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.

Saturday, May 23, 2015

Blessed Oscar Romero

By Susan Stabile

Today is a day many people have been waiting for a very long time: the beatification of Oscar Romero, one of my great heroes.

Romero's path to sainthood, however, has not been without controversy.  There are some who during his life viewed him (and some who continue to view him) as a Marxist or, in one commentator's words "a poster boy for the left-wing cause."

I think there is no better answer to the charge of Marxism than the words Romero spoke during his homily on the feast of the Ascension in 1977, three years before his assassination.  The message of the bishops in the Documents of the Second Vatican Council, he preached

condemns this false understanding of tradition that wants to present the Church as simply spiritual - a Church of sacraments and prayers but with no social commitment or commitment to history.  We would betray our mission as pastors, if we were to reduce evangelization to mere practices of individual piety and the participation in non-incarnated sacraments.  The Pope says: Evangelization would not be complete if it did not take account of the unceasing interplay of the Gospel and of man's concrete life, both personal and social (Evangelii Nuntiandi, 29).  My bothers and sisters, let us not place our faith in some corner and reduce it to some private place and then live in public as though we had no faith.  The Council said that this divorce between faith and our private life is one of the great errors of our time (cf. Gaudium et Spes, 43).  So great is this error that in the name of this error, the Church is called subversive because she wants to lead Christians to a faith commitment in their concrete life.  My dear Catholics, let us study this right doctrine and wisdom of the Church.  Then we will understand that priests and Christians who live their Christian commitment in the world are far from being communists or Marxists or subversives.

Blessed Oscar Romero, pray for us!

[cross-posted from Creo en Dios!

Friday, May 22, 2015

A challenging premise, human dignity, and "reasoned moral response"

By Kevin C. Walsh

"The premise is that there is a spark of humanity in everyone that is ultimately more defining than whatever delusions, depression, and negative emotions culminated in the act of murder." 

But there is also this: "Clarke saved his life at the expense of his dignity. Kaczynski was furious, and remains so."

And this:

In death-penalty cases, the jury is asked to make a "reasoned moral response" to evidence about the offense and the offender. In federal law, the process involves "weighing" aggravating and mitigating factors. Each juror is permitted to give any mitigating factor whatever weight that juror thinks it deserves. Jurors don't need to come to agreement about what is mitigating and what the mitigators are "worth." A single juror can prevent the unanimous verdict that is necessary to authorize the death penalty.

Now the odd thing: This "reasoned moral response" is given by jurors who already said they were willing to vote for death. Anyone against the death penalty is excluded.

Clarke's task is to create "reasoned moral response." It's not just a recitation of trauma but something more comparable to the work of a novelist. In Paradise Lost, the Devil is the most interesting character, famously. It's thought that Dostoyevsky's best work rose from a polemic waged against the hollow characters of Gogol, whose shells he stole and reinhabited from within, allowing the reader to get close enough so that when murder happens, we sympathize, not with the crime, but with the anguish of the character who committed it.

Thursday, May 21, 2015

Movsesian on the Pew Survey and the "nones"

By Rick Garnett

Over at First Things, Mark Movsesian has posted some as-per-usual insightful thoughts on the recent Pew survey that, among other things, found that the number of Americans who identify as Christian, or with specific Christian denominations and traditions, is declining.   He writes:

[I]t’s hard to see how the rise of the Nones is good for religious freedom. As people check out of organized religion, they are less likely to view it as important and worthy of protection. People with even marginal affiliations may still understand and endorse the importance of religious commitment. The fact that they affiliate at all shows that religion makes up at least some part of their identity. Once people cut their ties completely, however, they are much less likely to be sympathetic to religious communities. If the future of religious freedom depends on the ability of believers to persuade our fellow citizens that faith commitments deserve respect and protection, that task may well become more difficult in the years ahead.

One reading of some signs of the times: Time to kill the death penalty

By Kevin C. Walsh

A commentary by George Will in the Washington Post and a piece by Ben Crair at The New Republic (not sure what to call it, as it's not billed as an editorial or opinion piece but reads like one)provide reasons to think that the death penalty is ripe for repeal or drastic limitation. (HT: How Appealing)

I hope that legislators in Virginia (where I live) can follow the lead of legislators in Nebraska and vote to eliminate the state death penalty.

At a minimum, those legislators who support the death penalty should have the courage of their convictions and replace lethal injection with the firing squad as a method of execution. In comparison with lethal injection using experimental protocols, the firing squad is quicker, more reliable, and less vulnerable to constitutional challenge.

