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.

Wednesday, April 15, 2015

Education as a "non-family enterprise"

By Rick Garnett

On the campaign trail in Iowa, while answering a question about the Common Core, Ms. Clinton referred to "education" as "the most important non-family enterprise in the raising of the next generation[.]"  Some have pointed out that this comment overlooks the growing reality of home-schooling. In any event, it might be time for Catholics (and others!) to review Gravissimum educationis (1965), the Second Vatican Council's Declaration on Christian Education: 

Since parents have given children their life, they are bound by the most serious obligation to educate their offspring and therefore must be recognized as the primary and principal educators.(11) This role in education is so important that only with difficulty can it be supplied where it is lacking. Parents are the ones who must create a family atmosphere animated by love and respect for God and man, in which the well-rounded personal and social education of children is fostered. Hence the family is the first school of the social virtues that every society needs. It is particularly in the Christian family, enriched by the grace and office of the sacrament of matrimony, that children should be taught from their early years to have a knowledge of God according to the faith received in Baptism, to worship Him, and to love their neighbor. Here, too, they find their first experience of a wholesome human society and of the Church. Finally, it is through the family that they are gradually led to a companionship with their fellowmen and with the people of God. Let parents, then, recognize the inestimable importance a truly Christian family has for the life and progress of God's own people.(12)

The family which has the primary duty of imparting education needs help of the whole community. In addition, therefore, to the rights of parents and others to whom the parents entrust a share in the work of education, certain rights and duties belong indeed to civil society, whose role is to direct what is required for the common temporal good. Its function is to promote the education of youth in many ways, namely: to protect the duties and rights of parents and others who share in education and to give them aid; according to the principle of subsidiarity, when the endeavors of parents and other societies are lacking, to carry out the work of education in accordance with the wishes of the parents; and, moreover, as the common good demands, to build schools and institutions.(13) . . .

Monday, April 13, 2015

"Education as a Matter of Social Justice"

By Rick Garnett

Archbishop Chaput explains, here, that and how "education is a matter of social justice."  More to the point, it is unjust for a political community to refuse to support parents who chose schools other than traditional public schools for their children.  John Coons said it so well here ("School Choice as Simple Justice").  And, Nicole Stelle Garnett and I tried our hand, a while back, in this paper ("School Choice, the First Amendment, and Social Justice").

Douthat on Nisbet and "The Quest for Community"

By Rick Garnett

This is well worth a read.   A bit:

What was Nisbet’s insight? Simply put, that what seems like the great tension of modernity—the concurrent rise of individualism and collectivism, and the struggle between the two for mastery—is really no tension at all. It seemed contradictory that the heroic age of nineteenth-century laissez faire, in which free men, free minds, and free markets were supposedly liberated from the chains imposed by throne and altar, had given way so easily to the tyrannies of Mussolini, Hitler, Stalin, and Mao. But it was only a contradiction, Nisbet argued, if you ignored the human impulse toward community that made totalitarianism seem desirable—the yearning for a feeling of participation, for a sense of belonging, for a cause larger than one’s own individual purposes and a group to call one’s own.

In pre-modern society, this yearning was fulfilled by a multiplicity of human-scale associations: guilds and churches and universities, manors and villages and monasteries, and of course the primal community of family. In this landscape, Nisbet writes, “the reality of the separate, autonomous individual was as indistinct as that of centralized political power.”

But from the Protestant Reformation onward, individualism and centralization would advance together, while intermediate powers and communities either fell away or were dissolved. As social institutions, these associations would be attacked as inhumane, irrational, patriarchal, and tyrannical; as sources of political and economic power, they would be dismissed as outdated, fissiparous, and inefficient. In place of a web of overlapping communities and competing authorities, the liberal West set out to build a society of self-sufficient, liberated individuals, overseen by a unitary, rational, and technocratic government.

The assumption, indeed, was that the emancipated individual required a strong state, to cut through the constraining tissue of intermediate associations. “Only with an absolute sovereign,” Nisbet writes, describing the views of Thomas Hobbes, “could any effective environment of individualism be possible.”

Is saying "No" to federal funds going to work for religious institutions?

