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, October 29, 2013

Religious Liberty Arguments in Hawaii Same-Sex Marriage Debate

By Thomas Berg

As in previous states (see archive here), our two groups of religious liberty scholars have submitted letters to legislators in Hawaii, where same-sex marriage is under consideration in a special session this week, arguing for meaningful religious-liberty protections that are absent from the current bills. 

Here are the longer-form letter memo and testimony, from scholars who hold differing views on whether to recognize same-sex marriage (the testimony is from an expanded group adding Robert Destro, Marie Failinger, and Michael McConnell).  And here are the letters and testimony from another group of scholars who all support same-sex marriage but also support strong religious accommodations.

Tuesday, October 1, 2013

From The Atlantic: "How America's Marriage Crisis Makes Income Inequality So Much Worse"

By Thomas Berg

This will hardly be news to readers interested in the subject matter and concerns of this blog.  But it's important to see it emphasized again in a venue like The Atlantic (which indeed first published Charles Murray's earlier findings on it).

In a strange twist, marriage has recently become a capstone for the privileged class. The decline of marriage, to the extent that we're seeing it, is happening almost exclusively among the poor. . . .

The marriage inequality crisis creates a virtuous cycle at the top and a vicious one at the bottom. It pushes educated and non-educated Americans into entirely different worlds. . . .

This is the marriage crisis behind our inequality crisis. It is not complicated. It requires no regressions. It is the simplest math equation is the world. It says: Two is more than one.

Friday, September 27, 2013

Robert Christian: "Can Pope Francis Help End the Culture Wars?"

By Thomas Berg

Robert Christian is the editor of the Millennial blog, which is a rising voice among young-adult Catholics, and a fellow with Democrats for Life of America, where he edits and contributes to DFLA's  "Everyday Life" blog.  Today he writes at the Washington Post's "On Belief" page, on whether the re-sets in tone and priorities suggested by the Pope's recent statements could "help end the culture wars." He writes that the "commitment to all life," the unborn and those vulnerable in other ways,

is partly responsible for [Francis's] call to rebalance church teaching, to move it away from a legalistic focus on a handful of moral teachings, including abortion, at the cost of proclaiming the Gospel and welcoming new faces into the church. . . .

Pope Francis warns, “We have to find a new balance; otherwise even the moral edifice of the church is likely to fall like a house of cards, losing the freshness and fragrance of the Gospel.” This new balance does not entail an abandonment of church teaching on abortion, but a full embrace of the moral and social teachings of the Church, and a recognition that Catholicism is about more than a political agenda or even its understanding of justice in the contemporary world.

I think Robert does an excellent job of reflecting on the priorities the Pope is reemphasizing.  It's undeniable, to me, that some of those embroiled in the culture wars have wrongly prioritized other matters over the core of the Gospel.  (Of course Christians of many theological and political stripes have done that over the centuries.)  Consider Cardinal Burke's recent interview with The Wanderer, where he states that the homosexual-rights movement is "a lie about the most fundamental aspect of our human nature, our human sexuality, which after life itself defines us."  [ADDED: HT on the Burke interview: Michael Sean Winters]  I can appreciate the importance of complementarity, but ... sexuality is right after life in defining us?  When the interviewer asked "Who is Jorge Mario Bergoglio?," the Pope answered, "I am a sinner."  It seems Cardinal Burke might answer, "I am a male."  I understand that Galatians 3:28--in Christ "there is neither Jew nor Greek, male nor female"--obviously does not eliminate the relevance of sexual nature in all respects.  But I don't think Cardinal Burke's response quite reflects the prophetic content of that verse.

Before we are men and women, conservatives or liberals, we are all sinners--redeemed, we hope and pray, by grace.  Living mindful of that fact can help us treat each other with respect and charity even when we disagree, or when the other person has erred.  In his Second Inaugural Address, Lincoln could conclude with the call to "bind up the nation's wounds' and care for the widow and orphan"--"with malice toward none [and] charity for all"--in significant part because he had just acknowledged that both sides "read the same Bible and pray to the same God"--suggesting that the North had its role in slavery as well.

So yes, I agree, an emphasis like the Pope's on the core of the Gospel--"I am a [redeemed] sinner, serving others out of gratitude"--can help temper the culture wars.

With that said, it's crucial to remember that many people want the Church not just to reprioritize its beliefs on sexuality, but to give them up, under state pressure if that's necessary.  Catholic and other traditionalist organizations could spend massive amounts of time and money helping the poor--they do, of course--and some on the other side of the culture wars will still keep pressing to marginalize those organizations by means of regulation, the denial of tax exemption or other general government benefits, and so on.  So while, as I see it, traditionalist Christians have gotten their priorities very wrong in many instances, changing those priorities won't make the culture war go away entirely.  The other side won't abandon it.

