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.

Monday, March 28, 2011

Welcome to Michael Moreland!

I'm happy to announce that Prof. Michael Moreland (Villanova) is joining the MOJ-blog-crew.  Besides being an all-around good guy (notwithstanding his University of Michigan connections), Prof. Moreland knows a lot about many things.  Here's a bit from his bio:

Professor Michael Moreland joined the Villanova faculty in 2006. Professor Moreland received his B.A. in philosophy from the University of Notre Dame, his M.A. and Ph.D. in theological ethics from Boston College, and his J.D. from the University of Michigan Law School. His scholarly interests focus on torts, bioethics, and law and religion. At Villanova, he teaches Torts, Evidence, Bioethics and the Law, Advanced Torts, Justice and Rights (1L elective), and seminars in bioethics and in Catholic social thought. Following law school, Professor Moreland clerked for the Honorable Paul J. Kelly, Jr., of the United States Court of Appeals for the Tenth Circuit and was an associate at Williams & Connolly in Washington, D.C., where he represented clients in First Amendment, professional liability, and products liability matters. Before coming to Villanova, he served as Associate Director for Domestic Policy at the White House, where he worked on a range of legal policy issues, including criminal justice, immigration, civil rights, and liability reform. . . .

Welcome, Michael!

Carozza on Lautsi, and memory

The good folks at The Becket Fund have posted a discussion of the Lautsi case (about crucifixes in the classrooms of Italian schools), which features my colleague, and international-human-rights expert, Paolo Carozza.  A taste:

Professor Carozza points out that religious liberty “has some institutional and communal aspects that cannot be separated from it, without emptying religious freedom of its meaning and substituting it with the secularism of the State.”  He adds that

we cannot disregard the importance of history. Every population is attached to its history as well as to its current state. As the Judge from Malta, Giovanni Bonello, stated in his concurring opinion, … “The European Convention does not oblige us to have a collective ‘historical Alzheimer’s’”. The aspects of a culture cannot be abstractly separated from the history of a people.

Professor Carozza’s observations build on the unstated reality that Lautsi and cases like it are in the end arguments about baselines: What is the “neutral” position when it comes to relationships between religion and government? One view holds that the neutral position is the blank wall, a kind of tabula rasa. This view has something in common with the Hobbesian construct of an ahistoric “state of nature” that often presupposes a positivist conception of the law. There is also an analogy here to John Rawls’s imaginary “original position”. Both philosophies deliberately subtract history, contingency, and memory from the human situation in order to reach conclusions about the law.

The other view is that there can be no blank slate: Each nation, and even each community, has a history of interaction between religion and government against which any current government actions (in Lautsi, keeping or removing crucifixes) will be measured and will gain their meaning.  Cultural memory persists whether we want it to or not. In a real sense we cannot erase the slate and start over — we can only write over what is already there, because the “neutral” position is historically and culturally determined. Professor Joseph Weiler argued as much in his excellent presentation to the Grand Chamber in Lautsi.

Here we go! The Court grants cert. in the ministerial-exception case

Today, the Supreme Court agreed to hear (what I think is) the most important religious-freedom case in 20 years.  The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  (More here, at the Religion Clause blog.)

The case does not involve what’s become the usual stuff of the Court’s church-state caselaw:  prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks.  Nevertheless, again, this case is huge, and it is about, at its heart, what really matters.

The question in the case is whether antidiscrimination laws – like, for example, the Americans with Disabilities Act – allow courts to review hiring-and-firing decisions involving “ministerial employees.”  In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily secular subjects are not “ministerial employees”, and therefore are covered by the Act.

 The Supreme Court should reverse this decision.  Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines.  To be sure, not every employee of a religious institution is a “ministerial employee”, and religious institutions – like all employers – have many legal obligations to their employees.  The point is not that religious institutions and employees are “above the law” but rather that there are some questions – such as, who should be this religious community’s minister? -- that our Constitution’s First Amendment does not allow secular government to answer. 

A new blog: "Catholic Moral Theology"

Here's a new blog that I'm sure many MOJ readers will want to visit regularly:  "Catholic Moral Theology" is the group blog of "15 of the best young Roman Catholic moral theologians in North America offering their insights."  According to one of the participants: 

[A]ll of our interaction on the site will be done:

in friendship to engage each other in theological discussion, to aid one another in our common search for wisdom, and to help one another live lives of discipleship, all in service to the reign of God.  We understand our role as scholars and teachers to be a vocation rooted in the Church and so we seek to place the fruits of our training at the service of the Church,  as well as the academy and the world.  We recognize that we as a group will have disagreements, but want to avoid the standard “liberal /conservative” divide that often characterizes contemporary conversation, as well as the bitterly divisive tone of so much ethical discussion (particularly on the internet). We therefore endeavor to converse with each other and others in a spirit of respect, charity, and humility.

Welcome to blog-land!

