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.

Tuesday, August 6, 2013

Lund on Church Autonomy after Hosanna-Tabor

By Rick Garnett

Prof. Chris Lund is one of the best younger scholars working on law and religion questions, I think -- I'm also delighted that he'll be visiting and teaching at Notre Dame this coming semester! -- and he has posted a very good new paper on SSRN.  Here is the abstract for "Church Autonomy Reconceived:  The Logic and Limits of Hosanna-Tabor":

Last term, in Hosanna-Tabor v. EEOC, the Supreme Court held that the First Amendment precludes ministers from bringing employment-related claims against their churches. In some ways, Hosanna-Tabor changed little. The lower courts had all reached that conclusion already, though the Supreme Court slightly expanded the breadth of the so-called ministerial exception. More important is how Hosanna-Tabor reconceptualized things, especially in how it pushed back somewhat against the Supreme Court’s imperial decision in Employment Division v. Smith, where the Court had broadly held that the Free Exercise Clause did not entitle religious believers to exemptions from generally applicable laws. 

Hosanna-Tabor could end up an isolated anomaly, a peculiar concession to the importance of ministers and the intrusiveness of employment discrimination laws, a railroad ticket good for one day and train only. But the Court’s opinion speaks of a broader principle, a principle whose boundaries it consciously puts off defining. And when one looks at the cases being decided in the lower courts, one is struck by how so many decisions seem to fall within Hosanna-Tabor’s principle. From employment discrimination law to labor law, from contract to tort, lower courts regularly dismiss all manner of cases in ways incompatible with Smith and for reasons akin to those given in Hosanna-Tabor. This Article looks at that universe of cases, reflects on some patterns that emerge, and works toward an explanation for what is happening and how courts should handle these issues across the board.

Now, my own view is that the contradiction that many see between Smith and Hosanna-Tabor is overstated.  (See this essay of mine, "The Political (and Other) Safeguards of Religious Freedom", for more.)  But, I'm in the minority . . . so I guess I'm wrong!  In any event, check out Prof. Lund's paper.

"Catholic Conservatives and the Republican Party" and libertarianism (again!)

By Rick Garnett

Here is a post, at "ReligiousLeftLaw," by MOJ-friend Steve Shiffrin.  The post follows up on an essay by Rusty Reno, the editor of First Things, called "Our Challenges."  Steve's political priors and premises are not -- at least, some of them are not -- mine, but I'm interested in the exchange not for what it says about the Democratic and Republican parties, or about the "which party should Catholics support?" question, but because of the interesting, shared concern (shared, that is, by Reno and Shiffrin) for "libertarian excesses."  (Such "excesses" exist, of course, in both of America's major parties.)  And, in recent days, an entertaining, even if not edifying, public debate -- involving Rand Paul, Chris Christie, George Will, and others -- about "libertarianism" and its alleged dangers.

For purposes of Mirror of Justice's mission -- i.e., "developing a Catholic Legal Theory" -- it seems important to consider working through the important and difficult question, "to what extent and in what way should our positive laws be 'libertarian'?"  The quick response, "they shouldn't be" seems wrong, for the usual Aquinas / Murray reasons.  Catholicism proposes -- at the heart of the Church's social teachings -- an account of the person that is in tension, to be sure, with the premises that inform some versions of libertarianism.  We are all familiar with these points of tension.  At the same time, and as Prof. Patrick Clark discussed not long ago at the Catholic Moral Theology blog, there are important and valuable ways in which "libertarianism" -- or a libertarian sensibility -- can check and constrain statism, monism, collectivism, and the like.  Identifying those ways and implementing them in prudent ways that support rather than undermine the Gospel's moral anthropology -- that's the challenge.

Delahunty blogging on Tocqueville's faith

By Rick Garnett

Over at the Center for Law and Religion Forum, Prof. Robert Delahunty has started (what I gather is going to be) a series of posts -- "short essays dealing with the great French nineteenth century thinker Alexis de Tocqueville" -- and here is the first.  Among other things, Delahunty reminds us that "however valuable Tocqueville remains as a student of culture and society [RG:  very valuable, in my view], his thinking pivots on religion and its varied relationships to political regimes." 