Tuesday, September 24, 2013

Gerson on the Pope

By Thomas Berg

This is a very good column by Michael Gerson on the Pope's interview/statements.

Thursday, September 19, 2013

Os Guinness on Religious Freedom Here and Abroad

By Thomas Berg

Author Os Guinness, a co-signatory of the recent statement "Evangelicals and Catholics Together on Law," has a new book out on religious freedom in "the global public square."  He gives Christianity Today an interview with a bunch of worthwhile thoughts that make me want to read the book, including this:

Religious freedom is a foundational human right that should be guaranteed and protected simply for its own sake. But over and above that, numerous studies show that when religious freedom is respected, there are many social and political benefits, such as civility in public life, harmony in society as a whole, and vitality in the entrepreneurial sectors of civil society. Violations of religious freedom, such as the recent health care mandates hitting Catholic hospitals and other religious employers, are therefore not only wrong, but blind. As such requirements spread, they will cramp, if not kill the goose that lays the golden egg. One day our brave new government officials will go out in the morning and find there is no golden egg—and therefore they must spend more, and grow government even larger, to cover the gap created by the diminishing of the faith-based organizations.

I would keep making explicit (as I've detailed here) that the loss of "vitality in civil society" may well include a loss of the effective, distinctive service to the needy that religious organizations provide--a loss that those on the "secular progressive" side (and not just government officials) should worry about.  Overall, amen to Os!

Monday, September 16, 2013

Democrats for Life Amicus Brief in Abortion Buffer-Zone Case

By Thomas Berg

McCullen v. Coakley, currently before the U.S. Supreme Court, is a free speech challenge to a Massachusetts law that puts a 35-foot "buffer zone" around abortion clinic driveways and entrance ways, barring sidewalk counselors from coming within conversational distance while exempting clinic employees "acting within the scope of their employment."  The plaintiff/petitioner sidewalk counselors provide information to clinic patrons about abortion alternatives; financial support, housing, and health care for women and children; parenting training; etc.  They claim that the statute discriminates against anti-abortion speech, and that even if it's "content-neutral," it sweeps too broadly and leaves them inadequate alternative channels of communication like shouting quick slogans, etc., from a distance. 

I've filed an amicus brief for the Democrats for Life of America  and Clergy for Better Choices, a NYC organization of urban clergy concerned about abortion, especially the high rates in minority communities, and seeking to provide alternatives.  The gist of the brief is that a significant number of women would be responsive to the kind of calm, conversational offers of support the plaintiffs seek to provide.  A taste of the argument:

[S]tudies examining the abortion decision-making process have concluded that a significant number of women obtaining abortions experience ambivalence about doing so, even up to the point of the abortion itself. The evidence also indicates that ambivalent women who request an abortion are more likely to be driven to do so by factors such as personal finances, housing, health care, and lack of parenting training. Again, these are precisely the factors on which Petitioners offer information and support. . . .

Petitioners’ unrebutted testimony shows that they are able to speak with far fewer women now, and their speech is far less effective in reaching women, than before the Act imposed the buffer zones. Moreover, speech from outside the buffer zones is inadequate not simply because it is less effective. Petitioners and others like them wish to speak on this sensitive matter in gentle, civil, personal conversations. The manner of speech is crucial to their message of caring assistance. They should not be forced into a different mold—in many ways, a stereotyped mold—of a shouting protester.

I can't get the file with the full brief to upload now (that Typepad function seems to be out), but when the brief gets onto the Supreme Court website or upload starts working, I'll link to the page or file with the full brief.

UPDATE: The brief is here.

Tom

Friday, August 16, 2013

Jean Elshtain

By Thomas Berg

(A couple of days ago I posted a reflection on Jean Elshtain, but I then clumsily deleted it and have been unable to recover it through any easy means (Typepad Help has proven itself not to be an easy means).  So here is a new post: same themes, different wording, a bit shorter, and with an added comment at the end.)  We have lost a great public philosopher in Jean.  I had the fortune to get to know her personally through a couple of projects; in every setting where I heard her speak, public discussion and private conversation, her words were always incisive, humane, and full of common sense.  Jean was a leader--often by standing contrary to the dominant trends in the academy--in so many areas central to this blog's project.  Before I mention a couple, I should add personally that for many years, Jean, a Lutheran most of her life, was a model to me of how a Protestant could be deeply drawn to and influenced by Catholic thought.  (She probably didn't stop playing that specific role until she joined the Catholic Church in 2011.)  Jean's model was one important factor in why I came to participate in this blog and why I've been heavily involved for more than a decade in building a law school at the University of St. Thomas seriously grounded in the Catholic tradition.  I know she similarly influenced many other non-Catholics by trenchantly articulating ideas central to Catholic thought on human persons and society.

