. . . is here. In his proclamation, the President "call[s] on all Americans to commemorate this day with events and activities that teach us about this critical foundation of our Nation's liberty, and show us how we can protect it for future generations at home and around the world." I like to imagine that he hand delivered a special copy to those responsible for the government's brief in Hosanna-Tabor. (I kid, I kid! Well done, Mr. President.)
Tuesday, January 17, 2012
The President's Religious Freedom Day proclamation . . .
Great news out of Indiana
A trial court has rejected the predictable-and-expected constitutional challenge to Indiana's groundbreaking new school-choice law:
. . . Marion Superior Court Judge Michael Keele said the School Choice Scholarship program doesn’t violate the state constitution because the state isn’t directly funding parochial schools. Instead, it gives scholarship vouchers to parents, who can choose where to use them. That was essentially the argument made by the program’s supporters. . . .
Friday, January 13, 2012
More thoughts on the ministerial exception and the "two realms"
On a Law and Religion-related listserv, a colleague wrote -- commenting on the AALS "hot topics" panel dealing with the Hosanna-Tabor case -- that:
Although only mentioned once on the panel, I think the worldview at stake
>> was the “two realms” understanding—that the State and the Church operate
>> in separate domains. But there are problems with this view. First, we as
>> a society do not really believe it. The King’s criminal law now reaches
>> into the churches, fortunately, and a capitalist society will always
>> ensure that ministers’ contracts are honored by churches, in court if
>> necessary (as the Court in Hosanna-Tabor predictably reserved).
>>
>> But neither do religious believers accept the two realms. For separate
>> realms can also mean marginalization of religion into a private space.
>> The next time believers want a national motto with the word God in it, the
>> objection will be raised that State and Church are indeed separate, as the
>> ministerial exception seems to imply.
I wrote, in response:
These are deep and interesting questions. For what it's worth, I don't think the only or best alternative to a "warranted for prudential reasons carve-out from the state's otherwise applicable authority" view of the ministerial exception is an "absolutist" "two realms" model. I *do* believe that a whole lot of our history is the story of the working out of, evolution of, wrestling with, and attacks on the Gelasian "two there are" description, but part of that story is (obviously) the development of nation-states and constitutional liberal democracies. As I see it (I think!), my colleague Bob Rodes' use of the term "nexus" to describe church-state relations is helpful, and maybe describes things both more accurately and more attractively than, say, "two [temporal] realms." In any event, I think we can (and should) say that the older, not entirely supplanted model lives on in the idea that political authority is limited in (at least) two ways: constitutionally (through structural features with which we are familiar and also through Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that there are other legitimate authorities and societies, besides political authorities and societies. This is not absolutism -- it does not absolutize either the liberal state or the "two realms" image -- and it's not even "autonomy" in a full-blown sense, but it is pluralism. And, as Mark DeWolfe Howe suggested, way back when Kedroff was decided, our Religion Clauses and Constitution *can* (still) be understood in a way that's consonant with this pluralism. The "ministerial exception" is usefully thought of, I think, a still-relevant manifestation of this pluralism (rather than, again, only a concession made by the state for the state's own reasons). Figuring out what exactly the content and contours of this manifestation should be, in terms of legal doctrine and methodology, should be is, no doubt, a challenge, and reasonable people will disagree about it. But, I think the Court was right to emphasize the *right* -- the authority -- of religious communities to select those who will "personify" their teachings and faith.
Wednesday, January 11, 2012
Court unanimously (!) embraces the ministerial exception in Hosanna-Tabor
I confess, I expected the usual "decision in late June," but I'll certainly take this: In an opinion for a unanimous Court, Chief Justice Roberts ruled in Hosanna-Tabor that the Constitution requires a ministerial exception, and that the exception applied in that case. Importantly, the Chief Justice rejected the idea -- it "misses the point," he said -- that a religious institution must assert a "religious reason" for an employment decision in order to trigger the Constitution's limits on government involvement in the selection of ministers. Also very important, I think, was the Court's clear rejection both of the Sixth Circuit's "count up the hours" approach to identifying "ministers" and its emphasis on the fact that the teacher in this case had "job duties" that "reflected a role in conveying the Church's message and carrying out its mission." In other words, the exception is clearly not limited to ordained clergy.
Many of us have blogged often about the case and the questions it raises. I'm sure the conversation will continue. Suffice it to say (for now) that, in my view, this decision is important, correct, and welcome.
UPDATE: Some more thoughts, here, at Bench Memos.
UPDATE: Here's my insta-punditry, at USA Today, about the case:
At a time when the elected branches of government seem divided and dysfunctional, and when candidates in primary elections struggle to magnify every disagreement, it was nice of the Supreme Court, led by Chief Justice John Roberts, to remind us today that clear, efficient, consensus, and correct decisions about things that really matter are still possible . . .
Monday, January 9, 2012
McConnell: "Is There Still a 'Catholic Question' in America?"
In the Fall of 2010, Prof. Michael McConnell gave a great lecture, to a packed house, at Notre Dame, on the occasion of the 50th anniversary of then-candidate-Kennedy's "Catholic speech" to the Houston ministers. The lecture is now available here, thanks to the Notre Dame Law Review. No surprise -- it's excellent. The conclusion:
We should not underestimate the importance of what he was saying. By running forthrightly, and not apologizing for his Catholicism, and winning, and showing himself to the world as a President of whom we all can be proud, John F. Kennedy won a great victory for inclusion and against bigotry. But we must not overlook the way in which he reduced religious belief to accident of birth, or more specifically, to baptism. The important question facing the nation was not whether forty million Americans baptized into a certain religion are excluded from the presidency, but whether many more millions of Americans are excluded from full political participation because they ground their understanding of justice and morality in the teachings of their faith. The intellectual descendants of Blanshard and Dewey are still raising this question. Those who spend time in philosophy departments and law schools will recognize its contemporary incarnations. And I am sorry to say that John F. Kennedy’s great speech in Houston provides these voices more ammunition than challenge.
