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.

Friday, November 12, 2010

"Abortion Law is Family Law"

So argues Helen Alvare, in this piece, published at Public Discourse.  (The piece is adapted from her remarks at the recent "Open Hearts" conference at Princeton.)  Here's a bit:

Questions about “abortion and the law” are usually seen as matters of constitutional law. Constitutional law, however, seems ill-suited. This is not only because the U.S. Supreme Court discovered a “constitutional right” for something that had been banned by most states for most of the nation’s history. It is also because the “privacy” right encompassing abortion frames the issue as a struggle between the state and the woman over her right to define her life, her future, or even her “concept …of the universe,” in the famous words of the Casey Court. But it is becoming increasingly apparent that abortion is about family relationships, not simply a contest between the state and a woman who happens to be pregnant. Scientific discoveries about human development and the testimonies of women who have had or have considered an abortion suggest that it is family law rather than constitutional law that provides the best means of understanding the issue of abortion.

Tuesday, November 2, 2010

Lithwick on the Red Mass and the State of the Union

"Will more Supreme Court Justices attend this year's Red Mass [or, as she puts it, 'Red Mass'] than next year's State of the Union?", Dahlia Lithwick asks in this Slate piece.  After recalling how the President's (inaccurate) description of the Citizens United case prompted Justice Alito last year to shake his head and say "not true" during last year's SOTU, she says, among other things, that:

At the Red Mass this year, the justices heard a homily that flicked at the evils of abortion, gay marriage, and "humanism." There is no record of any justice in attendance furiously mouthing the words "That's not true" as these admonitions were delivered. For what it's worth, I would be just as uncomfortable if these justices all trooped en masse to Kol Nidre services to hear a stem-winder about the magic of creationism. (Which may explain why Justice Ruth Bader Ginsburg stopped attending the Red Mass altogether after hearing her very first homily, which she has described as "outrageously anti-abortion.")

Of course, there was nothing "furious" about Justice Alito's reaction at the SOTU last year, but put that aside.  Put aside also questions one might have about what, exactly, the point is supposed to be of her observation that Justices didn't react to a homily that proposed for the lawyers assembled certain claims about the implications for policy of a commitment to human dignity and equality in the same way that Justice Alito reacted to a partisan mischaracterization of what the Court had, in fact, done.

The Red Mass [or, "Red Mass"] story serves, it turns out, simply as an introduction to a piece about the possibility that the Justices stand poised this year (or soon) to "dramatically" transform Establishment Clause evidence, and about -- more particularly -- a case involving the federal RLUIPA.  She concludes with this:

They will dispose of [the RLUIPA case] without ever reaching the troubling question of how a cross can be one man's universal and secular symbol of remembrance and the core element of another man's religious practice. It is this same tension that leads one to question how sitting through the Red Mass has become less awkward for some justices than attending the State of the Union. These aren't questions we get to ask of the justices. But maybe they are questions they can ask of themselves.

I don't get it.  What's the connection?  What am I missing?  What does the question presented in the RLUIPA case have in common -- at all -- with the Red Mass v. SOTU question?

  The Red Mass It seems to me that Lithwick is attempting to equate two very different things.  Justice Alito said "not true" because what the President said was, in fact, "not true."  It is a different thing, it seems to me, for a Catholic bishop to propose, to lawyers gathered to reflect on their shared vocation, that, say, abortion is  

Monday, November 1, 2010

Welcome to Marc DeGirolami

I am delighted to welcome Marc DeGirolami (St. John's) to the Mirror of Justice crew.  Marc is, as many MOJ readers and bloggers know, an engaging and gifted scholar of law-and-religion and crime-and-punishment matters.  He has been a contributing blogger at Prawfsblawg, and I recommend his posts highly.  For a taste of his work, check out this, "Recoiling from Religion", and this, "Faith in the Rule of Law."

Welcome, Marc! 

Tuesday, October 26, 2010

Catholic Social Thought and the Election

Here are two views:  This, by my colleague, Don Kommers, at Huffington Post, and this, by R.R. Reno, at First Things. 