In 2003 Jean kicked off the inaugural symposium of the Law Journal at St. Thomas, which was on themes in the thought of John Noonan.  Her keynote speech and article, "The Equality of Persons and the Culture of Rights," hit so many themes central to our current discussions.  About the nature and importance of religious freedom, she said (among other things), citing Dignitatis Humanae: "Because we have a right, and therefore a responsibility, to seek the truth, the right that speaks most profoundly to the search for truth is primary among our rights."  She also spoke at some length about the problems of an individualistic society and the contribution of the Catholic vision of persons as inherently social but in no way submerged into collectives.  

To speak of an anthropology is to be open to cultural and historic specificity and the role of contingency in human affairs.  But the grounding-- the conviction that every human being possesses a God-given dignity--is not dependent on any particular cultural configuration.  One asks: What sort of person is this human being?  Catholic Social Thought answers: an intrinsically, not contingently, social being--one born to relationality.  The dignity of the self cannot be dehistoricized and severed from the experiences of human beings as creatures essentially, not contingently, related to others.  The modern social encyclicals speak of human rights in a way that avoids two extremes: either positing a primordially free, sovereign self that is a possessor of rights against others, or, contrastingly, positing a self so thoroughly defined by, and absorbed within, an overweening social entity that no one possesses rights against--only rights within.  Catholic Social Thought steers a course that avoids either self-sovereignty or the oversocialized self.  The dignity of the human person conjures up a richer, more relational image than does the sovereign “individual” favored by libertarianisms of both the Left and the Right.  In speaking of the person, one preserves a notion of individuality without sliding into individualism, and one speaks of the self-in-society without endorsing social determinism. . . .

As I already noted, the person nowadays is often defined by choices understood as preferences.  Because this way of thinking is so pervasive, we have lost sight of just how inadequate it is.  For is there not something not only inadequate, but extreme, in the view that we are most ourselves when we are all alone with our preferences?  This position also makes it difficult for us to assess the negative, cumulative effect of thousands upon thousands of individual “choices,” let us say those leading directly to certain forms of environmental degradation.  Because we cannot criticize any single individual choice (if it is “right” for him or her), our capacity to critically evaluate the overall direction of our political economy or our popular culture or anything else is denuded.  The great gift and responsibility of moral autonomy atrophies if we reduce human freedom to a vast array of consumer choices in a world in which individual goods triumph and any possibility of a common good is lost.

As time passed Jean increasingly was labeled in political rhetoric as a "conservative" because of her dissent from much of cultural liberalism and her initial support for the Iraq War.  And as Robbie George mentions, she was a kind of conservative and certainly had no fear of that label: nothing like that, even if aimed at marginalizing her, would come close to getting her to change her voice.  But I'm struck how the above passages call both the Left and the Right to account: the sovereign self has become a key assumption of both sides, part of the political and intellectual "air we breathe" as Jean put it.  We may have different senses of the urgent problems in our society that must be addressed: "environmental degradation," or family breakdown, or (better yet) both, and many others.  Jean told both Left and Right that we can never develop the capital, the resources and energy, to counter any of these problems, and their costs to persons in suffering and indignity, without a renewed willingness to prioritize--and a renewed vocabulary to describe--the common good.   

Friday, August 9, 2013

The Milwaukee Cemetery-Fund Bankruptcy Ruling: RFRA and Recusal Claims

By Thomas Berg

The National Catholic Reporter has a story analyzing Judge Randa's ruling in Milwaukee that including cemetery trust funds in the archdiocesan bankruptcy estate violates the Religious Freedom Restoration Act.  I'm quoted among other commentators.  It's a difficult case.  Is this a matter that should be determined by RFRA, as opposed to whether cemetery funds were properly segregated in trust funds before the potential claims appeared?