May 17, 1924: The Battle of South Bend (Notre Dame v. the Klan)

By Rick Garnett

A few days ago was the anniversary of the day in 1924 that Notre Dame students disrupted a Klan rally.  The incident was part of a longer-running clash between the Klan and the Irish.  Read more here. 

Wednesday, May 20, 2015

Some reading to accompany pages 1-5 of Judge Posner's latest (and hopefully not long for our law) opinion on the contraceptives mandate

By Kevin C. Walsh

Judge Posner is back with another opinion rejecting Notre Dame's attempt to secure exemption from the contraceptives mandate, as required by the Religious Freedom Restoration Act. I couldn't make it past page five before desiring to post some readings to accompany his recitation of the case. 

Three points:

1. For a fuller explanation of the materials discussed in the paragraph on pages 2-3 that concludes with a recommendation to read the D.C. Circuit's Priests for Life opinion for "a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception," take a look at Helen Alvaré, No Compelling Interest: The "Birth Control" Mandate and Religious Freedom, 58 Vill. L. Rev. 379 (2013). Note also the failure of Judge Posner's formulation here at the outset to map onto the level of specificity required by Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal. 

2. For the claim on page 4 that the Administration formulated its religious employer exemption "mindful of the dictate of the Religious Freedom Restoration Act," look at the portion of the Federal Register cited by Judge Posner for support, which makes no mention of RFRA. As explained and documented in an amicus curiae brief I co-authored on behalf of Senator Hatch and other lawmakers who enacted RFRA, "the government ignored RFRA in formulating the narrow religious exemption at the outset and only attended to its requirements because of litigation and the reaction to public scrutiny." 

3. For the claim that Notre Dame came within the scope of "the exemption" as a result of new regulations in 2013, take a look at the portion of the Federal Register cited by Judge Posner for support. Rather than expand the exemption to include religious employers like Notre Dame, these regulations provide an "accommodation" for these non-exempt religious employers. In response to commenters who argued that "the proposed definition of religious employer was too narrow and should be broadened to include all employers, both nonprofit and for-profit, that have a religious objection to providing contraceptive coverage in their group health plan," the promulgating Departments said that they were "finalizing without change the definition of religious employer in the proposed regulations." This definition was limited to houses of worship and integrated auxiliaries; it did not include Notre Dame.

Tuesday, May 19, 2015

A Christian Conversation On Human Trafficking and Civil Rights

By Mary G. Leary

This is the subtitle of an important conference going on today through Wednesday in Cincinnati. The Freedom Summit is an effort by Christian churches to come together and discuss important components of today's human trafficking problem. It describes the Summit as follows:

"We have seen and heard from people around the country that we're facing a distinct challenge from communities fighting for justice in our nation. On one hand, there are many organizations and churches that are active on the issue of human trafficking both in America and around the globe. On the other hand, there are many Christian groups - particularly in the minority community - who focus significant efforts on the vestiges of slavery and ongoing racism in our nation. Too often these groups don't come together. This is a summit focused on reconciliation, specifically reconciliation around the critical issues of modern day slavery and race in America."


Sponsored largely by the National Underground Railroad Freedom Center, this conference is yet another important example of the role organized religion can play in the movement against human trafficking. Furthermore, it brings into the spotlight the often ignored reality that race plays in human trafficking.

To end this form of exploitation, organizations and individuals must engage in difficult conversations and confront the reality that we all contribute to human trafficking and that we have more people enslaved throughout the world today than at any time in human history. No doubt this conference will contribute to the the national conversation looking to end this exploitation that enslaves millions everyday.

A Bit of Pessimism on the New Pessimism

By Marc DeGirolami

This column by Damon Linker is a useful summary of some of the current debates concerning the "Benedict Option"--the burgeoning pessimistic weltanschauung inspired by Alisdair MacIntyre's closing words in After Virtue, and characterized by:

[T]raditionalist Christians choosing to step back from the now-futile political projects and ambitions of the past four decades to cultivate and preserve a robustly Christian subculture within an increasingly hostile common culture. That inward turn toward community-building is the element of monasticism in the project. But its participants won't be monks. They will be families, parishes, and churches working to protect themselves from the acids of modernity, skepticism, and freedom (understood as personal autonomy), as well as from the expansive regulatory power of the secular state.

I won't consider the virtues and vices of such a course here. I want instead to suppose that "traditionalist Christians" (and other disaffected constituencies) pursue this approach. And I will assume that by pursuing it, they hope and believe it might be successful. 