The NYT on *Cardinal* Dolan
This piece, in the NYT, has the usual eye-roll-inducing bits, but also some nice stuff, like this:
“What weighs on me the most,” he said in an interview in December, “is the caricature of the Catholic Church as crabby, nay-saying, down in the dumps, discouraging, on the run. And I’m thinking if there is anything that should be upbeat, affirming, positive, joyful, it should be people of faith.”
Or, as he recently said on the show to the Rev. James Martin, a Jesuit priest who writes about the importance of humor: “We priests, and religious sisters and brothers, sometimes give the impression of being crabs, that we are burdened, and that things are so bad. And who would want to join that?”
I've been consistently way-impressed with and inspired by Cardinal Dolan, and have high hopes for his evangelical efforts!
Friday, January 6, 2012
Gerson, Santorum, and Catholic Social Thought
Michael Gerson writes, in this op-ed, about former Sen. Santorum and "subsidiarity" here.
. . . In this view, needs are best served by institutions closest to individuals. When those institutions require help or protection, higher-order institutions should intervene. So when state governments imposed Jim Crow laws, the federal government had a duty to overturn them. When a community is caught in endless economic depression and drained of social capital, government should find creative ways to empower individuals and charities — maybe even prison ministries that change lives from the inside out.
This is not “big government” conservatism. It is a form of limited government less radical and simplistic than the libertarian account. A compassionate conservative approach to governing would result in a different and smaller federal role — using free-market ideas to strengthen families and communities, rather than constructing centralized bureaucracies. It rejects, however, a utopian belief in unfettered markets that would dramatically increase the sum of suffering. . . .
As Rob Vischer and Patrick Brennan (and many others) could explain better than I'm able, subsidiarity is not entirely about the "local v. central / big v. small" question; it is, as I understand it, more importantly a principle about pluralism, and "social ontology." Still, I'm happy to have the idea discussed in the Washington Post and elsewhere.
Saturday, December 31, 2011
A new book on Fr. Coyle's murder, the KKK, Justice Black, etc.
The Faculty Lounge has a nice mention of a new book, which looks very interesting, called Rising Road: A True Story of Love, Race, and Religion in America, by Sharon Davies (Ohio State):
It was among the most notorious criminal cases of its day. On August 11, 1921, in Birmingham, Alabama, a Methodist minister named Edwin Stephenson shot and killed a Catholic priest, James Coyle, in broad daylight and in front of numerous witnesses. The killer's motive? The priest had married Stephenson's eighteen-year-old daughter Ruth to Pedro Gussman, a Puerto Rican migrant and practicing Catholic.
Sharon Davies's Rising Road resurrects the murder of Father Coyle and the trial of his killer. As Davies reveals with novelistic richness, Stephenson's crime laid bare the most potent bigotries of the age: a hatred not only of blacks, but of Catholics and "foreigners" as well. In one of the case's most unexpected turns, the minister hired future U.S. Supreme Court Justice Hugo Black to lead his defense. Though regarded later in life as a civil rights champion, in 1921 Black was just months away from donning the robes of the Ku Klux Klan, the secret order that financed Stephenson's defense. Entering a plea of temporary insanity, Black defended the minister on claims that the Catholics had robbed Ruth away from her true Protestant faith, and that her Puerto Rican husband was actually black.
Placing the story in social and historical context, Davies brings this heinous crime and its aftermath back to life, in a brilliant and engrossing examination of the wages of prejudice and a trial that shook the nation at the height of Jim Crow . . .
"Disestablishing our secular schools"
I've long been a big fan of Charles Glenn. I think he's an outstanding scholar of public and private education. His "The Myth of the Common School" is a must-read. Here, in First Things, he makes the case for "disestablishing our secular schools." A taste:
. . . We have reason to hope that America may achieve a degree of pluralism in its schools, but important changes are needed. American public education should be disestablished and demythologized, liberated to provide a true education and not simply instruction, to be as concerned about the character of its students as it is about their academic accomplishments. Government should play a significant role, setting standards for essential outcomes on which there is a societal consensus and ensuring that family circumstances never prevent a child from receiving an adequate education, but public education should be no more synonymous with government-operated schools than public health is with government-operated hospitals. Parents should be free to choose the school their children attend without financial penalty.
This is only possible if we give up the fruitless effort to make public education “neutral,” as though anything so intimately associated with the shaping of human beings could ever avoid choices among alternative views of human flourishing. The sort of lowest common denominator schooling into which public schools have been forced, the “defensive teaching” in which their teachers engage to avoid controversy, can never provide a rich educational environment. Indeed, the false belief in neutrality has fostered an idea of teachers as a kind of secular clergy . . . .
The United States is the most charitable nation in the world
Something that, it seems to me, those of us who develop and offer Catholic-grounded critiques of American consumerism, individualism, exceptionalism, etc., etc., should at least keep in mind. I can't help noting that some of the "Catholic" countries whose social practices and economic policies are often held up as models for the United States (France, in particular) do pretty badly. I note also that the top 7 consist, basically (with one exception), of the "English-speaking peoples" (U.S., Great Britain, Ireland, Canada, Australia, and New Zealand).
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