The creditors' committee, represented by Marci Hamilton among others, indicates they not only will appeal Judge Randa's ruling to the 7th CIrcuit but are also considering a recusal motion against Judge Randa on the ground that, as Marci states it, "many of his family members are buried in the very cemeteries that were the subject of the opinion."  The bankruptcy judge has ordered, and the Archdiocese has agreed, to turn over cemetery records to the creditors' committee to provide facts relevant to such a motion.  I'm not an expert on recusal.  My gut is that the theory of recusal would be too broad here, perhaps disqualifying most Catholic judges in the archdiocese (judges who might, like other Catholics, have quite a variety of personal views about which of the Church's moral obligations, including to possible victims, should take priority).  But is there a sufficiently specific financial interest that might provide a basis for recusal (like the prospect of increased fees for a judge for maintaining family members' graves)?

Tuesday, July 30, 2013

Response to Marc About Reciprocity and the Political "Middle"

By Thomas Berg

Because of vacation travel, I've been delayed in responding to Marc's good questions about my suggestions that religious-liberty claims for traditionalist believers need to appeal to "reciprocity" (accompanied by recognition of others' claims) and need to seek to reach the political/ideological "middle."  Marc asks "why--on what grounds--[Tom] holds (or seems to hold) to the comparatively sunny view of [the effectiveness of] sympathetic reciprocity in politics," compared with a view that "the acceptance of a 'live and let live' ethic [is] more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends--in sum, is it far more dependent on considerations of cultural and political power?"  He also asks on what basis I might say "that the middle's opinion of the strength and importance of the rights in conflict"--same-sex marriage and traditionalist beliefs--will lead them "to believe that trade-offs of rights are warranted, and that a policy of 'live and let live' is justified."

First, I think my advice about same-sex marriage and religious liberty rests as much on a realistic judgment as on a general "sunny" judgment (that opposing views easily and quickly reciprocate in politics).  I'm looking to the cultural and political context of this issue, and saying (in part) something closer to "Reciprocity here is the worst strategy, except for all the others."  I just don't see what's going to turn around the march toward increasing acceptance/endorsement of same-sex marriage.  I'm not sure I need to rehash the strength of that shift (from 39 to 50 percent over 2008-2013, a move of "quite unique" speed, according to a Pew researcher quoted in this Wall Street Journal commentary piece), or the heightened support among young vs. older Americans that means the shift will likely continue (70 percent support among 18-29-year-olds compared with 41 percent among those 65+ and 46 percent among those 50-64, according to Gallup).  And while I acknowledge (happily) that opinion has halted on, even turned away from, endorsement/approval of abortion, the evidence of which I'm aware suggests that this stems from factors, like ultrasound images, that have made the unborn visible and thus elicited sympathy for them.  I see no parallel factor concerning same-sex marriage.  The visible cases that move people all involve gay couples, and the children they are raising, who are harmed by an inability to marry.  (The exceptions are impositions on potentially sympathetic religious objectors, but sympathy there leads to protecting objectors' religious liberty, not denying same-sex marriage.)  In this context, I judge, the strategy of stopping the recognition of same-sex marriage is likely to make traditionalists, and their own claims to liberty, unsympathetic to an increasingly number of people--again, people in the middle whose views will be crucial.  And when stopping recognition is the main issue, appeals to traditionalists' religious liberty are easily dismissed as mere ploys for that purpose (I've seen this reaction in states where I've worked for stronger religious liberty protections).  These dynamics, it seems to me, make prioritizing opposition to same-sex marriage recognition a much less promising strategy for traditionalist terms, in practical terms, than is appealing to reciprocal recognition of rights.

With all that said, I do believe that reciprocity is, not infrequently, effective in strengthening liberties.  One example is the easing of intolerance against American Catholics in the mid-20th century.  Many things caused that, but among them (as I've described here, echoing many other scholars) was that the Church announced its commitment to religious liberty in principle, moving away from doctrines that treated religious liberty for non-Catholics--or could reasonably be seen to treat it--as merely a prudential matter, applicable only when Catholics weren't a majority.  (To be clear, my piece argues that the anti-Catholicism was always unwarranted, an overreaction, given American Catholics' actual longstanding support for religious freedom; nevertheless, the official doctrines gave even reasonable people pause.)  Today's situation seems analogous.  A significant religious group (Catholics then, traditionalists today) is capable at some times and places of restricting or disfavoring others' important interests (religious liberty then, marriage today), but is itself subjected to restriction and intolerance (anti-Catholicism, coercion of objectors to gay marriage), in part because of its attempts (or perceived attempts) to disfavor/restrict others.  In the mid-20th century, Catholicism's increasingly explicit affirmance of others' liberty (culminating in Dignitatis Humanae) contributed to reciprocal responses: the end of the "no Catholic president" rule, acceptance of Catholics in other parts of public life, etc.