According to Kommers, "Catholics who take the social teachings of their church seriously will reject any candidate who would wish to dismantle social security, oppose universal health care, get rid of the income tax, weaken trade unions, disparage the need for environmental protection, or disdain the creative role of government in the face of acute poverty and rampant unemployment."  Later, he contends that "state intervention in the economy is as essential today as yesterday when, for example, federal laws were necessary to abolish child labor, to eliminate industrial sweatshops, to prohibit unsafe places of work, to outlaw union busting, to force employers to pay a living wage, to ensure the safety of food and drug products, to prevent companies from discriminating on the basis of race or sex, and to clean our air and water. To cut back on any of these features of the regulatory state or to oppose the great social achievements of the New Deal and Great Society, as some politicians are advocating today, flies in the face of all that Catholic social thinking calls for."

Well, maybe.  Prof. Kommers is an excellent scholar, and a friend, but . . . it is not the case -- at all -- that one who takes Catholic Social Thought seriously (as Don does, and as I do) is thereby estopped from thinking that, for example, today's public-employee unions undermine, rather than contribute to, the common good; that the health-insurance policies recently enacted into law will do more harm, at great cost, than good; that some measures that purport to be environmental-protection or social-welfare measures are actually, well, not; that government programs like Social Security and Medicare are in need of dramatic reform, etc.  It is a mistake -- a common one, but a mistake nonetheless -- to (a) identify certain principles that matter in the Catholic Social Tradition; (b) describe those principles in a way that ties them too closely to particular attempts to translate those principles into policy; and then (c) say that those who think the attempts fail thereby demonstrate their lack of devotion to the principles. 

It is just as easy (and at least as accurate) to say that "Catholics who take the social teachings of their church seriously will reject any candidate who" opposes school choice, wishes to impose intrusive regulations on the hiring of religious institutions, social-service agencies, and schools, supports public funding for abortion and the selection of judges who will invalidate reasonable regulations on abortion, and enmesh the government in embryo-destructive research as it is to say what Prof. Kommers said.  I'm inclined to think we should not be over-confident about saying either.  Such Catholics will probably want to vote for someone, and they should not be *too* comfortable with their choice.  I think it's important, though, to not suggest or imagine that those who vote differently than we would like thereby demonstrate their lack of "seriousness" about the tradition.

Tuesday, October 12, 2010

Against the wall, Sen. Murray clings to abortion rights

Both sides do this, obviously.  While those of us who work and aspire to think and vote in accord with the ideals of Faithful Citizenship might wish that the lines dividing our two major parties were in a different place, and while we might be inclined to cheer those (few) who depart from the party-line in a way suggested by Catholic teaching (e.g., a pro-life Democrat or an anti-death-penalty Republican), at the end of the day (sigh), politicians in tough spots tend to return to the well.  See, e.g., this report about the Senate race in Washington:   

You knew it was coming.

Democratic U.S. Sen. Patty Murray has launched a new TV ad hitting Republican Dino Rossi for his conservative positions on abortion rights and related women's health issues.

The ad, called "Trust," dusts off some old votes Rossi took as a state legislator, such as his vote against requiring insurance companies to cover female contraceptives.

In an accompanying news release, Democrats also cited anti-abortion comments Rossi made early in his political career, when he talked more about he subject.

During his two runs for governor in 2004 and 2008, Democrats frequently accused Rossi of hiding the extent of his conservatism on such social issues.

They're resurrecting that argument now with ballots due to be mailed out shortly for the Nov. 2 election. . . .

Monday, October 11, 2010

Another great conference at Villanova

Our friends at Villanova are hosting (yet) another great conference, on Oct. 22, 2010.  The Annual Joseph T. McCullen Symposium on Catholic Social Thought and the Law will explore issues and questions raised in and by Jean Porter's new book, "Ministers of the Law:  A Natural Law Theory of Legal Authority."  In addition to our own Patrick Brennan, Nick Wolterstorff, Bradley Lewis, Michael Moreland, and many others will be presenting.  More information is available here.

