Read it, here. Thoughts?
Tuesday, April 12, 2011
Beckwith on St. Thomas and "The Inadequacy of Intelligent Design"
A must-see film for 2011: "Cristiada"
Check it out. Viva Cristo Rey!
Prof. Corbin's third post on the ministerial exception
Is here. She concludes:
[A]pplication of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.
My view is different, but I'd welcome hearing from readers in the comments!
Politics and the Devil
The folks at Public Discourse have made available a version of a lecture that Archbishop Charles Chaput gave at Notre Dame recently. The lecture was part of a new Right to Life Lecture Series (organized by the students). Very much worth a read. A taste:
. . . All law in some sense teaches and forms us, while also regulating our behavior. The same applies to our public policies, including the ones that govern our scientific research. There is no such thing as morally neutral legislation or morally neutral public policy. Every law is the public expression of what somebody thinks we “ought” to do. The question that matters is this: Which moral convictions of which somebodies are going to shape our country’s political and cultural future—including the way we do our science?
The answer is pretty obvious: if you and I as citizens don’t do the shaping, then somebody else will. That is the nature of a democracy. A healthy democracy depends on people of conviction working hard to advance their ideas in the public square—respectfully and peacefully, but vigorously and without apologies. Politics always involves the exercise of power in the pursuit of somebody’s idea of the common good. And politics always and naturally involves the imposition of somebody’s values on the public at large. So if a citizen fails to bring his moral beliefs into our country’s political conversation, if he fails to work for them publicly and energetically, then the only thing he ensures is the defeat of his own beliefs. . . .
Milner Ball, R.I.P.
I was lucky to have had the chance to read, and learn from -- and even more blessed to have met and spent time with -- Prof. Milner Ball. What a great, good man. Read more about him here. He passed away on April 6. R.I.P.
Consider also reading this paper, by Avi Soifer, about Milner and his work. Or, this book -- "Called by Stories: Biblical Sagas and Their Challenge for Law."
God bless him.
Call for submissions to the Notre Dame Journal of Law, Ethics & Public Policy
The Notre Dame Journal of Law, Ethics & Public Policy annually publishes a volume comprised of two issues exploring the legal, ethical, and moral considerations of current policy debates within the framework of the Judeo-Christian intellectual tradition.
This coming year, the volume will include the following:
(1) A symposium on regulatory adoption of corporate governance principles rooted in Catholic Social Thought.
(2) A general topic format with articles on a variety of topics related to our mission. The Journal is especially interested in capturing some of the issues likely to be raised in the upcoming election cycle, including alternative and green energy; human rights and the popular uprisings in the Middle East and Northern Africa; immigration; and government spending, austerity measures, and the effect on the poor. This is not an exhaustive list.
The Journal is unique among legal periodicals because it examines public policy questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials. . . .
The Journal’s unique focus is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court.
If you are interested in submitting a piece to be considered for publication, please contact Samantha Dravis, Solicitation Editor at (703) 899-9379, or via e-mail at [email protected].
Monday, April 4, 2011
O'Neill on the "ministerial exception"
Here's MOJ-friend, Aidan O'Neill, writing on the "ministerial exception."
The Court's decision in Winn (Arizona school-choice case)
The Supreme Court's (5-4) decision in Winn is available here. (Thanks to Howard Bashman for the link.) I've read the decision quickly, and want to do so again, but the bottom line seems clear: The Ninth Circuit's decision, which badly misapplied Zelman, is reversed, on standing grounds. Because the tax-credit mechanism is one that involves not government expenditures (of the kind that worried James Madison in his Memorial and Remonstrance), but instead allows people to keep, and direct, their own money, the Flast exception to the no-taxpayer-standing rule does not apply.
I'm torn: I think Flast was probably a mistake, because I don't think (with all due respect!) that there's anything about the injury to a taxpayer who objects to public funds being spent on (say) a school-voucher program that distinguishes it, constitutionally, from the injury to a taxpayer who objects to public funds being spent on (say) a bridge in Alaska. (I argued, in this short paper, that the Establishment Clause does protect "conscience", but not in the way that the Flast exception presumes.) At the same time, I would have liked a majority opinion clearly rejecting, on the merits, the Establishment Clause challenge to the Arizona program.
"Ideology all the way down"? Sisk and Heise on Establishment Clause decisions
Our colleague Greg Sisk, and Cornell law prof Michael Heise, have a paper on SSRN called "Ideology All hte Way Down? An Empirical Study of Establishment Clause Decisions in the Federal Courts." Here is the abstract:
In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.
Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establishment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.
A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.
Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.
In this (very) short essay, I suggested -- in keeping with the last paragraph (above) -- that judicial enforcement of the Establishment Clause should be limited to core, "Murder in the Cathedral"-type violations, and (most) of the rest left to politics (and the Free Exercise Clause).
Sunday, April 3, 2011
Marci Hamilton on the "ministerial exception"
Readers familiar with Prof. Hamilton's work will not be surprised by this piece, at Patheos, in which she takes a dim and disapproving view of the "ministerial exception." As I suggested in an earlier post, this "exception" is, in my view, a crucial -- and, indeed, perhaps the most obvious -- implication of our commitment to religious-freedom-under-law-and-through-church-state-separation-correctly-understood.
Prof. Hamilton assures her readers "[r]eligious organizations obviously should have a right to choose their clergy according to their own lights" but then goes on to indicate disagreement with the result in a relatively recent Third Circuit decision called Petruska, in which the plaintiff was a "chaplain" at a religious university. The "right" she concedes, then, appears to be a very narrow one.
Near the end of the piece, she writes, "If the church school wins this case . . . I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination." Now, as it happens, it strikes me as a good idea for religious institutions to incorporate into their employment contracts and related materials, to the extent possible, clear indications regarding the religious nature (if any) of their employees' duties and positions. Prof. Hamilton's suggestion, though, that they should be required to "warn" employees is curious, to me, for at least two reasons:
First, we don't usually require people to "warn" others that they have constitutional rights which they plan to exercise; the "ministerial exception" reflects the First Amendment right of religious communities to be, well, religious communities, and to not have secular courts interfere in religious decisions and relationships. Second, while it is certainly true that religious institutions (like all others) can and do behave badly, it is not the case that there is necessarily anything "insidious" about a religious institution making decisions about religious doctrine and positions using criteria that we do not think governments and non-religious employers should not use. That said, even if a religious institution acts badly in selecting or terminating a ministerial employee -- say, by doing so for reasons that actually have nothing to do with religion and reflect simply petty spite, or worse -- it is still the case that a secular government committed to church-state separation will recognize that it cannot tell a religious community -- even a bad-acting one -- who will be its clergy, ministers, or teachers.
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