(I concede that the story above is complicated--the price that society imposed for increased tolerance in the mid-20th century arguably included some weakening of Catholic identity, and things have taken other negative turns since then--but still, I think, the advance at mid-century was real and good for the Church in many respects.  My argument also doesn't depend on equating the two situations in every way: I understand that many will argue the principled embrace of religious liberty was consistent with deepest Christian principles while acceptance of same-sex marriage is not.  The point of analogy is simply that greater recognition of others' rights and interests can help increase reciprocal recognition of one's own.) own's one.)

More generally, many of our liberties rest in part on commitments of reciprocity.  We accept the  protection of rights of free speech and religious exercise, even for views with which we (deeply) disagree, in part because we expect return commitments that our own speech will be protected.  Historically, disestablishment of religion happened partly as a matter of reciprocity: churches decided to give up seeking legal supremacy or favoritism based on the expectation that other churches could not get those goodies either.  It's true that such decisions were partly pragmatic: with increasing pluralism, each church came to realize it might be in the minority.  But reciprocity as an operative principle can be triggered by pragmatic considerations and still have moral meaning and force (principle and pragmatics often coexist and interact in complex ways).  Marc, you include "effective rhetoric" among the "considerations of cultural and political power" that might determine things.  Reciprocity can be both a fair principle and (because it is fair) "effective rhetoric"--and, for reasons I've already given, the best (least imperfect) strategy for traditionalists today.

Finally, Marc asks how we know what the political "middle" thinks, both about same-sex marriage and about religious liberty.  I've already said why I think the increase in support for the former will continue.  As to religious liberty, there are reasons to think it has appeal (not unlimited, but still meaningful) to many people in the middle even if they disagree with the particular religious view claiming the freedom.  Let me give one example, if I can indulge myself with a quote from my article on why progressives should support freedom for religious organizations (an article that makes the bet to which Marc is asserting his friendly challenge):

Quite a few liberal Catholics, it appears, care about the religious-liberty issues.  The Pew Center in 2012 found that 56 percent of Catholics agreed with the bishops’ concerns about religious liberty—on which the [HHS] mandate was the key issue—versus 41 percent of Americans overall. The 56 percent must include many Catholics who dissent from the bishops on contraception itself, since we know that large majorities so dissent, and since in the Pew poll 51 percent of Catholics “sa[id] Barack Obama best reflects their views on [other] social issues such as abortion and gay rights.”

[*] Catholics Share Bishops’ Concerns About Religious Liberty (Aug. 1, 2012), http://www.pewforum.org/Politics-and-Elections/Catholics-Share-Bishops-Concerns-about-Religious-Liberty.aspx.  A June 2012 poll showed that 57 percent of Americans, and a higher percentage of Catholics, favored exempting religious organizations.  See New Poll: HHS Mandate Hurts Obama with Women, Catholics, Life News (June 19, 2012),  http://www.lifenews.com/2012/06/19/new-poll-hhs-mandate-hurts-obama-with-women-catholics/.

I include liberal Catholics among the center-left many of whom who are reachable on religious-liberty issues (it also obviously includes non-Catholics and some non-believers).  Appealing to reciprocity and aiming to reach moderate supporters of same-sex marriage are a bet, I'll admit.  But I think they're the best bet for traditionalists' religious liberty under the circumstances today and in the foreseeable future.

I should be straightforward and acknowledge my own view on merits of these matters: I'm ultimately not convinced by the arguments against same-sex marriage, and I think the better prospects for reaffirming the value of marriage as an institution for social stability lie in including same-sex couples in the institution.  But I think my strategic advice still holds up independent of my own views on the merits.  Marriage traditionalists will have to be able to assert, credibly, arguments for reciprocity of rights, in a society that increasingly disagrees with them on the matter of same-sex marriage.  

Tuesday, July 23, 2013

Congratulations to Robbie George! ...

By Thomas Berg

... on his richly deserved appointment as chair of the U.S. Commission on International Religious Freedom.  From the news release:

Dr. Katrina Lantos Swett, USCIRF’s outgoing Chair and an appointee of Senate Majority Leader Harry Reid, announced Professor George’s selection. “I have been honored to work alongside Professor George this past year in the struggle to guarantee religious freedom abroad for people of every faith and shade of belief.  He is a true human rights champion whose compassion for victims of oppression and wisdom about international religious freedom shine through all we have accomplished this past year. Our bipartisan Commission is united in its admiration for Professor George’s skills as an advocate and leader of the international religious freedom movement. The Commission is eager to continue its work under his able leadership.”

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