proven ineffectual, New York City sent public school teachers into nonpublic schools, including religious schools, to provide remedial instruction to educationally deprived children. State law prohibited public school teachers and their supervisors, who were entirely in charge of the program, from involving themselves in religious activities or content. In a suit by taxpayers Friendly said that while he accepted the good faith of the city and the value of the program, the program was unconstitutional: "[T]he Establishment Clause, as it has been interpreted by the Supreme Court, constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here." His analysis of the Court's cases

leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school....To be sufficiently certain that public employees, in a program like the present one, will maintain strict religious neutrality, they and the institutions in which they work must be subjected to 'comprehensive, discriminating and continuing state surveillance.' This itself is a constitutionally excessive entanglement of church and state.

Precedent did not require a search of the record to find entanglement; the mere possibility was sufficient to reject the program.

Dorsen goes on to note that Friendly's separationist view of the Establishment Clause ("The Establishment Clause was the most notable constitutional-law area in which Friendly sided with the Supreme Court's liberal wing") coincided nicely with what was then the Supreme Court's prevailing view, so that he could claim plausibly that he was "just following the Supreme Court." "Nevertheless," Dorsen writes,

Friendly structured the opinion in a manner that increased the likelihood that the Supreme Court would affirm him. He placed heavy reliance on Meek v. Pittenger, virtually the same as Felton, including on the problem of entanglement, which held unconstitutional a secular textbook program for private schools. He later explained that in writing the opinion as he did his object "was to make the [Supreme] Court face up to the fact that it could not sustain the New York program without overruling, in contrast to distinguishing, Meek v. Pittenger. I thought that this, as well as some of the other considerations developed in the opinion, might give a little pause to Blackmun and Powell about the erosion of the establishment clause."

If you read through Justice Brennan's opinion for the Court in Aguilar v. Felton, you'll see that he relies heavily on Meek too. And, as Friendly half-predicted, Justice Powell's concurrence goes on at length not only about Meek, but it also specifically relies on and emphasizes Judge Friendly's reading of Meek.

It's also interesting that none of the dissenting opinions in Aguilar distinguished Meek--another very strong point in support of Judge Friendly's craftsmanship. Justice O'Connor instead wrote that "experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom....[I]t is time to acknowledge that the risk identified in Meek was greatly exaggerated." Justice Rehnquist's dissent does not mention Meek at all, presumably because he continued to dissent from it. And Chief Justice Burger explicitly states that he dissents in Aguilar for the same reasons as he dissented in Meek.

Of course, Agostini v. Felton, decided in 1997, overruled Aguilar and Justice O'Connor's opinion carried the day (5-4): "We have abandoned the presumption in Meek and [School Dist. of Grand Rapids v.] Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." But that course reversal only highlights the importance of seeing how a master like Judge Friendly went about his work.

Tuesday, June 4, 2013

Thomas More and Important, Final Things

By Robert John Araujo, SJ

Thank you, Lisa, for your report about the Thomas More gathering co-hosted and sponsored by the Murphy Institute at Saint Thomas and the excellent University of Dallas Center for Thomas More studies. If I recall correctly, Marc had also posted an entry on this conference earlier in the spring before the gathering convened. Coincidentally during the same period in which the conference was held, I finished reading two books on More and Moreana. In one of them, I came across reference to an essay published in 1961 by the well-known More scholar Father Germain Marc’hadour. Father Marc’hadour investigated in this particular article the topic of More’s obedience. More surely was obedient to the law and civil authorities including Henry VIII; however, his ultimate obedience was to God and His holy Church.

In pursuing this particular study, Marc’hadour made a small digression in his pure study on More to demonstrate how the political difficulties of Thomas More’s time that contest faith in general, and Catholicism in particular, are not restricted to the Tudor era. During that period many good people had to make important decisions and, then, choices about loyalty and fidelity that essentially pitted the civil authority against the Church. But as Marc’hadour and others have demonstrated, this test has not been restricted to that era. I join the ranks of those who do not think that the Church-State issues which confronted Thomas More and his contemporaries were restricted to the sixteenth century. During that period, Catholic England became something else besides a nation that was breaking from Rome; in short, it was transformed into a totalitarian system headed and directed by a well-educated but increasingly despotic monarch. By the 1950s, another Englishman, Christopher Dawson, warned that the twentieth century democracies themselves could mimic the terrors generated by totalitarian states, and here I would include Henry’s England. Following the thought of Dawson, John Paul II noted in the 1990s that a democracy without values is but a thinly disguised totalitarianism.

