Matt Bowman, at Catholic Vote, and Michael Sean Winters, at Distinctly Catholic, are having a conversation that will likely be of interest to many MOJ readers about the mandate, the promised so-called "accommodation," religious freedom, politics, and lots of other good stuff. Check it out.
Sunday, March 4, 2012
Bowman and Winters on the mandate
Mark Rienzi's "Mirror of Justice" lecture
It's not just the title of the lecture that's good. Check out CUA law professor Mark Rienzi's lecture (video here), "Religious Liberty, Free Speech, and the Fight for Life."
Concerns about Conscience?
Nathaniel Peters asks, at First Things, "Should Christians Be Wary of Conscience Talk?" (Others have suggested that, for example, the deployment of "conscience talk" by the Bishops, in their efforts to resist the unjust HHS contraception-coverage mandate, puts them in a position of sounding more "Protestant" than "Catholic.") Worth a read.
Bradley on "Retribution and Overcriminalization"
My friend and colleague, Gerry Bradley, has a new paper up, called "Retribution and Overcriminalization," at the Heritage Foundation's site. Here is the abstract:
From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully considered: the fact that too many criminal offenses today are malum prohibitumoffenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. In order to limit the growth of laws criminalizing morally innocuous conduct—a development that, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Punishment without a firm basis in retribution is unjust and therefore should be avoided.
Bradley makes points, I think, that are particularly important for Catholics to engage. Too often, "retribution" is rejected, or pushed to the side, by Catholics in discussions of criminal justice, perhaps because it seems -- if not correctly understood -- mean, harsh, unforgiving, etc., etc. In fact, though, retribution is central to a Christian understanding of the nature of, justifications for, and limits to punishment.
Wednesday, February 29, 2012
Sullivan on "The Church"
At The Immanent Frame, Winnifred Fallers Sullivan this interesting post, "The Church," about the Hosanna-Tabor decision and other things. Her basic point: The idea of "the church" does a lot of work in the case but . . . "what is the church?" In her view, the Court's discussion of the relevant history is too "breezy" in its dealings with the different ecclesiologies that were in play in the historical events discussed by the Court. (I think the breeze-level was about right, given that this is a Supreme Court opinion about how to operationalize, through doctrine, the commands of a particular positive-law text, but that's not the point.) Here is the last paragraph:
Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”
As MOJ readers know, I think it is (obviously) true that Ms. Perich has rights (though she does not have, in my view, a legal right to serve as a called minister in any particular ecclesial body), and also clearly true that "the church" does, too, against the state.
Tuesday, February 28, 2012
Garnett "Dialogues" about Hosanna-Tabor
Courtesy of Mars Hill Audio, here is a link to a "dialogue" / podcast between Ken Myers and me about the ministerial exception, religious freedom, and other things.
Bradley, "The Law as Therapist"
The HHS mandate has "nothing to do with health," writes my colleague, Gerry Bradley, in this piece. And, he points out -- correctly, I think -- that this controversy is just the tip of the iceberg, in terms of the effort to secure protections through law for the human right to religious freedom:
. . . The contraception mandate is a pressure point created by broad and powerful social currents, but there are many such points (abortion and same-sex “marriage” among them), because the tectonic plates that underlay the mandate extend way beyond the Pill. Their momentum is far from spent, and their clash with religion will settle the meaning of religious liberty for some time to come. . . .
Later, he writes:
The emerging picture, and the force behind today’s recurring challenges to religious liberty, is this: So long as one remains in the strictly “private” sphere of home, social club, and sanctuary, one is free to hold misguided opinions about contraception, abortion, and marriage. But once one sets foot in “public” — defined expansively to include the workplace, shops, any place that receives state funds, and religious ministries that serve persons outside the faith — the rule is no discrimination, full stop. (RG: I tried to make the same point, in my own op-ed a few days ago, here.) It is all aboard for the new “equal sexual liberty” orthodoxy.
In the new dispensation, invisible fencing will be enough to corral “religious doctrine.” The public sphere is — so the story goes — the home of rational discourse. Church doctrine is the realm of irrationality and superstition and of fantastic theories about the unknowable. “Doctrine” does not need to be kept out, so much as it must be disqualified from entering.
This lengthy reconnaissance allows us to see both the raw power of the ideological threat to religious liberty and the reasons why courts are beguiled by it. In this worldview, there is nothing special or distinctive about religion. Religious acts have the same dignity and value — according to this vision — as do the various choices, relationships, and acts by which other people express their deepest selves, or actualize their deepest desires, or display their most self-defining thoughts or emotions. (Perhaps even less value: Religions tend to be — in this construal — morally judgmental and politically divisive.) Religious liberty is one way of exercising the super-liberty of Casey. Having sex and getting an abortion are other ways. They are all species of the same genus. . . .
(Read the whole thing.)
Wednesday, February 22, 2012
On the Importance of Vatican City
David Quinn writes, in The Independent:
Many people no longer seem to have a clue why the Catholic Church should also have a state that is called the Holy See. Some of us seem to imagine it is purely for reasons of vanity.
But only someone lacking the faintest knowledge of church history could think such a thing because all down the centuries rulers have sought to bend popes to their will. . . .
The Judge ("Blood Meridian") on statism and the freedom of the Church
Well, not explicitly. But, it sure fits (from Ch. 14):
“The judge placed his hands on the ground. He looked at his inquisitor. This is my claim, he said. And yet everywhere upon it are pockets of autonomous life. Autonomous. In order for it to be mine nothing must be permitted to occur upon it save by my dispensation.”
Doesn't that last sentence capture pretty well the attitude of a certain kind of illiberal, monist liberalism?
Miller on cooperation and culpability
At Public Discourse, Robert Miller makes well a point I've been trying to figure out how to make, and does so better than I would have. (So, check it out.) Nutshell version: Assuming that a Catholic institution could, given all the givens, non-culpably comply with the mandate (whether what Brother Hockett calls "Mandate 1.0" or the floated-but-not-yet-existing "Mandate 2.0"), it does not follow that the mandate is unobjectionable, or not inconsistent with a commitment to religious freedom. As Miller puts it:
. . . The fundamental problem with the contraception mandate is not that complying with it involves objecting employers in moral wrongdoing. At least for some employers, it may well do that, and this certainly makes the mandate morally objectionable, but this is not the fundamental problem. The fundamental problem with the mandate is that it coerces some people into doing what they think is wrong, and this problem remains regardless of whether the coercion excuses the actions of the people being coerced.
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