And, while I'm at it, here's another in the series ("Tocqueville on Religion and the Limits of the Political Imagination"), in which Delahunty considers the "unsettling paradox" that Tocqueville "seems to be saying both that Christianity informs, shapes, limits and constrains the political beliefs of the Americans, and that the Americans' political beliefs inform, shape, limit and constrain their Christianity."    

Confusion about corporations and religious freedom

By Rick Garnett

This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places.  Read it for yourself but, for what they're worth, here are two thoughts of mine: 

First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them."  The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations.  Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way."  But third-parties are "affected" by the exercise of legal and constitutional rights all the time.  Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions.  The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.

A second thought:  Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?"  The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm."  The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have).  It's a command to the government:  Don't violate "the freedom of speech"; don't burden the "exercise of religion."

It is obvious that some regulations of corporations violate "the freedom of speech."  And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization.  It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment.  Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).

Yielding to Twitter

By Rick Garnett

Since this is a Catholic-themed blog, it's probably appropriate to "confess" that I've yielded to the Twitter-temptation.  If you have, too, and are so inclined:  You can "follow" (is that the right word?) at @RickGarnett.

St. Ignatius, Pedro Arrupe, Hiroshima and Abortion

By John M. Breen

Francis at the Gesu

As my colleague and MOJ’s resident Jesuit, Father Bob Araujo, S.J., reminded us (here), last Wednesday the Church celebrated the feast of St. Ignatius Loyola, one of the outstanding leaders in the Catholic Reformation and the beloved founder of the Society of Jesus.

Pope Francis chose to celebrate the feast with his brother Jesuits at Rome’s Gesu Church.  As Rocco Palmo notes in his story on the day’s events (here), following Mass the Holy Father went to pray at the tombs of St. Ignatius, St. Francis Xavier, and Pedro Arrupe, the Father General who led the Society following the Council and oversaw the changes that took place (both for the better and for the worse) as the Society redefined its mission as “the service of faith, of which the promotion of justice is an absolute requirement” (GC 32, Decree 4, ¶ 2, available here).

Prior to his service as Father General, Arrupe served as a Jesuit missionary in Japan.  He was living outside of Hiroshima when the atomic bomb was dropped, August 6, 1945.  Arrupe described the bombing as “a permanent experience, outside of history, engraved on my memory.”  A trained doctor, Father Arrupe helped to care for the wounded and dying transforming the Jesuit novitiate into a make-shift hospital.

Today is the anniversary of that cataclysmic event.  As such, it is an appropriate time to reflect upon the death and misery that it caused, and on the moral calculus that led to the fateful decision to use so indiscriminate a weapon.

It is also an appropriate time to reflect upon the death and misery wrought by the scandal of abortion.  Of course abortion is not a single event, but one that occurs millions of times in a single year.  And unlike the bomb, abortion is not indiscriminate.  Each time it takes place its aim is the death of a particular child.  In the United States alone, over 55 million abortions have taken place since 1973.  What is the moral calculus behind this staggering death toll and the law that makes it possible?

Some may think there is no connection between abortion and the dropping of the atom bomb?

Pedro Arrupe had no trouble discerning a connection, a fact I recently discovered in the course of some of my research on the history of abortion.

As reported in the Chicago Tribune (August 3, 1970), Father Arrupe gave a radio interview in Rome to commemorate the 25th anniversary of the atomic bombing of Hiroshima.  He said that the bombing “looks like a symbol of another kind of explosion, which is much more dangerous.  Nobody raises his voice for the hundreds of thousands, even millions of innocent lives that are doomed . . . I refer to planned and legalized abortion.”

Since the tumultuous years that followed in the wake of the Council many Jesuits, as well as many other Catholics, have not seen the “promotion of justice” as including the cause of the unborn.  This fact is reflected at the parish level in the separation of “peace and justice” ministries from “respect life” ministries.   In some instances there is even an understated hostility between the two groups.

Let us pray for the followers of St. Ignatius including all those who see in Pedro Arrupe the model of a “a man for others.”  Let us pray that all the followers of Jesus will be more faithful to the promotion of justice of which the Gospel of Life is “an absolute requirement.”  Let us pray that, in promoting the justice that is indispensible to proclaiming and living the faith, the Society of Jesus (as well as its students and other collaborators) will take up the cause of the unborn with renewed vigor.

