I recently re-read -- inspired, perhaps, by Pope Francis's refreshing willingness to speak on the subject -- Arthur Leff's review of Unger's Knowledge and Politics, which takes the form of a "memorandum" to Unger from The Devil. You should, too.
Friday, January 24, 2014
Arthur Leff's Memo from The Devil
Thursday, January 23, 2014
"Gay Marriages Confront Catholic School Rules"
This article in the New York Times covers an incident that MOJ veteran Eduardo Penalver has addressed at dotCommonweal (for example, here and here) and that is similar to cases arising around the country. The Times story, it seems to me, could have done more to engage and present "the other side" and could have tested at least a little bit the premise of some of those quoted in the story that Pope Francis's election, statements, and views weigh against the decision of a Catholic school to dismiss a well liked administrator after he legally married another man. But, the quality of the Times' coverage of religion- and Catholic-related stories is a matter for another day (and, probably, a different blog!).
As a legal, constitutional, and political-theory matter, I guess I am committed to the view that a Catholic high school is and ought to be able to decide (a) that teachers and administrators must teach and form students in accord with the Church's proposals and teachings and (b) whether or not a particular teacher or administrator is failing to do so. That said, cases like these are (as Eduardo has pointed out) tricky for several reasons: Even those Catholic schools that are most committed to tethering hiring and firing decisions to their Catholic mission and character do not, generally speaking, investigate employees' private lives to be sure they are entirely consistent with the Church's moral and other teachings. (Phew!). What's more, failures to live in accord with the Church's teachings regarding sexuality are failures, but they are not necessarily, as a category, more "serious" or "grave" failings than the failure (of so many of us!) to live in accord with the Church's teachings on charity and humility, and yet we don't hear about many Catholic school teachers being fired for exhibiting insufficient joy. And, my sense is that the Church and Catholic schools do oppose unjust discrimination against and demeaning treatment of persons because of their sexual orientation.
But . . . what is it reasonable to expect -- given that the Church teaches what it teaches about sexuality and marriage -- a Catholic school that holds itself out as having a Catholic mission that includes formation in the faith to do when a (popular and otherwise entirely competent) teacher or administrator, say, "goes public" about her support for abortion rights . . . or enters (again, publicly) into a legally valid same-sex marriage? One student is quoted in the Times piece as saying “It was just shocking that the Catholic Church would turn its back on a teacher for something that didn’t affect his work performance," but . . . isn't that the question? That is, isn't the question "what counts as the performance of the position as the vice-principal of a Catholic high school (and so what counts as affecting that performance)"?
The students who are quoted in the piece speak movingly about compassion and their opposition to discrimination. The piece states that some people support the decision to dismiss Mr. Zmuda, but we do not "hear" their reasons. (I assume it is not because they oppose compassion or support discrimination.) In any event, we will, I expect, see more and more of these cases and, I expect, we will see -- to say nothing of litigation -- similar disagreements between Catholic schools' decisionmakers, on the one hand, and students and alumni, on the other. These disagreements will have to involve conversations about, again, what is the mission of a Catholic school and what is (and is not) involved in the education and formation of students at these schools.
UPDATE: Michael Sean Winters responded to my post here, and elaborated on the issue.
Wednesday, January 22, 2014
Roe at 41
From John Hart Ely, "The Wages of Crying Wolf" (here):
It is . . . a very bad decision. Not because it will perceptibly weaken the Court—it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's —it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.
I think Ely's "it won't" and "it doesn't" miss the mark, and his "because" in the last sentence is incomplete. That said, the critique (it seems to me) remains devastating.
A review of "The Mighty and the Almighty"
Prof. Nicholas Wolterstorff's new book The Mighty and the Almighty: An Essay in Political Theology, is a great read. And, here is a helpful and insightful review, by Kristine Irwin (Biola), from Notre Dame Philosophical Reviews. Here's a bit:
Wolterstorff's conclusion is that "the state is to grant institutional autonomy to the church and to all other counterpart religious institutions, and it is to grant religious freedom to all citizens" (131). Once again, we have an argument "from above" -- that the very nature of the church requires this conception of the state -- and "from below" -- one that appeals to principles of justice and natural rights.[4] What this means is that Christians have a vested interest in advocating for the moral rights of all religious institutions: "I may think your religion is wrong; but I will defend your civil right to be free to practice it" (144). Indeed, Wolterstorff asserts that all social "institutions with authority structures have moral rights against the state" (162).