By Rick Garnett

That's one of the questions set up in this New York Times piece ("To Keep Free of Federal Reins, Wyoming Catholic College Rejects Student Aid").  A bit:

To the college’s leaders, rejecting government-backed aid was an expensive effort to defend against what they called growing government threats to religious freedoms. If you do not take the money, leaders argue, the government cannot tell you what to do.

“It allows us to practice our Catholic faith without qualifying it,” said Kevin Roberts, the college’s president, a Louisiana transplant who now wears a black cowboy hat to work in this town of 7,500. “It’s clear that this administration does not care about Catholic teaching.”

This might "work" - but, I feel sure, only for a while, only for some small institutions, and only to an extent.  The regulatory strings about which Catholic and other religious institutions might be concerned are and are going to be attached not only to student-loan funds but, increasingly, to accreditation decision, contracts, research grants, sports-conference membership (!), and the like.  I do not think, in the long run, the smaller institutions with very strong animating missions should think that they can avoid the struggle that the larger research institutions are going to have to wage.

"There Are No Abortion Cakes"

By Rick Garnett

Katha Pollitt has done what perhaps might be called the "service" of writing a book that argues unabashedly for what most Americans regard as extreme positions with respect to the issue of abortion.  With this piece, "There Are No Abortion Cakes," she continues that work, and attempts to leverage the recent events surrounding Indiana's RFRA-type law in support of those positions.  She concludes:

It's time for progressives who rallied against the Indiana RFRA to show the same energy and conviction and urgency in support of women's reproductive rights. At least thirty-eight states have feticide laws, after all—this is not an issue for just one state. (Consider, too, that about 10 to 20 percent of known pregnancies end in miscarriage.) If CEOs are concerned, rightly, that their LGBT employees be treated as equals in Indiana, they should show as much concern for their pregnant and potentially pregnant employees. The same RFRA laws that open the door to discrimination against LGBT people lay behind the Supreme Court's infamous Hobby Lobby decision, which permits business owners to use religion to deny their employees health insurance coverage for birth control.

I understand that same-sex marriage and reproductive rights are different: marriage is about love, and abortion is about freedom. There are no abortion cakes. But freedom is a bedrock American value, even when it's for women. . . .

Assisted Suicide and the vulnerable

By Rick Garnett

Debra Saunders raises -- or, reminds us of -- some very important issues and concerns regarding what appears to be the new push in many states for assisted-suicide legalization ("Help the Rich Not Get Too Much Care"):  

Gov. Jerry Brown spent time with Mother Teresa in Calcutta. His office won’t say if he’ll sign or veto an assisted-suicide bill. He knows what he should do. True compassion engenders striving to cure illness, relieve pain and offer warmth to those who are suffering. That is dignity.

Those who say they want the option of assisted suicide, said, Barnes, essentially are “pointing at a disabled person and saying, 'I don’t want to live like that.’” That’s not dignity.

Sunday, April 12, 2015

Religious exemptions and recusants

By Rick Garnett

Here is the post to which I mistakenly referred the other day:  I'm reading-while-running this book, God's Traitor's:  Terror and Faith in Elizabethan England (which I had downloaded, as it happens, before the enactment, inaccurate depicting, unfair criticism, overwrought villification, and revision of Indiana's RFRA-type law) which includes, in its account of the Parliament of 1571, some interesting examples of very early discussions and debate about exemptions, conscience, and the "belief v. conduct" distinction.  Next up, I think:  Waugh's Edmund Campion:  A Life.  

Law firms, marriage, and moral accountability

By Rob Vischer

In yesterday's NYT, Adam Liptak notes that no major law firm will touch the SSM cases before the Supreme Court.  The explanations offered in the article by firm leaders and industry observers fall into three categories: 1) the issue is so controversial that taking on the representation will impact a firm's attorney recruiting, client retention, and staff morale; 2) firms recognize that there are no meritorious arguments against SSM; and 3) as Michael McConnell puts it, there is a powerful desire to "crush dissent" on the issue of SSM.

Explanation #2 appears to me to be a non-starter. Whether or not SSM is wise as a matter of policy or morally compelled as a matter of justice, I have a hard time believing that the issues surrounding its constitutional status are so one-sided that a firm would see no good-faith basis for litigation. There is, I believe, something to be said for explanations #1 and #3.