Thursday, March 24, 2011

Canon Law conference

Save the Date

2011 Canon Law Conference: August 9-10

Shrine of Our Lady of Guadalupe

La Crosse, Wisconsin

 

Host

Raymond Leo Cardinal Burke

Prefect of the Supreme Tribunal of the Apostolic Signatura

Founder of the Shrine of Our Lady of Guadalupe

 

Topics

Procedural Law, the Theory of Property in Canon Law, Natural Law vs. Positive Civil Law,

Penal Law, Fundamental Rights in Canon Law, and Matrimonial Law

 

Speakers

Cardinal Raymond Leo Burke, Reverend John J. Coughlin, O.F.M.,

Dr. Charles E. Rice and Dr. Edward Peters

 

Cost

Early Registration Fee (Before July 15): $250.00

Registration Fee (After July 15): $325.00

 

Cost includes six formal presentations, question and answer sessions following each presentation,

continental breakfast and lunch both days,

and dinner on August 9 with special guests and a panel discussion.

 

Online Registration

Online registration will be available in the coming weeks at

www.guadalupeshrine.org/canonlaw.asp

 

Contact

Eugene J. Diamond

Director of Communications and Development

[email protected]

(608) 782-5440

 

Helfand on the Florida "Sharia" case

Here's law prof, Michael Helfand (Pepperdine) on an arbitration case out of the Florida that was the subject of some blogosphereic and talk-radio conversation:

For those still interested in this case from Florida, the judge issued an "opinion" today, which actually is intended just to give explain the facts and the procedural history giving rise to his original order: http://www.fljud13.org/LinkClick.aspx?fileticket=Gou70XZCgII%3d&tabid=667&mid=1031

It seems to me that there is a confusion in the opinion between two issues: (1) cases implicating the church autonomy doctrine and the constitutional protections afforded religious institutions to govern themselves and (2) religious arbitration cases where the parties have signed an arbitration agreement, thereby depriving a court of jurisdiction over a particular dispute (while still leaving a more limited role for the court in evaluating the arbitration on particular grounds).  The two issues can intersect in interesting ways (e.g. the Establishment Clause may be implicated in both) but the two issues do not work in the same way. 

Wednesday, March 23, 2011

Cardinal Burke on "The Fall of the Christian West"

A heavy topic, no doubt, and Cardinal Burke discusses it, here.  A taste:

In my presentation tonight, I want to reflect with you on the crisis of Christian culture in the West and our call to build anew a strong Catholic culture, in fidelity to our vocation to give witness to Christ and, therefore, to be martyrs for the faith. First, I will set the context of the living of our Christian vocation in the present time, as presented to us by Pope Benedict XVI who urges us to study again, in particular, the moral teaching of His saintly predecessor, the Venerable, soon to be Blessed, Pope John Paul II. I will, then, present briefly the teaching of Pope John Paul II on holiness of life as the program of the new evangelization. Drawing upon the teaching of both Pope John Paul II and Pope Benedict XVI, I will give particular attention to the witness to the truth regarding human sexuality, as fundamental to holiness of life, and to the question of conscience as the irreplaceable and secure guide in the pursuit of holiness of life. The final part of my presentation is a reflection on witness as martyrdom and the various forms which it takes. . . .

Detroit shrinks big-time

Apparently, the census does not follow Super Bowl ads:

The population of Detroit has fallen back 100 years.

The flight of middle-class African-Americans to the suburbs fueled an exodus that cut Detroit's population 25% in the past decade to 713,777, according to Census Bureau data released Tuesday. That's the city's lowest population level since the 1910 census, when automobile mass production was making Detroit Detroit.

60 years ago, Detroit was America's 6th largest city.  Of more parochial interest, perhaps, the Diocese of Detroit is older than the state of Michigan; it is home to approximately 300 parishes and missions, and 100 Catholic schools.  But, again, it seems, as an urban community, to be imploding (or "dying"), in a way that (it strikes me) is unique in the United States today.

Why is this happening?  Could it have been prevented?  Can it be stopped, slowed, or reversed?  Should we (i.e., people who are interested in what Catholic social theory and teaching has to say about the law's project of ordering human communities) care?

UPDATE:  Here is an interesting post on the "sad Detroit census numbers" by a graduate of Notre Dame's Architecture school, who is currently studying urban policy and design.

Walzer on Libya and just wars

At The New Republic, Michael Walzer makes a "case against our attack on Libya."  (At the same time, Jack Goldsmith insists that -- just or not -- the attacks are constitutional, even if then-Sen. Obama seems not to have thought so, in 2007.)  And, here is a link to Paul Ramsey's (I think) helpful book, "The Just War."

Where the abortion debate stands

At Public Discourse, reviewing the new book by my friend Chris Kaczor (Philosophy, Loyola-LA), Raymond Hain brings us up to speed on the current state of the national abortion debate.  A bit:

. . . Kaczor defends an endowment account of human personhood over against the performance accounts defended by Singer, Tooley, and others. A performance account of human personhood “holds that a being is to be accorded respect if and only if the being functions in a given way,” whereas an endowment account “holds that each human being has inherent moral worth simply by virtue of the kind of being it is.” And by “endowment” Kaczor means “an intrinsic, dynamic orientation towards self-expressive activity [like] . . . rationality, autonomy, and respect.” Are you a person because you are something that actually engages in rational and free conscious activity, or are you a person because you are the kind of thing that engages in rational and free conscious activity?

It is only, argues Kaczor, if we look to the kind of thing that you are rather than your actual activity that we will be able to escape many serious moral difficulties. . . .