The principal question I have is: what cause have they so to hope and believe? Does the success of the Benedict Option not ultimately depend on its political and legal feasibility? Does it not flower or wither at the pleasure of the very culture from which "traditionalist Christians" desire insulation? The preferred instrument of social control in that culture is law. Linker says that the new Benedictines "will presumably still vote and contribute to various public causes, especially those that promise to protect their interests." Yet having withdrawn from politics and law, for whom will they vote? What sort of enfeebled candidates and causes will remain to protect their interests? What legal and political power will want their socially toxic contributions? As I've wondered aloud here before:

There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if [Jody] Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.

The Benedict Option claims to be a withdrawal from politics and law. But it is through politics and law that the conditions that constitute the Benedict Option will be permitted to exist, and probably not as an all-or-nothing affair, but through a series of carefully negotiated compromises. Is not the Benedict Option's contemplated political and legal withdrawal a fantasy--a sort of escapism--that is likely to be the very cause of its failure? 

These are questions for the new pessimism asked, admittedly, from a lawyer's point of view. And perhaps there are some answers to them. But if there are, they will be answers rooted in and dependent upon law and politics.

Archive: Letters in Defense of State RFRAs

By Thomas Berg

The debate over state religious freedom restoration acts (state RFRAs) has obviously become white-hot, and it likely will heat up again in states in the future. For purposes of convenience and of the record, here is a collection of letters defending various state RFRAs, written to legislators considering such bills, by religious-liberty scholars--several of whom (including me) support same-sex marriage--who want to set the record straight on what such bills are actually likely to do. Among other things, the letters state that:

[From IN letter:] The most common charge opponents make against RFRA legislation is that it is a "license to discriminate." It is no such thing.... [Application of anti-discrimination laws] creates a serious conflict for religious individuals who personally provide creative services to assist with such weddings. But whatever one thinks of the arguments for and against exempting such individuals, it is far from clear that the proposed Indiana RFRA would lead courts to recognize such an exemption....

 

[From GA letter:] Most RFRA cases do not involve anti-discrimination laws or suits between private parties.... Rather, they involve disputes between government and a religious individual or organization, and they arise when one of our vast array of government regulations turns out to burden one of the diverse religious practices of the American people.... State RFRAs have been important to the practice of religion in this country, and especially to the practice of minority faiths.

Georgia (Feb. 2015)

Indiana (Feb. 2015)

Arizona (Feb. 2014, to Gov. Jan Brewer; countering widespread misstatements about the likely effect of amendments to the state RFRA, even though some of the signers did not take a position on whether the amendments should be adopted)

Mississippi (Feb. 2014)

North Dakota (May 2012)

Monday, May 18, 2015

Prenatal Trisomy Diagnosis Awareness Act

By Elizabeth Schiltz

With Minnesota's Governor threatening to veto the bipartisan education funding bill later today, sending the legislature into a special session this summer, I'm happy to report that something positive came out of this past session.  On Monday, Governor Dayton signed the Prenatal Trisomy Diagnosis Awareness Act.  It passed unanimously in the House and 58-1 in the Senate.  That doesn't happen much anymore!

Effective August 1st, health care practitioners in Minnesota who perform genetic tests on pregnant women for Patua syndrome (trisomy 13), Edwards syndrome (trisomy 18), or Downs syndrome (trisomy 21), will have to provide specific information if the results are positive. The information has to include "up-to-date and evidence-based information about the trisomy conditions that has been reviewed by medical experts and national trisomy organizations", including expected "physical, developmental, educational, and psychosocial outcomes", life expectancy, and contact information for nonprofit organizations that provide information and support services for trisomy conditions.

You'd think such information should be routinely given, but 20  years ago when I received a diagnosis of Trisomy 21 for my son, it certainly was not part of anything I got from our genetic counselor or doctor; anectodal evidence suggests things aren't much different now.

According to my friends (and a former student) at the Minnesota Catholic Conference, some of the key factors in getting passed were the diverse coalition of supporters, bipartisan authorship, pepole with disabilities serving as the principal public advocates, and message discipline (this is an information bill--and who is against more information?  Well, based on the sole vote against this, apparently Senator Katie Sieben.)

Though similar bills have been passed in six other states [Massachusetts (2012), Kentucky (2013), Pennsylvania (2014), Maryland (2014), Louisiana (2014) Delaware (2014), and Ohio (2014)]  Minnesota's is the first to include Trisomy 13 and 18.  Anyone who wants information on this bill or the background of its passage, feel free to contact Jason Adkins, Executive Director of the Minnesota Catholic Conference.

 

 

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