Apparently Marc’hadour joined the ranks of Christopher Dawson and JPII by penning in 1961 these thoughts (which are quoted in James Monti’s excellent 1997 book, The King’s Good Servant But God’s First):

It may be that the near future will face all of us with the problem of harmonizing, or simply reconciling, our loyalty to Caesar with our loyalty to God… [But Caesar] is no longer a monarch; he is a cabinet or a party… [or] public opinion, which shapes—and is shaped by—the newspapers, the broadcasts, the schools… If we may bring a few examples, there are today fields of conduct, such as divorce, sexual behavior and education, the use of artificial contraceptives, abortion, mercy-killing… and a few more, in which a Catholic, especially if he [or she] is a lawyer, a doctor, a nurse, a teacher, will find himself alone against practically everyone else in [the] profession… As in penal days, the Catholic will sometimes be alone of his species in the whole street… [and] find fellow Catholics ready to taunt him… In extreme cases fidelity to the doctrine of Mother Church will mean worse than corporal death: it will alienate from a man the trust and esteem of the people he likes, or even loves, best… The prospect of this social disqualification, of this civic annihilation… is as strong and effective a pressure as the old forms of physical duress… [T]housands will apostatize simply because they see no rational justification for the Church’s position on a number of points, and they have not enough faith… to cling to her through sheer obedience.

However, Father Marc’hadour did have a remedy to address this problem: it was “the fervent intercession” of Saint Thomas More which “can remedy the sickly reluctance of many tepid Christians.” While Marc’hadour understood how More could be both a “dangerous patron” and a “dangerous friend,” something could be learned from one “who never believed in being carried to heaven on a featherbed.”

Today we find the neuralgic issues identified by Marc’hadour (and new ones such as the meaning of marriage and family) very much with us; moreover, we find those in national, state, provincial, and regional governments strongly pushing the agenda to transform abortion, euthanasia, access to artificial contraception, etcetera into so-called “human rights” issues which no one, especially faithful Catholics, should be able to challenge regardless of the reasons tendered for opposition or objection to these newly discovered “rights”. In addition, we see many in the academy and religious life, including those who use the modifier “Catholic” to self-identify, urging their co-religionists to cast aside the teachings of the Church and accept what are considered to be the more enlightened views of the present age.

But here at the Mirror of Justice, most of our discussions that are pursued and positions which are taken rely upon objective reason to consider, understand, and explain the Church’s teachings on these increasingly controversial topics, which have a bearing on the development of Catholic legal theory. But our discussions on this site really go beyond the important matters that intersect Catholic and any other legal theory—they also address, quite often, the nature of the human person and what our individual and social existence is all about: union with God.

In short, Thomas More understood that the dangerous political and social maelstrom in which he lived and died had to do not only with the civil governance of his time; it also had to do with human destiny, that is, with final things, including the final thing which I have just mentioned. As one goes through More’s vast correspondence and his so-called Tower Writings that he left and which are extant, you can see the mind and soul of the lawyer who was trying to be the good and obedient servant of both God and country. In the eyes of some, he failed in the latter category; but, I think the holders of this view are mistaken. Why? Thomas More understood that there is more about the human condition than the present moment and surviving it as best one can; he realized that the collection of “present moments” is but a prelude to the final things which we must all face. Thus, he used his intelligence and objective reasoning to try and avoid the traps with which the totalitarian king of his day attempted to ensnare him; but while doing this, More never lost sight of the final goal of the human condition and the necessary obedience that must be directed to the Universal Sovereign.

This goal is not about doing well in this world, a world which comes to an end for all of us with our natural or accelerated death; this goal is not about how to make friends and influence people; this goal is not about being the best or most powerful or most influential; this goal is not about getting along with everyone by doing what they are willing to do in order to join them in fellowship. The goal is about getting ready to meet God, and this is the final destiny we all share in common. Thomas More was the better lawyer, father, husband, and member of society for the path he chose. And what about each one of us: which path do we choose? After all, we are all like More because we share the important, final thing, too.

RJA sj

"Children and Young People (Scotland) Bill"

By Michael Scaperlanda

When I first heard about the "Children and Young People (Scotland) Bill" introduced into Parliament on April 17 of this year, I assumed naively that it was an "Onion" type spoof. Sadly, it is not. Under this proposal, every child and young person will be assigned a "named person" (parents of the child are ineligible) whose job it is to promote, support or safeguard the wellbeing of the child or young person by, among other things, advising, informing, or supporting the child or the child's parents; and raising a matter about the child with a relevant authority. Information deemed relevant on each child will be collected by the named person and passed on to successor named persons or other relevant authorites.

A "targeted intervention" is developed by the creation of a "child's plan" when "the child's wellbeing is being, or is at risk of being, adversely affected by any manner." In deciding whether a plan is needed and the contents of the plan, the "authority" making the decision will "so far as reasonably practicable ... ascertain and have regard for the views of the child, and the child's parents."

Scottish Ministers have broad authority, as far as I can tell, to determine what consitutes a threat to a child's well being. The Bill itself doesn't contain an appeal mechanism for parents or their children although the existing Act may contain some provision for appeal.

In "Vouchers Withing Reason," which I review here (see also here), and his his other books, law professor James Dwyer argues that parents are mere licensees of the state for child rearing purposes, with state experts determining (and dictacting to parents) the meaning of child wellbeing. Scotland seems to be taking a page from Dwyer's playbook.