Monday, October 4, 2010

"Never Let Me Go"

I loved the novel, "Never Let Me Go", by Kazuo Ishiguro.  (More here and here.)  And I am, I admit, completely (to use a technical term) stoked to learn that the book has been made into a movie.  (Of course, if the movie is lousy, I will be crushed.)   This review, from the Headline Bistro blog ("News Catholics Need to Know"), suggests that the movie does credit to the book.  (HT:  First Things).    I'd welcome reports from any one who sees the film.

Thursday, September 23, 2010

"A Commercial for Religious Freedom"?

Anne Applebaum writes, at Slate, that the "fuss over Pope Benedict's visit to Britain was a blessing for Catholicism."  I might characterize the orgy of ignorance, bile, and hate in which many revelled as a bit more than a "fuss", but I see her point.  She observes:

All in all, [the Pope's visit] was a huge success. But had he been treated politely from the start, I suspect the pope would have come and gone and left no trace. The vast majority of Britons are not Catholic, and they would have tuned out deferential accounts of his sermons. The press would have relegated the whole thing to the religion section. Perhaps the faithful would still have come to Mass, though maybe not so many. In the end, around 500,000 people probably saw him during his visit, which is quite a lot in a country composed largely of pagans and Protestants.

And thus did Benedict's visit to Britain turn into an advertisement for religious freedom—both the freedom to abhor religion and the freedom to practice it. Much to everyone's surprise, including the Vatican's, raucous discussion of Catholicism turned out to be good for Catholicism—and interesting for atheists, too. The true aging theocrats—in Saudi Arabia, in Iran—should take note.

Sunday, September 19, 2010

Chaput, "Catholics in the Next America"

Archbishop Chaput has a worth-reading essay over at First Things, which provides a useful complement to the sometimes-too-quickly-accepted "Catholics finally made it in America after the election of Kennedy and Vatican II" narrative:

. . . In the years since Kennedy’s election, Vatican II and the cultural upheavals of the 1960s, two generations of citizens have grown to maturity. The world is a different place. America is a different place—and in some ways, a far more troubling one. We can’t change history, though we need to remember and understand it. But we can only blame outside factors for our present realities up to a point. As Catholics, like so many other American Christians, we have too often made our country what it is through our appetite for success, our self-delusion, our eagerness to fit in, our vanity, our compromises, our self-absorption and our tepid faith. . . .

Read the whole thing.

Catholic Colleges 20 years after Ex Corde

David House has this essay, "Catholic Colleges 20 Years After 'Ex Corde'", in the Chronicle of Higher Education.  He writes:

Twenty years ago, Pope John Paul II issued Ex corde Ecclesiae (From the Heart of the Church), an Apostolic Constitution that defined Roman Catholic colleges and created guidelines to assist them in fulfilling their missions.

Catholic higher education has never been quite the same since. . . .

Clearly, in 20 years of such disputes, Catholic colleges have changed. But how? . . .

First, Ex corde significantly increased awareness of Catholic higher education as a unique segment of postsecondary education in the United States. . . .

Second, a new generation of leaders is emerging in American Catholic higher education. . . .

Third, the landscape of Catholic higher education has changed appreciably in the past 20 years, with the renewal of a vibrant Catholic identity at several colleges, as well as the creation of new Catholic institutions rigorously faithful to church teachings. . . .

We are blessed with a highly diverse system of higher education in the United States. But we lose some of that diversity when Catholic institutions become Catholic in name only. . . .

I think that House is too hard on Notre Dame in the piece (as is, unfortunately, the Cardinal Newman Society, with which House is affiliated), and that he is too quick to buy into the "bad sell-out Notre Dame v. good, orthodox Christendom" dichotomy.  That said, I think the essay is worth a read.  Ex Corde deserves, in my view, more serious attention by Catholic universities and their faculty and administrators than it has received.