I'm reluctant to condemn categorically what's happened here, as we can easily fall into the trap of disclaiming any moral accountability for the cases and causes to which lawyers lend their efforts.  I believe that, at least in civil cases, lawyers bear some responsibility for the choices they make in client selection.  (I have explored these ideas more deeply here and here.)

Indeed, those who applaud the unwillingness of law firms to step up to defend prohibitions on SSM might look to an earlier era of professional ethics as a guide. David Hoffman’s Resolutions, considered by some to be the nation’s first legal ethics code, included the bold statement: “I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right.” George Sharswood’s Ethics considered it “an immoral act to afford that assistance, when [the attorney’s] conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him.”  According to the 1908 Canons of Professional Ethics, the lawyer “advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking the exact compliance with the strictest principles of moral law.”

The inconsistency, of course, is that law firms are not routinely declining other controversial causes, even those that conflict with emerging social norms, nor are they giving even lip service to the existence of accountability to extralegal norms, much less to "the strictest principles of moral law." I'm not suggesting that we should return to the rhetoric of the 1908 Canons (which, I suspect, was empty rhetoric more often than not), just that there is precedent for the notion that lawyers should be morally accountable for the decisions that they, and their clients, make.  Will the SSM cases mark the beginning of an era in which firms, perhaps echoing themes from the Corporate Social Responsibility movement, make client selection decisions that are shaped by moral commitments? 

If our "Hobby Lobby" moment of morally engaged business organizations is going to extend to large law firms and the choices they make regarding the clients they'll serve, this could be a healthy development for the profession and broader society.  If, as I suspect, this is more about firms' unwillingness to court controversy on a rapidly strengthening social norm even when there are important constitutional issues to be resolved, this could be an ominous development for our profession's long tradition of providing a voice for unpopular causes.    

Saturday, April 11, 2015

Has anything (that matters, in the end) changed?

By Patrick McKinley Brennan

Given (as it must be) that the coercive power of law will be used, even as I write (and in future), to punish men, women, and perhaps even children because they have been convicted of crimes, I wonder how those who will read and popularize Pope Francis's "Bull of Indiction of the Extraordinary Jubilee of Mercy" (here) will alter their own conduct and its authoritative effect.  I don't conflate or confuse divine law with human law.  The perpetrators of crimes matter, but so do the victims.  How should the higher law of "mercy" inform reasonable judgments concerning the operation of human law?  Should anyone think that God's mercy has recently been enlarged by the actions and/or words of a Pope?  I doubt it.  But, if I am incorrect, on what basis?  Is the divine law still authoritative?  Of course it is.  Nothing has changed, except the changeable.  The changeable is how the Church should minister to the modern world, but of course the Church's task has always been to serve the world she is given to save.  It's possible that the "Jubilee of Mercy" will turn out, sub specie etc., to have been the better or even best way to assist souls to get to Heaven.  Charity, however, requires that we never allow easy rhetoric in favor of "mercy" to occlude what makes it exigent in the first place, the divine judgment.  I simply don't understand the rhetorician who today claims that the Church "closes the door to mercy."  Two cheers for mercy, but mercy does, by all credible accounts, correct or complement what it presupposes.  

Thursday, April 9, 2015

"Of a Contented Spirit"

By Rick Garnett

Following up on yesterday's post (UPDATE:  Which, for some reason, was not posted!  Sorry!) about the possible contemporary relevance of the English recusants, here are some lines from Lord Thomas Vaux, "Of a Contented Spirit":

WHEN all is done and said, in the end this shall you find:
He most of all doth bathe in bliss that hath a quiet mind;
And, clear from worldly cares, to dream can be content
The sweetest time in all this life in thinking to be spent.
 
The body subject is to fickle Fortune’s power,         5
And to a million of mishaps is casual every hour;
And death in time doth change it to a clod of clay;
Whenas the mind, which is divine, runs never to decay.
 
Companion none is like unto the mind alone,
For many have been harmed by speech,—through thinking, few or none;         10
Fear oftentimes restraineth words, but makes not thought to cease;
And he speaks best that hath the skill when for to hold his peace.
 
Our wealth leaves us at death, our kinsmen at the grave;
But virtues of the mind unto the heavens with us we have:
Wherefor, for Virtue’s sake, I can be well content         15
The sweetest time of all my life to deem in thinking spent.
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