This is perhaps the most interesting, and most puzzling, aspect of Wolterstorff's excellent book. Why think that any social institution with an authority structure places "normative limits . . . on the authority of the state" (171)? Wolterstorff's appeal is, as usual, to natural rights: we have a natural right to form social entities to accomplish goals without consulting the state; therefore, "the authority inherent within the entities that we establish then places limits on the authority of the state" (171). So it is now not only the rights of individuals, or the rights of religious institutions, but the rights of any institution with a governance-authority structure that limits the authority of the state. This goes a good way towards the increasingly popular argument that there is nothing special about religion, as against other claims of conscience: either all claims of conscience ought to be tolerated, or none ought to be tolerated.[5] The structure of Wolterstorff's argument -- and particularly, the sufficiency of the "argument from below" -- leads me to believe that he would accept this implication. A further question emerges, though: Do Christians now have a vested interest in advocating for the moral rights of all claims of conscience that arise from all institutions with a governance-authority structure? This seems a bridge too far.
"Abortion and Human Equality"
Today, of course, is the anniversary of Roe v. Wade, and I want to thank and salute the many thousands of people who are taking part in the March for Life in Washington, D.C. and in similar events across the country. Their witness is inspiring, as is their dedication.
Here is an interview with Prof. Francis Beckwith -- a prolific scholar whose work is probably familiar to most MOJ readers called "Abortion and Human Equality." Here is a bit:
We should always bring the conversation back to the only really important question: Who and what are we? If you can’t answer that question, you can’t answer the question of whether abortion is unjustified homicide or not. As I have already noted, the popular arguments for abortion choice all assume that the unborn child is not one of us. For if he were one of us — as we believe of the two-year-old and the adolescent — these popular arguments would never work. Can you imagine if someone suggested that the best way to reduce poverty would be to require that all poor children under the age of five be exterminated? Yet, many people have argued that abortion is a way to reduce the burden of poverty. Consequently, without first assuming that the unborn child is not a moral subject (and thus begging the question), this sort of argument would not even get off the ground. This is why even some very pressing issues, ones for which the pro-lifer ought to provide answers, can’t really be addressed until one answers that first question.
More from Brad Gregory on his "The Unintended Reformation"
My friend and colleague Brad Gregory has an essay up at The Immanent Frame called "Genre, Method, and Assumptions", in which in which he responds to several of the reviews-to-date of his (excellent) book, "The Unintended Reformation." Here's a (very small) bit:
The accusation . . . that, in the book, I offer no arguments in support of the truth of Catholicism is perfectly correct—because The Unintended Reformation is not an argument for the truth of Catholicism. I think the book’s historical analysis could be used in a manner consistent with Catholic truth claims. But a work of positive apologetics would require a great deal of additional labor, none of which is undertaken in the book. I am not, nor do I aspire to be, a theologian. Yet theology is not only part of history—it remains part of contemporary intellectual life despite its banishment from secularized research universities. Thus, to ignore it is irresponsible for anyone who wants to understand the fullness of contemporary intellectual life, including the difference theology might make to it. I suggest that anyone who thinks theology does not belong should read, for starters, David Bentley Hart’s most recent book, The Experience of God: Being, Consciousness, Bliss. The historically argued takeaway from The Unintended Reformation, with respect to Catholicism, is that it avoids the sorts of open-ended pluralism characteristic of Protestantism and modern philosophy with respect to the life questions, because Catholicism relies not on Thomism or indeed any particular philosophical or theological view per se, but on an ostensibly authoritative tradition about God’s actions in history. Again, this argument neither is nor aspires to be a demonstration of the truth of Catholicism; indeed, it holds even if all religion is illusory and God a fiction. Because Western modernity is premised on the authority of secular reason exercised by the autonomous self, it is, unsurprisingly, an unwelcome argument for those committed to such views of reason and the self. But it simply is not a positive argument for the truth of Catholicism. It is restricted to a claim about Catholicism’s intellectual viability, which is something that everyone who understands the issues involved can and should acknowledge, regardless of their own beliefs, in the same way that everyone can and should acknowledge the same for Judaism and Islam.
