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.

Monday, November 3, 2014

"Religious Accommodation in the Welfare State"

I've posted on SSRN this new piece, forthcoming in the Harvard Journal of Law and Gender and growing out of the April 2014 Harvard Law School symposium on religious accommodation .  There are many grounds on which to defend religious accommodations.  My own emphasis and vocation on this subject is summarized in this snippet from the abstract:

The Hobby Lobby contraceptive litigation reflects, and may accelerate, a trend in which Americans’ divisions over economic regulation reinforce their divisions over cultural matters. If Americans further separate into religious opponents of regulation and secular, progressive proponents of regulation, polarization is likely to become increasingly unhealthy. This article continues a project I have begun of defending strong protection of religious freedom based on premises that are sympathetic, rather than hostile, to government regulation in general. This Article defends government accommodation of religious objectors as a valuable component in a well-functioning regulatory state.

The article has a few distinct components, and I'll do separate blog posts on a couple of them.

Justice Alito on the example of St. Thomas More

Speaking to the St. Thomas More Society of Maryland (HT:  The Catholic Review), Justice Alito said:

“It is important for us to remember that it is not only possible to be a very good lawyer and also a good person, but this is in fact what we are called to do,” he said. “St. Thomas More provides us with an example.”

Nice.

Moreland on Interpreting Pope Francis: Evangelization and the Family

My friend and colleague (as we are wont to say) Anna Bonta Moreland of Villanova (forgive the boasting of a proud husband) recently delivered a lecture at the University of Chicago's Lumen Christi Institute on "Interpreting Pope Francis: Evangelization and the Family" (available here) and a lunchtime talk "A Guide to the Thought of Pope Francis" (available here).

Reno on accommodation, capitulation, and marriage

In this First Things piece ("Catholic Capitulation on Marriage"), Rusty Reno addresses, among other things, the decisions by the University of Notre Dame, Creighton University, and other Catholic institutions to provide health-related and other benefits to legally married same-sex spouses of employees.  (I said a bit about that decision here.)  (This story, about the decision by the Law Society in British Columbia to deny accreditation to Trinity Western University's law school, could usefully be read as a companion piece to Reno's.)

Like Rusty, I do worry that the mission, character, and integrity of Catholic institutions -- and we very much need, in the Church and in the world, authentically and interestingly Catholic institutions -- are at risk and, in some ways, under attack.  One reason they are vulnerable is, as Rusty points out, "it's existentially painful" (not only for "upper-middle-class" Catholic leaders, but for most of us) "to be out of sync with dominant opinion."  At present, many of us in Catholic institutions (and in the pews of Catholic parishes everywhere) are finding that it is rapidly becoming "not enough", in the minds of those who contribute money, do accreditation reviews, hire graduates, fund research, and take out advertising to talk about (and genuinely believe in) the dignity of all persons and the importance of pastoral and charitable language and practice when it comes to matters of sexual morality and marriage. 

In his (inspiring) Inaugural Address, Fr. John Jenkins -- the President of the University of Notre Dame -- said, "Notre Dame is different. Combining religious faith and academic excellence is not widely emulated or even admired among the opinion-makers in higher education. Yet, in this age especially, we at Notre Dame must have the courage to be who we are. If we are afraid to be different from the world, how can we make a difference in the world?"  I agreed then and still do.  Now, though, it increasingly seems to me that the issue is not only one of wanting to be "different," and of "hav[ing] the courage" to be different, but of securing permission to be different. We hear and talk about diversity, but it seems increasingly that what John Garvey calls "institutional pluralism" is seen more as a threat than as a good thing or as a desirable state of affairs.

Mary Ann Glendon to Receive Villanova's Civitas Dei Medal: November 5, 2014

Villanova University will present its third annual Civitas Dei Medal to Mary Ann Glendon, Learned Hand Professor of Law at Harvard Law School, this Wednesday, November 5 at 4:30pm in the Driscoll Hall Auditorium. Professor Glendon will deliver a lecture on "Religious Freedom in a Secular Age," and the University President, Father Peter Donohue, OSA will confer the award. The previous recipients of the Civitas Dei Medal are Alasdair MacIntyre (2012) and John Noonan (2013). Details here.

"aid in dying" as political language

I oppose the use of Brittany Maynard's death to redefine English usage.

The attempted redefinition of English usage is part of a larger attempt to change the law. Advocates of this legal change want states to authorize doctors to prescribe lethal drugs for voluntary self-administration in order to cause the death of the person taking the drug or drugs.

Until yesterday, the normal and accepted description of this kind of law in American English would be a law that authorizes doctors to assist with suicide. Fortunately, we still live in a culture in which this kind of language does not poll well. (For example: The bad guys are "suicide bombers," not righteous martyrs choosing death with dignity and honor.) 

To bring about their legal change, then, these advocates are attempting linguistic change. Specifically, they want to change the language we use to think and talk about physician-assisted suicide. They attempt to advance this goal by changing a phrase like "lethal medication" to "aid-in-dying medication," or "laws authorizing physician assistance with suicide" to "laws authorizing aid in dying."

The potential effectiveness of this linguistic change campaign can be seen in the media statement promulgated on Brittany Maynard's death by the advocacy group pushing for this change: "[S]he chose to abbreviate the dying process by taking the aid-in-dying medication she had received months ago." This language has been repeated in several news reports and has also seeped into news reports describing the legal landscape. USA Today, for example, notes that Oregon and four other states "allow patients to seek help from doctors in dying." 

Any decent American journalist these days is surely familiar with Orwell's Politics and the English Language. Twice in that essay, Orwell uses the phrase "political language." He says that "political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness," and that "[p]olitical language ... is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." 

I hope that journalists reporting on the campaign to authorize physician-assisted suicide recognize the political language of "aid in dying" when they see it.

Sunday, November 2, 2014

A prayer for all souls

Yesterday's feast of All Saints' Day is one of the most joyous in the church calendar. Today's feast of All Souls' Day is hopeful in its own way; both more universal and more personal at the same time. There seems something inappropriately limited about confining the scope of one's prayer on this day. So let us pray for all souls, and in a special way for all those who suffered in this life because of the law or because of its absence or defects:

Eternal rest grant unto them, O Lord.

And let perpetual light shine upon them.

May their souls, and the souls of all the faithful departed, through the mercy of God, rest in peace.

Amen.