 

Monday, August 5, 2013

Robert Bellah, RIP

By Michael Moreland

As noted here in a tribute by Kieran Healy, the eminent sociologist Robert Bellah died last week. Bellah's most recent book, Religion in Human Evolution, was the subject of an interesting First Things symposium, including some tough criticism from Paul Griffiths and the faint praise from Thomas Joseph White that Bellah's book is "arguably the greatest work of liberal Protestant theology ever." But as Healy notes, Bellah's enduring intellectual influence was in his articulation of the idea of "civil religion" in American public life and--more profoundly, I think--in Habits of the Heart, which still often seems fresh and insightful almost three decades on. Along with such modern classics as Alasdair MacIntyre's After Virtue and Charles Taylor's The Sources of the Self, Habits of the Heart began the reappropriation of what was (reductively then) styled "communitarianism" but, at its best, was a grand (and Catholic) alternative to the torpor of 1970s liberal political theory. Here is a lovely post by Margarita Mooney on a recent conversation with Bellah, including this bit of reflection from her:

How do we recover a vision of the common good? Bellah told me he had just started reading Catholic teachings on human rights and the common good, beginning with one of the foundational documents of Vatican II, Gaudium et spes. Bellah was “utterly blown away” by the Gaudium et spes’s unflinching defense of human dignity combined with a robust vision of social justice. It’s hard, Bellah said, to avoid an individualistic or utilitarian vision of human rights, but Guadium et spes articulates how human rights and the common good reinforce each other. What do I think of Benedict XVI’s social encyclical Caritas in veritate, Bellah asked me?

Since I had previously read numerous of Benedict XVI’s books on Christology, theology, and secularization, I was already familiar with various themes of his thought which appear in Caritas in veritate: that truth is objective rather than relative, and that virtue must be both in the heart and in action. As such, the church’s mission of charity can never be private; the church’s mission of charity is public—it is oriented to the greater good of all, regardless of religious creed. Hence, the state and church are inter-dependent in their work for the common good, something that is hard for people to understand if they think religion must only be a private matter.

Sunday, August 4, 2013

"Critiques of the New Natural Law Theory"

By Richard Myers

The most recent issue of the National Catholic Bioethics Quarterly (Spring 2013) is devoted to critiques of the new natural law theory (NNLT). The issue contains articles by Father Kevin Flannery SJ, Steven Long, and John Goyette and shorter essays by Fulvio Di Blasi, Matthew O'Brien, Michael Pakaluk, and Edward Feser. Many of the pieces focus on the NNLT's understanding of intention, an issue that has been featured in earlier discussions on Mirror of Justice of issues such as craniotomy and the treatment of ectopic pregnancies.  

Richard M.

Continue reading

Thursday, August 1, 2013

Dane on the Deep Structure of Conflict Reflected in the Mandate

By Marc DeGirolami

Professor Perry Dane has a thoughtful comment on the competing positions in the contraception mandate controversy. As someone who is partial to an analysis that emphasizes irreconcilable conflict in religious freedom disputes, I found Perry's short piece useful. But I wonder whether, in light of the fragment that I've quoted from his conclusion below, one could argue that "wholesale" conflicts about the Free Exercise Clause and religious exemption more broadly have become more common in part because the "wholesale" conflicts pertaining to the Establishment Clause have been steadily but inexorably increasing. Wholesale, not retail, conflict seems to be the order of the day in religion clause law:

I have written elsewhere that defining the relationship between religion and the civil state has both a “wholesale” and a “retail” component. The Establishment Clause defines general, wholesale, boundaries between church and state. Religion-based exemptions can then adjust those lines in specific, retail, cases to take into account the convictions of specific religious traditions. The “wholesale” work in defining the church-state dispensation goes beyond the Establishment Clause, though. It also has important political and cultural pieces, and, as here, can find its way into arguments over specific claims of religious liberty. Thus, both sides in the contraceptive mandate are venting wholesale grievances, suggesting that the other side has simply overreached beyond its proper competence or domain.

The truth, though, is that this controversy is not amenable to wholesale treatment. In this and many other areas, there are no sharp boundaries between the proper spheres of activity of church and state. Though we can and must draw certain lines, particularly where the work of the Establishment Clause is concerned, in many contexts the competencies of church and state simply overlap. And that leaves only the mundane, steady work of trying to accommodate each to the other as best, and as fairly, as we can.

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