Like the man says, "Highly Recommended."
Tuesday, January 21, 2014
Public employees, compulsory unionization, and the Church's social teachings
"Case could destroy pillar of union power," reports this piece in The Hill. I have not done so yet, but I feel pretty confident that if I made a tour of the leading blogs dealing with Catholicism, politics, social teaching, and so on, I would find an argument to the effect that Catholic Social Teaching supports labor unions and, therefore, a First Amendment ruling that the Constitution limits the ability of government to require employees to join (and support financially) unions and their activities would be (whatever its legal merits) inconsistent with that Teaching.
Now, this case (Harris v. Quinn) -- SCOTUSBlog (natch) is a great resource for leaning more -- does not seem to present the usual agency-shop situation: We are not talking about free-riding employees at a large company or business. Instead, this case is about home-health-care workers -- who do their work in the home of those they serve (in some cases, family members). A while back, Illinois decided that these home-health-care workers were, for purposes of unionization, public employees.
It is, obviously, a crucial aspect of the Church's social teaching that work and workers must be treated in accord with their dignity and that workers have a right to, among other things, associate so as to promote and protect their rights and interests. None of this means that labor unions are always on the side of the angels -- too often, especially in the education context, they are not -- but it certainly means that, again, the right to form labor unions must be protected and respected. But, it seems to me, this does not necessarily mean that home-health-care workers, simply because they are paid through Medicaid, constitutionally may or morally should be required to support financially a public-employee union. Stay tuned.
Friday, January 17, 2014
The President's "Religious Freedom Day" Proclamation
It's available here. It is, of course, not a secret that I believe the current Administration has not done well at protecting, respecting, and really grasping what religous freedom is and why it matters. That said, it can only be a good thing if words like these are coming from our President (any President):
America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.
I am, I admit, nervous about language like this, from last year's Proclamation:
Foremost among the rights Americans hold sacred is the freedom to worship as we choose.
Like Leslie Ford (here), I think it is very important to push back against suggestions that "religious freedom" is merely about the "freedom to worship" -- as Ford put it (in 2013), "[r]eligious freedom is not just for weekends in your home or place or worship. It’s a freedom that allows individuals to live out their beliefs and values every day of the week." But, I think it is worth hoping that the omission of "freedom to worship" language, and the use of "practice" instead, in this year's Proclamation is a good sign.
As my former student, at the Becket Fund, Adele Auxier Kleim, notes:
After a misstep last year, this year President Obama issued a proclamation calling religious freedom a “critical foundation of our Nation’s liberty,” and quoting Thomas Jefferson, who “declared religious liberty a natural right and any attempt to subvert it ‘a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.’”
And, here's more from Eric Treene (DOJ) and Melissa Rogers (White House), focusing on the good and important work done through RLUIPA.
Raise a glass to Religious Freedom Day!
Thursday, January 16, 2014
Gedicks is great . . . but wrong about exemptions and the Establishment Clause
As Michael Perry notes, Prof. Fred Gedicks -- one of the more prolific and important law-and-religion scholars of his generation -- argues that it would violate the Establishment Clause to exempt Hobby Lobby (et al.) from the contraception-coverage mandate. Other important and accomplished scholars have also made this claim. But, as Marc DeGirolami has explained, in this MOJ post, the argument is not persuasive.
Thursday, January 9, 2014
Welcoming Prof. Cecelia Klingele
I'm delighted to report that Prof. Cecelia Klingele (Wisconsin), whom we at Notre Dame are honored to be welcoming for the semester, will be guest-blogging for a while here at Mirror of Justice. Prof. Klingele is a scholar and expert regarding matters of criminal justice administration, sentencing, criminal law, and related matters.
Here , by the way, is a really interesting story about her, and her background. Welcome, Cecelia!
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